• Assists in the organization, implementation, and evaluation of rules and procedures; assists with the development of one or more program budgets;; monitors and controls expenditures for assigned areas. • Assists with planning, coordination and works at, special events. • Researches new program ideas; maintains a variety of records; creates reports, including staff reports. • Attends meetings related to the Parks, Recreation and Beautification Commission as needed,; may give presentations at various meetings.
• Provides oversight of and facilitates facility rentals, including coordination with Public Works and other departments, as well as renters for room set up and access. • Responds to public inquiries about assigned projects and programs made by telephone, correspondence or during public meetings; investigates complaints and recommends corrective action. • Establishes positive working relationships with representatives of community organizations, state/local agencies, City management and staff, and the public. • Provides customer service and covers the front desk at the Grover Beach Community Center, as needed.
PHYSICAL, MENTAL AND ENVIRONMENTAL WORKING CONDITIONS:
Position requires prolonged sitting, standing, walking, reaching, twisting, turning, kneeling, bending, squatting, and stooping in the performance of daily activities. The position also requires grasping, repetitive hand movement, and fine coordination in keeping records and preparing reports using a computer keyboard and/or calculator. Additionally, the position requires near and far vision in reading written reports and work-related documents. Hearing sufficient to provide telephone and personal service is required. The nature of the work may require the incumbent to work outdoors and lift equipment and materials weighing up to 25 pounds.
QUALIFICATIONS: (The following are minimal qualifications necessary for entry into the classification.)
Education and/or Experience:
Any combination of education and experience that has provided the knowledge, skills, and abilities necessary for a Community Services Coordinator. Typically, a Community Services Coordinator would possess the equivalent of two years of experience implementing recreation programs or events, and an associate’s degree or equivalent. A bachelor’s degree in a related field is desirable.
License/Certificate:
Possession of, or ability to obtain, a valid Class C California driver’s license prior to appointment.
RECREATION COORDINATOR
KNOWLEDGE/ABILITIES/SKILLS: (The following are a representative sample of the KAS’s necessary to perform essential duties of the position.) Knowledge of:
Principles, philosophies, and practices of recreation administration; marketing and promotional materials; recreation philosophy, planning, and administration; budget monitoring and implementation;; methods and techniques of supervising volunteer, seasonal, part-time, and/or contractual staff; basic principles of mathematics; applicable federal, state and local laws, codes, and regulations related to assigned recreation projects and programs; rules, regulations, and policies affecting and related to recreation projects and programs; methods and techniques of scheduling work assignments; standard office procedures, practices, and equipment; modern office equipment, including a computer and applicable software; methods and techniques for record keeping and report preparation and writing; proper English, spelling, and grammar; occupational hazards and standard safety practices.
Ability to:
Plan, organize, and coordinate activities to suit the needs of the community; develop, coordinate, and direct varied activities involved in a community recreation program; create marketing and promotional materials; monitor assigned program budgets; work flexible hours; analyze recreational program issues; learn more complex principles, practices, techniques, and regulations pertaining to assigned duties; implement, explain, and apply applicable laws, codes, and regulations related to recreational program assignments; plan and lead the work of temporary paid staff and volunteers; read, interpret, and record data accurately; organize, prioritize, and follow-up on work assignments; work independently and as part of a team; make sound decisions within established guidelines; analyze a complex issue, and develop and implement an appropriate response; follow written, and oral directions; observe safety principles and work in a safe manner; enforce safety rules relating to assigned recreational events; communicate clearly and concisely, both orally and in writing; establish and maintain effective working relationships.
Skill to:
Operate standard recreation tools and equipment; operate an office computer and a variety of word processing and software applications.
Approved & Adopted:
Signature:
Human Resources Officer
Date:
Signature:
City Manager
Date:
Agenda Item No. 12
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: January 22, 2024 FROM: Matthew Bronson, City Manager
PREPARED BY: Steve Kahn, Interim Public Works Director/City Engineer Megan Martin, Community Development Director
Gabriel Munoz-Morris, Senior Engineer
SUBJECT: Development Application 22-24 - Approval of Final Subdivision Map, Covenant, Conditions, and Restrictions (CC&Rs), and Subdivision Improvement Agreement
RECOMMENDATION
Approve the Final Condominium Subdivision Map for Development Application 22-24 (402 West Grand Avenue), CC&Rs, Subdivision Improvement Agreement and authorize the City Clerk to sign and record the map and direct the City Manager to enter into a Subdivision Improvement Agreement with the applicant (GB Towers, LLC).
BACKGROUND
In February 2023, the Planning Commission approved a Tentative Condominium Subdivision Map for Development Application 22-24, a 37-unit mixed use condominium development located at the southeast corner of the intersection of 4th Street and West Grand Avenue. The approval included requirements to complete frontage improvements along South 4th Street and West Grand Avenue. Public improvement plans, including construction of frontage improvements, sewer service, and water services were reviewed and approved by staff. Following that, staff approved a grading permit and associated encroachment permits for the construction of offsite improvements. Recordation of the Final Map and bonds backed by the developer are required to construct the mixed-use building proposed in the subdivision.
Consistent with Development Code Section 8.30.010.Q, the Council must approve a Final Map if it is in substantial compliance with the approved Vesting Tentative Condominium Subdivision Map and the California Subdivision Map Act. The applicant has submitted a Final Subdivision Map for Tract Map 3202 for Council action and final acceptance. Staff has reviewed the submittal and found it to be complete subject to completion and acceptance of certain public improvements defined with the Subdivision Improvement Agreement. Additionally, as part of the review process, staff has reviewed the CC&Rs and deed notifications restricting use of fractional density units for short term rental purposes, consistent with project approvals. The Final Map includes reciprocal access easements for public utilities, parking, and private access. There are no public dedications on the proposed map. The proposed new onsite drive lane within the development is private and will be maintained by the Homeowner’s Association. Staff recommends approval of the Final Map based on its review.
Because the subdivision Conditions of Approval require public improvements that have not been completed, including the construction of infrastructure that will serve the development, the applicant is required by both the Development Code and the California Subdivision Map Act to Staff Report: Approval of Final Subdivision Map, CC&Rs & Subdivision Improvement Agreement Page 2 January 22, 2024
enter into a Subdivision Improvement Agreement. Consistent with California Government Code § 66462(a), the subdivider is required to complete the improvements at its expense. The applicant has provided a performance bond agreement that covers the cost of constructing the improvements in the event that the applicant does not complete the subdivision improvements.
The estimated cost to complete the public improvements is approximately $295,700 based on an engineer’s cost estimate at prevailing wage.
FISCAL IMPACT
There is no fiscal impact associated with this action.
ALTERNATIVES
The Council has the following alternatives to consider:
1. Approve the Final Condominium Subdivision Map for Development Application 22-24 (402 West Grand Avenue), CC&Rs, Subdivision Improvement Agreement and authorize the City Clerk to sign and record the map and direct the City Manager to enter into a Subdivision Improvement Agreement with the applicant (GB Towers, LLC); or
2. Provide alternative direction to staff.
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Attachments
1. Resolution
a. Final Map
b. Condominium Plan
2. Subdivision Improvement Agreement
3. Covenant, Conditions, and Restrictions
Attachment 1
RESOLUTION NO. 24-__
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GROVER BEACH, CALIFORNIA APPROVING FINAL TRACT MAP NO. 3202 AND CONDOMINIUM
PLAN AND AUTHORIZING THE CITY CLERK TO RECORD FINAL TRACT MAP NO. 3202 – 402 WEST GRAND AVENUE / PALLADIUM SUBDIVSION (APPLICANT: GROVER BEACH TOWERS, LLC)
WHEREAS, an application has been received from Coastal Community Builders (“Applicant”) for recordation of a Final Map No. 3202 and Condominium Plan, for a 37-unit mixeduse condominium development located at 402 West Grand Avenue (APN 060-215-001, -002, - 003, -006, -007) in the Coastal Visitor-Serving Zone; and WHEREAS, the laws and regulations relating to the preparation and public notice of environmental documents, as set forth in the State and local guidelines for implementation of the California Environmental Quality Act (CEQA) have been adhered to as the Planning Commission adopted a Class 32 Exemption on February 7, 2023 and approval of a final map is a ministerial approval which does not require additional CEQA analysis; and, WHEREAS, The Planning Commission of the City of Grover Beach, at a duly noticed Public Hearing held on February 7, 2023, approved Development Application 22-24, a development permit, use permit, and vesting tentative subdivision map; and, NOW THEREFORE, BE IT HEREBY RESOLVED by The City Council of the City of Grover Beach HEREBY makes the following findings and determinations with respect to Final Tract Map 3202.
Section 1. Findings of Final Map Approval. The City Council finds as follows in accordance with the Grover Beach Municipal Code Article IX (Development Code) Chapter 8 and the California Subdivision Map Act:
1. The Final Map is consistent with §66443 of the California Government Code and Section
8.50 of the Grover Beach Development Code.
Fact. The city surveyor and the city engineer have reviewed the final map and all associated documentation and determined that the Final Map meets both State of California requirements and Development Code requirements.
2. The Final Map meets all required conditions of approval to record a final map.
Fact. With the execution of the Subdivision Improvement Agreement, the Final Map meets all required conditions of approval to record a final map. The Final Map contains all required easements and deed notifications shall be recorded concurrently with the map.
3. Since the public improvements have not been completed prior to the acceptance of the Final Map, an improvement agreement between the subdivider and City will be entered into concurrent with recordation of Final Map consistent with §66462 of the California Government Code and Section 8.90.100 through 8.90.170 of the Grover Beach Development Code.
Resolution No. 24-__ Page 2
Fact. The Applicant has signed a Subdivision Improvement Agreement that has been reviewed by city staff. With approval of the final map, the City Council will authorize the City Manager to enter into this agreement for consistency with the California Subdivision Map Act and Development Code.
Section 2. Final Map Approval. The City Council of the City of Grover Beach, on January 8, 2023, resolves to approve Final Map 3202 and Condominium Plan as shown in Exhibit A, direct the City Clerk to sign the map for recordation along with all accompanying documents, and authorize the City Manager to enter into a Subdivision Improvement Agreement with the Applicant.
On motion by Council Member __________, seconded by Council Member ________, and on the following roll-call vote, to wit:
AYES: Council Members –
NOES: Council Members –
ABSENT: Council Members –
ABSTAIN: Council Members –
RECUSED: Council Members –
the foregoing Resolution was PASSED, APPROVED, and ADOPTED at a regular meeting of the City Council of the City of Grover Beach, California this 22nd day of January 2024.
KAREN BRIGHT, MAYOR
Attest:
WENDI B. SIMS, CITY CLERK
**DRAFT**
1 RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO:
PHAM LAW GROUP, INC.
709 E. COLORADO BLVD., SUITE 200
PASADENA, CA 91101
ATTN: BP
CONDOMINIUM PLAN
FOR
PALLADIUM
(LOT 1 OF TRACT NO. 3202)
2 A CONDOMINIUM PLAN FOR PALLADIUM
LOT 1 OF TRACT NO. 3202, RECORDED IN BOOK ____, PAGES ___ THROUGH ___,
INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER,
COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
IN THE CITY OF GROVER BEACH,
COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
CERTIFICATE
[CALIFORNIA CIVIL CODE SECTION 4285, et seq.]
OWNER’S STATEMENT
WE, THE UNDERSIGNED, HEREBY CERTIFY THAT WE ARE THE OWNERS OF THE
REAL PROPERTY INCLUDED WITHIN THIS CONDOMINIUM PROJECT, AND THE RECORD HOLDERS OF SECURITY INTERESTS THEREIN; THAT WE ARE THE ONLY
PERSONS WHOSE CONSENT IS NECESSARY TO PASS CLEAR TITLE TO SAID REAL
PROPERTY, AND WE DO HEREBY CONSENT TO THE PREPARATION AND
RECORDATION OF THIS CONDOMINIUM PLAN PURSUANT TO THE PROVISIONS OF SECTION 4285, et seq. OF THE CALIFORNIA CIVIL CODE.
GB TOWERS, LLC,
a California limited liability company
By:
Name:
Title:
3 “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.”
NOTARY ACKNOWLEDGMENT
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On ____________________, before me, _____________________________________________, a Notary Public, personally appeared ________________________________________________, 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.
Notary Public
SURVEYOR’S STATEMENT
I, GREGORY RICE, HEREBY STATE THAT I AM A LICENSED LAND SURVEYOR IN THE STATE OF CALIFORNIA, AND THIS CONDOMINIUM PLAN CONSISTING OF 27 SHEETS
CORRECTLY SHOWS THE BOUNDARIES OF THE LAND, THE RELATION THERETO OF THE PROPOSED UNITS SHOWN HEREON. THE LOCATIONS OF THE UNITS SHOWN
HEREON ARE NOT THE RESULT OF ANY FIELD SURVEY, BUT RATHER THE PLANNED LOCATIONS. THE AIR SPACE OWNERSHIP SHOWN HEREON IS BASED
UPON THE ARCHITECT'S PLANS PREPARED BY RRM DESIGN GROUP AND ACCEPTED BY THE CITY OF GROVER BEACH ON FEBRUARY 8, 2023. NO
STRUCTURAL ANALYSIS OR DESIGN FEATURES WERE CONSIDERED WHEN THE
ARCHITECT'S PLANS WERE REVIEWED FOR LOCATIONS OF UNITS OR DIMENSIONS OF AIR SPACE.
GREGORY RICE, L.S. 8201 DATE
NOTES
1. THE BASIS OF BEARING FOR THIS PROJECT, INCLUDING ALL COORDINATES,
DISTANCES, AND BEARINGS ARE REFERENCED TO THE CALIFORNIA COORDINATE SYSTEM, ZONE 5 GRID, NAD83, EPOCH 2010.00 DEFINED
LOCALLY BY NATIONAL GEODETIC SURVEY (NGS) CONTINUOUSLY
OPERATING REFERENCE STATIONS (CORS).
STATION NORTHING EASTING ELL. HEIGHT ACCURACY(CM)
P516 2,233,411.77 5,848,874.17 864.84' 0.18 H 0.56 ELL.
P513 2,163,030.37 5,767,197.35 935.70' 0.18 H 0.56 ELL.
P280 2,392,489.77 5,863,296.56 1565.10' 0.18 H 0.60 ELL.
ELEVATIONS ARE REFERENCED TO THE NORTH AMERICAN VERTICAL DATUM OF 1988 (NAVD88) AND WERE DETERMINED USING GEOID
MODELING.
2. THE SITE COMBINATION FACTOR IS 0.99994680, AND THE SITE MAPPING ANGLE IS -1°29'49", BOTH CALCULATED USING AN OPUS SOLUTIONS.
3. TO OBTAIN GROUND LEVEL DISTANCES, DIVIDE GRID DISTANCES BY THE SITE COMBINATION FACTOR. TO OBTAIN GEODETIC NORTH AZIMUTHS, ADD THE MAPPING ANGLE CLOCKWISE TO GRID AZIMUTH.
4. THE BENCHMARK FOR THIS PROJECT IS A FOUND BRASS DISC MONUMENT IN A WELL STAMPED "RCE 26985" LOCATED AT THE INTERSECTION OF GRAND AVE & 4TH STREET WITH AN ELEVATION OF 35.70', NAVD88.
5. THE BLOCK WAS ESTABLISHED BY OFFSETTING THE ESTABLISHED
CENTERLINE, FROM THE INTERSECTING FOUND MONUMENTS AT THE INTERSECTION OF GRAND AVE & 4TH STREET, GRAND AVE & 5TH STREET, 4 4TH STREET & ROCKAWAY AVE - 4 STRADDLERS WERE USED FOUND AT THE INTERSECTION OF 5TH STREET & ROCKAWAY AVE.
6. THIS CONDOMINIUM PLAN AND THE DIMENSIONS SHOWN HEREON ARE INTENDED TO CONFORM TO THE CALIFORNIA CIVIL CODE SECTION 1351(e).
THIS CONDOMINIUM PLAN CONTAINS DIAGRAMMATIC FLOOR PLANS OF
THE BUILDING OF THE PROJECTED IN SUFFICIENT DETAIL TO IDENTIFY EACH UNIT, ITS RELATIVE LOCATION AND APPROXIMATE DIMENSIONS.
THE DIMENSIONS SHOWN HEREON ARE NOT INTENDED TO BE
SUFFICIENTLY ACCURATE TO USE FOR COMPUTATIONS OF FLOOR AREA OR AIRSPACE VOLUME IN ANY OR ALL OF THE UNITS.
7. THIS CONDOMINIUM PLAN INTENTIONALLY OMITS DETAILED
INFORMATION WITHIN THE INDIVIDUAL UNITS OF THE FOLLOWING:
SLOPED, FURRED AND DROPPED CEILINGS; VARYING CEILING AND FLOOR ELEVATIONS; SKYLIGHTS; INTERNAL PARTITIONING; SOFFETS;
PROTRUSIONS OF VENTS, BEAMS, COLUMNS, BAY WINDOWS AND WINDOW CASINGS; AND OTHER SUCH FEATURES.
8. IN THE EVENT THAT ANY PORTION OF THE COMMON AREA AND
IMPROVEMENTS THEREIN ENCROACHES UPON ANY UNIT OR IN THE EVENT
ANY UNIT ENCROACHES UPON ANY PORTION OF THE COMMON AREA OF
ANOTHER UNIT AS SHOWN ON THIS CONDOMINIUM PLAN, WHETHER AS A
RESULT OF CONSTRUCTION, RECONSTRUCTION, REPAIR, SHIFTING,
SETTLEMENT OR MOVEMENT OF ANY PORTION OF THIS PROJECT, A VALID
EASEMENT FOR SUCH ENCROACHMENT AND FOR THE MAINTENANCE OF SAME SHALL EXIST SO LONG AS SAID ENCROACHMENT EXISTS.
9. NOTWITHSTANDING THE BOUNDARY CONTROL SHOWN IN THIS
CONDOMINIUM PLAN. IF A UNIT OR UNITS (WHETHER PRESENTLY
EXISTING OR TO BE CONSTRUCTED IN THE FUTURE) ARE RECONSTRUCTED
AFTER AN EVENT OF DESTRUCTION, THE PHYSICAL BOUNDARIES OF SUCH
UNIT OR UNITS SHALL BE CONCLUSIVELY PRESUMED TO BE THE
BOUNDARIES OF SUCH UNITS, REGARDLESS OF SETTLING OR LATERAL
MOVEMENTS OF THE BUILDING CONTAINING THE UNITS AND REGARDLESS
OF MINOR VARIANCES BETWEEN BOUNDARIES SHOWN ON THIS
CONDOMINIUM PLAN AND THOSE OF SUCH BUILDING.
10. TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN
THE DECLARATION (AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME). IN THE EVENT OF A CONFLICT BETWEEN THIS CONDOMINIUM PLAN AND THE DECLARATION, THE DECLARATION SHALL CONTROL.
5 6
CONDOMINIUM PLAN
FOR
PALLADIUM
NOTES AND DEFINITIONS
1. “PROPERTY” SHALL MEAN AND REFER TO LOT 1 OF TRACT NO. 3202, AS SHOWN ON THAT CERTAIN SUBDIVISION MAP FILED ON ______________________, 202___, IN BOOK ______ AT PAGES ____ THROUGH ____, INCLUSIVE, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN LUIS OBISPO COUNTY. THE PROPERTY CONSISTS OF 37 RESIDENTIAL UNITS, 2 COMMERCIAL UNITS AND COMMON AREA.
2. “COMMON AREA” SHALL MEAN ALL THE REAL PROPERTY AND
IMPROVEMENTS WITHIN THE PROPERTY, EXCLUDING THE UNITS. EACH UNIT
INCLUDES A FRACTIONAL UNDIVIDED INTEREST AS TENANT-IN-COMMON IN THE COMMON AREA.
3. “CONDOMINIUM” SHALL MEAN AN ESTATE IN REAL PROPERTY AS DEFINED IN CALIFORNIA CIVIL CODE SECTION 4125(b), AND SHALL CONSIST OF A
FRACTIONAL UNDIVIDED OWNERSHIP INTEREST IN THE COMMON AREA WITHIN
THE PROPERTY, TOGETHER WITH A SEPARATE OWNERSHIP INTEREST IN FEE IN A
UNIT (COMMERCIAL OF RESIDENTIAL UNIT) AND ALL EASEMENTS APPURTENANT THERETO. THE FRACTIONAL UNDIVIDED OWNERSHIP INTEREST APPURTENANT TO EACH UNIT IN THE PROPERTY SHALL BE A FRACTION HAVING ONE (1) AS ITS
NUMERATOR AND THE TOTAL NUMBER OF UNITS IN THE PROPERTY AS ITS
DENOMINATOR AND SHALL BE HELD BY THE OWNERS OF UNITS IN THIS PROPERTY AS TENANTS IN COMMON.
4. “CONDOMINIUM BUILDING” SHALL MEAN AND REFER TO THE BUILDING IN WHICH THE UNITS ARE LOCATED.
5. “CONDOMINIUM PLAN” SHALL MEAN AND REFER TO THIS PLAN PREPARED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4285 OF THE CALIFORNIA CIVIL CODE.
6. “DECLARATION” SHALL MEAN AND REFER TO THAT CERTAIN
“DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR PALLADIUM” RECORDED CONCURRENTLY
HEREWITH, IN THE OFFICE OF THE SAN LUIS OBISPO COUNTY RECORDER, AS IT MAY BE AMENDED AND/OR RESTATED FROM TIME TO TIME. IN THE EVENT OF
ANY CONFLICT BETWEEN THE DECLARATION AND THIS CONDOMINIUM PLAN, THE DECLARATION SHALL CONTROL. ALL DEFINED TERMS USED IN THIS
CONDOMINIUM PLAN, AND NOT OTHERWISE DEFINED HEREIN, SHALL HAVE THE MEANING PRESCRIBED FOR THAT TERM IN THE DECLARATION.
7. “UNIT” OR “SEPARATE INTEREST” SHALL MEAN A SEPARATE INTEREST IN SPACE AS DEFINED IN SECTION 4125(b) OF THE CALIFORNIA CIVIL CODE. EACH
UNIT (A COMMERCIAL UNIT OR A RESIDENTIAL UNIT) OR SEPARATE INTEREST
SHALL BE A SEPARATE FREE-HOLD ESTATE, AS SEPARATELY SHOWN, NUMBERED AND DESIGNATED HEREIN.
8. “COMMERCIAL UNIT” SHALL MEAN EACH OF THE TWO (2) UNITS WITHIN
THE PROPERTY DESIGNATED FOR COMMERCIAL USES, WHICH UNITS ARE SHOWN AND DESCRIBED HEREIN AS UNIT C1 AND UNIT C2, AND BOUNDED BY AND CONTAINED WITHIN THE BOUNDARIES SHOWN HEREIN. EACH OF THE
COMMERCIAL UNIT SHALL CONSIST OF A COMMERCIAL ELEMENT AND A PATIO ELEMENT. IN INTERPRETING DEEDS, DECLARATIONS AND PLANS, THE EXISTING
PHYSICAL BOUNDARIES OF A COMMERCIAL UNIT, OR OF A COMMERCIAL UNIT
CONSTRUCTED OR RECONSTRUCTED IN SUBSTANTIAL ACCORDANCE WITH THE
PLAN AS SHOWN HEREIN AND THE ORIGINAL PLANS THEREOF, IF SUCH PLANS
ARE AVAILABLE, SHALL BE CONCLUSIVELY PRESUMED TO BE ITS BOUNDARIES,
RATHER THAN THE DESCRIPTION EXPRESSED HEREIN, IN THE DEED OR
DECLARATION, REGARDLESS OF SETTLING OR LATERAL MOVEMENT OF THE
CONDOMINIUM BUILDING AND REGARDLESS OF MINOR VARIANCES BETWEEN
BOUNDARIES AS SHOWN HEREIN OR DEFINED IN THE DEED OR DECLARATION, AND THE BOUNDARIES OF A BUILDING AS CONSTRUCTED OR RECONSTRUCTED.
WHENEVER REFERENCE IS MADE TO A COMMERCIAL UNIT, SUCH REFERENCE IS
MADE TO THE COMMERCIAL UNIT AS A WHOLE, INCLUDING ITS COMMERCIAL ELEMENT AND PATIO ELEMENT.
COMMERCIAL ELEMENT. EACH COMMERCIAL ELEMENT IS
IDENTIFIED HEREIN BY “UNIT” AND ITS RESPECTIVE UNIT NUMBER (EITHER C1 OR C2), AND IS AN AIRSPACE BOUNDED BY AND CONTAINED WITHIN THE INTERIOR
UNFINISHED SURFACES OF THE PERIMETER WALLS, FLOORS, CEILINGS, WINDOWS AND DOORS THEREOF. THE LOWER AND UPPER LIMITS OF EACH RESIDENTIAL
ELEMENT ARE HORIZONTAL OR SLOPED PLANES, THE ELEVATIONS OF WHICH ARE INDICATED IN THE ELEVATIONS SET FORTH HEREIN. THE LATERAL
BOUNDARIES OF EACH COMMERCIAL ELEMENT ARE VERTICAL PLANES AT THE
LIMITS OF THE HORIZONTAL DIMENSIONS SHOWN HEREIN FOR EACH COMMERCIAL ELEMENT. EACH UNIT INCLUDES BOTH THE PORTION OF THE
BUILDING SO DESCRIBED AND THE AIRSPACE SO ENCOMPASSED, ALL WINDOWS
AND DOORS IN SAID UNIT (INCLUDING ALL LOCKS, HANDLES, LATCHES, AND
WEATHER-STRIPPING), THE FORCED AIR HEATING UNIT, THE AIR CONDITIONING
COMPRESSOR, IF ANY, THE HOT WATER HEATER OF SAID UNIT, AND ALL FIXTURES.
HOWEVER, THE FOLLOWING ARE NOT A PART OF THE COMMERCIAL UNIT: BEARING WALLS, COLUMNS, BEAMS, FLOORS, ROOFS, SLABS,
FOUNDATIONS, TANKS, PUMPS, COMMON SEWER LINES, DRAINS, AND OTHER
CENTRAL SERVICES, PIPES, DUCTS, FLUES, CHUTES, CONDUITS, WIRES, EXTERIOR
LIGHTING AND OTHER UTILITY INSTALLATIONS WHEREVER LOCATED (EXCEPT 7 ALL UTILITY INSTALLATIONS EXCLUSIVELY SERVING THE UNIT AND/OR OUTLETS THEREOF WHEN LOCATED WITHIN THE UNIT).
PATIO ELEMENT. EACH PATIO ELEMENT IS IDENTIFIED HEREIN BY THE LETTER “PA” AND ITS RESPECTIVE UNIT NUMBER, AND IS AN AIRSPACE
BOUNDED BY AND CONTAINED WITHIN THE EXTERIOR FINISHED SURFACES OF
THE CONDOMINIUM BUILDING (INCLUDING THE EXTERIOR FINISHED SURFACES
OF ANY EXTERIOR WALLS, WINDOWS OR DOORS OF ITS APPURTENANT COMMERCIAL ELEMENT), AND THE LATERAL BOUNDARIES SHOWN HEREIN. THE
LOWER AND UPPER LIMITS OF EACH PATIO ELEMENT ARE HORIZONTAL PLANES,
THE ELEVATIONS OF WHICH ARE INDICATED IN THE ELEVATIONS SET FORTH HEREIN. THE LATERAL BOUNDARIES OF EACH PATIO ELEMENT SHALL BE AS CONSTRUCTED. OTHERWISE, LATERAL BOUNDARIES ARE THE VERTICAL PLANES AT THE HORIZONTAL DIMENSIONS SHOWN HEREIN.
9. “RESIDENTIAL UNIT” SHALL MEAN EACH OF THE THIRTY-SEVEN (37) UNITS
WITHIN THE PROPERTY DESIGNATED FOR RESIDENTIAL USE, WHICH UNITS ARE
SHOWN AND DESCRIBED HEREIN, AND BOUNDED BY AND CONTAINED WITHIN THE BOUNDARIES SHOWN HEREIN. EACH OF THE RESIDENTIAL UNIT SHALL BE A
SEPARATE FREEHOLD ESTATE, AS SEPARATELY SHOWN, NUMBERED AND
DESIGNATED HEREIN, CONSISTING OF A RESIDENTIAL ELEMENT AND IF APPLICABLE, A DECK ELEMENT OR A PORCH ELEMENT. IN INTERPRETING DEEDS,
DECLARATIONS AND PLANS, THE EXISTING PHYSICAL BOUNDARIES OF A
RESIDENTIAL UNIT, OR OF A RESIDENTIAL UNIT CONSTRUCTED OR
RECONSTRUCTED IN SUBSTANTIAL ACCORDANCE WITH THE PLAN AS SHOWN
HEREIN AND THE ORIGINAL PLANS THEREOF, IF SUCH PLANS ARE AVAILABLE,
SHALL BE CONCLUSIVELY PRESUMED TO BE ITS BOUNDARIES, RATHER THAN THE
DESCRIPTION EXPRESSED HEREIN, IN THE DEED OR DECLARATION, REGARDLESS
OF SETTLING OR LATERAL MOVEMENT OF THE CONDOMINIUM BUILDING AND
REGARDLESS OF MINOR VARIANCES BETWEEN BOUNDARIES AS SHOWN HEREIN
OR DEFINED IN THE DEED OR DECLARATION, AND THE BOUNDARIES OF A BUILDING AS CONSTRUCTED OR RECONSTRUCTED. WHENEVER REFERENCE IS
MADE TO A RESIDENTIAL UNIT, SUCH REFERENCE IS MADE TO THE RESIDENTIAL
UNIT AS A WHOLE, INCLUDING ITS RESIDENTIAL ELEMENT AND IF APPLICABLE, DECK OR PORCH ELEMENT APPURTENANT TO THE UNIT.
(A) RESIDENTIAL ELEMENT. EACH RESIDENTIAL ELEMENT IS
IDENTIFIED HEREIN BY “UNIT” AND ITS RESPECTIVE UNIT NUMBER, AND IS AN
AIRSPACE BOUNDED BY AND CONTAINED WITHIN THE INTERIOR UNFINISHED
SURFACES OF THE PERIMETER WALLS, FLOORS, CEILINGS, WINDOWS AND DOORS THEREOF. THE LOWER AND UPPER LIMITS OF EACH RESIDENTIAL ELEMENT ARE
HORIZONTAL OR SLOPED PLANES, THE ELEVATIONS OF WHICH ARE INDICATED IN THE ELEVATIONS SET FORTH HEREIN. THE LATERAL BOUNDARIES OF EACH
LEVEL OF THE RESIDENTIAL ELEMENT ARE VERTICAL PLANES AT THE LIMITS OF
THE HORIZONTAL DIMENSIONS SHOWN HEREIN FOR EACH RESIDENTIAL ELEMENT. EACH UNIT INCLUDES BOTH THE PORTION OF THE BUILDING SO 8 DESCRIBED AND THE AIRSPACE SO ENCOMPASSED, ALL WINDOWS AND DOORS IN
SAID UNIT (INCLUDING ALL LOCKS, HANDLES, LATCHES, SCREENS AND
WEATHER-STRIPPING), THE FORCED AIR HEATING UNIT, THE AIR CONDITIONING
COMPRESSOR, IF ANY, THE HOT WATER HEATER OF SAID UNIT, ALL BUILT-IN APPLIANCES AND FIXTURES.
HOWEVER, THE FOLLOWING ARE NOT A PART OF THE RESIDENTIAL UNIT: BEARING WALLS, COLUMNS, BEAMS, FLOORS, ROOFS, SLABS,
FOUNDATIONS, TANKS, PUMPS, SEWER LINES, DRAINS, AND OTHER CENTRAL
SERVICES, PIPES, DUCTS, FLUES, CHUTES, CONDUITS, WIRES, EXTERIOR LIGHTING
AND OTHER UTILITY INSTALLATIONS WHEREVER LOCATED (EXCEPT ALL UTILITY
INSTALLATIONS EXCLUSIVELY SERVING THE UNIT AND/OR OUTLETS THEREOF WHEN LOCATED WITHIN THE UNIT).
(B) DECK ELEMENT. EACH DECK ELEMENT IDENTIFIED HEREIN BY THE LETTER "D" AND ITS RESPECTIVE UNIT NUMBER, AND IS AN AIRSPACE
BOUNDED BY AND CONTAINED WITHIN THE EXTERIOR FINISHED SURFACES OF THE CONDOMINIUM BUILDING, AND THE RAILINGS ENCLOSING SUCH DECK. THE
LOWER AND UPPER LIMITS OF EACH DECK ELEMENT ARE HORIZONTAL PLANES,
THE ELEVATIONS OF WHICH ARE INDICATED IN THE ELEVATIONS SET FORTH HEREIN. THE LATERAL BOUNDARIES OF EACH DECK ELEMENT SHALL BE AS
CONSTRUCTED, BEING THE EXTERIOR FINISHED SURFACES OF ANY EXTERIOR
WALLS, WINDOWS OR DOORS OF ITS APPURTENANT RESIDENTIAL ELEMENT AND
THE RAILINGS THEREBY ENCLOSING SAID DECK ELEMENT, AS MORE PARTICULARLY SHOWN AND DESCRIBED HEREIN.
(C) PORCH ELEMENT. EACH PORCH ELEMENT IS IDENTIFIED HEREIN BY THE LETTER “PO” AND ITS RESPECTIVE UNIT NUMBER, AND IS AN AIRSPACE
BOUNDED BY AND CONTAINED WITHIN THE EXTERIOR FINISHED SURFACES OF
THE CONDOMINIUM BUILDING (INCLUDING THE EXTERIOR FINISHED SURFACES
OF ANY EXTERIOR WALLS, WINDOWS OR DOORS OF ITS APPURTENANT RESIDENTIAL ELEMENT), AND THE LATERAL BOUNDARIES SHOWN HEREIN. THE
LOWER AND UPPER LIMITS OF EACH PORCH ELEMENT ARE HORIZONTAL PLANES,
THE ELEVATIONS OF WHICH ARE INDICATED IN THE ELEVATIONS SET FORTH HEREIN. THE LATERAL BOUNDARIES OF EACH PORCH ELEMENT SHALL BE AS CONSTRUCTED. OTHERWISE, LATERAL BOUNDARIES ARE THE VERTICAL PLANES
AT THE HORIZONTAL DIMENSIONS SHOWN HEREIN
10. “EXCLUSIVE USE AREAS” SHALL MEAN AND REFER TO THOSE PORTIONS
OF THE COMMON AREA WHICH ARE RESERVED FOR THE EXCLUSIVE USE OF THE OWNERS OF PARTICULAR UNITS. EACH EXCLUSIVE USE AREA CONSTITUTES AN
EXCLUSIVE EASEMENT APPURTENANT TO ITS ASSIGNED UNIT, SUBJECT TO THE EXCLUSIVE USES AND PURPOSES SET FORTH HEREIN. THE EXCLUSIVE USE AREAS
AND THE UNITS WITHIN THIS PROJECT TO WHICH SUCH AREAS ARE APPURTENANT, ARE IDENTIFIED HEREIN AS FOLLOWS:
9 10
(A) PARKING SPACES. EACH EXCLUSIVE USE AREA FOR PARKING PURPOSES (“PARKING SPACE”) IS IDENTIFIED HEREIN BY ITS PARKING SPACE NUMBER AND THE LETTER “P”. THE ASSIGNMENT AND CONVEYANCE OF PARKING
SPACES SHALL BE DETERMINED BY THE DECLARANT, IN ITS SOLE AND ABSOLUTE
DISCRETION, AND IDENTIFIED ON WRITTEN INSTRUMENTS ASSIGNING PARKING SPACES TO OWNERS. EACH PARKING SPACE SHALL BE THE ACTUAL PARKING
SPACE AS ORIGINALLY CONSTRUCTED AND DELINEATED, NOT TO EXCEED THE PHYSICAL LIMITS OF THE PARKING SPACE AS ORIGINALLY CONSTRUCTED. THE
LOWER ELEVATION SHALL BE THE ACTUAL FINISHED SURFACE OF THE PARKING
SPACE, AS ORIGINALLY CONSTRUCTED, THE UPPER HORIZONTAL BOUNDARY
SHALL BE A PLANE THAT IS FIFTEEN FEET ABOVE THE SURFACE OF THE PARKING
SPACES, AS ORIGINALLY CONSTRUCTED, AND THE LATERAL BOUNDARIES OF
EACH PARKING SPACE SHALL BE THE VERTICAL PLANES AT THE LIMITS OF THE HORIZONTAL DIMENSIONS AS ORIGINALLY CONSTRUCTED.
(B) STORAGE SPACES. EACH EXCLUSIVE USE AREA FOR STORAGE PURPOSES (“STORAGE SPACE”) IS IDENTIFIED HEREIN BY ITS STORAGE SPACE NUMBER AND THE LETTER “S”. THE ASSIGNMENT AND CONVEYANCE OF
STORAGE SPACES SHALL BE DETERMINED BY THE DECLARANT, IN ITS SOLE AND
ABSOLUTE DISCRETION, AND IDENTIFIED ON WRITTEN INSTRUMENTS ASSIGNING STORAGE SPACES TO OWNERS. EACH STORAGE SPACE SHALL BE THE ACTUAL
STORAGE SPACE AS ORIGINALLY CONSTRUCTED AND DELINEATED, NOT TO
EXCEED THE PHYSICAL LIMITS OF THE STORAGE SPACE AS ORIGINALLY CONSTRUCTED. THE LOWER ELEVATION SHALL BE THE ACTUAL FINISHED FLOOR
SURFACE OF THE STORAGE SPACE, AS ORIGINALLY CONSTRUCTED, THE UPPER
HORIZONTAL BOUNDARY SHALL BE A PLANE THAT IS THE FINISHED CEILING
SURFACE OF THE STORAGE SPACES, AS ORIGINALLY CONSTRUCTED, AND THE
LATERAL BOUNDARIES OF EACH STORAGE SPACE SHALL BE THE VERTICAL
PLANES AT THE LIMITS OF THE HORIZONTAL DIMENSIONS AS ORIGINALLY CONSTRUCTED.
11. PRESUMPTION OF BOUNDARIES. IN INTERPRETING THIS CONDOMINIUM
PLAN, THE DECLARATION AND ANY INSTRUMENTS OF CONVEYANCE, THE
EXISTING PHYSICAL BOUNDARIES OF THE UNIT, OR OF A UNIT RECONSTRUCTED
IN SUBSTANTIAL ACCORDANCE WITH THIS CONDOMINIUM PLAN, SHALL BE
CONCLUSIVELY PRESUMED TO BE ITS BOUNDARIES, RATHER THAN THE METES
AND BOUNDS (OR OTHER DESCRIPTION) EXPRESSED IN THIS CONDOMINIUM
PLAN, THE DECLARATION OR ANY INSTRUMENT OF CONVEYANCE, REGARDLESS
OF SETTLING OR LATERAL MOVEMENT AND REGARDLESS OF MINOR VARIANCES
BETWEEN THE BOUNDARIES SHOWN HEREIN, IN THE DECLARATION AND/OR IN
ANY INSTRUMENT OF CONVEYANCE, AND THE ACTUAL BOUNDARIES OF THE UNIT.
12. UNIT DIMENSIONS. THIS CONDOMINIUM PLAN AND THE DIMENSIONS
SHOWN HEREIN ARE INTENDED TO CONFORM TO CALIFORNIA CIVIL CODE SECTION 4285, WHICH REQUIRES, IN PART, WITH RESPECT TO THE LAND AND REAL 11 PROPERTY DESCRIBED IN THE ABOVE REFERENCED TRACT, THE INCLUSION
HEREIN OF DIAGRAMMATIC FLOOR PLANS OF THE BUILDING TO BE BUILT
THEREON IN SUFFICIENT DETAIL TO IDENTIFY EACH UNIT, ITS RELATIVE LOCATION AND APPROXIMATE DIMENSIONS. DIMENSIONS SHOWN HEREIN ARE
FOR DIAGRAMMATIC PURPOSES AND ARE NOT INTENDED TO BE SUFFICIENTLY
ACCURATE ENOUGH TO USE FOR COMPUTATION OF FLOOR AREA OR AIR SPACE VOLUME ENCOMPASSED IN ALL OR ANY OF THE UNITS. THE DIAGRAMMATIC
FLOOR PLANS CONTAINED HEREIN INTENTIONALLY OMIT INFORMATION WITH RESPECT TO THE INTERNAL PARTITIONING WITHIN THE UNITS. LIKEWISE, SUCH
DETAILS AS PROTRUSIONS OF VENTS, DUCTS, BEAM COLUMNS, WINDOW CASINGS
AND OTHER SUCH FEATURES INTO THE AIRSPACE ENCOMPASSED BY THE UNITS AS SHOWN ARE NOT INTENDED TO BE REFLECTED IN THIS CONDOMINIUM PLAN.
13. CONDOMINIUM NUMBERING. THE INDIVIDUAL CONDOMINIUM UNITS COVERED BY THIS CONDOMINIUM PLAN ARE NUMBERED AS SHOWN HEREIN.
14. INTERSECTION OF LINES AND TIES. ALL AIRSPACE BOUNDARY LINES AND TIES INTERSECT EITHER AT RIGHT ANGLES OR AT FORTY-FIVE (45) DEGREE ANGLES, UNLESS OTHERWISE INDICATED. TIE DISTANCES ARE TO THE EXTERIOR FACE OF THE FOUNDATION.
15. LATERAL DIMENSIONS. THE LATERAL DIMENSIONS OF THE UNITS ARE AS SET FORTH HEREIN.
16. VERTICAL DIMENSIONS. THE ELEVATIONS OF THE VERTICAL BOUNDARIES OF THE UNITS ARE AS SHOWN HEREIN.
17. APPLICATIONS OF DEFINITIONS. VARIOUS WORDS AND PHRASES USED
HEREIN ARE DEFINED IN THE DECLARATION REFERENCED ABOVE, AND UNLESS
THE CONTEXT HEREIN SHALL OTHERWISE INDICATE, SUCH WORDS AND PHRASES
SHALL HAVE THE SAME MEANING HEREIN AS IS ASCRIBED TO THEM IN THE DECLARATION.
4TH STREET 5TH STREET
GRAND AVE
ROCKAWAY AVE
GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS · SURVEYORS · PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
BOUNDARY CONTROL MAP
12 4TH STREET
GRAND AVE
TRACT 3202
0.688 ACRES
GARING, TAYLOR & ASSOCIATES, INC.
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141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
SITE PLAN
13 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
FIRST FLOOR - SOUTH
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141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 1 14
CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
FIRST FLOOR - CENTER
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FIRST FLOOR - NORTH
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CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
SECOND FLOOR - SOUTH
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CIVIL ENGINEERS · SURVEYORS · PLANNERS
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3 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
SECOND FLOOR - CENTER
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IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
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CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
THIRD FLOOR - SOUTH
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CIVIL ENGINEERS · SURVEYORS · PLANNERS
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CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
THIRD FLOOR - CENTER
GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS · SURVEYORS · PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 1 2
21 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
THIRD FLOOR - NORTH
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IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
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CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
FOURTH FLOOR - CENTER
GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS · SURVEYORS · PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 1 2
24 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
FOURTH FLOOR - NORTH
GARING, TAYLOR & ASSOCIATES, INC.
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25 CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
FIRST FLOOR ELEVATIONS
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141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 1 BUILDING SECTION 1
2 BUILDING SECTION 2 3 BUILDING SECTION 3
4 BUILDING SECTION 4
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CONDOMINIUM PLAN - TRACT 3202
IN THE CITY OF GROVER BEACH, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA
PARKING SPACES
GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS · SURVEYORS · PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 27 Subdivision Agreement 1
Final Map of Tract 3202
RECORDING REQUESTED BY:
City of Grover Beach
WHEN RECORDED MAIL TO:
City Clerk
City of Grover Beach
154 S. Eighth Street
Grover Beach, CA. 93433
PURSUANT TO GOVERNMENT CODE SECTION 6103,
NO RECORDING FEE REQUIRED
In the matter of the Approval of )
The Subdivision Map of ) AGREEMENT AND UNDERTAKING FOR
____________________, ) INSTALLATION AND CONSTRUCTION
) OF SUBDIVISION IMPROVEMENTS
City of Grover Beach )
County of San Luis Obispo )
State of California )
SUBDIVISION AGREEMENT
FINAL MAP OF TRACT 3202
THIS AGREEMENT is made this ______ day of January, 2024, by and between the City of Grover Beach, a Municipal Corporation, hereinafter referred to as "City," and GB Towers, LLC, a California Limited Liability Company located at 402 West Grand Avenue, Grover Beach California, hereinafter referred to as "Subdivider" without regard for number or gender, and is effective the date first appearing on the Clerk’s Certification hereafter.
RECITALS
A. Subdivider has filed with City a Final Map proposing the subdivision of land owned by Subdivider, situated in the City of Grover Beach, County of San Luis Obispo, State of California, hereinafter referred to as the “Subject Property”, dividing the real property more particularly described as follows:
Lots 4 through 8 in Block 99 of the Town of Grover, in the City of Grover Beach, in the County of San Luis Obispo, State of California, according to Map of said town drawn by A. Lundquist and filed for recorded November 23, 1892 in Book A, Page 6 of Maps, in the Office of the County Recorder of said County.
B. City requires as a condition precedent to the acceptance and approval of the Final Map the dedication of such streets, highways, public improvements, public places and easements as are delineated and shown on the Final Map, and deems the same as necessary for the public use, and also requires any and all streets, highways, public improvements, public places and easements delineated and shown on the Final Map, shall be improved by the construction and the installation of the improvements as hereinafter specified.
C. The City Municipal Code of Grover Beach requires Subdivider to enter into this Agreement with City whereby Subdivider agrees to do, perform and complete the work and matters required as Resolution No. 23-02 for Vesting Tentative Map for Tract 3202 dated February 7, 2023 and Building Permit No BP-22-00452 issued by City and any amendments thereto, hereinafter referred to as “Conditions of Approval”, within the time hereinafter specified.
Attachment 2
Subdivision Agreement 2
Final Map of Tract 3202
D. Subdivider desires to construct the improvements and develop the Subject Property.
E. Subdivider hereby warrants that any and all parties having record title interest in the Final Map which may ripen into a fee have subordinated to this instrument and all such instruments of subordination, if any, are attached hereto and made a part of this instrument.
AGREEMENT
In consideration of the acceptance of the offers of dedication of the streets, highways, public improvements, public places, easements, and facilities as shown and delineated on the Final Map, and in consideration of finding of substantial compliance with said Vesting Tentative Map, it is mutually agreed and understood by and between Subdivider and City, and Subdivider and City do hereby mutually agree as follows:
1) The Subject Property is subject to the following:
a) Time for Performance. The work and improvements required by the Conditions of Approval, Public Work Improvements, shall be performed on or before eighteen months of the effective date of this Agreement. However, the Subdivider shall automatically receive one extension of six (6) months to complete the installation of the improvements specified in this Agreement providing the Subdivider complies with all the conditions as follows:
i) At least a minimum of thirty (30) days prior to the expiration of said eighteen months, the City Engineer receives a written request from the Subdivider for the six (6) months extension.
ii) The Subdivider deposits two additional surety bonds with the City of Grover Beach to cover inflation on the uncompleted items: one for performance of the uncompleted Improvements and one to insure payment for the additional cost of labor and materials. Each of said surety bonds shall be the amount of five (5) percent of the sum of the costs of all uncompleted items from the list as shown in the Public Works Inspector’s Punch List as of the date of extension as certified by the City Engineer. The surety bonds shall be supplied to the City Engineer within ten (10) days from the date on the written transmittal from the City Engineer to the Developer of the additional surety bond amounts. The additional surety bonds to be approved by the City Engineer and City Attorney as to sufficiency and to form.
iii) If said Improvements are not made to the satisfaction of the City Engineer of the City of Grover Beach within eighteen (18) months of the date of this Agreement, or within twenty four (24) months of the date of this Agreement if the conditions for the six (6) months extension have been complied with, the City of Grover Beach may exercise its right to proceed against the bonds or the Parties herein may mutually agree to enter into an amended subdivision agreement wherein Subdivider shall be responsible for issuing new bonds consistent with the bonding requirements of this Agreement. Said bonds shall be subject to approval by the City Attorney.
2) Scope of General Improvements.
a) Incorporation of Improvements. The work and improvements, including those depicted or required on the improvement plans for the Final Map, which may include plans relating to sewer, water, streets, storm drainage, street lighting, landscape and irrigation, grading, traffic signal plans, etc., as well as those required by Conditions of Approval (hereinafter collectively referred to as “Improvements”), are incorporated by reference and made a part of this Agreement. Improvements shall be completed in accordance with the construction standards contained in the most current Subdivision Agreement 3
Final Map of Tract 3202
edition of the City of Grover Beach Standards and Specifications and any amendments thereto, at the sole cost and expense of Subdivider including all costs of engineering, inspection and testing.
The construction cost estimates, and corresponding security requirements for these Improvements, are set forth in Exhibit "A".
b) Fire Department Requirements. Issuance of building permits for any structure within the Subdivision shall conform to the requirements of the current edition of the California Fire Code (CFC) as adopted within the City of Grover Beach Municipal Code as may be amended.
Subdivider’s attention is particularly called to Part 9 of Title 24 of the California Code of Regulations, as may be amended, relating to Fire Department access and water supply. No building permit shall be issued until all Fire Department access and firefighting water supply requirements have been met. No occupancy shall be allowed or occur until all Fire Department requirements for occupancy have been met. Authorization by City for occupancy of dwellings located within the Subject Property shall not be construed in any manner to constitute an acceptance and approval of any Improvements required by this Agreement or the Final Map. 3) Scope of Specific Improvements. The required Improvements include the following:
a) If a Notice of Completion has not been filed for the required Improvements within the time limits outlined in this Agreement, no additional building permits shall be issued until said Notice has been filed, regardless of the number of building permits previously issued. b) Building permits shall not be issued in any subsequent phase of a multi-phased subdivision until a Notice of Completion has been filed for the previous phase. c) For purposes of this Agreement, the term “Unit” shall be defined as a separate residence or living space for residential occupancy or a separate area used for one commercial or retail business. 4) Reserved for Future Use
5) Estimate Reimbursements for Certain Improvements.
Security. Prior to the approval by the Grover Beach City Council of the Final Map, Subdivider shall furnish to City the following improvement securities in the amounts set forth in Exhibit “A”. Bonds shall be by one or more duly authorized corporate sureties licensed to do business in California subject to the approval of City and on forms furnished or approved by City and Certificates of Deposit must be in a form acceptable to the City Attorney. The requirement of a specific amount for improvement security shall not be construed to be a limitation of liability on the part of the Subdivider under this Agreement. Said amount(s) are estimates only of the cost of construction of said improvements. a) Performance Security. The total amount shall equal 100% of the final Cost Estimate, as approved by the City Engineer, to be conditioned upon the faithful performance of this Agreement.
Performance Security shall be in the form of a bond naming the City of Grover Beach as obligee, or a certificate of deposit made payable only to the City of Grover Beach, or cash. With the written authorization of the City, the Performance Security may be released in whole or in part in the following manner:
i) Performance Security, not in excess of 90% of the estimated costs of the individual items of public improvements, may be released, or the required amount of security may be reduced, as work is satisfactorily completed and tentatively accepted by the City. ii) Performance Security will be released in its entirety subject to the City’s recording of the Notice of Completion for the Subdivision public improvements, and the Subdivider’s Subdivision Agreement 4
Final Map of Tract 3202
b) Payment (Labor and Material) Security. The total amount of the Payment Security shall equal 100% of the estimated costs of the individual items of public improvements, as approved by the City Engineer, to secure payment to all contractors and subcontractors performing work on said Improvements and all persons furnishing labor, materials or equipment to them for said Improvements. Payment Security shall be in the form of a bond naming the City of Grover Beach as obligee, or a certificate of deposit made payable only to the City of Grover Beach, or cash.
Thirty-five (35) days after the City’s recording of the Notice of Completion for the Subdivision public improvements, the Payment Security may be released provided that no claims have been filed. c) Other Improvement Security. Any and all other improvement security as required by Ordinance of the Grover Beach Municipal Code as may be amended.
6) Damage Prior to Final Acceptance. Any damage to the work and improvements constructed pursuant to this Agreement occurring after installation shall be made good to the satisfaction of the City Engineer by Subdivider before any securities are released or the final acceptance of the completed work. 7) Remedy of Defects. Subdivider shall remedy any defective work, labor or materials related to the Improvements, and shall pay City for any damage to the Improvements resulting therefrom, which occur within a period of one year from the date of acceptance of the Improvements by City. 8) Warranty Security. To insure Subdivider complies with its obligations set forth herein, on acceptance of the required work by the City Engineer, warranty security shall be furnished to, or existing securities retained by, City in the minimum amount identified in Exhibit “A.” The warranty security shall serve as a guarantee and warranty of the work for a period of one year following acceptance against any defective work, labor or materials. Said warranty security shall be in the form of a bond, cash or certificate of deposit made payable only to the City of Grover Beach. The warranty security shall be released, less any amount required to be used for fulfillment of the warranty, one year after final acceptance of the subdivision Improvements.
9) No Right of Trespass. This Agreement shall in no way be construed as a grant by City of any rights to Subdivider to trespass upon land rightfully in the possession of, or owned by, another, whether such land be privately or publicly owned.
10) Indemnification. Subdivider shall be obligated as follows:
a) To the furthest extent allowed by law, Subdivider shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Subdivider or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees, litigation and legal expenses incurred by City or held to be the liability of City, including plaintiff’s or petitioner’s attorney’s fees if awarded, in connection with City’s defense of its actions in any proceeding), arising or alleged to have arisen directly or indirectly out of performance or in any way connected with: (i) the making of this Agreement; (ii) the performance of this Agreement; (iii) the performance or installation of the work or Improvements by Subdivider and Subdivider’s employees, officers, agents, contractors or subcontractors; (iv) the design, installation, operation, removal or maintenance of the work or Improvements; or (v) City’s granting, issuing or approving use of this Agreement.
b) Subdivider’s obligations under the preceding sentence shall apply regardless whether City or any of its officers, officials, employees or agents are negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused solely by the gross negligence, or caused by the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers.
Subdivision Agreement 5
Final Map of Tract 3202
c) If Subdivider should subcontract all or any portion of the work to be performed under this Agreement, Subdivider shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of paragraphs “a)” and “b)” of this Section. Notwithstanding the preceding sentence, any subcontractor who is a "design professional" as defined in Section 2782.8 of the California Civil Code shall, in lieu of indemnity requirements set forth in paragraphs “a” and “b” of this Section, be required to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers to the furthest extent allowed by law, from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the design professional, its principals, officers, employees, agents or volunteers in the performance of this Agreement.
d) Subdivider further agrees that the use for any purpose and by any person of any and all of the streets and works and Improvements hereinbefore specified, shall be at the sole and exclusive risk of Subdivider at all times prior to final acceptance by City of the completed street and other improvements thereon and therein. This Section shall survive termination or expiration of this Agreement.
11) Insurance. Throughout the life of this Agreement, Subdivider shall pay for and maintain in full force and effect all policies of insurance described in this Section with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated not less than "A-VII" in Best's Insurance Rating Guide, or (ii) authorized by City’s Risk Manager. The following policies of insurance are required:
a) COMMERCIAL GENERAL LIABILITY insurance, which shall be at least as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and shall include insurance for bodily injury, property damage, and personal and advertising injury with coverage for premises and operations (including the use of owned and nonowned equipment), products and completed operations, contractual liability (including indemnity obligations under this Agreement), with limits of liability of not less than $5,000,000 per occurrence for bodily injury and property damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000 aggregate for products and completed operations, and $10,000,000 general aggregate.
b) COMMERCIAL AUTOMOBILE LIABILITY insurance, which shall be at least as broad as the most current version of Insurance Services Office (ISO) Business Auto Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Section 1, subsection A.1 entitled “Any Auto”), with combined single limits of liability of not less than $5,000,000 per accident for bodily injury and property damage. c) PROFESSIONAL LIABILITY (Errors and Omissions) insurance appropriate to the respective person's profession (applicable only to those subcontractors who are providing Professional Services to Subdivider), with limits of liability of not less than $1,000,000 per claim/occurrence and $2,000,000 policy aggregate.
d) WORKERS' COMPENSATION insurance as required under the California Labor Code. e) EMPLOYERS’ LIABILITY with minimum limits of liability of not less than $1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee.
Subdivider shall be responsible for payment of any deductibles contained in any insurance policies required hereunder and Subdivider shall also be responsible for payment of any self-insured Subdivision Agreement 6
Final Map of Tract 3202
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted 30 calendar day written notice in favor of City of policy cancellation of coverage, except for the Workers' Compensation policy which shall provide a 10 calendar day written notice of such cancellation of coverage. In the event any policies are due to expire during the term of this Agreement, Subdivider shall provide a new certificate evidencing renewal of such policy(ies) not less than 15 calendar days prior to the expiration date of the expiring policy(ies). Upon issuance by the insurer, broker, or agent of a notice of cancellation in coverage, Subdivider shall file with City a new certificate and all applicable endorsements for such policy(ies).
The General Liability and Automobile Liability insurance policies shall be written on an occurrence form and shall name City, its officers, officials, agents, employees and volunteers as an additional insured. Such policy(ies) of insurance shall be endorsed so Subdivider’s insurance shall be primary and no contribution shall be required of City. In the event claims-made forms are used for any Professional Liability coverage, either (i) the policy(ies) shall be endorsed to provide not less than a five (5) year discovery period, or (ii) the coverage shall be maintained for a minimum of five (5) years following the termination of this Agreement and the requirements of this Section relating to such coverage shall survive termination or expiration of this Agreement. Any Workers’ Compensation insurance policy shall contain a waiver of subrogation as to City, its officers, officials, agents, employees and volunteers.
Subdivider shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance prior to City's execution of the Agreement. Subdivider shall furnish City with copies of the actual policies upon the request of City’s Risk Manager at any time during the life of the Agreement or any extension, and this requirement shall survive termination or expiration of this Agreement.
The fact that insurance is obtained by Subdivider or his/her/its subcontractors shall not be deemed to release or diminish the liability of Subdivider or his/her/its subcontractors including without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify City, its officers, officials, agents, employees and volunteers, shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Subdivider or his/her/its subcontractors. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Subdivider, its principals, officers, agents, employees, persons under the supervision of Subdivider, vendors, suppliers, invitees, subcontractors, consultants or anyone employed directly or indirectly by any of them.
If at any time during the life of the Agreement or any extension, Subdivider fails to maintain the required insurance in full force and effect, the City Engineer, or his/her designee, may order that Subdivider, or its contractors or subcontractors, immediately discontinue any further work under this Agreement and take all necessary actions to secure the work site to insure that public health and safety is protected. All payments due or that become due to Subdivider shall be withheld until notice is received by City that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City. Any failure to maintain the required insurance shall be sufficient cause for City to terminate this Agreement.
If Subdivider should subcontract all or any portion of the services to be performed under this Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of City, its officers, officials, employees, volunteers and agents in accordance with the terms of each of the preceding paragraphs, except that the subcontractors' certificates and endorsements shall be on file with Subdivider and City prior to the commencement of any work by the subcontractor.
Subdivision Agreement 7
Final Map of Tract 3202
12) Payment for Materials and Supplies. Subdivider and Subdivider’s contractors and subcontractors shall pay for any materials, provisions, and other supplies used in, upon, for, or about the performance of the Improvements contracted to be done, and for any work or labor thereon of any kind, and for amounts due under the Unemployment Insurance Act of the State of California, with respect to such work or labor, and shall file with City pursuant to Section 3800 of the California Labor Code, as may be amended, a Certificate of Workers Compensation and shall maintain a valid policy of Workers Compensation Insurance for the duration of the period of construction. 13) Compaction and Materials Testing. Compaction and other materials testing performed for determination of compliance with Public Works Standards shall conform to City of Grover Beach Standards and Specifications and Specifications and City of Grover Beach Technical Specifications.
Materials testing shall at all times remain under the review of the City Engineer who may determine additional test procedures, and additional locations to be tested. All materials testing for improvement work within the public easements and rights-of-way shall be ordered and paid for by Subdivider. 14) Work by Subdivider. It shall be the responsibility of Subdivider to coordinate all work done by Subdivider’s contractors and subcontractors, such as scheduling the sequence of operations and the determination of liability if one operation delays another. In no case shall representatives of City be placed in the position of making decisions that are the responsibility of Subdivider. It shall further be the responsibility of Subdivider to give the City Engineer written notice not less than two working days in advance of the actual date on which work is to be started. Failure on the part of Subdivider to notify the City Engineer may cause delay for which Subdivider shall be solely responsible. 15) Inspections. Whenever Subdivider varies the period during which work is carried on each day, Subdivider shall give due notice to the City Engineer so that proper inspection may be provided. If Subdivider fails to duly notify City as herein required, any work done in the absence of the City Engineer will be subject to rejection. Inspection of the Improvements by City shall not relieve Subdivider of any obligation to fulfill the Agreement as prescribed. Defective work shall be made good, and unsuitable materials may be rejected, notwithstanding the fact that such defective work and unsuitable materials have been previously overlooked by the City Engineer or City Inspector and accepted.
City shall inspect all Improvements. All Improvements and materials shall be done, performed and installed in strict accordance with the approved construction plans for said work on file with the City Engineer and City of Grover Beach Standards and Specifications, which said construction plans and Standards and Specifications are hereby referred to and adopted and made by reference a part of this Agreement. In the event there are not any applicable Standards and Specifications for any portion of said Improvements, it is agreed that the same shall be done and performed in accordance with the standards and specifications of the State of California, Division of Highways, if applicable. All of said improvements and materials shall be done, performed and installed under the inspection of and to the satisfaction of the City Engineer.
16) Dust Control. Adequate dust control shall be maintained by Subdivider on all streets within and without the subdivision on which work is required to be done under this Agreement from the time work is first commenced in the subdivision until the paving of the streets is completed. "Adequate dust control" as used herein shall mean the sprinkling of the streets with water or the laying of an approved dust palliative thereon with sufficient frequency to prevent the scattering of dust by wind or the activity of vehicles and equipment onto any street area or private property adjacent to the subdivision in strict compliance with all rules and regulations established by the pertinent Air Pollution Control Board.
Whenever in the opinion of the City Engineer adequate dust control is not being maintained on any street or streets as required by this paragraph, the City Engineer shall give notice to Subdivider to comply ("Notice to Comply") with the provisions of this paragraph forthwith. If in the opinion of the City Engineer Subdivider's failure to comply with the provisions of this paragraph is having an immediate and significant impact on the public's health, safety and welfare, the City Engineer may immediately issue a stop work order until City receives reasonable assurances Subdivider shall comply with the Subdivision Agreement 8
Final Map of Tract 3202
provisions of this paragraph forthwith. Such notices, Notice to Comply and stop-work orders may be personally served upon Subdivider. If Subdivider is not an individual, such notices, Notice to Comply and stop-work orders may be served upon (i) any person who has signed this Agreement on behalf of Subdivider; (ii) upon any officer, manager or trustee of Subdivider; or (iii) at the election of the City Engineer, such notices and stop-work orders may be served by mailed to Subdivider at Subdivider’s address on file with the City Engineer. If the City Engineer has issued a Notice to Comply, and Subdivider has failed to commence adequate dust control or fails to maintain adequate dust control at any time thereafter, within twenty-four hours after personal service of the Notice to Comply or within forty-eight hours after the mailing thereof, the City Engineer may, without further notice of any kind, cause any such street or streets to be sprinkled with water, treated with a dust suppression agent or oiled, as the City Engineer may deem advisable to eliminate the scattering of dust, by equipment and personnel of City or by contract as the City Engineer shall determine. City may bill Subdivider for the entire cost to City of such treatment, including costs associated with equipment, material and staff time, as well as any other time or costs associated with the issuance with the elimination of the scattering of the dust including the Notice to Comply. Subdivider shall promptly pay to City the entire billed cost to City of such treatment. When the surfacing on any existing street is disturbed, this surfacing shall be replaced with temporary or permanent surfacing within fourteen calendar days, and the roadway shall be maintained in a safe and passable condition at all times between the commencement and final completion, and adequate dust control shall be maintained during these operations.
17) Street Surfacing and Underground Facilities. Concrete curbs and gutters, the sanitary sewer system and sewer laterals, together with water mains and appurtenances, storm drainage facilities, gas mains, electrical and communication lines, and their respective service connections, and all other facilities required to be installed underground shall be completed in the streets and alleys before installation of street and alley surfacing.
18) Compliance with Conditions of Approval; Easements. In addition to the Covenants affecting land development, if any, Subdivider shall comply with all Conditions of Approval set forth in the Conditions of Approval for Vesting Tentative Map for Tract 3202 dated February 7, 2023 and Building Permit No.
BP-22-00452, and any amendments thereto, not already fully completed or performed as of the date of the approval of the Final Map and which are not otherwise set forth in this Agreement. Compliance shall include, but is not limited to, any condition to convey to a specific party a fee interest or easement in any parcels in the Subject Property upon Subdivider’s completion of all required improvements to said parcels. Subdivider’s compliance with such conditions shall be completed within a reasonable time as determined by City, in City’s sole discretion, commencing upon the City Engineer sending written notice to Subdivider of the outstanding condition and time in which Subdivider is required to comply, and Subdivider shall timely comply.
19) Compliance with Law. In performing obligations set forth in this Agreement, Subdivider shall comply with all applicable laws, regulations, and rules of all local, state and federal governmental agencies having jurisdiction including, without limitation, applicable federal and state labor standards and environmental laws and regulations. Subdivider shall comply with the codes or ordinances of City including the Grover Beach Municipal Code, City Charter, and Building Codes. 20) Prevailing Wages. Subdivider shall:
a) Pay prevailing wages on those improvements, if any, that are “public works” under Chapter 1, Part 7, Division 2 of the California Labor Code, including Section 1720(a) (collectively referred to as Public Works Improvements); and
Subdivision Agreement 9
Final Map of Tract 3202
b) comply with any applicable provisions of California Labor Code Sections 1720 et seq. and implementing regulations of the Department of Industrial Relations. Subdivider shall or shall cause its contractor and subcontractors to keep and retain such records as are necessary to determine that prevailing wages have been paid as may be required by law. During the construction of the PW Improvements, if any, Subdivider shall, or shall cause its contractor to, post at the Subject Property the applicable prevailing rates of per diem wages. Subdivider shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Subdivider, its contractors and subcontractors) to pay prevailing wages as required by law or to comply with the other applicable provisions of California Labor Code Sections 1720 et seq. and the implementing regulations of the Department of Industrial Relations in connection with construction of any PW Improvements. 21) Enforcement of Obligations. City may enforce this Agreement in any manner available at law or in equity, including, but not limited to, reversion to acreage. 22) Limitations of Legal Acts. Except as provided by the Section entitled “Attorney’s Fees and Legal Expenses,” in no event shall the City, or its officers, agents or employees, be liable in damages for any breach or violation of this Agreement, it being expressly understood and agreed Subdivider’s sole legal remedy for breach or violation of this Agreement by City shall be a legal action in mandamus, specific performance or other injunctive or declaratory relief to enforce the provisions of this Agreement.
23) Attorney’s Fees and Legal Expenses. If either party is required to commence any proceeding or legal action to enforce or interpret any term or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. For the purposes of this Agreement, “attorneys’ fees” and “legal expenses” include, without limitation, paralegals’ fees and expenses, attorneys, consultants fees and expenses, expert witness fees and expenses, and all other expenses incurred by the prevailing party’s attorneys in the course of the representation of the prevailing party in anticipation of and/or during the course of litigation, whether or not otherwise recoverable as “attorneys’ fees” or as “costs” under California law, and the same may be sought and awarded in accordance with California procedure as pertaining to an award of contractual attorneys’ fees.
24) Obligation Running With Land. This Agreement shall burden the Subject Property described and constitute a covenant running with the land in favor of and for the benefit of City shall be binding upon the successors, transferees, and heirs of Subdivider. Subdivider consents to the recordation of this Agreement with the Grover Beach County Recorder.
25) Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
26) Successor Statutes Incorporated. All references to a statue or ordinance shall incorporate any or all successor statute or ordinance enacted to govern the activity now governed by the statute or ordinance, noted herein to the extent, however, that incorporation of such successor statute or ordinance does not adversely affect the benefits and protections granted to Subdivider under this Agreement.
27) Incorporation of Attachments: All recitals and attachments to this Agreement, including all Exhibits referenced herein, and all subparts thereto, are incorporated herein by this reference. 28) Time is of the Essence. Time is of the essence of this Agreement, and the same shall bind and inure Subdivision Agreement 10
Final Map of Tract 3202
to the benefit of the parties hereto, their successors and assigns. 29) No Assignment. No assignment of this Agreement or of any duty or obligation of performance hereunder shall be made in whole or in part by Subdivider without the written consent of City. 30) Captions. Section, paragraph and other captions or headings contained in this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend or otherwise describe the scope or intent of the Agreement or any provision hereof and shall not affect in any way the meaning or interpretation of this Agreement.
31) Ambiguities or Uncertainties. Any ambiguities or uncertainties herein shall be equally and fairly interpreted and construed without reference to the identity of the Party or Parties preparing this Agreement, on the express understanding and agreement the Parties participated equally in the negotiation and preparation of the Agreement, or have had equal opportunity to do so. Accordingly, the Parties hereby waive the benefit of California Civil Code §1654 and any successor or amended statute, providing that in cases of uncertainty, language of a contract should be interpreted most strongly against the Party who caused the uncertainty to exist. 32) Severable Provisions. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the validity or enforceability of the other provisions, which shall remain in full force and effect. 33) Release of Conditions. The conditions and obligations of this Agreement shall remain in full force and effect until such time as City Engineer issues a Notice of Completion finding the conditions and obligations of this Agreement have been fully satisfied and are no longer required for public health and safety reasons and thereafter records such Notice of Completion with the Grover Beach County Recorder.
34) Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be San Luis Obispo County, California.
35) Acknowledgement of Content. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both City and Subdivider. * * * *
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement.
CITY OF GROVER BEACH
a Municipal Corporation
BV:
Matthew Bronson
APPROVED AS TO FORM:
David P. Hale, City Attorney
BV:
Subdivision Agreement
Final Map of Tract 3202
SUBDMDER
ary H. G man, Manager
GB T . LLC.
(Attach Notary Acknowledgments)
11 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
valida of that document.
State of California
County o( San Lu!S 05!Spa
(,n January 2, 2024 before me, David COOI, NOiar)/ Pu51!C (insert name and title of the officer)
personally appeared Ga'Y ' GrOssman
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.
(Seal)
1 ffll aa a * a & I
Commisslon#24409U i
I My Comm. Expires Mar 2 , 2027
Subdivision Agreement 12
Final Map of Tract 3202
EXHIBIT “A”
IMPROVEMENTS, COST ESTIMATES AND SECURITY REQUIREMENTS
Project:
Prepared by:
Firm Name:
Date:
PRICE INDEX BASELINE, 2011 CALTRANS INDEX = 51.6
2nd Quarter 2021 PRICE INDEX = 92.0 Caltrans
-ENGINEER'S SEALSubtotal $107,736.20
Cost Index Factor 1.78
Adjusted Subtotal $192,004.28
Inflation (10%) $19,200.43
Administration (20%-40%) $57,601.28
Adjusted Subtotal $268,805.99
Contingency (10%) $26,880.60
TOTAL SECURITY TO BE POSTED: $295,700
(rounded to the nearest $100)
Note: Quantities inlcude 4th & Grand Curb Return portion that is part of the City CIP project. (Concrete sidewalk, ADA Ramp and Storm Engineer's signature date Drain infastructure)
revised 6/1/2022
October 25, 2023
-RESULTSStandard Unit Costs for Project Security (Performance Bond)
COUNTY OF SAN LUIS OBISPO
DEPARTMENT OF PUBLIC WORKS
402 W Grand Ave - Tract 3202
Perry McBeth, PE 90,377
Garing, Taylor & Associates
page 1 of 19
10/25/2023
SITE PREPARATION: SEC. 2-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL CLEARING AND GRUBBING $0.03 SF -
TREE REMOVAL $300.00 EA -
CONCRETE REMOVAL S.W. $3.25 SF 1890 6,142.50
CONCRETE REMOVAL C & G $10.00 LF 210 2,100.00
REMOVE ASPHALT $1.03 SF $4,250 1475 4,250.00
DISPOSAL OF HOT MIX ASPHALT $50.00 CY $360 28 1,400.00
OTHER REMOVAL (SPECIFY) -
ABANDON WELL $1,650.00 EA -
ABANDON SEPTIC SYSTEM $500.00 EA -
DISPOSAL OF CLIII BASE $29.00 CY $360 -
EXCAVATION 0-1000 CY $22.00 CY $500 -
1000-20000 CY $15.00 CY -
> 20000 CY $9.00 CY -
IMPORT 0-1000 CY $31.00 CY $500 -
1000-20000 CY $22.00 CY -
> 20000 CY $12.00 CY -
FINE GRADING $0.30 SF -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 13,892.50
page 2 of 19
ROADWAYS: SEC. 3-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL HOT MIX ASPHALT IN PLACE 2" $1.95 SF $800 -
HOT MIX ASPHALT IN PLACE 3" $2.90 SF $800 -
HOT MIX ASPHALT IN PLACE 4" $3.70 SF $800 980 3,626.00
HOT MIX ASPHALT IN PLACE 5" $4.90 SF $800 -
HOT MIX ASPHALT IN PLACE 6" $5.60 SF $800 -
HOT MIX ASPHALT IN PLACE $135 TON $800 -
CLASS II AGG. BASE 4" $0.87 SF -
CLASS II AGG. BASE 6" $1.30 SF -
CLASS II AGG. BASE 8" $1.75 SF -
CLASS II AGG. BASE 10" $2.10 SF -
CLASS II AGG. BASE 12" $2.50 SF 980 2,450.00
CLASS II AGG. BASE 18" $3.70 SF -
CLASS II AGG. BASE $35.00 TON -
CROSS GUTTER AND SPANDREL D-5 $17.00 SF 50 850.00
GEOTEXTLE FABRIC $1.00 SF -
SEAL COAT/SLURRY SEAL $0.60 SF -
CHIP SEAL $2.00 SF -
SAW CUT CONCRETE $4.00 LF $250 18 250.00
SAW CUT HMA $2.17 LF $250 460 998.20
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 8,174.20
page 3 of 19
ROAD EDGES: SEC. 4-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL DRIVEWAY APPROACH - CONCRETE (B-2,3) $9.00 SF 540 4,860.00 DRIVEWAY APPROACH - HMA (B-1) $5.50 SF -
HANDICAP RAMP C-5 $13.00 SF 200 2,600.00
CURB AND GUTTER 8" $26.00 LF 360 9,360.00
CURB ONLY C-2A $16.00 LF -
HOT MIX ASPHALT DIKE C-3 $10.00 LF $800 -
SIDEWALK C-4 $10.00 SF 2140 21,400.00
GUARDRAIL $40.00 LF -
STREET TREE WELL M-5 $700.00 EA 1 700.00
DECOMPOSED GRANITE WALKWAY $1.50 SF $625 -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 38,920.00
page 4 of 19
STORM DRAIN: SEC. 5-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL CURB INLET D-2 $3,900 EA 2 7,800.00
RURAL INLET D-2A,B $1,700 EA -
CULVERT PIPE 15" $38.00 LF -
CULVERT PIPE 18" $60.00 LF -
CULVERT PIPE 24" $80.00 LF 52 4,160.00
CULVERT PIPE 30" $90.00 LF -
CULVERT PIPE 36" $105.00 LF -
CULVERT PIPE 48" $135.00 LF -
CULVERT PIPE 60" $150.00 LF -
HEADWALL (CALTRANS D89) 15"-36" PIPE $3,420.00 EA -
HEADWALL -WING TYPE (D89) 18"-60" $4,800.00 EA -
UNDERDRAIN (SIDEWALK) D-4A, D-4B $1,500.00 EA -
UNDERDRAIN (SIDEWALK) PIPE D-4 $500.00 EA -
RIP-RAP DISSIPATER 0.25 TON, H-5 $150.00 CY -
RIP-RAP DISSIPATER 0.5 TON, H-5 $160.00 CY -
RIP-RAP DISSIPATER 1 TON, H-5 $170.00 CY -
RIP-RAP DISSIPATER 2 TON, H-5 $180.00 CY -
OVERSIDE DRAIN, (CALTRANS) HMA $320.00 EA -
CONCRETE V-DITCH (SLOPE) $40.00 LF -
MANHOLE D-3 8' DEPTH $4,500 EA -
TIE TO EX. MANHOLE $2,000 EA 1 2,000.00
UNDERGROUND BASIN STORMTECH $8.00 CF $500 -
-
-
-
-
-
-
-
-
-
Subtotal 13,960.00
page 5 of 19
WATER SUPPLY: SEC. 6-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL WATER SERVICE AND METER BOX W-4 $1,700.00 EA 4 6,800.00 RAISE WATER METER $400.00 EA -
WATER MAIN 6" $50.00 LF -
WATER MAIN 8" $58.00 LF -
WATER MAIN 10" $68.00 LF -
WATER MAIN 12" $92.00 LF -
WATER MAIN 14" $106.00 LF -
WATER MAIN 16" $120.00 LF -
HOT TAP 6" $1,998.00 EA -
HOT TAP 8" $2,238.00 EA -
HOT TAP 10" $3,219.00 EA 1 3,219.00
GATE VALVE 4" $514.00 EA 1 514.00
GATE VALVE 6" $1,500.00 EA 2 3,000.00
GATE VALVE 8" $2,056.00 EA -
FIRE HYDRANT W-2 $4,800.00 EA 2 9,600.00
RELOCATE FIRE HYDRANT $2,280.00 EA -
BLOWOFF ASSEMBLY W-5 $2,000.00 EA -
AIR RELIEF VALVE W-6, 1" $1,550.00 EA -
AIR RELIEF VALVE W-6, 2" $2,370.00 EA -
AIR RELIEF VALVE W-6, 4" $5,285.00 EA -
WATER SAMPLING STATION W-7 $1,250.00 EA -
THRUST BLOCKS W-1, 6" $275.00 EA 1 275.00
THRUST BLOCKS W-1, 8" $385.00 EA -
THRUST BLOCKS W-1, 10" $484.00 EA -
THRUST BLOCKS W-1, 12" $714.00 EA -
STEEL WATER TANK WELDED $1.50 PER GAL -
STEEL WATER TANK BOLTED $1.00 PER GAL -
-
-
-
Subtotal 23,408.00
page 6 of 19
WASTEWATER DISPOSAL: SEC. 7-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL SEWER LATERAL, TIE IN S-3 $1,350.00 EA 1 1,350.00
SEWER LATERAL, TIE IN STEEP S-3a $1,600.00 EA -
SEWER CLEANOUT S-2 $1,500.00 EA -
SEWER MAIN (BACKFILL TYPE) 6" NATIVE $35.00 LF -
SEWER MAIN (BACKFILL TYPE) 8" NATIVE $50.00 LF -
SEWER MAIN (BACKFILL TYPE) 6" IMPORT $40.00 LF -
SEWER MAIN (BACKFILL TYPE) 8" IMPORT $60.00 LF -
SEWER MAIN (BACKFILL TYPE) 12" IMPORT $75.00 LF -
SLURRY BACKFILL $19.00 LF -
MANHOLE TYPICAL (S-1) $4,500.00 EA -
MANHOLE DROP (S-1A) $5,400.00 EA -
TIE TO EXISTING MANHOLE $2,000.00 EA -
FORCE MAIN 4" OR LESS $40.00 LF -
ADJUST MANHOLE COVER $535.00 EA -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 1,350.00
page 7 of 19
UTILITIES: SEC. 8-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL JOINT TRENCH P-4 $40.00 LF 20 800.00
GAS TRENCH $24.00 LF 14 336.00
PIPE JACKING (BORING) 6" PIPE OR LESS $120.00 LF -
SERVICE POLE RELOCATE $1,000.00 EA -
TELEPHONE POLE RELOCATE $2,500.00 EA -
ELECTRIC POLE RELOCATE $6,000.00 EA -
JUNCTION POLE RELOCATE $9,000.00 EA -
UNDERGROUND + JP RELOCATE $15,000.00 EA -
INSTALL SIDEWALK GUY $1,300.00 EA -
STREET LIGHTS $5,000.00 EA 0 -
GUY ANCHOR ONLY RELOCATE $1,800.00 EA -
GUY POLE AND ANCHOR RELOCATE $3,100.00 EA -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 1,136.00
page 8 of 19
TRAFFIC CONTROL: SEC. 9-1 TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL TRAFFIC STRIPING THERMOPLASTIC $3.00 SF BULK -
TRAFFIC STRIPING PAINT $0.60 LF 50 30.00
TRAFFIC STRIPING THERMOPLASTIC $1.20 LF -
REMOVE STRIPING $3.00 LF -
TRAFFIC MARKING $1.25 SF -
STOP + STREET NAME SIGNS M-4 $600.00 EA -
STREET NAME SIGN ONLY M-4 $300.00 EA -
BARRICADE METAL (M-2) $1,300.00 EA -
BARRICADE WOOD (M-2A) $80.00 LF -
MARKERS AND DELINEATORS $32.00 EA -
CONSTRUCTION AREA SIGNS $400.00 EA -
TRAFFIC CONTROL % OF IMPV. 3% EA 200000 6,000.00
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 6,030.00
page 9 of 19
EROSION CONTROL: SEC. 1.1.2.J & APP.B TYPE UNIT COST UNIT MINIMUM QUANTITY TOTAL SAND OR GRAVEL BAG $3.00 EA 50 150.00
JUTE MAT $0.35 SF -
STRAW MAT $0.28 SF -
STRAW BALE BARRIER $5.24 LF -
STRAW BALE INLET BARRIER $3.53 LF -
SILT FENCE $2.81 LF 150 421.50
FIBER ROLLS $1.96 LF 150 294.00
FIBER MAT $0.40 SF -
HYDROSEED $0.33 SF -
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
-
Subtotal 865.50
page 10 of 19
Subdivision Agreement 13
Final Map of Tract 3202
EXHIBIT “B”
LIST OF IMPROVEMENT PLANS
All documents listed herein are incorporated by reference into this Agreement as if set out in full and shall become part of the terms and conditions of this Agreement.
Narrative Description of Improvements:
Demolition of existing curb, gutter, sidewalk, driveway apron, and curb ramp. Demolition of existing asphalt concrete pavement adjacent to existing concrete improvements and demolition of existing roadway section to facilitate construction of open trench utility services. Construction of new domestic, irrigation, and fire water services, hydrant lateral and fire hydrant, wastewater service, curb, gutter, sidewalk, driveway aprons, curb ramp, drainage inlet and storm drain lateral, dry utility joint trench services, asphalt concrete pavement section, and restoration of disturbed roadway striping. All work to be done per the approved Public Improvement Plans (included in this document following this sheet). All improvements shall be the responsibility of the applicant to construct regardless of notes on plans listing work to be done “by others”.
Subdivision Agreement 14
Final Map of Tract 3202
CLERK’S CERTIFICATION
State of California )
County of Grover Beach)
On ______________________ before me, ______________________________, personally appeared, ______________________, 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
______________________________
City Clerk, City of Grover Beach
By _____________________________
Deputy
caov011811
Subdivision Agreement 15
Final Map of Tract 3202
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 Grover Beach)
On __________________ before me, ____________________________, Notary Public, personally appeared __________________________________ 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 of Notary Public
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Pham Law Group, Inc.
709 E. Colorado Blvd., Suite 200
Pasadena, CA 91101
Attn: Bill Pham, Esq.
______________________________________________________________________________ (Space Above For Recorder’s Use)
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
PALLADIUM
THIS DECLARATION CONTAINS A BINDING ARBITRATION PROVISION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. ARBITRATION INCLUDES A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY. YOU MUST READ THE
ARBITRATION PROVISION CAREFULLY AND SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS.
i
TABLE OF CONTENTS
Page
ARTICLE I ......................................................................................................................................9
1. Definitions............................................................................................................................9
1.1 Architectural Committee or Committee...................................................................9
1.2 Articles.....................................................................................................................9
1.3 Assessment, Annual.................................................................................................9
1.4 Assessment, Capital Improvement...........................................................................9
1.5 Assessment, Reconstruction. .................................................................................10
1.6 Assessment, Special...............................................................................................10
1.7 Association.............................................................................................................10
1.8 Board or Board of Directors. .................................................................................10
1.9 Budget....................................................................................................................10
1.10 Bylaws....................................................................................................................10
1.11 City.........................................................................................................................10
1.12 Close of Escrow. ....................................................................................................11
1.13 Commercial Owner................................................................................................11
1.14 Commercial Unit. Commercial Unit shall mean a condominium Unit which is designed for community commercial uses, which commercial activities and uses shall be consistent with uses that are permitted under the City’s zoning regulations..................................................................................................11
1.15 Common Area........................................................................................................11
1.16 Common Expenses.................................................................................................11
1.17 Common Interest Development. ............................................................................12
1.18 Common Property..................................................................................................12
1.19 Condominium. .......................................................................................................12
1.20 Condominium Building. ........................................................................................12
1.21 Condominium Plan. ...............................................................................................12
1.22 Cost Center.............................................................................................................13
1.23 Cost Center Assessments. ......................................................................................13
1.24 Cost Center Benefits. .............................................................................................13
1.25 Cost Center Expenses. ...........................................................................................13
1.26 Declarant. ...............................................................................................................13 ii
1.27 Declaration.............................................................................................................14
1.28 Declaration of Alternative Dispute Resolution......................................................14
1.29 Deed of Trust. ........................................................................................................14
1.30 Drainage and Water Quality Improvements. .........................................................14
1.31 DRE........................................................................................................................14
1.32 Exclusive Use Area(s)............................................................................................14
1.33 Family. ...................................................................................................................16
1.34 FHA........................................................................................................................16
1.35 FHLMC..................................................................................................................16
1.36 Fiscal Year. ............................................................................................................16
1.37 FNMA....................................................................................................................16
1.38 GNMA. ..................................................................................................................16
1.39 Governmental Agency. ..........................................................................................16
1.40 Improvements. .......................................................................................................17
1.41 Limited Warranty...................................................................................................17
1.42 Maintenance Funds. ...............................................................................................17
1.43 Maintenance Manual..............................................................................................17
1.44 Manager. ................................................................................................................17
1.45 Member, Membership............................................................................................17
1.46 Mortgage................................................................................................................18
1.47 Mortgagee, Mortgagor. ..........................................................................................18
1.48 Notice and Hearing. ...............................................................................................18
1.49 Owner.....................................................................................................................18
1.50 Person.....................................................................................................................18
1.51 Project. ...................................................................................................................18
1.52 Property..................................................................................................................18
1.53 Record, File, Recordation. .....................................................................................19
1.54 Residence. ..............................................................................................................19
1.55 Restrictions. ...........................................................................................................19
1.56 Rules and Regulations............................................................................................19
1.57 Separate Interest or Unit. .......................................................................................19
1.58 Subdivision Map. ...................................................................................................19
1.59 Telecommunications Facilities. .............................................................................19 iii
1.60 Telecommunications Services. ..............................................................................20
1.61 Terrace(s). ..............................................................................................................20
1.62 VA..........................................................................................................................20 ARTICLE II...................................................................................................................................20
2. Homeowners Association. .................................................................................................20
2.1 Organization of Association. .................................................................................20
2.2 Duties and Powers..................................................................................................20
2.3 Membership. ..........................................................................................................22
2.4 Transfer..................................................................................................................22
2.5 Classes of Membership. .........................................................................................23
2.6 Voting Rights.........................................................................................................23
2.7 Repair and Maintenance by the Association..........................................................24
2.8 Unsegregated Real Property Taxes........................................................................27
2.9 Repair and Maintenance by Owners. .....................................................................28
2.10 Water Intrusion. .....................................................................................................29
2.11 Mold.......................................................................................................................29
2.12 Use of Agent. .........................................................................................................30 ARTICLE III..................................................................................................................................31
3. Rights in Common Property. .............................................................................................31
3.1 Association Easement. ...........................................................................................31
3.2 Partition..................................................................................................................31
3.3 Members’ Easements in Common Property. .........................................................31
3.4 Extent of Members’ Easements. ............................................................................31
3.5 Delegation of Use. .................................................................................................33
3.6 Waiver of Use. .......................................................................................................33
3.7 Damage by Member...............................................................................................33 ARTICLE IV .................................................................................................................................33
4. Architectural Review Committee. .....................................................................................33
4.1 Members of Committee. ........................................................................................33
4.2 Review of Plans and Specifications.......................................................................34
4.3 Condition of Approval. ..........................................................................................35
4.4 Commencement of Construction. ..........................................................................36
4.5 Meetings of the Committee....................................................................................36 iv
4.6 No Waiver of Future Approvals. ...........................................................................36
4.7 Compensation of Members....................................................................................36
4.8 Correction of Defects.............................................................................................36
4.9 Scope of Review. ...................................................................................................37
4.10 Variances................................................................................................................38
4.11 Appeals. .................................................................................................................38 ARTICLE V...................................................................................................................................39
5. Association Maintenance Funds and Assessments. ...........................................................39
5.1 Personal Obligation of Assessments......................................................................39
5.2 Maintenance Funds of Association........................................................................39
5.3 Purpose of Assessments.........................................................................................39
5.4 Allocation of Assessments.....................................................................................41
5.5 Limitations on Annual and Special Assessment Increases. ...................................41
5.6 Annual Assessments/Commencement-Collection.................................................43
5.7 Capital Improvement Assessments........................................................................45
5.8 Delinquency. ..........................................................................................................45
5.9 Creation and Release of Lien.................................................................................45
5.10 Enforcement of Liens.............................................................................................47
5.11 Priority of Assessment Lien...................................................................................48 ARTICLE VI .................................................................................................................................49
6. Project Easements and Rights of Entry..............................................................................49
6.1 Easements. .............................................................................................................49
6.2 Rights of Entry.......................................................................................................52 ARTICLE VII................................................................................................................................53
7. Declarant’s Rights and Reservations. ................................................................................53 ARTICLE VIII...............................................................................................................................57
8. Residence and Use Restrictions.........................................................................................57
8.1 Single Family Residences......................................................................................57
8.2 Alterations; Inside and Outside Installations. ........................................................58
8.3 Animal Regulations. ..............................................................................................59
8.4 Antenna..................................................................................................................60
8.5 Business or Commercial Activity. .........................................................................60
8.6 Common Property Facilities. .................................................................................61 v
8.7 Drainage.................................................................................................................61
8.8 Exterior Fires; Barbecues.......................................................................................62
8.9 Firearms and Fireworks. ........................................................................................62
8.10 Further Subdivision................................................................................................62
8.11 Garbage/Trash........................................................................................................62
8.12 Hazardous, Toxic, Flammable, Corrosive or Explosive Materials........................63
8.13 Nuisances. ..............................................................................................................63
8.14 Parking and Vehicular Restrictions. ......................................................................64
8.15 Rights of Handicapped...........................................................................................65
8.16 Roof: Access Restrictions......................................................................................65
8.17 Signs.......................................................................................................................65
8.18 Sound Attenuation. ................................................................................................66
8.19 Terraces..................................................................................................................67
8.20 View Obstructions. ................................................................................................68
8.21 Water Supply System.............................................................................................68
8.22 Window Coverings. ...............................................................................................68
8.23 Post-Tension Concrete System. .............................................................................68 ARTICLE IX .................................................................................................................................69
9. Insurance............................................................................................................................69
9.1 Duty to Obtain Insurance; Types. ..........................................................................69
9.2 Waiver of Claim Against Association. ..................................................................70
9.3 Right and Duty of Owners to Insure. .....................................................................70
9.4 Notice of Expiration Requirements. ......................................................................70
9.5 Insurance Premiums...............................................................................................71
9.6 Trustee for Policies. ...............................................................................................71
9.7 Actions as Trustee..................................................................................................71
9.8 Annual Insurance Review......................................................................................72
9.9 Required Waiver. ...................................................................................................72 ARTICLE X...................................................................................................................................73
10. Destruction of Improvements. ...........................................................................................73
10.1 Restoration of the Property. ...................................................................................73
10.2 Sale of Property and Right to Partition..................................................................74
10.3 Interior Damage. ....................................................................................................74 vi
10.4 Notice to Owners and Listed Mortgagees..............................................................75 ARTICLE XI .................................................................................................................................75
11. Eminent Domain. ...............................................................................................................75
11.1 Project Condemnation............................................................................................75
11.2 Condemnation of Common Property.....................................................................75
11.3 Condemnation of Condominiums..........................................................................76
11.4 Condemnation of Portions of Units. ......................................................................76
11.5 Portions of Awards in Condemnation Not Compensatory for Value of Real Property..................................................................................................................77
11.6 Notice of Owners and Mortgagees. .......................................................................77 ARTICLE XII................................................................................................................................77
12. Rights of Mortgagees.........................................................................................................77 ARTICLE XIII...............................................................................................................................80
13. Duration and Amendment..................................................................................................80
13.1 Duration. ................................................................................................................80
13.2 Amendment............................................................................................................81
13.3 Protection of Declarant. .........................................................................................83 ARTICLE XIV...............................................................................................................................84
14. Enforcement of Certain Bonded Obligations.....................................................................84
14.1 Consideration by Board of Directors. ....................................................................84
14.2 Consideration by the Members. .............................................................................84 ARTICLE XV................................................................................................................................85
15. General Provisions.............................................................................................................85
15.1 Legal Proceedings; Arbitration; Actions Arising From Restrictions.....................85
15.2 Notification of Construction Claims......................................................................86
15.3 Notice to Members of Other Civil Action Against Declarant. ..............................87
15.4 Alternative Dispute Resolution..............................................................................87
15.5 Violation of Restrictions........................................................................................93
15.6 Severability. ...........................................................................................................93
15.7 Interpretation..........................................................................................................93
15.8 Mergers or Consolidations.....................................................................................94
15.9 Use of Common Property. .....................................................................................94
15.10 No Public Right or Dedication...............................................................................94 vii
15.11 No Representations or Warranties. ........................................................................94
15.12 Nonliability and Indemnification...........................................................................95
15.13 Notices. ..................................................................................................................96
15.14 Priorities and Inconsistencies.................................................................................96
15.15 Constructive Notice and Acceptance. ....................................................................96
15.16 Declarant Delivery of Documents. ........................................................................96
15.17 Mixed Use Development Disclosure. ....................................................................98
15.18 Security. .................................................................................................................98
15.19 Additional Provisions.............................................................................................98 ARTICLE XVI...............................................................................................................................98
16. Covenants in Favor of Local Jurisdiction. .........................................................................98
16.1 Conflict with Other Articles...................................................................................98
16.2 City Rights to Common Areas...............................................................................98
16.3 Amendment. ...........................................................................................................99 8 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
PALLADIUM
THIS DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR PALLADIUM (“Declaration”) is made by GB TOWERS, LLC, a California limited liability company (“Declarant”).
P R E A M B L E:
A. Declarant is the owner of that certain real property (“Property”) located in the City of Grover Beach (“City”), County of San Luis Obispo (“County”), State of California, described as follows:
Lot 1 of Tract No. 3202, as shown on that certain Subdivision Map filed on ______________________, in Book ____ at Pages ___ through ___, inclusive, of Maps, in the Office of the San Luis Obispo County Recorder.
B. It is the desire and intention of Declarant to subdivide the Property (as hereinafter defined) to create condominium estates in accordance with the Davis-Stirling Common Interest Development Act and to impose mutually beneficial restrictions under a general plan of improvement for the benefit of all the condominium estates created. To such end, Declarant deems it desirable to create a corporation under the Nonprofit Mutual Benefit Corporation Law of the State of California which will be delegated and assigned the powers of owning and maintaining the Common Property (as hereinafter defined), administering and enforcing the covenants and restrictions established by this Declaration, and collecting and disbursing the assessments and charges hereinafter created.
C. The Palladium project is a mixed-use residential/commercial development with approximately 37 residential units and 2 commercial units. The commercial uses shall be subject to applicable City’s zoning regulations for mixed-use projects.
C. Declarant hereby declares that all of the Property is to be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following limitations, restrictions, reservations, rights, easements, conditions and covenants, all of which are declared and agreed to be in furtherance of a plan for the protection, subdivision, maintenance, improvement and sale of the Property for the purpose of enhancing the value, desirability and attractiveness of the Property. All provisions of this Declaration, including without limitation the easements, uses, obligations, covenants, conditions and restrictions hereof, are hereby imposed as equitable servitudes upon the Property. All of the limitations, restrictions, reservations, rights, easements, conditions and covenants herein shall run with and burden the Property and shall be binding on and for the benefit of all of the Property and all Persons having or acquiring any right, title or interest in the Property, or any part thereof, and their successive owners and assigns. 9 D. Declarant, its successors, assigns and grantees, covenant and agree that the undivided interest in the Common Area, the Membership in the Association, any easements conveyed therewith and the fee title to each respective Unit conveyed therewith shall not be separated or separately conveyed, and each such undivided interest, Membership and easement shall be deemed to be conveyed or encumbered with its respective Unit even though the description in the instrument of conveyance or encumbrance may refer only to the Unit; provided, however, that this restriction upon the severability of the component interests of the Condominiums shall not extend beyond the period for which the right to partition the Property is suspended in accordance with § 4610 of the California Civil Code (or any successor or replacement statute) and the provisions of Article X hereof. Any conveyance by an Owner of a Condominium, or any portion thereof, shall be presumed to convey the entire Condominium, together with a Membership in the Association.
ARTICLE I
1. Definitions.
Unless otherwise expressly provided, the following words and phrases, when used in this Declaration, shall have the following specified meanings.
1.1 Architectural Committee or Committee.
Architectural Committee or Committee shall mean the Architectural Review Committee created pursuant to Article IV hereof.
1.2 Articles.
Articles shall mean the Articles of Incorporation of the Association, filed or to be filed in the Office of the Secretary of State of the State of California, as such Articles may be amended from time to time.
1.3 Assessment, Annual.
Annual Assessment shall mean a charge against a particular Owner and his or her Condominium, representing his or her share of the total Common Expenses which are to be levied among all the Owners and their Condominiums in the Project in the manner and proportions provided herein.
1.4 Assessment, Capital Improvement.
Capital Improvement Assessment shall mean a charge which the Board may from time to time levy against each Owner and his or her Condominium, representing a portion of the cost to the Association for installation or construction of any Improvements on the Common Property. Such charge shall be levied among all of the Condominiums in the Project in the same proportions as are Annual Assessments.
10 1.5 Assessment, Reconstruction.
Reconstruction Assessment shall mean a charge which the Board may from time to time levy against each Owner and his or her Condominium, representing a portion of the cost to the Association for reconstruction of any Improvements on the Common Property. Reconstruction Assessments shall be levied among the Owners and their Condominiums in the same proportions as Annual Assessments.
1.6 Assessment, Special.
Special Assessment shall mean (i) a charge which the Board may from time to time levy against each Owner and his or her Condominium in order to raise funds for unexpected operating or other costs, insufficient operating or reserve funds, or other purposes as the Board in its discretion considers appropriate; or (ii) a charge against a particular Owner directly attributable to, or reimbursable by, the Owner, equal to the cost incurred by the Association for corrective action performed pursuant to the provisions of this Declaration, or a reasonable fine or penalty assessed by the Board, plus interest and other charges on such Special Assessments as provided for in this Declaration. Special Assessments shall not include any late payment penalties, interest charges or costs (including attorneys’ fees) incurred by the Association in the collection of Annual, Capital Improvement and Reconstruction Assessments.
1.7 Association.
Association shall mean Palladium Homeowners Association, a California nonprofit corporation (formed pursuant to the Nonprofit Mutual Benefit Corporation Law of the State of California), its successors and assigns.
1.8 Board or Board of Directors.
Board of Directors or Board shall mean the Board of Directors of the Association.
1.9 Budget.
Budget shall mean a written, itemized estimate of the income and Common Expenses of the Association in performing its functions under this Declaration, which Budget shall be prepared pursuant to the Bylaws.
1.10 Bylaws.
Bylaws shall mean the Bylaws of the Association, as such Bylaws may be amended from time to time.
1.11 City.
City shall mean the City of Grover Beach, State of California. 11 1.12 Close of Escrow.
Close of Escrow shall mean the date on which a deed is Recorded conveying a Condominium pursuant to a transaction requiring the issuance of a Final Subdivision Public Report by the DRE.
1.13 Commercial Owner.
Commercial Owner shall mean Declarant as the initial owner of the Commercial Units, and any and all successors or assigns succeeding to the rights and obligations under this Declaration as the legal owner of a Commercial Unit.
1.14 Commercial Unit. Commercial Unit shall mean a condominium Unit which is designed for community commercial uses, which commercial activities and uses shall be consistent with uses that are permitted under the City’s zoning regulations.
1.15 Common Area.
Common Area shall mean all of the real properties and improvements within the Project, except the Separate Interests. The Common Area is more particularly identified on the Condominium Plan. The Common Area in the Project is contemplated to include, without limitation, the following, if applicable: the land and the Condominium Building (excluding the Units and any easement appurtenant thereto). Declarant hereby expressly reserves for the benefit of the Association a nonexclusive easement for access, ingress and egress over the Property to the extent necessary to perform the maintenance, repair and replacement of the Common Area in the Project.
1.16 Common Expenses.
Common Expenses shall mean those expenses for which the Association is responsible under this Declaration, including, but not limited to, the actual and estimated costs of:
maintenance, cleaning, utilities, management, operation, and repair and replacement of the Common Property; unpaid Special Assessments, Reconstruction Assessments and Capital Improvement Assessments; the cost of maintenance of any recreational facilities on the Common Property; the costs of any and all utilities metered to more than one Unit, if any, and other commonly metered charges for the Property, including, without limitation, the cost to read, maintain, repair and replace any sub-meters; the cost of maintenance of any clustered mailboxes and any address identification signs; the cost of annual inspection of the Project; the costs of management and administration of the Association including, but not limited to, compensation paid by the Association to managers, accountants, attorneys and other employees; the costs of any gardening, security, trash pickup and other services benefiting the Common Property; the costs of fire, casualty and liability insurance, workers’ compensation insurance, errors and omissions and director, officer and agent liability insurance, and other insurance covering the Property and the directors, officers and agents of the Association, including earthquake insurance, if provided; the costs of bonding of the members of the Board; taxes paid by the Association, including any blanket tax assessed against the Property; the amounts paid by the Association for discharge of any lien or encumbrance levied against the Property, or portions thereof; and the costs of any other item or 12 items incurred by the Association, for any reason whatsoever in connection with the Property, for the common benefit of the Owners.
1.17 Common Interest Development.
Common Interest Development shall mean and refer to “Common Interest Development” as defined in California Civil Code § 4100 (or any successor or replacement statute).
1.18 Common Property.
Common Property shall mean the Common Area and all real and personal property interests to which the Association shall hold title or over which the Association shall hold an easement for the common use and enjoyment of the Members as provided herein. Declarant hereby expressly reserves for the benefit of the Association a nonexclusive easement for access, ingress and egress over the Common Property and the Units to the extent necessary to perform the maintenance, repair, and replacement of the Common Property in accordance with this Declaration.
1.19 Condominium.
Condominium shall mean an estate in real property as defined in California Civil Code § 4125(b) (or any successor or replacement statute), and shall consist of an undivided fee simple ownership interest in the Common Area, together with a separate ownership interest in fee in a Unit and all easements appurtenant thereto, including Exclusive Use Areas. Subject to the provisions of Section 11.4 hereof, the fractional undivided fee simple interest in the Common Area (i) shall be appurtenant to each Unit, (ii) shall be a fraction having one (1) as its numerator and the total number of Units in the Project as its denominator, and (iii) shall be held by the Owners of Condominiums in the Project as tenants in common.
1.20 Condominium Building.
Condominium Building shall mean the building in which the Units are located.
1.21 Condominium Plan.
Condominium Plan shall mean each of the Recorded condominium plan, as such may be amended from time to time, for all or a portion of the Project, consisting of (1) a description or survey map of the Project or portion thereof, which shall refer to or show monumentation on the ground, (2) a three-dimensional description of the Project or portion thereof, one or more dimensions of which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify the Common Area and each Separate Interest, as applicable, and (3) a certificate consenting to the Recordation thereof signed and acknowledged by the record owner of fee title to the Project, or portion thereof, and by either the trustee or the Beneficiary of each Recorded Deed of Trust, and the Mortgagee of each Recorded Mortgage encumbering the Project or portion thereof.
13 1.22 Cost Center.
Cost Center shall mean a portion of the Project with a group of Separate Interests which have been designated from time to time to bear the costs of either (i) maintaining, repairing, and replacing specified Improvements within the Common Property, or (ii) receiving certain utilities, services or programs provided by the Association, for the benefit of only the Separate Interests within the Cost Center. The additional administrative costs of operating each Cost Center shall be a part of the Cost Center Expenses allocated to the Cost Center Assessments. Cost Centers may be designated by Declarant in this Declaration or any Supplemental Declaration when Declarant, in its sole discretion, determine that one or more (but not all) of the Separate Interests within the Project benefit from any of the Improvements within the Common Property or certain services provided by the Association. Declarant and/or the Board may also designate Cost Centers under circumstances authorized in this Declaration or a Supplemental Declaration.
1.23 Cost Center Assessments.
Cost Center Assessments shall mean and refer to an additional component of Association regular assessments or special assessments to be assessed against those Separate Interests which are within a particular Cost Center, for payment of the operating costs and reserves and other items applicable to the Cost Center Benefits within the Cost Center. Reference to "regular assessments" or "special assessments" in this Declaration shall also refer to the Cost Center Assessments with respect to the Separate Interests within a Cost Center for all purposes, except for any limitation set forth in this Declaration. Cost Center Assessments shall be deemed separate from the regular Annual Assessments. Imposition of a Cost Center Assessment shall not be deemed an increase in the regular Annual Assessment amount, but instead an additional assessment and any reference to "fifty percent (50%) of the Owners" with respect to Cost Center Assessments, refer to fifty percent (50%) of the Owners within the Cost Center.
1.24 Cost Center Benefits.
Cost Center Benefits shall mean Association maintained Improvements (including, but not limited to, dwelling structures, parking areas, solar electric systems, that is located within a Cost Center and is likely to be (i) used primarily by or for the benefit of the Owners within such Cost Center, and (ii) relates to a higher level of service or additional services.
1.25 Cost Center Expenses.
Cost Center Expenses shall mean the actual and estimated expenses incurred or anticipated to be incurred by the Association for the benefit of the Owners and occupants of the Separate Interests within a particular Cost Center, which may include a reasonable reserve for capital repairs and replacements, as the Board may specifically authorize and as may be authorized herein or in a Supplemental Declaration applicable to the Cost Center.
1.26 Declarant.
Declarant shall mean GB Towers, LLC, a California limited liability company, its successors, and any Person to which it shall have assigned all or any of its rights hereunder by an express written assignment. In the event the lender of a Mortgage encumbering the Condominiums 14 owned by Declarant obtains title to such Condominiums, pursuant to judicial foreclosure or the powers provided in such Mortgage, the first Mortgagee, as Declarant’s successor, shall take title to such Condominiums along with all Declarant’s rights set forth herein, including all voting rights set forth in Section 2.6 below.
1.27 Declaration.
Declaration shall mean this Declaration of Covenants, Conditions and Restrictions and Reservation of Easements, as it may be amended from time to time.
1.28 Declaration of Alternative Dispute Resolution.
Declaration of Alternative Dispute Resolution shall mean that certain Declaration of Alternative Dispute Resolution for Palladium Recorded concurrently herewith. Any and all claims, controversies, breaches or disputes by or between or among the Association, any Owner or Owners, and/or Declarant arising from or related to this Declaration, the Common Property, any Unit, the sale of any Unit, or any transaction related thereto shall be subject to Section 15.4 below and the Declaration of Alternative Dispute Resolution for Palladium.
1.29 Deed of Trust.
Deed of Trust shall mean a Mortgage or a Deed of Trust, as the case may be.
1.30 Drainage and Water Quality Improvements.
Drainage and Water Quality Improvements shall mean the drainage and water improvements in the Community. The Drainage and Water Quality Improvements may include drainage basins, Low-Impact Development (LID)-design drainage and stormwater treatment improvements, drainage channels, below-ground drain lines, subsurface drains, water quality treatment and conveyance improvements, including detention and biofiltration basins, underground storm water detention systems, brow ditches, bioswales, area drains, storm drain lines, roof drains and downspouts, rain gardens, bioretention areas, and any outlet from the biofilters to the City storm drain system and appurtenant improvements constructed in the Community.
1.31 DRE.
DRE shall mean the California Department of Real Estate and any successors thereto.
1.32 Exclusive Use Area(s).
Exclusive Use Area(s) shall mean and include those portions of the Common Area shown on the Condominium Plan or in this Declaration over which exclusive easements are reserved for the benefit of certain Owners. Exclusive Use Areas for this Project include the following:
15 (a) Exclusive Use Parking Space(s). Exclusive Use Areas for parking purposes (each a “Parking Space”) are shown on the Condominium Plan. Each Parking Space shall be appurtenant to the Unit to which it is assigned. Declarant shall have the right, at its sole discretion, to convey to and collect separate consideration from an Owner for each Parking Space purchased. The assignment and conveyance of Parking Spaces shall be determined by Declarant in its sole and absolute discretion and identified on an assignment document or instrument assigning a Parking Space to an Owner. Nothing herein shall limit the right, power and authority of Declarant to create, transfer, assign and convey additional Parking Spaces to Owners in the Project subsequent to the Close of Escrow for the sale of a Unit to such Owners under the authority reserved to Declarant in this Section and Article VII below. Such right and power of Declarant to create, transfer, assign and convey additional Parking Spaces shall terminate upon the Close of Escrow for the last Unit in the Project owned by Declarant. An Owner may transfer, assign or lease one or more Parking Space(s) conveyed to such Owner, to another Owner of a Unit in the Project, subject to any Rules and Regulations adopted with respect thereto and, provided that such assignment or lease of Parking Spaces does not violate any applicable governmental rules, restrictions and requirements. Any purported transfer, assignment or lease of a Parking Space to a person or entity other than an Owner in the Project shall be null and void, and without legal force or effect. A copy of the assignment instrument shall be delivered to the Board as soon as possible after its execution.
(b) Exclusive Use Areas for storage purposes (each a “Storage Space”) are shown on the Condominium Plans. Each Storage Space shall be appurtenant to the Unit to which it is assigned. Declarant shall have the right, at its sole discretion, to convey to and collect separate consideration from an Owner for each Storage Space purchased. The assignment and conveyance of Storage Spaces shall be determined by Declarant in its sole and absolute discretion and identified on an assignment document or instrument assigning a Storage Space to an Owner. Nothing herein shall limit the right, power and authority of Declarant to create, transfer and convey additional Storage Spaces to the Owners subsequent to the Close of Escrow for the sale of a Unit to such Owners under the authority reserved to Declarant and Merchant Builder in this Section and Article VII below. Such right and power of Declarant to create, transfer and convey additional Storage Spaces shall terminate upon the Close of Escrow for the last Unit in the Project owned by Declarant. An Owner may assign or lease one or more Storage Space(s) conveyed to such Owner, to another Owner of a Unit in the Project, subject to any Rules and Regulations adopted with respect thereto and, provided that such assignment or lease of Storage Spaces does not violate any applicable governmental rules, restrictions and requirements. Any purported assignment or lease of Storage Space(s) to a person or entity other than an Owner shall be null and void, and without legal force or effect. A copy of the assignment instrument shall be delivered to the Board as soon as possible after its execution. (c) Exclusive Use Areas for internal and external telephone wiring designed to serve a single Unit but located outside the boundaries of that Unit, in accordance with California Civil Code Section 4145 (or any successor or replacement statute), and any other areas designated by Declarant or shown as Exclusive Use Areas in this Declaration, the Condominium Plan, or another written instrument from Declarant or the Association.
Declarant shall have the right to temporarily relocate an Owner’s assigned Exclusive Use Areas in order to accommodate any construction, maintenance or repair of 16 Improvements located within this Project. If an assigned Exclusive Use Area is permanently affected by such construction, maintenance or repair, Declarant shall have the right to exchange the affected Exclusive Use Area for another available Exclusive Use Area. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that such activities of the Declarant may impair the use of such Owner’s assigned Exclusive Use Areas and may constitute an inconvenience or nuisance to the Owners, and hereby consents to such impairment, inconvenience or nuisance, and agrees to indemnify the Declarant against any claims with respect to such matters.
1.33 Family.
Family shall mean one (1) or more natural Persons each related to the other by blood, marriage or adoption, or one (1) or more natural Persons not all so related, but who maintain a common household in a Unit.
1.34 FHA.
FHA shall mean the Federal Housing Administration of the United States Department of Housing and Urban Development and any department or agency of the United States government which succeeds to the FHA’s functions of insuring notes secured by Mortgages on residential real estate.
1.35 FHLMC.
FHLMC shall mean the Federal Home Loan Mortgage Corporation (also known as Freddie Mac) created by Title II of the Emergency Home Finance Act of 1970, and any successors to such corporation.
1.36 Fiscal Year.
Fiscal Year shall mean the fiscal accounting and reporting period of the Association selected by the Board from time to time.
1.37 FNMA.
FNMA shall mean the Federal National Mortgage Association, a governmentsponsored private corporation established pursuant to Title VIII of the Housing and Urban Development Act of 1968, and any successors to such corporation.
1.38 GNMA.
GNMA shall mean the Government National Mortgage Association administered by the United States Department of Housing and Urban Development, and any successor to such association.
1.39 Governmental Agency.
Governmental Agency shall mean any local, county, state and/or federal governmental or quasi-governmental agency, authority or regulatory body (including any public 17 or private utility company including cable television) that has jurisdiction over the Project or any part thereof.
1.40 Improvements.
Improvements shall mean all structures and appurtenances thereto of every type and kind located within the Project, including, but not limited to, the following (if applicable):
dwelling units, driveways, awnings, terraces, balconies, decks, patios, lobbies, walkways, hallways, stairways, storage areas, trash areas, roads, driveways, parking areas, fences, screening walls, block walls, retaining walls, bearing walls, columns, vertical supports, girders, ceiling joists, subfloors, floors, walls, roofs, slabs, foundations, paint on surfaces of any structure, heating and cooling equipment, water heaters, water softeners, reservoirs, tanks, pumps, motors, ducts, flues and chutes, conduits, pipes, plumbing, sprinkler systems, irrigation systems, drainage systems, landscaping, hedges, trees, shrubs, windbreaks, poles, signs, fire protection systems, television antennas, wires and other utility installations.
1.41 Limited Warranty.
Limited Warranty shall mean that certain express written warranty known as the “Limited Warranty” which is provided by Declarant to Owners.
1.42 Maintenance Funds.
Maintenance Funds shall mean the accounts created for receipts and disbursements of the Association pursuant to Section 5.2 hereof.
1.43 Maintenance Manual.
Maintenance Manual shall mean the maintenance recommendations and guidelines set forth in the manual which may be prepared by the Declarant or its authorized agents and provided to the Associations and to Owners, specifying obligations for maintenance of the Common Property by the Associations and the Units by the Owners, as updated and amended from time to time. Each Owner who receives a Maintenance Manual is obligated to provide a copy of such Maintenance Manual to any successor purchaser of such Owner’s Unit.
1.44 Manager.
Manager shall mean the Person, employed by the Association, pursuant to and limited by Section 2.12 hereof, and delegated the duties, power or functions of the Association as limited by said Section.
1.45 Member, Membership.
Member shall mean every Person holding a Membership in the Association, pursuant to Section 2.3 hereof. Membership shall mean the property voting and other rights and privileges of Members as provided herein, together with the correlative duties and obligations contained in the Restrictions.
18 1.46 Mortgage.
Mortgage shall mean any Recorded mortgage or deed of trust or other conveyance of a Condominium or other portion of the Property to secure the performance of an obligation, which conveyance will be reconveyed upon the completion of such performance. The term “Deed of Trust” or “Trust Deed” when used shall be synonymous with the term “Mortgage.”
1.47 Mortgagee, Mortgagor.
Mortgagee shall mean a Person to whom a Mortgage is made and shall include the Beneficiary of a Deed of Trust; Mortgagor shall mean a Person who mortgages his or her or its property to another (i.e., the maker of a Mortgage), and shall include the Trustor of a Deed of Trust. The term “Trustor” shall be synonymous with the term “Mortgagor” and the term “Beneficiary” shall be synonymous with the term “Mortgagee.”
1.48 Notice and Hearing.
Notice and Hearing shall mean written notice and a hearing before the Board, at which the Owner concerned shall have an opportunity to be heard in person, or by counsel at the Owner’s expense, in the manner further provided in the Bylaws.
1.49 Owner.
Owner shall mean the record owner(s), whether one (1) or more Persons or entities, of a fee simple interest in a Condominium within the Project, including Declarant, but excluding those having such interests merely as security for the performance of an obligation with respect to each Condominium owned by Declarant. The term “Owner” shall include the seller (but not the buyer) under an executory contract of sale. The term “Owners” shall generally mean the owner(s) of Condominiums within the Project. The term “Owner” shall not include a Mortgagee prior to its acquisition of fee title to the Unit encumbered by its Mortgage.
1.50 Person.
Person shall mean a natural individual, a corporation, a partnership, a trust, or any other entity with the legal right to hold title to real property.
1.51 Project.
Project shall mean Palladium development and shall be comprised of the Property and all Improvements located therein, including, without limitation, the Common Property and the Units therein. The Project is a “condominium project” as defined in § 4125(a) of the California Civil Code (or any successor or replacement statute).
1.52 Property.
Property shall mean Lot 1 of Tract No. 3202, as shown on that certain Subdivision Map filed on ______________________, in Book ____ at Pages ___ through ___, inclusive, of Maps, in the Office of the San Luis Obispo County Recorder 19 1.53 Record, File, Recordation.
Record, File or Recordation shall mean, with respect to any document, the recordation or filing of such document in the Office of the County Recorder of the county in which the Property is located.
1.54 Residence.
Residence shall mean the residential dwelling portion of a Unit, intended for use by a single Family.
1.55 Restrictions.
Restrictions shall mean this Declaration, the Articles, the Bylaws, and the Rules and Regulations of the Association from time to time in effect.
1.56 Rules and Regulations.
Rules and Regulations shall mean the rules and regulations adopted by the Board pursuant to this Declaration or the Bylaws, as such Rules and Regulations may be amended from time to time.
1.57 Separate Interest or Unit.
Separate Interest or Unit shall mean a separate interest in space as defined in § 4125(b) of the California Civil Code (or any successor or replacement statute). Each Separate Interest or Unit shall be a separate freehold estate, as separately shown, numbered and designated in the Condominium Plan, and shall consist of the airspaces designated on the Condominium Plan.
In interpreting deeds, declarations and plans, the existing physical boundaries of the Unit (including the Exclusive Use Areas appurtenant thereto) or a Unit or Exclusive Use Area constructed or reconstructed in substantial accordance with the Declaration, the Condominium Plan and the original plans thereof, shall be conclusively presumed to be its boundaries, rather than the description expressed in the deed, Condominium Plan or Declaration, regardless of settling or lateral movement of the Condominium Building and regardless of minor variances between boundaries, as shown on the Condominium Plan or defined in the deed and Declaration, and the boundaries of a building as constructed or reconstructed.
1.58 Subdivision Map.
Subdivision Map shall mean the subdivision map for Tract No. 3202 filed on __________________, in Book ___ at Pages ___ through ___, inclusive, of Maps, in the Official Records of San Luis Obispo County.
1.59 Telecommunications Facilities.
Telecommunications Facilities shall mean equipment, cables, conduits, inner ducts, vaults, connecting hardware, wires, poles, transmitters, towers, antennae and other facilities, 20 structures and Improvements necessary for, or used in, the provision of Telecommunications Services. Declarant may expand this definition in any supplemental declaration.
1.60 Telecommunications Services.
Telecommunications Services shall mean services for cable television, communications, telecommunications, high-speed data, telephony, intranet, internet, broad-band communications, information transfer, transmission, video and other similar services. Declarant may expand this definition in any supplemental declaration.
1.61 Terrace(s).
Terrace shall mean a patio, a deck, a balcony, or a porch element within the Project as shown and depicted on the Condominium Plan and constituting a portion of a Unit located within the Project.
1.62 VA.
VA shall mean the Department of Veterans Affairs of the United States of America and any department or agency of the United States government which succeeds to the VA’s function of issuing guaranties of notes secured by Mortgages on residential real estate.
ARTICLE II
2. Homeowners Association.
2.1 Organization of Association.
The Association is or shall be incorporated under the name of Palladium Homeowners Association, as a corporation not for profit under the Nonprofit Mutual Benefit Corporation Law of the State of California.
2.2 Duties and Powers.
(a) General Duties and Powers. The duties and powers of the Association are those set forth in the Declaration, the Articles and Bylaws, together with the general and implied powers of a nonprofit mutual benefit corporation, generally to do any and all things that a corporation organized under the laws of the State of California may lawfully do which are necessary or proper, in operating for the peace, health, comfort, safety and general welfare of its Members, subject only to the limitations upon the exercise of such powers as are expressly set forth in the Articles, the Bylaws and in this Declaration. The Association shall further have the right to install or construct capital Improvements on the Common Property. The Association may at any time, and from time to time reconstruct, replace or refinish any Improvement or portion thereof upon the Common Property in accordance with the original design, finish or standard of construction of such Improvement; and may also replace destroyed trees or other vegetation and plant trees, shrubs and ground cover upon any portion of the Common Property. The Association may employ personnel necessary for the effective operation and maintenance of the Common Property, including, without limitation, the employment of 21 legal, management and accounting services. The Association shall make available for inspection by any prospective purchaser of a Condominium, any Owner of a Condominium, and the Beneficiaries, insurers and guarantors of the first Mortgage on any Condominium, current copies of the Declaration, the Articles, the Bylaws, the Rules and Regulations and all other books, records, and financial statements of the Association required to be available for inspection pursuant to California Civil Code § 5200 (or any successor or replacement statute). The Association shall additionally have the power, but not the duty, to enter into contracts with Owners or other persons to provide services or to maintain and repair Improvements within the Property and elsewhere which the Association is not otherwise required to provide or maintain pursuant to this Declaration; provided, however, any such contract shall provide for the payment to the Association for the costs of providing such services or maintenance. (b) Litigation. Subject to the provisions of this Declaration, the Association shall have the power, but not the duty, to initiate, defend, settle or intervene in mediation, arbitration, judicial or administrative proceedings on behalf of the Association in matters pertaining to (a) the application or enforcement of this Declaration and (b) damage to the Common Property; provided, however that no representative of Declarant on the Board shall vote on the initiation of any claim under California Civil Code §895, et seq. (or any successor or replacement statute), such that Declarant shall have no control over the Association’s ability to decide whether to initiate a claim under such statutory provisions and in the event of such a vote, the affirmative vote of a majority of the non-Declarant representatives on the Board shall be binding so long as a quorum of the Board is present at any meeting where such vote is taken.
The Association and not the individual Members shall have the power to pursue any claims or other actions using the non-adversarial proceedings for construction defects in the Common Property pursuant to Section 15 below. Any recovery by the Association with respect to any damage to or defect in the Common Property shall be utilized solely for the purpose of paying for the costs of obtaining the recovery and for correcting such damage or defect. (c) Maintenance Manuals. The Association shall maintain at the offices of the Association a copy of the Maintenance Manual, if one is provided by Declarant to the Owners, and shall make available to each such Owner upon request a copy of the Maintenance Manual applicable to the Units. The Association shall have the right to charge the requesting Owner a fee for the copying of such Maintenance Manual. The Association shall also comply with provisions of the Maintenance Manual for the Common Area, if one is provided by Declarant to the Association. The Board may, from time to time, make appropriate revisions to the Association’s Maintenance Manual based on the Board’s review thereof, to update such manual to provide for maintenance according to current industry practices so long as such changes do not reduce the useful life or functionality items being maintained. (d) Members’ Approval of Construction Defect Actions. In the event that any claim or other actions brought by the Association under California Civil Code § 895, et seq., and any successor or replacement statutes or laws, involving allegations of construction defects relating to the Common Property, is not resolved pursuant to the non-adversarial procedures set forth in Section 15.4 below, the Association shall not initiate an action or arbitration under Section 15.4 below or otherwise without first obtaining the consent of the Owners other than Declarant, constituting more than sixty-seven percent (67%) of the voting power of the Association at a meeting or election of the Association, conducted in accordance 22 with the provisions of California Corporations Code §§ 7510, et. seq. and 7613 and any successor statutes or laws.
(e) Adoption of Rules and Regulations. The Board or the Members of the Association by majority vote, may adopt reasonable Rules and Regulations that are not inconsistent with this Declaration relating to the use of the Common Property and all its facilities, and the conduct of Owners and their Family, tenants, guests and invitees with respect to the Project and other Owners. The Board shall adopt and amend Rules and Regulations in accordance with the procedures and requirements set forth in California Civil Code §§ 4340 - 4370 and any amendments thereto. Written copies of such Rules and Regulations and any schedule of fines and penalties adopted by the Board shall be furnished to Owners. All changes to the Rules and Regulations shall be delivered within fifteen (15) days after they are adopted by either: (i) posting in a conspicuous place in the Common Property; or (ii) sending to the Owners via first-class mail or by any system or technology designed to record and communicate messages.
2.3 Membership.
Every Owner, upon becoming the Owner of a Condominium, shall automatically become a Member of the Association, and shall remain a Member thereof until such time as his or her ownership ceases for any reason, at which time his or her Membership in the Association shall automatically cease. Ownership of a Condominium shall be the sole qualification for Membership in the Association. All Memberships shall be appurtenant to the Condominium conveyed, and with the exception of Declarant, a Person shall be deemed an Owner of a Condominium only upon Recordation of a deed conveying the Condominium to such Person. Except as may otherwise be expressly provided herein, the rights, duties, privileges and obligations of all Members of the Association shall be as provided in the Restrictions.
2.4 Transfer.
The Membership held by any Owner shall not be transferred, pledged or alienated in any way, except upon the sale or encumbrance of such Owner’s Condominium, and then only to the purchaser or Beneficiary of such Condominium. A prohibited transfer is void, and will not be reflected upon the books and records of the Association. A Class A Member who has sold his or her Condominium to a contract purchaser under an agreement to purchase shall be entitled to delegate to the contract purchaser his or her Membership rights in the Association. The delegation shall be in writing and shall be delivered to the Board before the contract purchaser may vote.
However, the contract seller shall remain liable for all charges and assessments attributable to his or her Condominium until fee title to the Condominium sold is transferred, as further provided in Section 5.1 of this Declaration. If the Owner of any Condominium fails or refuses to transfer the Membership registered in his or her name to the purchaser of the Condominium upon transfer of fee title thereto, then upon receipt of satisfactory evidence of such transfer the Board of Directors shall have the right to record the transfer upon the books of the Association and to allow the purchaser to vote at meetings of the Association. Until satisfactory evidence of such transfer has been presented to the Board, the purchaser shall not be entitled to vote at meetings of the Association. The Association may levy a reasonable transfer fee against a new Owner and his or her Condominium (which fee shall be added to the Annual Assessment chargeable to such new 23 Owner) to reimburse the Association for the administrative cost of transferring the Membership to the new Owner on the records of the Association, provided such fee does not exceed the Association’s actual cost involved in changing its records of ownership.
2.5 Classes of Membership.
The Association shall have two (2) classes of voting Membership.
Class A. Class A Members shall originally be all Owners except the Declarant, for so long as there exists a Class B Membership. Class A Members shall be entitled to one (1) vote for each Condominium owned by such Class A Member and subject to assessment. Declarant shall become a Class A Member with regard to Condominiums owned by Declarant upon conversion of Declarant’s Class B Membership as provided below. When more than one (1) Person owns any Condominium, all of those Persons shall be Members. The vote of such Condominium shall be exercised as they among themselves determine in accordance with Section
2.6, but in no event shall more than one (1) Class A vote be cast for any Condominium.
Class B. The Class B Member shall be Declarant. The Class B Member shall be entitled to three (3) votes for each Condominium owned and subject to assessment, provided that the Class B Membership shall cease and be converted to Class A Membership immediately upon the first to occur of the following events:
(a) The total outstanding votes held by Class A members equal the total outstanding votes held by the Class B member; or
(b) The second anniversary of the first Close of Escrow pursuant to the Final Subdivision Public Report for the Project.
The Class B Member shall have the right to cause earlier conversion of its Membership to Class A by so notifying the president or secretary of the Association in writing.
2.6 Voting Rights.
(a) All voting rights shall be subject to the Restrictions. Except as provided in Section 14.2 of this Declaration and Section 4.8 of the Bylaws, as long as there exists a Class B Membership, any provision of this Declaration, the Articles or Bylaws which expressly requires the vote or written consent of a prescribed majority of the voting power of the Members of the Association other than Declarant for action to be taken by the Association, is not intended to preclude Declarant from casting votes attributable to Units which Declarant owns, and shall require the approval of such prescribed majority of the voting power of each class of Membership. Except as provided in Section 14.2 of this Declaration and Section 4.8 of the Bylaws, when the Class B Membership has terminated, any provision of this Declaration, the Articles or Bylaws which expressly requires the vote or written consent of a prescribed majority of the voting power of the Members of the Association other than Declarant for action to be taken by the Association, is not intended to preclude Declarant from casting votes attributable to Units which Declarant owns, and shall require the vote or written consent of Owners representing 24 such prescribed majority of both the total voting power of the Association and the voting power of the Association residing in Owners other than Declarant. (b) At any meeting of the Association, each Owner (except as otherwise provided in Article II, Section 2.5 with respect to the voting power of Declarant), shall be entitled to cast no more than one (1) vote for each Condominium owned as shown on the Condominium Plan. Where there is more than one (1) record Owner of a Condominium (collectively, “Co-owners” and each a “Co-owner”), all of those Co-owners shall be Members and may attend any meeting of the Association, but only one (1) of those Co-owners shall be entitled to exercise the single vote to which the Condominium is entitled. Co-owners owning the majority interests in a Condominium shall from time to time designate in writing one (1) of their number to vote. Fractional votes shall not be allowed, and the vote for each Condominium shall be exercised, if at all, as a unit. Where no voting Co-owner is designated or if the designation has been revoked, the vote for the Condominium shall be exercised as the Co-owners owning the majority interests in the Condominium mutually agree. Unless the Board receives a written objection in advance from a Co-owner, it shall be conclusively presumed that the voting Co-owner is acting with the consent of his or her Co-owners. No vote shall be cast for any Condominium if the Co-owners present in person or by proxy owning the majority interests in such Condominium cannot agree to said vote or other action. The nonvoting Co-owner or Coowners shall be jointly and severally responsible for all of the obligations imposed upon the jointly-owned Condominium and shall be entitled to all other benefits of ownership. All agreements and determinations lawfully made by the Association in accordance with the voting percentages established herein, or in the Bylaws of the Association, shall be deemed to be binding on all Owners, their successors and assigns.
2.7 Repair and Maintenance by the Association.
(a) Maintenance Standards. Subject to Article X pertaining to destruction of Improvements and Article XI pertaining to eminent domain, the Association shall paint, maintain, repair and replace the Common Property and all Improvements thereon, or shall contract for such maintenance, repair and replacement to assure maintenance of the Common Property and all Improvements thereon, in a clean, functional, sanitary and attractive condition, in accordance with applicable manufacturer standards and recommendations and the schedules set forth in the Maintenance Manual, and in a manner consistent with projects of like quality; provided, however, except as expressly provided herein, the Association shall not be responsible for or obligated to perform those items of maintenance, repair or replacement of the Units (the maintenance of which is the responsibility of the Owner thereof as provided in Section 2.9), nor shall the Association be responsible for or obligated to perform those items of maintenance, repair or replacement of the Common Property and all Improvements thereon which are the responsibility of a governmental or quasi-governmental entity. Subject to the qualifications set forth above in this Section, the Board shall determine, in its sole discretion, the level and frequency of maintenance of the Common Property.
(b) Maintenance Items. Without limiting the generality of the foregoing, the Association shall without limitation have the following maintenance rights and obligations pertaining to this Project:
25 (1) The Association shall be responsible for the maintenance, repair, and payment of all centrally-metered water, gas, electric, and other utility services and equipment, Common Property trash enclosures and refuse equipment and collection, fire services, any common storage area, and any mechanical or electrical equipment in the Common Property, except any equipment maintained by the Owner. The Association shall maintain and read all utility sub-meters on the Property and determine the utility costs and assessments applicable to each Unit; (2) The Association shall be responsible for the maintenance and repair of all common access driveways and walkways within the Project; (3) The Association shall be responsible for payment of all Common Expenses;
(4) The Association shall be responsible for the repair and maintenance of all clustered mailboxes which are reserved for exclusive use of Owners within the Project;
(5) The Association shall maintain, in good working order, any lighting system along all streets and walkways within the Common Property; (6) The Association shall be responsible for the maintenance of all pavers and landscaping located on the Common Property and in any area shown in a Supplemental Declaration (including, without limitation, maintaining vegetation necessary to avoid erosion, controlling weed growth and providing for irrigation, within the limits of drought restrictions, if any, and providing, maintaining, and repairing sprinklers and other landscape maintenance equipment and facilities as necessary) in a fertilized, trimmed and otherwise attractive and first-class condition and in accordance with all applicable legal requirements; (7) The Association shall be responsible for maintenance and repair of the drainage structures, improvements, and basins located in the Common Property, including, without limitation, any pervious pavement or pavers, piping, filtration systems, infiltration systems, and drainage inlets, and shall restore any improvement damaged or destroyed in connection with repair, replacement, or removal of and drainage structures, improvements, or basins as set forth in the Stormwater Operations and Maintenance Plan approved for the Project. (8) The Association shall be responsible for maintenance and repair of the plumbing (excluding plumbing lines and fixtures which exclusively serve a Unit, sink clogs, toilet clogs and garbage disposal clogs when located within Units) located in the Common Property, including, without limitation, any fire protection system, and shall restore any Improvement damaged or destroyed in connection with the repair, replacement or removal of any plumbing or drainage structures, Improvements, or basins; (9) The Association shall be responsible for the maintenance, repair, and replacement of any common fire alarm monitoring system, sprinkler systems (including the interior fire sprinkler system designed to serve each Unit, if any), and any related facilities (except the outlets thereof when located within Units); 26 (10) At least once every nine (9) years, the Association shall be responsible for conducting a reasonably competent and diligent visual inspection of the load bearing components and the associated waterproofing system of the elevated elements (such as decks, balconies, and stairways) of the Condominium Buildings which have at least 3 or more units within such buildings, which inspection shall be conducted in compliance with the requirements set forth in California Civil Code Section 5551, including the requirement for that such inspection be conducted by a licensed structural engineer or architect. Following receipt of the inspection report, the association shall take preventive measures as set forth in California Civil Code Section 5551, including preventing occupant access to the exterior elevated element until repairs have been inspected and approved by the local enforcement agency; (11) The Association shall be responsible for all maintenance, repair and replacement of the Cost Center Benefits.
(12) If, and only if, requested to do so by Declarant, the Association shall (i) retain a licensed professional to conduct an annual inspection of the roof, windows, balconies, and storm drains for water intrusion, (ii) conduct an annual visual inspection of the Common Property to identify any possible defects in the construction of any Improvements located thereon, (iii) send to the Owner of each Unit an annual survey or questionnaire to report any possible defects discovered by such Owner with respect to construction of the Improvements located on such Owner’s Unit, and (iv) promptly prepare a summary of the results of the annual inspection conducted by the Association and the Owners. The Association shall, at the earliest practicable date after receiving any inspection report from a licensed professional and/or preparing the summary set forth above, forward a copy of the summary to Declarant at its then current address, unless Declarant instructs otherwise;
(13) The Association shall have the right, without obligation, to perform all corrective janitorial and repair work within any Unit if the Owner thereof fails to perform such work; and
(14) The Association and each Owner shall maintain a
comprehensive maintenance log which details all maintenance actions and compliance with the maintenance provisions set forth in any Maintenance Manual and this Declaration.
No Owner shall interfere with the exercise by the Association of its right to maintain the Common Property or to perform any of its obligations pertaining to this Project. Declarant hereby grants to the Association easements for access across the Common Property and the Units as is necessary to allow maintenance obligations set forth herein.
(c) Pest Eradication. If determined by the Board to be economically feasible, the Association may, but shall not be obligated to, provide for an inspection and preventive program for the prevention and eradication of infestation by pests and organisms in the Property. If the Board adopts an inspection and preventive program for the prevention and eradication of infestation by termites, insects, pests, and other organisms, the Association, upon reasonable notice (which shall be given no less than fifteen (15) days nor more than thirty (30) days before the date of temporary relocation) to each Owner and the occupants of his or her Unit, may require such Owner and occupants to temporarily relocate from such Unit in order to 27 accommodate efforts by the Association to eradicate such infestation. The notice shall state the reason for the temporary relocation, the date and time of the beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the temporary relocation. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that such activities of the Association may temporarily impair the use of such Owner’s Unit and may constitute an inconvenience or nuisance to the Owners, hereby consents to such impairment, inconvenience or nuisance, and agrees to indemnify the Association against any claims with respect to such matters. Any damage caused to a Unit by such entry by the Board or by any person authorized by the Board shall be repaired by the Board as a Common Expense of the Association. All costs involved in maintaining the inspection and preventive program as well as repairing and replacing the Common Property and Improvements thereon when the need for such maintenance, repair or replacement is the result of termites, insects, pests or other organisms shall be a Common Expense subject to the restrictions applicable to Capital Improvement Assessments. (d) Charges to Owners. All such costs of maintenance, repairs and replacements for the Property shall be paid for as Common Expenses out of the Association Maintenance Funds as provided in this Declaration. It shall be the affirmative duty of the Board of Directors to require strict compliance with all provisions of this Declaration and to cause the Project to be inspected by the Architectural Committee for any violation thereof. The cost of any maintenance, repairs or replacements by the Association which is not the responsibility of the Association or which arises out of, or is caused by, the action or inaction of an Owner or such Owner’s Family, tenants, guests, invitees, or agents in violation of the Restrictions shall, after Notice and Hearing, be levied by the Board as a Special Assessment against such Owner.
2.8 Unsegregated Real Property Taxes.
If all of the Units in the Project are taxed under a blanket tax bill covering all of the Project, each Owner shall pay his or her proportionate share of any installment due under the blanket tax bill to the Association at least ten (10) days prior to the delinquency date; and the Association shall transmit the taxes to the appropriate tax collection agency on or before the delinquency date. Blanket taxes shall be allocated among the Owners and their Condominiums based upon the prorated square footage of each Unit. The Association shall, at least forty-five (45) days prior to the delinquency date of any blanket tax installment, deliver to each Owner a copy of the tax bill, along with a written notice setting forth the Owner’s obligation to pay his or her proportionate share of the tax installment and the potential additional charges to the Owner for failure to comply. The Association shall pay the taxes on behalf of any Owner who does not pay his or her proportionate share. The Association shall add to the Annual Assessment of a delinquent Owner the amount of any sum advanced, plus interest at the rate of ten percent (10%) per annum and any amount necessary to reimburse the Association for any penalty or late charge actually assessed in connection with the blanket tax bill, which late charge results from the failure of the delinquent Owner to make timely payment of his or her proportionate share of the taxes. Until the Close of Escrow for the sale of seventy-five percent (75%) of the Condominiums in the Project, the foregoing provisions relating to the collection of taxes in connection with a blanket tax bill on all or any portion of the Project may not be amended without the express written consent of Declarant.
28 2.9 Repair and Maintenance by Owners.
Each Owner shall maintain, repair, replace, paint, paper, plaster, tile, finish and restore or cause to be so maintained, repaired, replaced and restored, at his or her sole expense, all interior portions of his or her Unit, including, but not limited to, all glass surfaces (excluding any maintenance or repair which is the responsibility of the Association), windows (including window frames, casings, locks, handles, latches, and caulking of windows), shutters, screens, all doors, doorways, door frames, hardware that are part of the entry system of the Unit, weather stripping, light bulbs and fixtures actuated from switches controlled from or separately metered to such Owner’s Unit, electrical switches and outlets, built-in cabinets, built-in appliances (including, without limitation, dishwashers, disposals, electric and/or gas ranges, ovens, microwave units, refrigerators, and washers and dryers), plumbing which exclusively serves such Owner’s Unit, interior plumbing fixtures including bathtubs, shower stalls, shower pans, toilets and sinks and related fixtures, the firebox of the fireplace (if any), in a properly functional, clean, sanitary and attractive condition, in accordance with the Condominium Plan, the original construction design of the Improvements in the Project, and all applicable manufacturer standards, guidelines and recommendations, and all applicable governmental rules, restrictions and requirements. Windows and doors must be replaced with the same hardware as originally installed by Declarant, if such hardware is available. Otherwise, replacement hardware must be approved by the Architectural Committee.
No bearing walls, ceilings, floors or other structural or utility bearing portions of the Condominium Building shall be pierced or otherwise altered or repaired by the Owner, without the prior written approval of the plans for the alteration or repair by the Architectural Committee.
It shall be the further responsibility of each Owner, at his or her sole expense, to clean and maintain the Terrace of his or her Unit, including cleaning all exterior glass window and door surfaces which are located on such Terrace, and to clear all leaves, mud, and other debris from all gutters or other drainage devices servicing such Terrace.
Notwithstanding any other provision herein, each Owner shall also be responsible for all maintenance and repair of any internal or external telephone and Telecommunications Services wiring wherever located which is designed to serve only his or her Unit, and shall be entitled to reasonable access over the Common Property for such purposes, subject to reasonable limitations imposed by the Association. Such area shall constitute an Exclusive Use Area of the benefitted Owner in accordance with Section 1.32 above. It shall further be the duty of each Owner to pay when due all charges for any utility service which is separately metered to his or her Unit.
Each owner shall regularly inspect smoke detectors and test the alarm system. Keep sources of direct heat away from fire sprinklers and fire detection systems. No Owner may modify, disconnect or remove any part of the fire sprinkler or fire detection or alarm systems in his or her Unit.
Subject to any required approval of the Architectural Committee, each Owner shall be responsible for maintaining those portions of any solar, heating or cooling equipment (including any filters and other appurtenance thereto) and other utilities which are located within or which exclusively serve his or her Unit, in accordance with manufacturers’ specifications and instructions concerning care and maintenance of such equipment.
29 If the Board does not adopt an inspection and preventive program with regard to any pests and other organisms pursuant to Section 2.7 herein, such a program shall be the responsibility of each Owner.
If any Owner shall permit any Improvement, the maintenance of which is the responsibility of such Owner, to fall into disrepair or to become unsafe, unsightly or unattractive, or to otherwise violate this Declaration, or any applicable governmental rules, restrictions, or requirements, the Board shall have the right to seek any remedies at law or in equity which it may have. In addition, the Board shall have the right, but not the duty, after Notice and Hearing as provided in the Bylaws, to enter upon such Owner’s Unit to make such repairs or to perform such maintenance and to charge the cost thereof to the Owner. Said cost shall be a Special Assessment enforceable as set forth in this Declaration.
Each Owner shall complete and return to the Association within thirty (30) days after receipt thereof the annual survey or questionnaire provided to each Owner to report any possible defects discovered by such Owner with respect to construction of the Improvements located on such Owner’s Unit.
Each Owner shall maintain a comprehensive maintenance log of all maintenance actions and compliance with maintenance provisions set forth in any Maintenance Manual.
No Owner may alter or modify any common in wall plumbing within the Project and shall not do anything to impact the cross connection of any common water line.
2.10 Water Intrusion.
Notwithstanding any other provision herein, in the event that there shall be intrusion of water into any Unit (including, without limitation, as a result of any roof, window, skylight, siding or other leaks (including, without limitation, plumbing leaks), and whether or not the cause of such leak constitutes an Association repair obligation), the Owner of the impacted Unit shall be obligated to immediately notify the Association of such event, and such Owner shall take all reasonable and appropriate action to mitigate such condition and to stop any such water intrusion as soon as possible. In the event of any water intrusion into or from the Common Areas and/or upon the Association’s receipt of notice from a Unit Owner regarding water intrusion in such Units, the Association shall thereafter take all appropriate action including a prompt inspection of the condition, repair of the condition (if such condition impacts the Common Area) and mitigation of mold or mildew. Each Owner shall be obligated to take all reasonable steps to mitigate any possible spread or accumulation of mold or mildew. Failure of any Owner to timely notify the Association of any water intrusion and take appropriate mitigation measures, and/or the failure of the Association to promptly repair such condition shall be cause to deny future claims against Declarant relating thereto, which claims could have been mitigated had earlier action been taken.
2.11 Mold.
Each Owner, by acceptance of a deed to a Unit, acknowledges, recognizes and understands that there is, and will always be, the presence of certain biological organisms within the Unit. Most typically, this will include the common occurrence of mold. In recent years, mold has received significant attention, as significantly increased levels of mold have accumulated and 30 spread through residential dwellings. It is important to note that mold tends to proliferate in warm, wet areas. High levels of mold in an enclosed setting can lead to mild to significant detrimental health effects. As such, it is each Owner’s responsibility to maintain his or her Unit so as to avoid the accumulation of moisture and/or mold within the Unit. Such mitigation matters should include, without limitation, the frequent ventilation of the Unit, removal of standing water on balcony or patio areas, prompt repair of any leaks which permit water intrusion into the Unit, prompt repair of plumbing leaks within the Unit (irrespective of who may have caused any such leaks) and notification to the Association as required by Section 2.10 above. Each Owner also understands that the presence of indoor plants may also increase mold levels within the Unit. Also, the propping of large pieces of furniture against wall surfaces may lead to mold spore accumulation.
It is the responsibility of each Owner to monitor and maintain his or her Unit so as to mitigate and avoid the conditions which are likely to lead to the presence and/or spreading of mold. In the event that mold does appear within the Unit, it is also the Owner’s responsibility to promptly and properly treat such mold to minimize the spreading thereof and/or unhealthy conditions likely to arise as a result thereof. Such measures frequently include, but are not limited to, cleaning moldaffected surfaces with chlorine bleach. Each Owner is responsible to learn how to clean any affected Improvements. By acceptance of a deed to a Unit, each Owner acknowledges and agrees that Declarant will not be liable for any actual, special, incidental or consequential damages based on any legal theory whatsoever, including, but not limited to, strict liability, breach of express or implied warranty, negligence or any other legal theory with respect to the presence and/or existence of molds, mildew and/or microscopic spores, unless caused by the sole negligence or willful misconduct of Declarant.
2.12 Use of Agent.
The Board of Directors, on behalf of the Association, may contract with a Manager for the performance of maintenance and repair and for conducting other activities on behalf of the Association, as may be determined by the Board. The maximum term of any such contract (“Management Contract”) shall be one (1) year, unless a longer term is (i) contained in a management contract, the terms of which have been approved by FHA or VA or reviewed by the DRE, or (ii) approved either by vote or written assent of a majority of the voting power of the Association residing in Members other than Declarant, in which case the maximum term of the Management Contract shall be three (3) years. Each such Management Contract approved by the Members pursuant to clause (ii) above, shall provide for its termination after one (1) year by either party thereto without cause and without payment of a termination fee upon no more than ninety (90) days’ written notice to the other party. Notwithstanding anything herein to the contrary, any Management Contract entered into by the Association while the Board is under the control of Declarant shall provide that following expiration of the Class B Membership, such Management Contract may be terminable, without any penalty, by the Association upon not more than ninety (90) days written notice to the other party.
31 ARTICLE III
3. Rights in Common Property.
3.1 Association Easement.
The Association shall have an easement over the Property for performing its duties and exercising its powers described in this Declaration. The Association’s obligations to maintain the Common Property shall commence on the date Annual Assessments commence on the Condominiums in the Project. Until commencement of Annual Assessments on the Condominiums, the Common Property shall be maintained by Declarant.
3.2 Partition.
Except as provided in this Declaration, there shall be no judicial partition of the Common Property, or any part thereof, for the term of the Project, nor shall Declarant, any Owner or any other Person acquiring any interest in any Condominium in the Project seek any such judicial partition.
3.3 Members’ Easements in Common Property.
Subject to the provisions of this Declaration, and for the purposes set forth herein and subject to the terms of the Association, every Member of the Association shall have, for himself or herself, his or her Family, tenants, guests, and invitees, a nonexclusive easement of access, ingress, egress, use and enjoyment of, in and to the Common Property (provided however, the Owners of the Commercial Units shall not have access and use of the portions of the Common Property which are designated for the exclusive use of only Residential Owners), and such easements shall be appurtenant to and shall pass with title to every Condominium in the Project; provided however, Commercial Owners shall not have any easement for access to or use and enjoyment of the portions of the Common Property which are designated for the exclusive use of only Residential Owners.
3.4 Extent of Members’ Easements.
The rights and easements of use and enjoyment of the Common Property created for the Members by this Declaration shall be subject to the Restrictions, which include, without limitation, the following:
(a) The right of the Board to suspend the rights and easements of any Member, and the Persons deriving such rights and easements from any Member, for use and enjoyment of any recreational facilities within the Project, for any period during which the payment of any Annual, Special, Capital Improvement or Reconstruction Assessment against the Member and his or her Condominium remains delinquent, and, after Notice and Hearing as provided in the Bylaws, to suspend such rights and easements for the period set forth in the Bylaws for any violation of the Restrictions, it being understood that any suspension of use and enjoyment of any recreational facilities within the Project for either nonpayment of any Assessment or breach of the Restrictions shall not constitute a waiver or discharge of the 32 Member’s obligation to pay assessments as provided in this Declaration, nor shall it in any way impinge on any Member’s right of access to or use of such Member’s Unit; (b) The right of the Association to consent to or otherwise cause the construction of additional Improvements on the Common Property and to consent to or otherwise cause the alteration or removal of any existing Improvements on the Common Property for the benefit of the Members of the Association;
(c) The right of the Association, acting through the Board, to grant, consent to or join in the grant or conveyance of easements, licenses or rights-of-way in, on or over the Common Property for purposes not inconsistent with the intended use of the Property as a mixed-use commercial/residential Condominium project, including, without limitation, the granting of exclusive easements to Owners over portions of the Common Property to conform the boundaries of the Units and/or the Common Property to the as-built location of Improvements installed or constructed by Declarant;
(d) The rights and reservations of Declarant as set forth in this Declaration;
(e) The right of the Association, acting through the Board, to reasonably restrict access to roofs, maintenance and landscaped areas and similar areas of the Property;
(f) The right of the Association to reasonably limit the number of guests and tenants of the Owners using the Common Property, as provided in this Declaration; (g) The right of the Association, acting through the Board, to establish uniform Rules and Regulations for the use of the Common Property, as provided in this Declaration;
(h) The right of the Association in accordance with the Articles, Bylaws and this Declaration, with a vote or written assent of at least two-thirds (2/3rds) of the voting power of the Association, to borrow money for the purpose of improving, repairing, or adding to the Common Property, and in aid thereof, subject to the provisions of Article XII of this Declaration, to mortgage, pledge, encumber by deed of trust, or hypothecate any or all of its real or personal property as security for money borrowed or debts incurred, provided that the rights of such Mortgagee shall be subordinated to the rights of the Owners; (i) The right of the Association, subject to the provisions of Article XII of this Declaration, to dedicate, release, alienate, or transfer the Common Property, or a portion thereof, to any public agency, authority, or utility for such purposes and subject to such conditions as may be agreed to by the Members; and
(j) The right of the Association, subject to the provisions of California Civil Code § 4600 (or any successor or replacement statute), to grant exclusive use of any portion of the Common Area to any Owner, except as specified therein. 33 3.5 Delegation of Use.
Any Member entitled to the right and easement of use and enjoyment of the Common Property may delegate his or her right to use and enjoyment of the recreational and common facilities to his or her tenants, contract purchasers or subtenants who reside in his or her Condominium, subject to reasonable regulation by the Board. A Member who has made such a delegation of rights shall not be entitled to use and enjoyment of the recreational and common facilities of the Project for so long as such delegation remains in effect.
3.6 Waiver of Use.
No Member may exempt himself or herself from personal liability for Assessments duly levied by the Association, or effect the release of his or her Condominium from the liens and charges thereof, by waiving use and enjoyment of the Common Property or by abandoning his or her Condominium.
3.7 Damage by Member.
Each Member shall be liable to the Association for any damage to the Common Property not fully reimbursed to the Association by insurance (including without limitation any deductible amounts under any insurance policies against which the Association files a claim for such damage) if the damage is sustained because of the negligence, willful misconduct or unauthorized or improper installation or maintenance of any Improvement by the Member, his or her Family, guests, tenants or invitees, or any other Persons deriving their right and easement of use and enjoyment of the Common Property from the Member, or his or her or their respective Family, guests, tenants or invitees, both minor and adult. However, the Association, acting through the Board, reserves the right to determine whether any claim shall be made upon the insurance maintained by the Association, and the Association further reserves the right, after Notice and Hearing as provided in the Bylaws, to levy a Special Assessment equal to the increase, if any, in insurance premiums directly attributable to the damage caused by the Member or the Person for whom the Member may be liable as described above. In the case of joint ownership of a Condominium, the liability of the owners shall be joint and several, except to the extent that the Association shall have previously contracted in writing with the joint owners to the contrary. After Notice and Hearing as provided in the Bylaws, the cost of correcting the damage to the extent not reimbursed to the Association by insurance shall be a Special Assessment against such Member’s Condominium, and may be enforced as provided herein.
ARTICLE IV
4. Architectural Review Committee.
4.1 Members of Committee.
The Architectural Review Committee, sometimes referred to in this Declaration as the “Architectural Committee” or the “Committee,” shall consist of three (3) members. The initial members of the Committee shall consist of representatives of Declarant. Subject to the following provisions, Declarant shall have the right and power at all times to appoint or remove a majority of the members of the Architectural Committee or to fill any vacancy of such majority until either 34 (i) Close of Escrow has occurred for the sale of ninety percent (90%) of all the Units in the overall development, or (ii) the fifth (5th) anniversary of the first Close of Escrow pursuant to the Final Subdivision Public Report for the Project, whichever occurs earlier. Commencing one (1) year from the issuance of the Final Subdivision Public Report for the Project, the Board shall have the power to appoint and remove one (l) member of the Architectural Committee. Following termination of Declarant’s right to appoint all or a portion of the members of the Committee pursuant to this Section 4.1, the Board shall have the power to appoint and remove all of the members of the Architectural Committee. Committee members appointed by the Board shall be from the Membership of the Association, but Committee members appointed by Declarant need not be Members of the Association. Board members may also serve as Committee members.
4.2 Review of Plans and Specifications.
The Committee shall consider and act upon any and all plans and specifications submitted for its approval under this Declaration and perform such other duties as from time to time shall be assigned to it by the Board, including the inspection of construction in progress to assure its conformance with plans approved by the Committee. No construction, alteration, removal, relocation, repainting, demolition, addition, modification, decoration, redecoration or reconstruction of any Improvement (including, without limitation, any bearing wall, ceiling, floor, window covering, plumbing, water system, and any landscaping or alteration of any established drainage pattern, plan or grade on any portion of the Property) which is a structural or utility component of the Condominium Building or is visible from the Common Property or another Unit in the Property or a public vantage, or otherwise expressly required by this Declaration to be submitted to the Architectural Committee for its review, shall be commenced or maintained, until the plans and specifications therefor showing the nature, kind, shape, height, width, color, materials and location of the same shall have been submitted to the Committee and approved in writing by the Committee; provided, however, that any Improvement may be repainted without Committee approval, so long as the Improvement is repainted the identical color with which it was last painted in compliance with all applicable Restrictions.
The Owner submitting the plans (“Applicant”) shall obtain a written, dated receipt for the plans and specifications from an authorized agent of the Committee and shall submit the plans to the principal office of the Association, or such other address as may be established from time to time by the Board. Until changed by the Board, the address for the submission of such plans and specifications shall be the principal office of the Association. The Committee shall approve, in writing only, proposals or plans and specifications submitted for its approval only if it deems that the construction, alterations, or additions contemplated thereby in the locations indicated will not be detrimental to the appearance of the surrounding area of the Property as a whole, that the appearance of any structure affected thereby will be in harmony with the surrounding structures, that the construction thereof will not detract from the beauty, wholesomeness and attractiveness of the Common Property or the enjoyment thereof by the Members, and that the upkeep and maintenance thereof will not become a burden on the Association.
The Committee may condition its written approval of proposals or plans and specifications for any Improvement (1) upon the Applicant’s furnishing the Association with security acceptable to the Association against any mechanic’s lien or other encumbrance which 35 may be Recorded against the Property as a result of such work, (2) on such changes therein as it deems appropriate, (3) upon the Applicant’s agreement to grant appropriate easements to the Association for the maintenance of the Improvements, (4) upon the Applicant’s agreement to install (at its sole cost) water, gas, electrical or other utility meters to measure any increased consumption, (5) upon the Applicant’s agreement to reimburse the Association for the cost of maintenance, (6) upon the Applicant’s agreement to complete the proposed work within a stated period of time, or (7) upon all of the above, and may require submission of additional plans and specifications addressing any areas of concern to the Committee or other information prior to approving or disapproving material submitted.
The Committee may from time to time adopt, promulgate and amend rules or guidelines which, among other matters, may set forth design and architectural standards, procedures for the submission of plans for approval, requirements for a fee to accompany each application for approval, and/or additional factors which it will take into consideration in reviewing submissions. The Committee may provide that the amount of the fee shall be uniform, or that it be determined in any other reasonable manner, such as by the reasonable cost of the construction, alterations or additions contemplated. The Committee may require such detail in plans and specifications submitted for its review as it deems proper, including without limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of exterior material and colors. Until receipt by the Committee of any required plans and specifications, the Committee may postpone review of any plan submitted for approval. To ensure uniformity throughout the Project, the Association has the right to review and approve proposed design guidelines and all changes to the design guidelines before they are effective.
Decisions of the Committee and the reasons for the decisions shall be transmitted by the Committee to the Applicant in writing at the address set forth in the application for approval, within sixty (60) days after receipt by the Committee of all materials required by the Committee.
No purported oral or verbal approval of the Committee shall be permitted and any approval, to be binding upon the Committee and the Association, shall be in writing. In no event will any application for approval or any proposal, plans or specifications be deemed approved based upon the passage or lapse of time; any approval must be by affirmative written action of the Committee to be effective. Notwithstanding approval of any application, proposal, plans or specifications by the Committee, no Applicant shall undertake any construction or other activity subject to the review of the Committee unless, as a separate or independent matter, that Applicant has also met any review or permit requirements of the city or county in which the Project is located prior to making any alterations or Improvements permitted hereunder and has obtained all permits necessary to legally permit such construction or other activity, and has provided proof of contractor’s insurance for all work to the Association.
4.3 Condition of Approval.
As a condition to approval of any requested architectural change, modification, addition, or alteration, an Owner, on behalf of himself or herself and his or her successors-ininterest, shall be deemed to have agreed to assume all responsibilities for maintenance, repair, replacement and insurance of such change, modification, addition, or alteration, unless otherwise agreed to in writing by the Board of Directors. It is the responsibility of every Owner of a Unit to determine for himself or herself what architectural modifications have been made to his or her Unit 36 by any predecessor-in-interest. In the discretion of the Board or the Committee, an Owner may be required to confirm and acknowledge such condition of approval by written instrument in recordable form acknowledged by such Owner on behalf of himself or herself and all successorsin-interest.
4.4 Commencement of Construction.
All architectural changes, modifications and improvements approved by the Committee hereunder must be commenced within one (1) year from the date of approval. If not commenced within one (1) year from the date of such approval, then such approval shall be deemed revoked by the Committee, unless the Committee gives a written extension for commencing the work prior to the expiration of said one (1) year period. All work approved by the Committee hereunder shall be completed in its entirety within ninety (90) days from the date of commencement, unless otherwise agreed in writing by the Committee. All approved architectural changes, modifications and improvements must be completed in their entirety, and an Owner may not construct only a portion or part of an approved architectural change, modification, or improvement.
4.5 Meetings of the Committee.
The Committee shall meet from time to time as necessary to perform its duties hereunder. The Committee may from time to time by resolution unanimously adopted in writing designate a Committee Representative (who may, but need not, be one of its members) to take any action or perform any duties for and on behalf of the Committee, except the granting of variances pursuant to Section 4.10. In the absence of such designation, the vote of a majority of the Committee confirmed by contemporaneous written record executed by one or more members of the Committee or the written consent of a majority of the Committee taken without a meeting, shall constitute an act of the Committee.
4.6 No Waiver of Future Approvals.
The approval of the Committee of any proposals or plans and specifications or drawings for any work done or proposed in connection with any matter requiring the approval and consent of the Committee, shall not be deemed to constitute a waiver of any right to withhold approval or consent to any similar proposals, plans and specifications, drawings or matter subsequently or additionally submitted for approval or consent. Each Owner acknowledges that the members of the Board of Directors and the Committee will change from time to time and that interpretation, application, and enforcement of the architectural standards may vary accordingly.
4.7 Compensation of Members.
The members of the Committee shall receive no compensation for services rendered, other than reimbursement for expenses incurred by them in the performance of their duties hereunder.
4.8 Correction of Defects.
Inspection of work and correction of defects therein shall proceed as follows:
37 (a) The Committee or its duly authorized representative may at any time inspect any Improvement for which approval of plans is required under this Article IV.
However, the Committee’s right of inspection of Improvements for which plans have been submitted and approved shall terminate one hundred twenty (120) days after the work of Improvement has been completed and the respective Owner has given written notice of its completion to the Committee. The notice of completion may be delivered personally or by registered or certified mail to the principal office of the Association, or such other address as may be established from time to time by the Board. The Committee’s rights of inspection shall not terminate pursuant to this paragraph if plans for the work of Improvement have not previously been submitted to and approved by the Committee or if the notice of completion is not properly given. If, as a result of such inspection, the Committee finds that the Improvement was done without obtaining approval of the plans therefor or was not done in substantial compliance with the plans approved by the Committee, it shall notify the Owner in writing of failure to comply with this Article IV, specifying the particulars of noncompliance. The Committee shall have the authority to require the Owner to take such action as may be necessary to remedy the noncompliance.
(b) If upon the expiration of sixty (60) days from the date of such notification, the Owner has failed to remedy the noncompliance, the Committee shall notify the Board in writing of such failure. Upon Notice and Hearing, as provided in the Bylaws, the Board shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost of correcting or removing the same. If a noncompliance exists, the Owner shall remedy or remove the same within a period of not more than forty-five (45) days from the date that notice of the Board ruling is given to the Owner. If the Owner does not comply with the Board ruling within that period, the Board, at its option, may Record a Notice of Noncompliance and may peacefully remedy the noncompliance, and the Owner shall reimburse the Association, upon demand, for all expenses (including reasonable attorneys’ fees) incurred in connection therewith.
If such expenses are not promptly repaid by the Owner to the Association, the Board shall levy a Special Assessment against the Owner for reimbursement as provided in this Declaration. The right of the Association to remove a noncomplying Improvement or otherwise remedy the noncompliance shall be in addition to all other rights and remedies which the Association may have at law, in equity or in this Declaration.
(c) If for any reason the Committee fails to notify the Owner of any noncompliance with previously submitted and approved plans within one hundred fifty (150) days after receipt of written notice of completion from the Owner delivered in the manner required above, the Improvement shall be deemed to be in accordance with the approved plans.
4.9 Scope of Review.
The Architectural Committee shall review and approve or disapprove all plans submitted to it for any proposed Improvement, alteration or addition, on the basis of potential impact on the Condominium Building (including structural, acoustic and utility impacts), aesthetic considerations, consistency with this Declaration, and the overall benefit or detriment which would result to the immediate vicinity and the Property generally. The Committee shall take into consideration the structural and aesthetic aspects of the architectural design, placement of Improvements, landscaping, color schemes, exterior finishes and materials and similar features. 38 The Committee’s approval or disapproval shall be based solely on the considerations set forth in this Article IV, and the Committee shall not be responsible for reviewing, nor shall its approval of any plan or design be deemed approval of, any plan or design from the standpoint of structural safety or conformance with building or other codes. The Architectural Committee may consider the impact of views from other Residences or Condominiums, Common Property, or public vantages and reasonable privacy interests as factors in reviewing, approving or disapproving any proposed construction or other Improvements. However, there is no guaranty of any protected views within the Property and no Residence or Condominium is guaranteed the existence or unobstructed continuation of any particular view. Each Owner acknowledges that the Board of Directors and the Committee may adopt different architectural standards for different parts of the Project, based upon street visibility and location of the proposed modification in the Condominium Building. Neither the Declarant, the Association, the Board of Directors, the Committee, the Committee Representative, nor any member of any of the foregoing shall be held liable for any injury, damages, or loss arising out of the manner, quality or effect of approved construction on or modification to any Unit or Exclusive Use Areas appurtenant to a Unit authorized pursuant to this Article IV. In the event legal action is brought against any such party as a result of such construction or modification, the Owner causing such construction or modification shall indemnify and hold harmless the Declarant, the Association, the Board of Directors, the Committee, the Committee Representative, and all members of any of the foregoing from all costs, expenses and damages (including but not limited to attorneys’ fees) incurred in connection with such action, including, without limitation, any defense thereof.
4.10 Variances.
The Committee may authorize variances from compliance with any of the architectural provisions of this Declaration, including restrictions upon height, size, floor area or placement of structures, or similar restrictions, when circumstances such as topography, natural obstructions, hardship, aesthetic or environmental considerations may require. Such variances must be evidenced in writing, must be signed by at least a majority of the members of the Committee, and shall become effective upon Recordation. After Declarant has lost the right to appoint a majority of the members of the Committee, the Board must approve any variance recommended by the Committee before any such variance shall become effective. If such variances are granted, no violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed to have occurred with respect to the matter for which the variance was granted. The granting of such a variance shall not operate to waive any of the terms and provisions of this Declaration for any purpose except as to the particular property and particular provision hereof covered by the variance, nor shall it affect in any way the Owner’s obligation to comply with all governmental laws and regulations affecting the use of his or her Unit.
4.11 Appeals.
If the Committee disapproves an application, the Applicant may appeal such decision to the Board of Directors. The Board shall adopt policies and procedures for the appeal of Committee decisions for reconsideration by the Board, which appeal shall be heard at a Board meeting which is open to the Members of the Association. 39 ARTICLE V
5. Association Maintenance Funds and Assessments.
5.1 Personal Obligation of Assessments.
Declarant, for each Condominium owned by it, hereby covenants and agrees to pay, and each Owner, by acceptance of a deed of a Condominium, whether or not it shall be so expressed in any such deed, is deemed to covenant and agree to pay to the Association all Annual Assessments for Common Expenses and all applicable Special Assessments, Reconstruction Assessments and Capital Improvement Assessments. The Association shall not levy or collect any Annual Assessment, Capital Improvement Assessment, Special Assessment or Reconstruction Assessment that exceeds the amount necessary for the purpose for which it is levied. Except as provided in this Section 5.1, all such assessments, together with interest, costs, and reasonable attorneys’ fees, shall be a separate, distinct and personal obligation of the Person who was the Owner of the Condominium at the time when the assessment fell due. This personal obligation cannot be avoided by abandonment of the Condominium or by an offer to waive use of the Common Property. The personal obligation for delinquent assessments shall not pass to any new Owner (“Purchaser”) unless expressly assumed by the Purchaser.
5.2 Maintenance Funds of Association.
The Board of Directors shall establish no fewer than two (2) separate accounts (the “Maintenance Funds”), into which shall be deposited all monies paid to the Association, and from which disbursements shall be made, as provided herein, in the performance of functions by the Association under this Declaration. The Maintenance Funds may be established as trust accounts at a banking or savings institution. The Maintenance Funds shall include: (1) an operating fund for current Common Expenses of the Association (“Operating Fund”), (2) a reserve fund for capital Improvements, replacements, painting and repairs of the Common Property (which cannot normally be expected to occur on an annual or more frequent basis), exclusive of reserves for any Cost Center Benefits (“Reserve Fund”), and (3) any other funds which the Board of Directors may establish to the extent necessary under the provisions of this Declaration. The Board of Directors shall establish for each Cost Center (1) a Cost Center Operating Fund for current expenses of that Cost Center, and (2) a Cost Center Reserve Fund for the deposit of reserves attributable to that Cost Center. Nothing contained herein shall limit, preclude or impair the establishment of additional Maintenance Funds by the Association, so long as the amounts assessed to, deposited into, and disbursed from any such Fund are earmarked for specified purposes authorized by this Declaration.
5.3 Purpose of Assessments.
The assessments levied by the Board of Directors on behalf of the Association shall be used exclusively to promote the recreation, health, safety and welfare of the residents of the Condominiums, for the operation, replacement, improvement and maintenance of the Property, and to discharge any other obligations of the Association under this Declaration. All amounts deposited into the Maintenance Funds must be used solely for the common benefit of all of the Owners for purposes authorized by this Declaration. Disbursements from the Operating Fund shall 40 be made by the Board of Directors for such purposes as may be necessary for the discharge of its responsibilities herein for the common benefit of all of the Owners, other than those purposes for which disbursements from the Reserve Fund are to be used.
The Cost Center Assessments levied by the Association against the Separate Interests within a Cost Center shall be used exclusively for the operational costs and reserves applicable to the Cost Center Benefit within the Cost Center. Cost Center Assessments may include, without limitation, estimated or actual costs and expenses incurred by the Association in connection with administrating the Cost Center, maintaining the Cost Center Benefit, obtaining and maintaining insurance coverage related to the Cost Center Benefit, providing utility services to the Cost Center Benefit and funding reasonable reserves for the repair or replacement of Cost Center Benefit. Disbursements from each Cost Center’s Operating Fund shall be made solely for funding the current operating Common Expenses of the Cost Center for which the fund was created. The Association shall provide separate accounting for funds which are collected and expended on behalf of a Cost Center. The Association shall also provide for the reserve study and the annual review and disclosure of the reserves applicable to a Cost Center.
Disbursements from the Reserve Fund shall not be made by the Board of Directors for any purpose other than the repair, restoration, replacement or maintenance of, or litigation involving the repair, restoration, replacement or maintenance of, major components which the Association is obligated to repair, restore, replace, or maintain and for which the Reserve Fund was established. Disbursements from each Cost Center’s Reserve Fund shall be made solely for funding reserve expenditures attributable to the Cost Center for which the fund was created.
However, the Board may authorize the temporary transfer of money from the Reserve Fund (or applicable Cost Center’s Reserve Fund) to the Association’s Operating Fund (or applicable Cost Center’s Operating Fund) to meet short-term cash-flow requirements or other expenses, provided that the Board has made a written finding, recorded in the Board’s minutes, explaining the reason that the transfer is needed, and describing when and how the money will be repaid to the Reserve Fund. The transferred funds shall be restored to the Reserve Fund within one (1) year of the date of the initial transfer, except that the Board may, upon making a finding supported by documentation that a temporary delay would be in the best interests of the Association, temporarily delay the restoration until the time which the Board reasonably determines to be necessary. The Board shall exercise prudent fiscal management in maintaining the integrity of the Reserve Fund, and shall, if necessary, levy a Capital Improvement Assessment or a Reconstruction Assessment, as applicable, to recover the full amount of the expended funds within the time limits required by this Section. Such assessment shall be subject to the limitation imposed by California Civil Code § 5650(b) (or any successor or replacement statute). The Board may, at its discretion, extend the date that payment of the Capital Improvement Assessment or Reconstruction Assessment is due.
Nothing in this Declaration shall be construed in such a way as to permit the use of Association assessments or funds to abate any annoyance or nuisance emanating from outside the boundaries of the Property. Annual Assessments shall be used to satisfy Common Expenses of the Association, as provided herein and in the Bylaws. When the decision is made to use the Reserve Fund or to temporarily transfer money from the Reserve Fund to pay for litigation, the Board shall notify Members of that decision in the next available mailing to all Members pursuant to § 5016 of the California Corporations Code (or any successor or replacement statute), and of the availability of an accounting of those expenses. The Association shall make an accounting of 41 expenses related to the litigation on at least a quarterly basis. The accounting shall be made available for inspection by the Members at the Association’s office.
5.4 Allocation of Assessments.
All Cost Center Assessments shall be assessed equally against the Members of the Cost Center and their Separate Interests based upon the number of Separate Interests owned by each Member. All Annual Assessments (other than Cost Center Assessments) levied by the Board shall be allocated among the Owners as follows:
(a) Square Footage Allocation. The Annual Assessments for insurance, and reserves funds for roof and painting shall be allocated among the Owners in accordance with the relation of the approximate square footage (as shown on the most current Budget filed with and reviewed by DRE) of each Owner’s Unit to the approximate square footage of all Units, as such proportions are set forth in the Budget.
(b) Residential Per-Unit Allocation. All other Annual Assessments shall be shared equally by the Owners.
(c) Sub-Metered Utilities. The cost of any utility which is sub-metered to a Unit shall be levied by the Association as a Special Assessment against such Unit, which Special Assessment shall be enforced as set forth in this Declaration. It shall be the duty of each Owner to pay when due all charges for any utility service which is separately metered or submetered to his or her Unit. The Association shall provide usage information to the appropriate governmental agencies for each sub-meter upon request within 30 days of written notice from the governmental agency.
5.5 Limitations on Annual and Special Assessment Increases.
The Board shall levy Annual Assessments in accordance with the following provisions:
(a) Maximum Authorized Annual Assessment for Initial Year of Operations. Until the first day of the Fiscal Year immediately following the Fiscal Year in which Annual Assessments commence, the Board shall not levy an Annual Assessment per Condominium in an amount greater than one hundred twenty percent (120%) of the amount of Annual Assessments disclosed in the most current Budget filed with and reviewed by DRE at the time Annual Assessments commence without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided, that, for purposes of this Section 5.5(a), a quorum shall mean more than fifty percent (50%) of the Members of the Association. Notwithstanding the foregoing, this Section does not limit Annual Assessment increases necessary for addressing an “Emergency Situation” as defined in Section 5.5(e).
(b) Maximum Authorized Annual Assessment for Subsequent Fiscal Years. Starting with the first Fiscal Year immediately following the Fiscal Year in which Annual Assessments commence and for each Fiscal Year thereafter, the Board shall not levy Annual Assessments in any Fiscal Year in excess of one hundred twenty percent (120%) of the Annual 42 Assessments levied during the immediately preceding Fiscal Year without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided that, for purposes of this Section 5.5(b), a quorum shall mean more than fifty percent (50%) of the Members of the Association. In addition, the Board shall provide notice by first-class mail to all Members of any increase in Annual Assessments from the Annual Assessments levied during the immediately preceding Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such increased assessment shall become due. Notwithstanding the foregoing, this Section does not limit Annual Assessment increases necessary for addressing an “Emergency Situation” as defined in Section
5.5(e).
(c) Supplemental Annual Assessments. If the Board, by majority vote, determines that the important and essential functions of the Association may be properly funded by an Annual Assessment in an amount less than the maximum authorized Annual Assessment described above, it may levy such lesser Annual Assessment. If the Board determines that the estimate of total Annual Assessment charges for the current year is or will become inadequate to meet all projected expenses for the Property for any reason, it shall immediately determine the approximate amount of the inadequacy. Subject to the limitations described in Sections 5.5(a) and 5.5(b) above, the Board shall have the authority to levy, at any time during the Fiscal Year by a majority vote, a supplemental Annual Assessment reflecting a revision of the total Annual Assessment charges to be assessed against each Condominium for the balance of that Fiscal Year.
(d) Special Assessment. The Board shall not levy Special Assessments to defray the cost of any action or undertaking on behalf of the Association that in the aggregate exceeds five percent (5%) of the budgeted gross expenses of the Association for that Fiscal Year without the vote of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented; provided that, for purposes of this Section 5.5(d), a quorum shall mean more than fifty percent (50%) of the Members of the Association. In addition, the Board shall provide notice by first-class mail to all Members of any Special Assessment levied during the Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such Special Assessment shall become due.
Notwithstanding the foregoing, this Section 5.5(d) does not limit assessment increases necessary for addressing an “Emergency Situation” as defined in Section 5.5(e). (e) Emergency Situations. For purposes of Sections 5.5(a), 5.5(b),
5.5(d) and 5.7, an “Emergency Situation” is any one of the following:
(1) An extraordinary expense required by an order of a court; (2) An extraordinary expense necessary to repair or maintain the Property or any portion thereof for which the Association is responsible where a threat to personal safety on the Property is discovered;
(3) An extraordinary expense necessary to repair or maintain the Property or any portion thereof for which the Association is responsible that could not have been reasonably foreseen by the Board when preparing the Budget. Prior to the imposition or collection 43 of an assessment pursuant to this subparagraph (iii), the Board shall pass a resolution containing written findings as to the necessity of the extraordinary expense involved and why the expense was not or could not have been reasonably foreseen in the budgeting process. The resolution shall be distributed to the Members with the Notice of Assessment; or (4) An extraordinary expense in making the first payment of the earthquake insurance surcharge pursuant to § 5003 of the California Insurance Code, if such an expense is applicable.
(f) Limitations of Cost Center Assessments. The Board shall levy assessments sufficient to perform the obligations of the Association as provided in this Declaration with respect to any Cost Center; provided, however, the Board may not levy a Cost Center Assessment that is more than twenty percent (20%) greater than the Cost Center Assessment for the Association's preceding fiscal year. without the vote of Members of the Cost Center casting a majority of votes at a meeting of the Cost Center Members or election of the Association at which a quorum of the Cost Center Members is represented. For purposes of this section, a quorum shall mean more than fifty percent (50%) of the Members of the Cost Center.
In addition, the Board shall provide notice by first-class mail to all Members of the Cost Center of any increase in Cost Center Assessments from the Cost Center Assessments levied during the immediately preceding Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such increased assessment shall become due. Notwithstanding the foregoing, this Section does not limit Annual Assessment increases necessary for addressing an “Emergency Situation” as defined in Section 5.5(e), or the Annual Assessments set forth in Section 5.6 below.
5.6 Annual Assessments/Commencement-Collection.
The Board of Directors shall authorize and levy the amount of the Annual Assessment and Cost Center Assessments upon each Condominium, as provided herein, by majority vote of the Board. The initial Annual Assessment and any applicable Cost Center Assessment shall begin on all Condominiums in the Project (including unsold Condominiums therein owned by Declarant) on the first day of the first calendar month following the first Close of Escrow for the sale of a Condominium in the Project, or an earlier date as may be selected by Declarant for commencement of Annual Assessments in the Project. Unless provided to the contrary in the Budget, all Annual Assessments shall be assessed against the Members and their Condominiums as set forth in Sections 5.4 and 5.5 above. With the written approval of the Declarant or the Architectural Committee, the Owner of contiguous Units may be permitted to combine one or more Units into a single living space by elimination of the demising walls otherwise separating those Units, provided, that such physical combination of any Units shall not alter the legal identity of the Units under this Declaration or alter in any way the amount of the assessments applicable to those Units under this Declaration which shall continue to be allocated in full to each of the original Units notwithstanding the physical combination thereof. Annual Assessments and any applicable Cost Center Assessments for fractions of any month involved shall be prorated. Subject to the terms of any maintenance agreement entered into between Declarant and the Association, Declarant shall pay its full pro rata share of the Annual Assessments on all unsold Condominiums for which Annual Assessments have commenced. The Board shall fix the amount of the Annual Assessment and any applicable Cost Center Assessment against each 44 Condominium at least thirty (30) days in advance of each Annual Assessment period. From time to time the Board may determine that all excess funds in the Operating Fund be retained by the Association and used to reduce the following year’s Annual Assessments. Upon dissolution of the Association incident to the abandonment or termination of the Project, any amounts remaining in any of the Maintenance Funds shall be distributed to or for the benefit of the Members in the same proportions as such monies were collected from the Members.
Concurrently with the first Close of Escrow for the sale of a Condominium in the Project, Declarant shall pay to the Association an appropriate amount (as reviewed by DRE) for reserves for replacement or deferred maintenance of the Common Property necessitated by or arising out of the use and occupancy of any Condominiums in the Project under a rental program conducted by Declarant if such rental program was in effect for at least one (1) year prior to such first Close of Escrow.
Declarant and any other Owner of a Unit which has not been constructed shall be exempt from payment of that portion of the Annual Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of the Unit. Any such exemption from the payment of Annual Assessments shall be in effect only until the earlier to occur of (1) the Recordation of a notice of completion of the Condominium Building, (2) the occupation or use of the Unit, or (3) completion of all elements of the Condominium Improvements that the Association is obligated to maintain.
Notwithstanding any other provisions of this Declaration, until the earlier to occur of (1) the Recordation of a notice of completion of an Improvement on the Common Property, or (2) the placement of such Improvement into use, each Owner (including Declarant) shall be exempt from paying that portion of any Annual Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of such Improvement.
Each Member shall pay to the Association his or her Annual Assessment in installments at such frequency and in such amounts as established by the Board. Each installment of the Annual Assessment may be paid by the Member to the Association in one check or in separate checks as payments attributable to the deposits under the Operating Fund and the Reserve Fund. If any installment of an Annual Assessment payment is less than the amount assessed and the payment does not specify the Maintenance Fund or Funds into which it should be deposited, the receipt by the Association from that Owner shall be credited in order of priority first to the Operating Fund, until that portion of the Annual Assessment has been satisfied, and second to the Reserve Fund.
Notwithstanding any other provisions of this Declaration or the Bylaws regarding the term and termination of contracts with Declarant for providing services to the Association, Declarant may enter into a written maintenance agreement with the Association under which Declarant shall pay all or any portion of the operating Common Expenses and perform all or any portion of the Association’s maintenance responsibilities in exchange for a temporary suspension of Annual Assessments. Such maintenance agreement shall extend for a term and shall be on such conditions as are reviewed by the DRE, and may require Owners to reimburse Declarant, through the Association, for a portion of the costs expended in satisfaction of Common Expenses. 45 5.7 Capital Improvement Assessments.
Should the Board of Directors determine the need for a capital Improvement or other such addition to the Property, the cost of which in the aggregate exceeds five percent (5%) of the Budgeted gross expenses of the Association for the then current Fiscal Year, then the vote or written consent of Members casting a majority of votes at a meeting or election of the Association at which a quorum of the Association is represented shall be required to approve and render effective a Capital Improvement Assessment levied by the Board of Directors to cover the cost of such expenditure; provided that, for purposes of this Section 5.7, a quorum shall mean more than fifty percent (50%) of the Members of the Association. Capital Improvement Assessments may be levied by the Board without the consent of the Members, if the aggregate of such expenditures in each Fiscal Year does not exceed five percent (5%) of the Budgeted gross expenses of the Association for such Fiscal Year; provided, that the Board shall provide notice to each Owner by first-class mail of the levying of such Capital Improvement Assessment not less than thirty (30) nor more than sixty (60) days prior to the date on which such assessment shall become due. Notwithstanding the foregoing, the Board may levy in any Fiscal Year, a Capital Improvement Assessment applicable to that Fiscal Year which exceeds five percent (5%) of the Budgeted gross expenses of the Association for such Fiscal Year if such increase is necessary to address an “Emergency Situation” as defined in Section 5.5(e).
5.8 Delinquency.
Any installment of an assessment provided for in this Declaration shall become delinquent if not paid within fifteen (15) days of the due date as established by the Board of Directors of the Association. With respect to any such delinquent assessment, the Board is hereby authorized to and, at its election, may require the Owner responsible for such delinquent assessment to pay both of the following: (a) reasonable costs incurred in collecting the delinquent assessment, including reasonable attorneys’ fees and costs; and (b) a late charge in the maximum amount permitted by California Civil Code § 5650(b)(2) (or any successor or replacement statute).
In addition to the foregoing, commencing thirty (30) days after the assessment becomes due and continuing until paid, the Board is hereby authorized to and, at its election, may require the Owner responsible for the delinquent assessment to pay interest on all sums identified above (including the delinquent assessment, reasonable costs of collection, attorneys’ fees and late charges) at the maximum rate permitted by California Civil Code § 5650(b)(3) (or any successor or replacement statute). The Association need not accept any tender of a partial payment of an installment of an assessment and all costs and attorneys’ fees attributable thereto, and any acceptance of any such tender shall not be deemed to be a waiver of the Association’s right to demand and receive full payment thereafter of all such amounts owed. Collection of delinquent assessments must be conducted in accordance with the provisions of California Civil Code §§ 5660, 5705, 5715 and 5720 (or any successor or replacement statutes).
5.9 Creation and Release of Lien.
All sums (other than Special Assessments imposed against a particular Owner as a penalty or disciplinary measure for such Owner’s failure to comply with the Restrictions) assessed in accordance with the provisions of this Declaration shall constitute a lien on the respective Condominium prior and superior to (a) any declaration of homestead Recorded after the 46 Recordation of this Declaration, and (b) all other liens, except (1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto, and (2) the lien or charge of any first Mortgage of record (meaning any Recorded Mortgage or Deed of Trust with first priority or seniority over all other Mortgages or Deeds of Trust) made in good faith and for value and Recorded prior to the date on which the “Notice of Lien” (described in this Section) against the respective Condominium was Recorded. Prior to the Recordation of a Notice of Lien against a Unit, the Association must comply with the requirements of California Civil Code § 5660 (or any successor or replacement statute), including, without limitation, the following requirements:
At least thirty (30) days prior to recording a Notice of Lien, the Association shall notify the Owner of such Unit in writing by certified mail of the following: (i) a general description of the collection and lien enforcement procedures of the Association and the method of calculation of the amount, (ii) a statement that the Owner has the right to inspect the Association records, pursuant to § 5205 of the California Civil Code, and the following statement in 14-point boldface type, if printed, or in capital letters, if typed:
“IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS
PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND IN
YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT
ACTION;” (iii) an itemized statement of the charges owed by such Owner, including items which indicate the principal owed, the fees and reasonable cost of collection, any late charges, any interests, and any reasonable attorneys’ fees, (iv) a statement that the Owner shall not be liable to pay the charges, interest, and costs of collection, if it is determined the assessment was paid on time to the Association; (v) notify the Owner of the right to request a meeting with the Board as provided by California Civil Code § 5665; (vi) notify the Owner of the Owner’s right to dispute such charges by written request for a dispute resolution pursuant to a meet and confer program as set forth in California Civil Code §§ 5900 - 5920; (vii) notify the Owner of the Owner’s right to request for alternative dispute resolution with a neutral third party pursuant to California Civil Code §§ 5925 - 5965 before the Association may initiate any foreclosure proceeding against the Owner’s Unit, except that binding arbitration shall not be available if the Association intends to initiate a judicial foreclosure.
A defaulting Owner may submit a written request to meet with the Board to discuss a payment plan for the debt noticed and the Board shall meet with the Owner in executive session in accordance with the requirements of California Civil Code § 5665 (or any successor or replacement statute). Any payment toward the charges itemized shall be first applied to the principal owed, and only after the principal owed is paid in full shall such payments be applied to interest, late charges or collection expenses. The decision to record a Notice of Lien shall be made by the Board in an open meeting and shall not be delegated to any agent of the Association. The Board shall approve the decision by a majority vote of the board members in an open meeting and record the vote in the minutes of that meeting. The lien shall become effective upon Recordation 47 by the Board or its authorized agent of a notice of delinquent assessment (“Notice of Lien”) concerning delinquent payment of any Annual, Capital Improvement or Reconstruction Assessment or installment thereof, levied by the Association against any Condominium Owner, as provided in § 5675 of the California Civil Code (or any successor or replacement statute). The Notice of Lien shall state (i) the amount of the assessment or installment, as the case may be, and other authorized charges and interest, including the cost of preparing and Recording the Notice of Lien, (ii) the expenses of collection in connection with any delinquent installments, including without limitation reasonable attorneys’ fees, (iii) a legal description of the Condominium against which the same has been assessed, (iv) the name and address of the Owner against which the lien is imposed, and (v) if applicable, in order for the lien to be enforced by nonjudicial foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by nonjudicial foreclosure sale. The Notice of Lien shall be signed by the President, Vice President or Secretary of the Association and shall be mailed no later than ten (10) calendar days after Recordation, in the manner set forth in § 2924b of the California Civil Code (or any successor or replacement statute), to all record Owners of the Condominium against which the Notice of Lien was recorded.
The lien shall relate only to the individual Condominium against which the assessment was levied and not to the Property as a whole. Within twenty-one (21) days of the payment to the Association of the full amount claimed in the Notice of Lien, or other satisfaction thereof, the Board of Directors shall cause to be Recorded a notice of satisfaction and release of lien (“Notice of Release”) stating the satisfaction and release of the amount claimed. The Board of Directors may demand and receive from the applicable Owner a reasonable charge for the preparation and Recordation of the Notice of Release before Recording it. Any purchaser or encumbrancer who has acted in good faith and extended value may rely upon the Notice of Release as conclusive evidence of the full satisfaction of the sums stated in the Notice of Lien.
5.10 Enforcement of Liens.
Prior to enforcement of any lien, the Association shall offer the Owner and, if so requested by such Owner, shall participate in dispute resolution pursuant to a “meet and confer” program as set forth in California Civil Code §§ 5900-5920 (or any successor or replacement statutes) or alternative dispute resolution with a neutral third party pursuant to California Civil Code §§ 5925 – 5965 (or any successor or replacement statutes). The decision to pursue dispute resolution or a particular type of alternative dispute resolution shall be the choice of the Owner, except that binding arbitration shall not be available if the Association intends to initiate a judicial foreclosure. After the expiration of thirty (30) days following Recordation of the Notice of Lien, the Board of Directors may enforce any assessment lien provided for in Section 5.9, hereinabove, which is in excess of One Thousand Eight Hundred Dollars ($1,800.00) (not including any accelerated assessments, late charges, fees and costs of collection, attorney’s fees, or interest), or more than twelve (12) months delinquent, (i) by filing an action for judicial foreclosure or (ii) by instituting a nonjudicial foreclosure by the trustee named in the Notice of Lien or by a trustee substituted pursuant to California Civil Code § 2934a (or any successor or replacement statute), by recording a notice of default in the form described in California Civil Code § 2924c(b)(1) (or any successor or replacement statute) to commence a nonjudicial foreclosure sale. A nonjudicial foreclosure sale shall be conducted in accordance with requirements of California Civil Code §§ 2924, 2924b, 2924c, 2924f, 2924g and 2924h (or any successor or replacement statutes) applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any manner permitted by law. The decision to initiate foreclosure of a lien for delinquent assessments that has 48 been validly Recorded shall be made only by the Board and may not be delegated to an agent of the Association. The Board shall approve the decision by a majority vote of the Board members in an executive session. The Board shall record the vote in the minutes of the next meeting of the Board open to all Members. The Board shall maintain the confidentiality of the defaulting Owner(s) by identifying the matter in the minutes by the Unit number, rather than the name of the Owner(s). A Board vote to approve foreclosure of a lien shall take place at least thirty (30) days prior to any public sale. If the Board votes to foreclose upon the Unit, the Board shall provide notice by personal service in accordance with the manner of service of summons in accordance with California Code of Civil Procedure § 415.10 (or any successor or replacement statute) to the defaulting Owner who occupies the Unit or to such Owner’s legal representative. The Board shall provide written notice to a defaulting Owner who does not occupy the Unit by first-class mail, postage prepaid, at the most current address shown on the books of the Association. The Association, through its agents, shall have the power to bid on the Condominium at foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Upon completion of the foreclosure sale, an action may be brought by the Association or the purchaser at the sale in order to secure occupancy of the defaulting Owner’s Unit, and the defaulting Owner shall be required to pay the reasonable rental value for such Unit during any period of continued occupancy by the defaulting Owner or any persons claiming under the defaulting Owner. Suit to recover a money judgment for unpaid assessments shall be maintainable without foreclosing or waiving any lien securing the same, but this provision or any institution of suit to recover a money judgment shall not constitute an affirmation of the adequacy of money damages. Any recovery resulting from a suit at law or in equity initiated pursuant to this Section shall include reasonable attorneys’ fees as fixed by the court. Notwithstanding any provision in the law or in this Declaration to the contrary, a nonjudicial foreclosure by the Association to collect upon a debt for delinquent assessments shall be subject to the right of redemption, as provided in California Civil Code § 5715(b) (or any successor or replacement statute), which right shall run for a period of ninety (90) days after the sale.
5.11 Priority of Assessment Lien.
The lien of the Assessments, including interest and costs of collection (including attorneys’ fees), provided for herein shall be subordinate to the lien of any first Mortgage of record (meaning any Recorded Mortgage or Deed of Trust) upon any Condominium made in good faith and for value and Recorded prior to the date on which the lien became effective. Sale or transfer of any Condominium shall not affect the assessment lien. However, the sale or transfer of any Condominium pursuant to judicial or nonjudicial foreclosure of a first Mortgage with priority over the Assessment lien shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer. No sale or transfer shall relieve such Condominium from liens for any Assessments thereafter becoming due. When the Mortgagee of a first Mortgage of record with priority over the Assessment lien or other purchaser of a Condominium obtains title pursuant to a judicial or nonjudicial foreclosure of that first Mortgage, such acquirer of title, his or her successors and assigns, shall not be liable for the share of the Common Expenses or assessments by the Association chargeable to such Condominium which became due prior to the acquisition of title to such Condominium by such acquirer; provided, however, that all such unpaid share of Common Expenses or assessments shall be deemed to be Common Expenses thereafter collectible from all of the Owners of Condominiums in the Project, including such acquirer of title, and his or her successors and assigns.
49 ARTICLE VI
6. Project Easements and Rights of Entry.
6.1 Easements.
(a) Access; Parking. Declarant expressly reserves for the benefit of and grants to the Association and the Owners reciprocal, nonexclusive easements for access, ingress and egress over all of the Common Property which is not now or hereafter restricted or reserved as Exclusive Use Areas, which easements may be conveyed by Declarant to the Owners and to the Association for so long as Declarant owns any interest in the Project. Subject to the provisions of the Restrictions governing use and enjoyment thereof, including, without limitation, the provisions for restriction of Owner access to the Common Property upon the terms and for the reasons set forth in Sections 3.3 and 3.4 above, the Owner easements may be used by all Owners and their Family, guests, tenants and invitees residing on or temporarily visiting the Property, for walkways, vehicular access and such other purposes reasonably necessary for use and enjoyment of a Condominium in the Project.
(b) Maintenance and Repair. Declarant expressly reserves for the benefit of and conveys to the Board of Directors and all agents, officers and employees of the Association, nonexclusive easements over the Property as necessary to maintain and repair the Common Property, and to perform all other tasks in accordance with the provisions of this Declaration. Such easements over the Property shall be appurtenant to, binding upon, and shall pass with the title to, every Condominium conveyed.
(c) Utilities. Easements over the Project for the installation and maintenance of electric, telephone and Telecommunication Facilities, water, gas, drainage and sanitary sewer connections and facilities, as may be hereafter required or determined necessary by the Declarant or the Board to service the Project, are hereby reserved by Declarant, together with the right to grant and transfer the same. Declarant expressly reserves for the benefit of the Association the right of Declarant and the Association to grant additional easements and rightsof-way over the Property to utility companies, Telecommunication Services companies and public agencies, as necessary, for the proper development, disposal and operation of the Property. Such right of Declarant shall expire (i) upon Close of Escrow for the sale of all Condominiums in the Project by Declarant, or (ii) upon expiration of seven (7) years from the date of original issuance by DRE of the Final Subdivision Public Report for the Project.
Declarant hereby reserves and grants the following easements and said easements shall be governed as set forth below:
(1) Each respective utility company shall maintain all utility facilities and connections on the Project owned by such utility company; provided, however, that if any company shall fail to do so, it shall be the obligation of each Owner to maintain those facilities and connections located upon or within such Owner’s Unit and it shall be the obligation of the Association to maintain those facilities and connections located upon the Common Property.
Notwithstanding the foregoing, internal and external telephone wiring designed to serve a single 50 Unit, but is located outside the boundaries of the Unit, shall be maintained by the Owner of said Unit;
(2) Wherever sanitary sewer, water or gas connections, cable television lines, electric lines, telephone or Telecommunication Facilities are installed within the Project and it becomes necessary to gain access to said connections, cables and/or lines through a Unit owned by someone other than the Owner of the Unit served by said connections, cables and/or lines, the Owner of the Unit served by said connections, cables and/or lines shall have the right, and is hereby granted an easement to the full extent necessary therefor, to enter upon such other Unit or to have the utility companies enter upon such other Unit to repair, replace and generally maintain said connections, cables and/or lines;
(3) Whenever sanitary sewer, water or gas connections, cable television lines, electric lines, telephone or Telecommunication Facilities are installed within the Project, and said connections, cables and/or lines serve more than one (1) Unit, the Owner of each Unit served by said connections, cables and/or lines shall be entitled to the full use and enjoyment of such portions of same as service his or her Unit; and (4) In the event of a dispute between Owners with respect to the repair or rebuilding of the aforesaid connections, cables and/or lines, or the sharing of the cost thereof, upon written request of one (1) of such Owners addressed to the Association, the matter shall be submitted to the Board who shall decide the dispute, and the decision of the Board shall be final and conclusive on the Owners.
(d) Support and Encroachments. Declarant, the Association and Owners of contiguous Units shall have a reciprocal easement appurtenant to each of the Units over the adjacent Units and the Common Property for the purpose of (1) lateral and sub-adjacent support, (2) accommodating any existing encroachment of any wall or any Improvement (including, without limitation, utility equipment, pipes, plumbing, mechanical, and other structural appurtenances) resulting from the original construction of the Improvements by Declarant, and (3) maintaining such encroachments and accommodating authorized construction, reconstruction, repair, shifting, movement or natural settling of the Improvements or any other portion of the Project. Easements and reciprocal negative easements for utility services and repairs, replacement and maintenance of the same over all of the Common Property are specifically reserved for the benefit of the Owners. Declarant expressly reserves for the benefit of the Common Property, and for the benefit of the Owners and the Association, reciprocal nonexclusive easements for drainage of water resulting from the normal use of adjoining Units or Common Property, over, across and upon each of the Units and the Common Property. The foregoing easements shall not unreasonably interfere with each Owner’s use and enjoyment of his or her Unit. No portion of the Common Property, including, without limitation, parking areas and other amenities contemplated as a part of the Property, are proposed to be leased by Declarant to the Owners or to the Association. (e) Declarant’s Rights. Declarant expressly reserves for its benefit the right and easement for access, ingress and egress on and over the Project to complete any Improvement which Declarant deems necessary or desirable to implementation of the Declarant’s development plan for the Project and to install and maintain such structures, 51 displays, advertising signs, billboards, flags, sales offices, model homes, interior design and decorator centers, and parking areas for employees, agents, and prospective buyers as may be reasonably necessary or convenient for the proper development and disposition of the Condominiums located within the Project by sale, resale, lease or otherwise, including, without limitation, operation of a sales office. Declarant further reserves for its benefit the right and easement for access over the Property for construction equipment, access over and through the Project for purposes of equipment, material and construction staging, and access over and through the Project by all contractors, subcontractors, employees and other personnel used in connection with the planning, design, excavation, construction and other improvement work necessary to development of the Project. Declarant further expressly reserves for its benefit the right to hereafter create and convey such easements, covenants, conditions, restrictions, and licenses against, over, on, above or below the Project and the Property as necessary or helpful to facilitate the design, engineering, processing, approval, financing, development, construction and maintenance of the Project and the Property, including, without limitation, easements, covenants, conditions, restrictions, and licenses reasonably necessary to meet set-back, open space, access, fire safety, or other zoning or planning requirements or policies. This Declaration cannot be amended to modify or eliminate the easements reserved to Declarant by this or any other Section without prior written consent of Declarant, and any attempt to do so shall have no effect.
(f) Exclusive Use Areas. Declarant expressly reserves for the benefit of and grants to certain Owners of Units in this Project exclusive easements over the Common Area for Exclusive Use Areas for internal and external telephone wiring designed to serve a single Unit but located outside the boundaries of that Unit, in accordance with California Civil Code Section 4145 (or any successor or replacement statute), and shown on the Condominium Plan or in a supplemental conveyance to such Owner pursuant to the rights reserved to the Declarant in Article VII below.
(g) Easements for Air Conditioning/Heating Units. As to any air conditioning and/or heating equipment which is located on a portion of the Common Property, there is hereby created, established and granted an exclusive easement on, over and across said portion of the Common Property for the permanent placement of such equipment. Additionally, each Owner is granted an easement for ingress, egress and access on and over the Common Property to install, maintain, repair and replace his or her respective air conditioning and/or heating equipment.
(h) Easements for Solar Equipment. As to each solar electric system which exclusively serves a Unit and is installed on the roof of the Condominium Building and/or within other portions of the Common Property, there is hereby created, established and granted an exclusive easement on, over and across said portions of the Common Property for the permanent placement of the solar electric panels and related equipment. Additionally, each Owner is granted an easement for ingress, egress and access on and over the Common Property to maintain, repair and replace his or her respective solar system equipment; provided however, the Association shall have the right to temporarily remove and store an Owner’s solar panels and related improvements located on the roof of the Condominium Building in order to accommodate any maintenance, repair or replacement of Improvements located on the roof. The Association shall promptly re-install the solar panels and related improvement after completion of its 52 maintenance, repair and/or replacement work on the roof of the Condominium Building. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that such activities of the Association will impair the use of such Owner’s solar electric system, which would result in a higher monthly electrical cost and may be an inconvenience or nuisance to the Owner, and hereby consents to such adverse impact, impairment, inconvenience or nuisance, and agrees to indemnify the Association against any claims with respect to such matters. (i) Grant of Easements Benefiting Commercial Units. Subject to any express conditions, limitations or reservations contained herein, Declarant expressly reserves for the benefit of, and conveys to the Commercial Owners and its permittees (i) an exclusive easement for use of any doors, chutes, vents, shafts and other improvements located on the Project which are designated by Declarant or the Project design documents for the exclusive use of a Commercial Unit; (ii) a non-exclusive easement over, upon, across and through the Project as reasonably necessary to permit a Commercial Owner and its permittees to install, construct, access, use, maintain, repair and replace the improvements, systems and equipment serving the Commercial Unit in whole or in part, including, without limitation, any HVAC equipment, security monitors and equipment, and any exhaust and grease interceptor systems; (iii) a nonexclusive easement over, upon, across and through the Project as reasonably necessary to permit a Commercial Owner, its permittees, and its permittees’ agents, employees, invited guests and customers, access to the Commercial Unit, for the purpose of conducting business therein; (iv) an exclusive easement on, over and upon those certain portions of the Project designated for commercial trash collection, and electrical and mechanical panel and equipment purposes; and (v) an easement for the benefit of a Commercial Owner on and over the portions of the exterior walls of the buildings in the Project, as necessary for installation, construction, reconstruction, replacement, operation, maintenance and repair of commercial signs for the businesses located within such Commercial Unit.
6.2 Rights of Entry.
The Board of Directors shall have a limited right of entry in and upon the Common Property and the interior of all Units for the purpose of inspecting the Project and taking whatever corrective or maintenance action may be deemed necessary or proper by the Board of Directors, consistent with the provisions of this Declaration. However, such entry upon the interior of a Unit shall be made, except to effect emergency repairs or other emergency measures, only after three (3) days prior written notice to the Owner of such Unit. Nothing herein shall be construed to impose any obligation upon the Association to maintain or repair any property or Improvements required to be maintained or repaired by the Owners. Nothing in this Article VI shall in any manner limit the right of the Owner to exclusive occupancy and control over the interior of his or her Unit. However, an Owner shall permit a right of entry to the Board of Directors or any other person authorized by the Board of Directors, as reasonably necessary, such as in case of any emergency originating in or threatening his or her Unit, whether the Owner is present or not. Any damage caused to a Unit by such entry by the Board of Directors or by any person authorized by the Board of Directors shall be repaired by the Association as a Common Expense of the Association.
Furthermore, an Owner shall permit other Owners, or their representatives, to enter his or her Unit for the purpose of performing required installations, alterations or repairs to the 53 mechanical or electrical services to a Unit, provided that such requests for entry are made at least three (3) days in advance and entry is made at a time reasonably convenient to the Owner whose Units is to be entered; and provided further, that the entered Unit is left in substantially the same condition as existed immediately preceding such entry. In case of an emergency, such right of entry shall be immediate. Any damage caused to a Unit by such entry by an Owner or its representative shall be repaired by such Owner.
Upon receipt of reasonable notice from the Association (which shall in no event be less than fifteen (15) days nor more than thirty (30) days) each Owner shall vacate his or her Unit in order to accommodate efforts by the Association to perform any other maintenance or repairs pursuant to the Declaration. The Board shall have the right to enter the Units and the right to remove Owners from their Units, as necessary, to accomplish its duties as provided herein. The cost of eradicating any pest infestation or of performing any such maintenance or repairs shall be a Common Expense of the Association; however, each Owner shall bear his or her own costs of temporary relocation. If the Association acts to eradicate any pests or organisms, then the procedure established in Section 2.7 shall control.
ARTICLE VII
7. Declarant’s Rights and Reservations.
Nothing in the Restrictions shall limit, and neither any Owner nor the Association shall do anything to interfere with, the right of Declarant to subdivide or resubdivide any portion of the Property, or to complete Improvements to and on the Common Property or any portion of the Property owned solely or partially by Declarant, or to alter the foregoing or its construction plans and designs, or to construct such additional Improvements as Declarant deems advisable in the course of development of the Property so long as any Condominium in the Project remains unsold; provided, that an alteration of Declarant’s construction plans shall require prior approval of VA and FHA if such alteration is inconsistent with the general plan of development approved by VA and FHA.
The rights of Declarant hereunder shall include, but shall not be limited to, the exclusive right to install, maintain, locate, relocate and reconfigure such structures, displays, signs, billboards, flags, sales offices, model homes, construction office, interior design and decorator centers, as may be reasonably necessary or convenient in Declarant’s judgment for the proper development and disposition of the condominiums located within the Project by sale, resale, lease or otherwise, and the right to use any portions of the Project necessary to provide ongoing maintenance, operation, service, construction, punch-out, and repairs to individual Units.
Notwithstanding anything in the Restrictions which is or appears to be to the contrary, Declarant may use any Condominium owned by Declarant in the Project as model homes, construction office and/or real estate sales or leasing offices; provided that use of such office shall be limited to construction of the Project and/or sales, resales and leasing of any real property regardless of whether located within or outside of the Project. Declarant further reserves the right to modify the size, configuration or appearance of the "Sales Office" from time to time without the approval or consent of any Owner, the Committee or the Board, and to relocate the Sales Office from time to time within the Common Area provided that such relocation shall not result in a material increase in the total size of the Sales Office or otherwise have a material adverse effect on the use of the 54 Common Area for its intended purpose (such as by permanently displacing an amenity or service that is not otherwise relocated or replaced following such displacement).
Notwithstanding anything in the Restrictions which is or appears to be to the contrary, Declarant may use any Condominium owned by Declarant in the Project, or portions of the Common Property as model homes, construction office and/or real estate sales or leasing offices; provided that use of such office shall be limited to construction of the Project and/or sales, resales and leasing of the Condominiums located on the Property.
Declarant need not seek or obtain Architectural Committee approval of any Improvement constructed, reconstructed, modified or placed by Declarant on any portion of the Property by Declarant. Declarant also reserves the right, following Recordation of this Declaration and the Condominium Plan and continuing so long as Declarant owns any interest in the Project, to create (in addition to those shown on the Condominium Plan and/or allocated to each Owner in connection with the original purchase of its Condominium), assign to each Owner a parking spaces or spaces within the Project Parking Garage for their exclusive use. Declarant further reserves the right (but not the obligation), subject to DRE review of a revised budget for the Project, to provide for a “split roll” or “cost center” dues structure, so that the maintenance costs associated with maintenance of Common Property, or identified elements thereof, within separate portions of the Project are segregated and borne by the Owners of the Units within those portions of the Project.
All or any portion of the rights of Declarant hereunder and elsewhere in these Restrictions may be assigned by Declarant to any successor in interest to any portion of Declarant’s interest in any portion of the Property by written assignment. Notwithstanding any other provision of this Declaration to the contrary, the prior written approval of Declarant, which may be granted or withheld in its sole discretion, will be required before any amendment of this Article shall be effective. Each Owner, hereby grants, upon acceptance of his deed to his Unit, an irrevocable, special power of attorney to Declarant to execute and Record all documents and maps necessary to allow Declarant to exercise its rights under this Article. Declarant and its prospective purchasers of Condominiums shall be entitled to the nonexclusive use of the Common Property and any recreational facilities thereon, without further cost for access, ingress, egress, use or enjoyment, in order to show the Property to those prospective purchasers, to dispose of the Property as provided herein. Declarant and its prospective purchasers of Condominiums shall be entitled to the nonexclusive use of the Common Property and recreational facilities thereon, without further cost for access, ingress, egress, use or enjoyment, in order to show the Property to those prospective purchasers, to dispose of the Property as provided herein. Declarant, its successors and tenants, shall also be entitled to the nonexclusive use of any portions of the Property which comprise private streets, drives and walkways for the purpose of ingress, egress and accommodating vehicular and pedestrian traffic to and from the Property. The use of the Common Property by Declarant shall not unreasonably interfere with the use thereof by the other Members. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that the activities of Declarant may temporarily or permanently impair the view of such Owner and may constitute an inconvenience or nuisance to the Owners, and hereby consents to such impairment, inconvenience or nuisance. This Declaration shall not limit the right of Declarant to establish, reserve, and/or grant additional licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as may from time to time be reasonably necessary for the proper development and disposal of the Project.
55 Notwithstanding any other provisions of this Declaration to the contrary, and without limiting Declarant’s unilateral rights provided elsewhere in this Declaration or in the Restrictions, until such time as Owners other than Declarant own at least seventy-five percent (75%) of the Units within the Project, or until the fifth (5th) anniversary of the first Close of Escrow for a Unit, whichever occurs first, Declarant’s written consent shall be required before the Association may take any action with respect to the following:
(a) Reduction in the level of, or change in allocation of responsibility for maintenance of and repairs to all or any portion of the Common Property subject to this Declaration, or any other maintenance obligations of the Association set forth in this Declaration; (b) Conveyance by the Association of all or any portion of the Common Property;
(c) Alteration in the method of fixing and collecting Assessments or any increases in Assessments beyond the amounts permitted under Article V of this Declaration; (d) Modification of the enforcement and review procedures of the Architectural Committee, or any change in the architectural and landscaping design originally installed by Declarant;
(e) Modification to Improvements on the Common Property or to the level or frequency of maintenance of the Common Property; or (f) Alteration in the method of enforcing the provisions of this Declaration.
Each Owner, by accepting a deed to a Condominium, hereby irrevocably appoints Declarant as his or her attorney-in-fact, for himself or herself and each of his or her Mortgagees, optionees, grantees, licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees, administrators, executors, legal representatives, successors and assigns, whether voluntary or involuntary, for a period of ten (10) years after the Close of Escrow for the sale of the last Unit in the Project covered by a Final Subdivision Public Report and hereby grants to Declarant an irrevocable limited power of attorney coupled with an interest for Declarant to act as his or her attorney-in-fact in connection with any modification to the development plans of all or any portion of the Project. Each Owner hereby acknowledges and agrees that this irrevocable limited power of attorney is: (a) retained for the benefit of the Declarant and not the Owner; and (b) created by Owner’s acceptance of a deed to a Condominium and as part of the consideration for the purchase and sale of a Condominium. Based on the foregoing, each Owner further acknowledges and agrees that this irrevocable limited power of attorney is “coupled with an interest” and, pursuant to § 2356 of the California Civil Code, as same may be amended, from time to time, may not be terminated by: (a) the Owner’s revocation of such limited power of attorney; (b) the Owner’s death; or (c) the Owner’s incapacity to contract. In furtherance thereof and subject to the limitations and restrictions set forth in this Article, Declarant shall have the right and power as a duly authorized attorney-in-fact to perform any of the following actions:
(a) To prepare, execute, acknowledge and record any map, lot line adjustment, certificate of compliance or record of survey affecting the Project; 56 (b) To prepare, execute, acknowledge and record any amendments necessary to cause a Condominium Plan to conform with the Improvements as actually built or with the approved plans for the Project;
(c) To prepare, execute, acknowledge and file for approval any application for zoning or setback changes or lot line adjustments, or variance or conditional use permits, or any other permits or reports required or permitted by law; (d) To make applications for any property reports or public reports, or amendments thereto, or exemption from the requirements therefor required or permitted by federal and State statutes, rules and regulations relating to the sale, lease, transfer or other disposition of subdivided lands;
(e) To deliver any public reports or property reports, or amendments thereto, obtain receipts and offer and administer rescission rights required by law; (f) To prepare, execute, acknowledge and file for approval any registration or application for any permit, approval, exemption, ruling or entitlement, which registration or application is required or permitted by law; (g) To prepare, execute, acknowledge and record any deeds, waivers, releases, reconveyances or other documentation which may be permitted or required to (i) clear title to any constructed or unconstructed Units in the Project, (ii) evidence the modifications made to the Project pursuant to this Section, or (iii) correct any errors or omissions in any deed or other instruments; and
(h) To prepare, execute, acknowledge and record on behalf of the Owners and the Association any easement over the Common Property, including, without limitation, any easements reasonably necessary for the development and disposition of Condominiums within the Project.
The Association shall provide Declarant with all notices and other documents to which a Beneficiary is entitled pursuant to this Declaration, provided that Declarant shall be provided such notices and other documents without making written request therefor. In the event of any disagreement as to the reasonableness of said annual and/or special assessments, or the division thereof, the matter shall be submitted to a neutral arbitrator approved by the Board and the representative of the owners benefitted by such easements or, in the absence of agreement on such arbitrator, by a judicial reference action pursuant to Code of Civil Procedure §§ 638-645.1 (or any successor or replacement statutes thereto).
Declarant shall have the right to assign any or all of its rights and obligations in this Declaration to any successor in interest by a written assignment. Notwithstanding any other provision of this Declaration to the contrary, the prior written approval of Declarant, which may be granted or withheld in its sole discretion, will be required before any amendment to this Article VII shall be effective. The foregoing rights established and reserved by Declarant shall be subject only to the applicable regulations and requirements of the DRE and the city or county in which the Project is located.
57 For a period of ten (10) years after the Close of Escrow for the sale of the last Unit in the Project, in addition to Declarant’s rights as an Owner and a Member, Declarant shall have the following rights: (1) access to and the right to inspect the Association books and financial records; (2) access to and the right to inspect the Association’s maintenance records; (3) access to and the right to inspect the Common Property; (4) right to receive notice of, attend and speak at all meetings of the Members; and (5) right to receive copies of the minutes of the meetings of the Board of Directors and meetings of the Members, upon request and payment of the actual costs to copy and distribute such records.
ARTICLE VIII
8. Residence and Use Restrictions.
All residential Units in the Project shall be held, used and enjoyed subject to the following limitations and restrictions, subject to the exemptions of Declarant set forth in this Declaration.
8.1 Single Family Residences.
Each residential Unit shall be used exclusively for single Family residential purposes, subject to the exemption granted Declarant under Article VII of this Declaration. An Owner may rent or lease his or her residential Unit to a single Family pursuant to the Leasing Provisions set forth herein.
(a) Leasing Provisions. The following provisions shall govern leasing of Units:
(1) General. Units may be leased only in their entirety pursuant to a single lease agreement with only a single Family as the permitted occupant under this Declaration. All leases must be in writing and for an initial term of not less than thirty (30) days.
Within seven (7) days after executing a lease agreement for the lease of a Unit, the Unit Owner shall provide the Board with a copy of the lease and the name of the lessee and all other people occupying the Unit. The Owner must provide the lessee with copies of the Declaration, Bylaws, and Rules and Regulations.
(2) Compliance with Restrictions and Liability for Assessments.
Each Owner and each lessee, by occupancy of a Unit, covenants and agrees that any lease for a Unit shall contain the following provisions and agrees that if such provisions are not expressly contained therein, then such provisions shall be deemed incorporated into the lease by existence of this covenant on the Unit:
(A) Compliance with Declaration, Bylaws, and Rules
and Regulations. The lessee shall comply with all provisions of the Restrictions and shall control the conduct of all other occupants and guests of the leased Unit in order to ensure compliance with the foregoing. The Owner shall cause all occupants and guests of his or her Unit to comply with the Restrictions and shall be responsible for all violations by such occupants and guests, notwithstanding the fact that such occupants and guests are fully liable and may be separately sanctioned for any such violation. Unpaid fines shall, at the election of the Board, be recorded as 58 a lien against the Unit, provided any such lien shall not be subject to non-judicial foreclosure under California Civil Code §§ 2924a, 2924b and 2924c (or any successor or replacement statutes). (B) Violation of Restrictions. Any violation of the
Restrictions by the lessee, any occupant, or any guest of lessee, shall be deemed a default under the terms of the lease and shall authorize the Owner to terminate the lease without liability and to evict the lessee in accordance with California law. The Owner hereby delegates and assigns to the Association, acting through the Board, the power and authority of enforcement against the lessee for breaches resulting from such violations, including the power and authority to evict the lessee as attorney-in-fact on behalf and for the benefit of the Owner, in accordance with the terms hereof.
If the Association proceeds to evict the lessee, any costs, including attorney’s fees and court costs, associated with the eviction shall be a Special Assessment and lien against the Unit. (C) Liability for Assessments. When a Unit Owner who
is leasing his or her Unit fails to pay any Annual Assessment or other Assessment or any other charge to be paid by the Owner to the Association pursuant to this Declaration for a period of more than thirty (30) days after it is due and payable, then the delinquent Owner hereby consents to the assignment of any rent received from the lessee during the period of delinquency, and, upon request by the Board, lessee shall pay to the Association all such rent until all unpaid amounts owed by the Owner to the Association have been paid in full. All such payments made by lessee shall reduce, by the same amount, lessee’s obligation to make monthly rental payments to lessor.
The above provision shall not be construed to release the Owner from any obligation, including the obligation for Assessments, for which he or she would otherwise be responsible. (b) Inapplicability to Institutional First Mortgages. Section 8.1 shall not apply to any leasing transaction entered into by an institutional holder (i.e., a bank, a savings and loan association, an established mortgage company or other entity chartered under federal or state laws, an insurance company, or any federal or state agency) of any first Mortgage on a Unit who becomes the Owner of a Unit through foreclosure or any other means pursuant to the satisfaction of the indebtedness secured by such Mortgage.
8.2 Alterations; Inside and Outside Installations.
No Owner shall make or cause to be made structural alterations to his or her Unit or to the Common Property which will or may tend to impair the structural integrity, mechanical systems, or sound attenuation standards of the Condominium Building, or would have a material detrimental effect on another Unit or on the Common Property, except as otherwise expressly provided herein. No outside installation of any type, including but not limited to stereo speakers or other amplified sound equipment, clotheslines, shall be constructed, erected or maintained on any Terrace or outside any Unit, except as may be installed by Declarant, or with the prior consent of the Architectural Committee. No Terrace covers, wiring, air conditioning units, water softeners, or other machines or equipment of any kind or nature shall be installed on the exterior of the buildings of the Project or be allowed to protrude through the walls, floors, ceilings, windows, doors, or roofs of the buildings (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. Notwithstanding the specificity of the foregoing, no exterior addition, change or alteration to any Unit shall be commenced without the prior written approval of the Architectural 59 Committee. Each Owner shall be liable for any damage or injury caused by any alterations, replacements, or installations, or any machines or equipment used to perform such work. There shall be no alteration or replacement of wall coverings or flooring materials which may diminish the effectiveness of the sound control engineering within the Condominium Building. No Owner shall cause or permit any mechanic’s lien to be filed against any portion of the Project for labor or materials alleged to have been furnished or delivered to the Project or any Condominium Unit at the request of such Owner, and any Owner who does so shall immediately cause the lien to be discharged within five (5) days after notice to the Owner from the Board. If any Owner fails to remove such mechanic’s lien, the Board may discharge the lien and charge the Owner a Special Assessment for such cost of discharge.
8.3 Animal Regulations.
No animals, livestock, reptiles, insects, poultry or other animals of any kind shall be kept in any Separate Interest except that usual and ordinary domestic dogs, cats, fish, and birds inside bird cages may be kept as household pets within any Separate Interest provided that they are not kept, bred or raised therein for commercial purposes or in unreasonable quantities or sizes.
As used in this Declaration, “unreasonable quantities” shall ordinarily mean more than four (4) pets (except with regard to quantities of fish, which may be more than two (2) per Separate Interest; provided, however, that the Board may determine that a reasonable number of pets in any instance may be more. Any dog which weighs more than thirty (30) pounds must be approved by the Board, and must be trained and have an obedience certificate issued by a licensed training agency prior to being kept on the Project. Aquariums for aquatic animals shall not exceed thirty (30) gallons. No potbellied pigs, snakes, pit bulldogs, Rottweiler, Doberman dogs, Canary Mastiff, or any other dog breed known as a “fighting breed” or mix thereof, or any other animals determined in the Board’s sole discretion to be dangerous or a nuisance may be brought onto or kept on the Project at any time. The Board shall have the right to require that any pet which, in the Board’s opinion, endangers the health or security of any Owner or occupant of a Unit or creates a nuisance or unreasonable disturbance, be permanently removed from the Project upon seven (7) days written notice. If the Owner or occupant fails to do so, the Board may remove the pet. Any pet which, in the Board’s sole discretion, presents an immediate danger to the health, safety, or property of any Owner or other occupant of a Unit may be removed by the Board without prior notice to the pet’s owner. Animals belonging to Owners, occupants or their licensees, tenants or invitees within the Property must be kept inside the Dwelling Unit or within the Terrace of that Unit, and must be on a leash (not more than four feet (4’) in length) held by a person capable of controlling the animal if outside of a Unit. Furthermore, any Owner shall be liable to each and all remaining Owners, their Families, guests and invitees, for any unreasonable noise or damage to person or property caused by any animals brought or kept upon the Project by an Owner or by members of his or her Family, tenants or guests. It shall be the duty and responsibility of each such Owner to clean up after such animals which have deposited droppings on or otherwise used any portion of the Common Property or any public street abutting or visible from the Property and properly dispose of any animal waste. Any Owner or occupant who keeps or maintains any pet upon the Project shall be deemed to have indemnified and agreed to hold the Association, its directors, officers, and agents, and the Declarant free and harmless from any loss, claim, or liability of any kind or character whatever arising by reason of keeping or maintaining such pet within the Project. 60 8.4 Antenna.
No radio station, satellite or shortwave operators of any kind shall operate from any Unit or any other portion of the Property unless approved by the Architectural Committee. With the exception of any master antenna maintained by the Association, no exterior radio antenna, “C.B.” antenna, television antenna, receiving station, satellite dish or other antenna of any type (collectively, “Signal Reception Device”) shall be erected or maintained anywhere in the Property, without the approval of the Architectural Committee. In considering whether to approve any such application and what conditions, if any, to impose thereon, the Committee may consider any clearly defined safety objective, the impact of any such Signal Reception Device upon Project aesthetics and uniformity of appearance, and any potential structural damage arising from such Signal Reception Device, provided that any restriction imposed by the Committee shall be reasonable, as required by California Civil Code § 4725 (or any successor or replacement statute) and rules and regulations promulgated by the Federal Communications Commission pursuant § 207 of the Telecommunications Act of 1996 (collectively, the “Antenna Statutes”). In no event shall the Committee impose any requirement in violation of the Antenna Statutes that would unreasonably delay or prevent installation, maintenance or use of such Signal Reception Device within an Owner’s Unit’s boundaries and/or exclusive use areas, unreasonably increase the cost of installation, maintenance or use, or prevent reception of an acceptable quality signal. In reviewing an application for approval to install a Signal Reception Device, the Committee shall apply the same standards, criteria and guidelines to such application as applicable to any other proposed exterior improvement to any Unit and shall not impose any differential or discriminatory requirements applicable only to a proposed Signal Reception Device. In granting approval of the installation of any such Signal Reception Device, the Architectural Committee may further condition such approval upon compliance with any reasonable restrictions authorized by Antenna Statutes, including, without limitation, provisions concerning the maintenance, repair, or replacement of roofs or other Dwelling Unit components and requirements for the installing Owner to indemnify the Association and its Members for loss or damage caused by the installation, maintenance, or use of those Improvements.
8.5 Business or Commercial Activity.
Except for uses which are permitted to be conducted within the Commercial Units, no part of a residential Unit shall ever be used for any business, professional, administrative, commercial (including auctions or similar events), manufacturing, mercantile, storage, vending or other nonresidential purposes including, without limitation, any activity for which the provider is compensated in any way or receives any form of consideration, regardless of whether the activity is engaged in full or part-time, generates or does not generate a profit, or requires or does not require a license; except that Declarant, its successors and assigns may use any portion of the Property for a model home site and for sales and leasing purposes in accordance with Article VII hereof. Notwithstanding the foregoing, the provisions of this Section 8.5 shall not preclude any of the above-described activities without external evidence thereof, provided that all of the following conditions are fulfilled: (a) such activities are conducted in conformance with all applicable governmental ordinances; (b) the patrons or clientele of such activities do not visit the Unit or park automobiles or other vehicles within the Property; (c) the existence or operation of such activities is not apparent or detectable by sight, sound or smell from outside of the boundaries of the Unit (except that a reasonable number of deliveries which does not disproportionately 61 burden the services of the Project by couriers, express mail carriers, parcel delivery services and other such similar delivery services are permitted during business hours); (d) no such activity increases the liability or casualty insurance obligation or premium of the Association; and (e) such activities are consistent with the residential character of the Property and conform with the provisions of this Declaration. No Owner shall use his or her Condominium in such a manner as to interfere with the business of Declarant in selling Condominiums in the Project, as set forth in Article VII of this Declaration.
No part of any Commercial Unit shall ever be used for any business, commercial, industrial, manufacturing, mercantile, storage, vending or other commercial purposes that are inconsistent with, not authorized or contemplated by the City’s zoning regulations.
Additionally, notwithstanding the foregoing restrictions and requirements, the provisions of this Section 8.5 shall not preclude any of the following:
(a) Health care facilities operating as a business or charity and serving the sick, elderly, disabled, handicapped, or persons with physical, intellectual and developmental disabilities which are permitted by law or ordinance that preempts this Declaration; or (b) Family day care center for children which are specifically authorized by California Health and Safety Code § 1597.40 and other applicable state statutes.
The owner/operator of the day care center shall comply with all local and state laws regarding the licensing and operating of a day care center and, in addition, shall (i) name the Association as an additional insured on the liability insurance policy or bond carried by the owner/operator of the day care center, (ii) defend, indemnify and hold the Association harmless from any liability arising from the existence and operation of the day care center, (iii) comply with all of the Restrictions, (iv) supervise and be completely responsible for children at all times while they are within the Project.
8.6 Common Property Facilities.
Nothing shall be altered, constructed, or removed from the Common Property without the prior written consent of the Board of Directors. There shall be no obstruction of the Common Property nor shall anything be stored in the Common Property without the prior written consent of the Board of Directors. No acquisition of additional Common Property shall be undertaken without the approval of the Board of Directors. The Board of Directors shall have the right to limit the number of guests that an Owner or such Owner’s tenant may permit to use the recreational facilities and other Common Property areas, and the Board shall have the right to set further reasonable restrictions on the time and manner of use of said recreational facilities and other facilities in accordance with the Rules and Regulations, including, without limitation, Rules and Regulations restricting or prohibiting the use of all or designated portions of the recreational facilities of the Property by minors, guests of an Owner or his or her tenants.
8.7 Drainage.
There shall be no interference with or alteration of the established drainage pattern over the Property, unless an adequate alternative provision is made for proper drainage and is first approved in writing by the Architectural Committee. For the purpose hereof, “established” 62 drainage is defined as the drainage which exists at the time of the first Close of Escrow for the sale of a Condominium in the Project, or that which is shown on any plans approved by the Architectural Committee.
No Person (including the Association) may block or interfere with the proper function or maintenance of any Drainage and Water Quality Improvements on the Separate Interest. No Person may modify, remove existing Improvements or change the flow of surface water without first obtaining all required approvals from the applicable governmental authorities for an alternative drainage plan. Therefore, no Person may install, alter, modify, remove or replace any Drainage and Water Quality Improvements on his or her Separate Interest without first making alternative drainage arrangements approved in writing by the applicable governmental authorities.
Owner-installed irrigation systems must be installed and maintained to prevent excess runoff and accumulation of surface water.
8.8 Exterior Fires; Barbecues.
No exterior fires shall be permitted except barbecue fires contained within receptacles therefor.
8.9 Firearms and Fireworks.
The display and discharge of firearms or fireworks on the Common Property is prohibited; provided that the display of lawful firearms on the Common Property is permitted by law enforcement officers and also is permitted for the limited purpose of transporting lawful firearms across the Common Property to or from the Owner’s Unit. The term “firearms” includes “B-B” guns, pellet guns, and other firearms of all types, regardless of size.
8.10 Further Subdivision.
Except as otherwise provided in Article VII, no Owner shall physically or legally subdivide his or her Unit in any manner, including without limitation any division of his or her Unit or Condominium into time-share estates or time-share uses; provided, however, that this provision shall not be construed to limit the right of an Owner (1) to rent or lease all of his or her Unit by means of a written lease or rental agreement subject to the restrictions of this Declaration; (2) to sell his or her Condominium; or (3) to transfer or sell any Condominium to more than one Person to be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community property. Any failure by the lessee of the Unit to comply with the terms of this Declaration, the Bylaws of the Association or the Rules and Regulations or any other Restrictions, shall constitute a default under the lease or rental agreement. Notwithstanding the foregoing, no Unit in the Project may be partitioned or subdivided without the prior written approval of the Beneficiary of any first Mortgage on that Unit. This Section may not be amended without the prior written approval of the Beneficiaries of at least seventy-five percent (75%) of the first Mortgages of Condominiums in the Project.
8.11 Garbage/Trash.
No garbage, trash, rubbish, or other waste material shall be kept or permitted on the Project except in garbage cans, trash containers, trash chutes, or other waste receptacles located 63 on the Project provided for the use of all Owners. All trash must be bagged or otherwise sealed before using any trash chute located in the Project. No odor shall emanate therefrom so as to be unreasonably unsanitary, unsightly, offensive or detrimental to the Owners in the Project. Under no circumstances may explosives, fireworks, or highly flammable materials such as gasoline, kerosene, oil, oil-based paints, or solvents, be disposed of in the trash chutes or anywhere else in the Project. Any and all costs incurred by the Association for the removal of combustible or toxic materials from the trash chutes shall be borne by the offending Owner at such Owner’s sole cost and expense.
8.12 Hazardous, Toxic, Flammable, Corrosive or Explosive Materials.
No Owner nor any Family member, tenant, lessee, agent, employee, licensee, or guest shall at any time bring onto or store in or on the Project any hazardous, toxic, flammable, corrosive or explosive solid, liquid, gas, or chemical substance or other material which may be hazardous to any Person or property, except for household items, handled, store and applied in accordance with all applicable government restrictions, which are normal and customary to the use and enjoyment of a residential dwelling. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers, and other such chemical treatments shall meet federal, state, county, and city requirements. Under no circumstances may explosives or fireworks be stored by Owners on their Units or elsewhere within the Project. Nothing other than natural rain water may be discharged into the storm drains and storm drainage system located on the Property. Toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint thinners, wood preservative and other such fluids shall not be discharged into storm drains or storm drainage systems on the Property or into any street, public or private. All water softeners installed in a Unit must be commercially serviced.
8.13 Nuisances.
No noxious or offensive activities (including but not limited to the repair of motor vehicles) shall be carried on upon the Property or on any public street abutting or visible from the Property. No horns, whistles, bells or other sound devices, except security devices used exclusively to protect the security of a Residence and its contents, shall be placed or used in any such Residence. No loud noises, noxious odors, noisy or smoky vehicles, large power equipment or large power tools (excluding lawn mowers and other equipment utilized in connection with ordinary landscape maintenance), unlicensed off-road motor vehicles or items which may unreasonably interfere with television or radio reception of any Owner in the Project, shall be located, used or placed on any portion of the Property or on any public street abutting or visible from the Property, or exposed to the view of other Owners without the prior written approval of the Architectural Committee. The Board of Directors of the Association shall have the right to determine if any noise, odor, or activity producing such noise or odor constitutes a nuisance. No Owner shall permit or cause anything to be done or kept upon the Property or on any public street abutting or visible from the Property which may increase the rate of insurance on Units or on the Property, or result in the cancellation of such insurance, or which will obstruct or interfere with the rights of other Owners. No Person shall commit or permit any nuisance on the Property. Each Owner shall comply with all of the requirements of the local or state health authorities and with all other governmental authorities with respect to the occupancy and use of a Residence. Each Owner shall be accountable to the Association and other Owners for the conduct and behavior of 64 children and any other Family members or persons residing in or visiting his or her Unit. Any damage to the Common Property, personal property of the Association, or property of another Owner, caused by such children, Family members, or other persons, shall be repaired at the sole expense of the Owner of the Unit where such children, Family members or other persons are residing or visiting.
8.14 Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles are Authorized Vehicles within the residential parking areas: motorized land vehicles designed and used primarily for non-commercial passenger transport, such as automobiles, passenger vans designed to accommodate ten (10) or fewer people, two-wheel motorcycles, and pick-up trucks having a manufacturer’s rating or payload capacity of one (1) ton or less. Subject to Section 8.14(c) below, Authorized Vehicles of Owners and guests of Owners may park in the guest parking areas in the Property intended for parking of motorized vehicles. (b) Prohibited Vehicles. T The following vehicles are Prohibited Vehicles within the residential parking areas: recreational vehicles (e.g., motor homes, travel trailers, camper vans, boats, dune buggies, etc.), commercial-type vehicles (e.g., stake bed trucks, tank trucks, dump trucks, step vans, concrete trucks, trucks with any exterior commercial advertisement, or other similar vehicles), buses or vans designed to accommodate more than ten (10) people, vehicles having more than two (2) axles, trailers, inoperable vehicles or parts of vehicles, aircraft, other similar vehicles or any vehicle or vehicular equipment deemed a nuisance by the Board. Except as permitted in this Section 8.14, Prohibited Vehicles shall not be parked, stored or kept on any public or private street or driveway within or adjacent to the Property or on any other Common Property parking area unless specifically permitted by the City (with respect to public streets) or authorized by the Board (with respect to private driveways within the Common Property).
(c) General Restrictions. All Authorized Vehicles owned or operated by or within the control of an Owner or a resident of an Owner’s Unit and kept within the Property shall be parked in that Owner’s assigned parking space. There shall be no parking in the Property that obstructs free traffic flow, constitutes a nuisance, violates the Rules and Regulations, or otherwise creates a safety hazard. The residential parking spaces in the Property shall be used for parking Authorized Vehicles only and shall not be used for storage, living, recreational or business purposes. No repair, maintenance or restoration of any vehicle shall be conducted on the Property. No parking shall be permitted in the fire lanes located in the Project, which fire lanes shall be appropriately marked and identified by the Association. (d) Parking Regulations. Any guest parking space within the Common Property shall remain unassigned and available for the nonexclusive use of the Owners and their Family, guests, tenants and invitees residing on or temporarily visiting the Property. In any event, no stopping shall be permitted in any fire lanes located in the Project. The Board may establish additional regulations as it deems appropriate in its sole discretion with regard to any of the parking areas in the Project. Any parking areas established on the Common Property shall be subject to such further reasonable control and use limitations as the Board of Directors may establish. The Board shall determine, in its discretion, whether there is a violation of the parking and vehicular 65 restrictions set forth in this Declaration or established by the Board, and, if such noncompliance is determined by the Board to exist, the Board shall have the power to enforce all parking and vehicle use regulations applicable to the Property, including the power to remove violating vehicles from any of the Property pursuant to California Vehicle Code § 22658.2, including any amendments thereto and any successor or replacement statute, or other applicable statute.
8.15 Rights of Handicapped.
Subject to the provisions of Article IV of this Declaration, each Owner shall have the right to modify his or her Unit and the route over the Common Property leading to the front door of his or her Unit, at his or her sole cost and expense, in order to facilitate access to his or her Unit by persons who are blind, visually handicapped, deaf or physically disabled, or to alter conditions which could be hazardous to such persons. The rights granted by this Section are further subject to the following conditions: (i) the modifications shall be consistent with applicable building code requirements; (ii) the modifications shall be consistent with the intent of otherwise applicable provisions of this Declaration pertaining to safety or the aesthetic integrity of the Project; (iii) the modifications which are external to the Unit shall not prevent reasonable passage by other Owners or Persons on the Project, and shall be removed by the Owner when the Unit is no longer occupied by persons requiring those modifications; (iv) any Owner who intends to modify a Unit pursuant to this Section shall submit their plans and specifications to the Architectural Committee for review to determine whether the modifications comply with the provisions of Article IV and this Section; and (v) any change in the exterior appearance of a Unit shall be in accordance with the provisions of this Declaration and all applicable provisions of law.
The Association shall not deny approval of the proposed modifications under this Section without good cause.
8.16 Roof: Access Restrictions.
Owners, members or their families, guests, tenants, agents, licensees, employees, and invitees, shall not at any time or for any reason whatsoever enter upon or attempt to enter upon (i) the roofs of the Condominium Building; and (ii) any portion of the Common Property used by the Association for management, administrative, or security purposes (including, without limitation, utility closets and rooms), without the prior approval of the Board. Each Owner shall make arrangement with the Association for access to the roof for any maintenance or repairs to any solar, heating or cooling equipment which is located on the roof.
8.17 Signs.
Subject to California Civil Code §§ 712, 713 and 4710 (or any successor or replacement statutes), no signs shall be displayed to the public view on any Unit or on any other portion of the Project, except non-commercial signs may be displayed from any Unit that are approved by the Board or a committee appointed by the Board, that conform to the Rules and Regulations regarding signs, and that conform to the requirements of State law, and applicable local ordinances. “For Sale” or “For Rent” or “For Exchange” signs shall be allowed to be displayed within areas of the Project that are designated in the Rules and Regulations regarding such signs, and that conform to the requirements of State law, and applicable local ordinances, provided the design, dimensions and locations are reasonable. An Owner or his or her agent may 66 display one (1) such For Sale or For Rent or For Exchange sign within his or her Unit and one (1) sign in the Common Property advertising directions to the Owner’s Unit which is for sale, rent, or exchange, provided the design, dimensions and locations are reasonable and comply with the Rules and Regulations regarding signs, and comply with the requirements of State law, and applicable local ordinances. These restrictions on display of signs apply to signs that are visible from the exterior of a Unit, and are not intended to restrict signs that may be seen only from within the Unit in which the sign(s) is displayed. The Board shall also have the right, but not the obligation, to erect within the Common Property a master directory of Units which are for sale or lease within the Project, which master directory shall be located on or at an area in the immediate vicinity of the Condominium Building entrance so as to centralize and segregate all sales activity and locations within the Project. This Section shall not apply to any signs used by Declarant or its agents in connection with the sale of Condominiums or the construction or alteration of the Units or Common Property, traffic and visitor parking signs installed by Declarant, and traffic and parking control signs installed with the consent of the Board. Notwithstanding the foregoing, nothing contained in this Section shall be construed in such manner as to permit the maintenance of any sign which is not in conformance with any ordinance of the city or county in which the Property is located.
8.18 Sound Attenuation.
In any multi-family dwelling, sound may be audible between Units, particularly where the sound level of the source is sufficiently high and the background noise in an adjacent Unit is very low. Each Owner shall endeavor to minimize any noise transmission from his or her Unit, and shall adhere to any of the Rules and Regulations which are designed to minimize noise transmission. The requirements set forth in this Section are subject to further definition and more stringent requirements adopted by the Architectural Committee from time to time. In the event of any conflict between or among the protective covenants set forth in this Declaration and the Building Code or applicable municipal code requirement, as the same may be amended from time to time, the most restrictive of said requirements shall be controlling.
To minimize the noise transmission from a Unit, each Owner (other than Declarant) shall adhere to the following:
(a) No holes or other penetrations shall be made in demising walls (party walls) without the permission of the Committee. No penetrations of any sort shall be made in the ceiling of any Unit.
(b) No modifications shall be made to any Unit which would result in a reduction in the minimum impact insulation class of the Condominium Building. (c) No modifications shall be made to the exterior walls of a Unit which would conflict with the requirements of any sound control provision in the City Building Code. A Unit Owner may retain a qualified acoustical engineer to submit evidence for any alternative means of sound insulation satisfactory to the City’s Department of Building and Safety. 67 (d) Loudspeakers for music reproduction and television shall not be supported from or contact demising walls, and shall be elevated from the floor by a proper acoustic platform.
(e) Musical equipment or other equipment which may cause vibrations shall have at least ½ inch neoprene pads under the supports to minimize vibration transmission into the structure.
8.19 Terraces.
Terraces shall be used only as an outdoor living area containing patio furniture, potted plants, and other similar outdoor furnishings which comply with the standards governing the appearance of such items as set forth in the Rules and Regulations. Said furnishings shall be equipped with protective leg caps or other devices to prevent damage to the floor of the Terrace.
No Improvement shall be nailed, bolted, or otherwise attached to the floor, walls, or any other portion of the Terrace. No hanging screens or banners which may be visible from any other Units, the Common Property or other property are permitted on any portion of the Terrace. Any plants placed on Terraces must have sufficiently large receptacles to contain all drainage from such plants and must not be allowed to collect condensates or moisture between the receptacles and the Terrace’s floor. Any item or vegetation maintained upon any Terrace, which item or vegetation is exposed to the view of any Owner, shall be removed or otherwise altered to the satisfaction of the Architectural Committee, if such Committee determines that the maintenance of such item or vegetation in its then existing state is contrary to the purposes or provisions of this Declaration and the effective operation of the Project. If an Owner fails to perform necessary pruning, trimming, or thinning required by the Committee, the Association shall have the right, after Notice and Hearing, to enter upon such Residence and Terrace for the purpose of performing such work.
Terraces shall not be used for storage of any type, including, without limitation, boxes, tools, exercise and sports equipment, bicycles, cleaning utensils and supplies or other household items. Terraces shall be maintained in a clean, neat, and sanitary condition at all times and nothing shall be placed on Terraces so as to render them unsightly or offensive to the other Owners or to any other property in the vicinity of the Project or its occupants. No clothing or household fabrics, curtains, rugs, mops, or other unsightly articles shall be hung, dried or aired in such a way as to be visible from any other Units, the Common Property or other property. No dust, dirt or other substances shall be shaken, swept or thrown from or hosed off the Terraces on or into any Common Property. Any item which in the opinion of the Board or the Committee is unsightly or offensive shall be removed from the Terrace upon receipt of written notice of such determination from the Board or the Committee.
No Terrace covers shall be installed on the exterior of the Condominium Building (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. Notwithstanding the specificity of the foregoing, no exterior addition, change, or alteration to any Unit shall be commenced without the prior written approval of the Architectural Committee. 68 8.20 View Obstructions.
No vegetation or other obstruction shall be planted or maintained in such location or of such height as to unreasonably obstruct the view from any other Unit in the vicinity thereof.
If there is a dispute between Owners concerning the obstruction of a view from a Unit, the dispute shall be submitted to the Architectural Committee, whose decision in such matters shall be binding.
Any such obstruction shall, upon request of the Architectural Committee, be removed or otherwise altered to the satisfaction of the Architectural Committee, by the Owner of the Unit upon which the obstruction is located. The Architectural Committee shall ensure that the vegetation on the Common Property maintained by the Association is cut frequently. Each Owner, by accepting title to a Condominium, hereby acknowledges that (a) although the Architectural Committee may prohibit the installation of Improvements on a Unit or prohibit the installation or require the pruning, trimming or thinning of landscaping from a Unit where such Improvements or landscaping would unreasonably obstruct the views from any other Units, there are no protected views within the Property, and no Condominium is assured the existence or unobstructed continuation of any particular view, and (b) any construction, landscaping or other installation of Improvements by Declarant or other Owners may impair the view from any Condominium, and the Owners hereby consent to such view impairment.
8.21 Water Supply System.
No individual water supply or water softener system shall be permitted in any Unit unless such system is designed, located, constructed and equipped in accordance with the requirements, standards, and recommendations of any applicable water district, the locality in which the Property is located, and all other applicable governmental authorities. No tampering, modifying, cross connecting or other alteration of any existing water system shall occur without the Architectural Committee’s approval, which will require inspection before, during and after completion of work to ensure that no cross connection of water system has occurred.
8.22 Window Coverings.
No window in any Unit shall be covered in whole or in part, inside or outside, with aluminum foil, newspaper, paint, reflective tint or covering, or any other material reasonably deemed by the Architectural Committee to be inappropriate for such use. No window covering shall be installed (with the exception of those items installed during the original construction of the Project), unless the prior written approval of the Architectural Committee is secured. All draperies and other window covering must be lined with white or off-white colored materials on the side visible from the outside of the Unit.
8.23 Post-Tension Concrete System.
By acceptance of a deed to a Separate Interest, each Owner acknowledges and understands that the ground floor of his or her Dwelling Unit has been built using a post-tension concrete system (“System”). The System involves placing steel cables under high tension in the concrete slab foundation located beneath the Dwelling Unit. Therefore, any attempt to alter or pierce the foundation (for example, saw cutting, drilling or installation of a subterranean floor safe) could damage the integrity of the System and/or cause serious injury or damage to persons and 69 personal property. By accepting a deed to a Separate Interest, each affected Owner specifically covenants and agrees that: (i) he or she shall not cut into or otherwise tamper with the System; (ii) he or she shall not knowingly permit or allow any other person to cut into or tamper with the System; (iii) he or she shall disclose the existence of the System to any tenant, lessee or subsequent purchaser of the Separate Interest; and (iv) Declarant shall not be responsible for any damage or injury resulting from or arising in connection with the alteration of the System by the Owner or any employee, agent, Family member, contractor or other representatives of the Owner, and Owner shall indemnify, defend and hold Declarant harmless with respect to any such damage or injury.
ARTICLE IX
9. Insurance.
9.1 Duty to Obtain Insurance; Types.
The Board shall cause to be obtained and maintained the following insurance:
(a) Adequate blanket public liability insurance (including medical payments), with such limits as may be considered acceptable to FHA, VA, FNMA, FHLMC, and/or GNMA (not less than Two Million Dollars ($2,000,000)) covering all claims for personal injury and property damage arising out of a single occurrence), insuring against liability for bodily injury, death and property damage arising from the activities of the Association and its Members or from activities of the officers and directors of the Association acting in their capacity as representatives of the Association, with respect to the Common Property. (b) The Board shall also cause to be obtained and maintained fire and casualty insurance with extended coverage, without deduction for depreciation, in an amount equal to one hundred percent (100%) of current replacement cost of the Common Property and all Improvements thereon. Such insurance shall be maintained for the benefit of the Association, the Owners, and the Mortgagees, as their interests may appear as named insured, subject, however, to loss payment requirements as set forth herein. (c) The Board of Directors shall purchase such other insurance and endorsements, as it determines necessary, including, but not limited to, casualty, errors and omissions, directors, officers and agents liability insurance, automobile liability insurance, plate glass insurance, medical payments, malicious mischief, liquor liability and vandalism insurance, flood insurance, fidelity bonds and worker’s compensation, and insurance against such other risks as is customarily carried with respect to condominium projects similar in construction, location and use.
(d) Notwithstanding anything herein to the contrary, all insurance maintained by the Board shall satisfy the following:
(1) Minimum requirements imposed for this type of project by FHA, VA, FNMA, FHLMC, and/or GNMA, (so long as any of which is a Mortgagee or Owner of a Condominium within the Project) except to the extent such coverage is not available or has been waived in writing by FHA, VA, FNMA, FHLMC, and/or GNMA, as applicable; and 70 (2) California Civil Code §§ 5800 and 5805 (or any successor or replacement statutes).
(e) Fidelity bond coverage which names the Association as an obligee must be obtained by or on behalf of the Association for any person or entity handling funds of the Association, including, but not limited to, officers, directors, trustees, employees and agents of the Association and employees of the Manager of the Association, whether or not such Persons are compensated for their services, in an amount not less than the estimated maximum of funds, including reserve funds, in the custody of the Association or the Manager, as the case may be, at any given time during the term of each bond. However, in no event may the aggregate amount of such bonds be less than the sum equal to one-fourth (¼) of the Annual Assessments on all Condominiums in the Project, plus reserve funds.
9.2 Waiver of Claim Against Association.
As to all policies of insurance maintained by or for the benefit of the Association and the Owners, the Association and the Owners hereby waive and release all claims against one another, the Board of Directors and Declarant, to the extent of the insurance proceeds available, whether or not the insurable damage or injury is caused by the negligence of or breach of any agreement by any of said Persons.
9.3 Right and Duty of Owners to Insure.
It is the responsibility of each Owner to provide insurance on his or her personal property and upon all other property and Improvements within his or her Unit. Nothing herein shall preclude any Owner from carrying any public liability insurance as he or she deems desirable to cover his or her individual liability for damage to person or property occurring inside his or her individual Unit or elsewhere upon the Property. Such policies shall not adversely affect or diminish any liability under any insurance obtained by or on behalf of the Association, and duplicate copies of such other policies shall be deposited with the Board upon request. If any loss intended to be covered by insurance carried by or on behalf of the Association shall occur and the proceeds payable thereunder shall be reduced by reason of insurance carried by any Owner, such Owner shall assign the proceeds of such insurance carried by him or her to the Association, to the extent of such reduction, for application by the Board to the same purposes as the reduced proceeds are to be applied.
9.4 Notice of Expiration Requirements.
If available, each of the policies of insurance maintained by the Association shall contain a provision that said policy shall not be canceled, terminated, materially modified or allowed to expire by its terms, without ten (10) days’ prior written notice to the Board and Declarant, and to each Owner and Beneficiary, insurer and guarantor of a first Mortgage, and every other Person in interest. In addition, fidelity bonds shall provide that they may not be canceled or substantially modified without ten (10) days’ prior written notice to any insurance trustee named pursuant to Section 9.6 and to each FNMA servicer.
71 9.5 Insurance Premiums.
Insurance premiums for any blanket insurance coverage obtained by the Association and any other insurance deemed necessary by the Board of Directors shall be a Common Expense to be included in the Annual Assessments levied by the Association and collected from the Owners. That portion of the Annual Assessments necessary for the required insurance premiums shall be separately accounted for by the Association and shall be used solely for the payment of premiums of required insurance as such premiums become due.
9.6 Trustee for Policies.
The Association, acting through its Board of Directors, is hereby appointed and shall be deemed trustee of the interests of all named insureds under policies of insurance purchased and maintained by the Association. Unless the applicable insurance policy provides for a different procedure for the filing of claims, all claims made under such policy shall be sent to the insurance carrier or agent, as applicable, by certified mail and be clearly identified as a claim. A record of all claims made shall be kept by the Association. All insurance proceeds under any such policies as provided for in Section 9.1 above shall be paid to the Board of Directors as trustees. The Board shall have full power to receive and to acknowledge receipt of the proceeds and to deal therewith as provided herein. Insurance proceeds shall be used by the Association for the repair or replacement of the property for which the insurance was carried or otherwise disposed of as provided in Article X of this Declaration. The Board is hereby granted the authority to negotiate loss settlements with the appropriate insurance carriers, with participation, to the extent they desire, of first Mortgagees within ten (10) days of receipt of notice of any damage or destruction as provided in Article X of this Declaration. Any two (2) officers of the Association may sign a loss claim form and release form in connection with the settlement of a loss claim, and such signatures shall be binding on all the named insureds. Notwithstanding the foregoing, there may be named as an insured, a representative chosen by the Board, including a trustee with whom the Association may enter into an insurance trust agreement or any successor to such trustee, who shall have exclusive authority to negotiate losses under any policy providing property or liability insurance and to perform such other functions necessary to accomplish this purpose.
9.7 Actions as Trustee.
Except as otherwise specifically provided in this Declaration, the Board, acting on behalf of the Association and all Owners, shall have the exclusive right to bind such parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance, in a manner satisfactory to Beneficiaries of seventy-five percent (75%) of the first Mortgages held by first Mortgagees.
Duplicate originals or certificates of all policies of fire and casualty insurance maintained by the Association and of all renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who have requested the same in writing.
72 9.8 Annual Insurance Review.
The Board shall review the insurance carried by or on behalf of the Association at least annually, for the purpose of determining the amount of the casualty and fire insurance referred to in Section 9.1 above. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the Improvements on the Property except for foundations and footings, without deduction for depreciation, from a qualified independent insurance appraiser, prior to each such annual review.
The Board shall, upon issuance or renewal of the Association policy of public liability insurance, but no less than annually, notify its Members as to the amount and type of liability insurance carried by the Association, and it shall accompany this notification with statements to the effect that the Association is or is not insured to the levels specified by California Civil Code § 5805 (or any successor or replacement statute), and that if not so insured, Owners may be individually liable for the entire amount of a judgment arising solely as a result of an act or omission occurring on the Common Property, and if the Association is insured to the levels specified in said Section, then Owners may be individually liable only for their proportional share of assessments levied to pay the amount of any judgment which exceeds the limits of the Association’s liability insurance.
9.9 Required Waiver.
All policies of physical damage insurance shall provide, if reasonably possible, for waiver of the following rights, to the extent that the respective insurers would have the rights without such waivers:
(a) subrogation of claims against the Owners and tenants of the Owners;
(b) any defense based upon coinsurance;
(c) any right of setoff, counterclaim, apportionment, proration or contribution by reason of other insurance not carried by the Association; (d) any invalidity, other adverse effect or defense on account of any breach of warranty or condition caused by the Association, any Owner or any tenant of any Owner, or arising from any act, neglect, or omission of any named insured or the respective agents, contractors and employees of any insured;
(e) any right of the insurer to repair, rebuild or replace, and, if the Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less than the replacement value of the Improvements insured; (f) notice of the assignment of any Owner of his or her interest in the insurance by virtue of a conveyance of any Condominium; (g) any right to require any assignment of any Mortgage to the insurer; 73 (h) any denial of an Owner’s claim because of negligent acts by the Association or other Owners; and
(i) prejudice of insurance by any acts or omissions of Owners that are not under the Association’s control.
ARTICLE X
10. Destruction of Improvements.
10.1 Restoration of the Property.
Except as otherwise provided in this Declaration, in the event of any destruction of any portion of the Property, the repair or replacement of which is the responsibility of the Association, it shall be the duty of the Association to restore and repair the same to its former condition, as promptly as practical. The proceeds of any insurance maintained pursuant to Article IX hereof for reconstruction or repair of the Property shall be used for such purpose, unless otherwise provided herein. The Board shall be authorized to have prepared the necessary documents to effect such reconstruction as promptly as practical. The Property shall be reconstructed or rebuilt substantially in accordance with the Condominium Plan and the original construction plans if they are available, unless changes recommended by the Architectural Committee have been approved in writing by sixty-seven percent (67%) of the Owners and by the Beneficiaries of fifty-one percent (51%) of first Mortgages upon the Condominiums, provided, however, until such time as Declarant’s Class B Membership is terminated, any changes recommended by the Architectural Committee must also be approved by Declarant’s First Mortgagee, in addition to the approval of the Owners and the Beneficiaries. If the amount available from the proceeds of such insurance policies for such restoration and repair is at least eighty-five percent (85%) of the estimated cost of restoration and repair, a Reconstruction Assessment shall be levied by the Board of Directors to provide the necessary funds for such reconstruction, over and above the amount of any insurance proceeds available for such purpose. If the amount available from the proceeds of such insurance policies for such restoration and repair is less than eighty-five percent (85%) of the estimated cost of restoration and repair, the Board may levy a Reconstruction Assessment and proceed with the restoration and repair only if both of the following conditions (“Conditions to Reconstruction”) have first been satisfied: (a) the levy of a Reconstruction Assessment to pay the costs of restoration and repair of the Property is approved by the affirmative vote or written consent of sixty-seven percent (67%) of the Owners and by the written consent of the Beneficiaries of fifty-one percent (51%) of the first Mortgages on the Condominiums in the Project; and (b) within six (6) months after the date on which the destruction occurred, the Board Records a certificate of the resolution authorizing the restoration and repair (“Reconstruction Certificate”). If either of the Conditions to Reconstruction does not occur following a destruction for which insurance proceeds available for restoration and repair are less than eighty-five percent (85%) of the estimated cost of restoration and repair, it shall be conclusively presumed that the Owners have determined not to proceed with restoration and repair and not to allow the Board to levy a Reconstruction Assessment, in which case the Owners shall proceed as provided in Section 10.2 below.
74 10.2 Sale of Property and Right to Partition.
No Owner shall have the right to partition of his or her interest in the Condominium and there shall be no judicial partition of the Project, or any part thereof, except as provided in § 4610(b) of the California Civil Code, as amended, or in any successor statute. For purposes of Subsection 4 of said § 4610(b), partition may occur only if all of the following conditions are satisfied: (a) either or both of the Conditions to Reconstruction described in Section 10.1 above have failed to occur; and (b) restoration or repair of the Project is not actually occurring; and (c) the Owners of sixty-seven percent (67%) of the Condominiums in the Project approve the partition by vote or written consent. In such event, the Association, acting through a majority of the Board, shall prepare, execute and Record, as promptly as practical, a certificate stating that a majority of the Board may properly exercise an irrevocable power of attorney to sell the Project for the benefit of the Owners, and such other documents and instruments as may be necessary for the Association to consummate the sale of the Property at the highest and best price obtainable, either in its damaged condition, or after damaged structures have been razed. Such certificate shall be conclusive evidence of such authority for any Person relying thereon in good faith. The net proceeds of such sale and the proceeds of any insurance carried by the Association shall be divided proportionately among the Owners, such proportions to be determined in accordance with the relative appraised fair market valuation of the Condominiums as of a date immediately prior to such destruction (or condemnation), expressed as percentages, and computed by dividing such appraised valuation of each Condominium by the total of such appraised valuations of all Condominiums in the Project. For purposes of calculating the portion of the sale and insurance proceeds or condemnation proceeds allocable to Declarant, the value of the Condominiums owned by Declarant shall include the value of Declarant’s right to construct Condominiums which were not yet built as of the date of such destruction or condemnation and the value of the undivided interests in the Common Area which would be appurtenant to such Condominiums. The Board is hereby authorized to hire one (1) or more appraisers for such purpose and the cost of such appraisals shall be a Common Expense of the Association. Notwithstanding the foregoing, the balance then due on any valid encumbrance of record shall be first paid in order of priority, before the distribution of any proceeds to an Owner whose Condominium is so encumbered. Nothing herein shall be deemed to prevent partition of a co-tenancy in any Condominium. Except as provided above, each Owner and the successors of each Owner, whether by deed, gift, devise, or by operation of law, for their own benefit and for the benefit of all other Owners, specifically waive and abandon all rights, interests and causes of action for a judicial partition of the tenancy in common ownership of the Project and do further covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to judgment. In the event of a total or partial destruction of the Project and a decision not to rebuild as described above, the Association shall remove debris from the affected portion of the Project and such portion of the Project shall be made as safe and attractive as reasonably possible.
10.3 Interior Damage.
With the exception of any casualty or damage insured against by the Association pursuant to Section 9.1 of this Declaration, restoration and repair of any damage to the interior of any individual Unit, including without limitation all fixtures, cabinets and improvements therein, together with restoration and repair of all interior paint, wall coverings and floor coverings, shall be made by and at the individual expense of the Owner of the Unit so damaged. In the event of a 75 determination to rebuild the Property after partial or total destruction, as provided in this Article X, such interior repair and restoration shall be completed as promptly as practical and in a lawful and workmanlike manner, and in accordance with plans approved by the Architectural Committee to the extent such approval is required under Article IV above. Nothing within this Section 10.3 shall limit the rights of any one Owner against another Owner for any damage to the interior of a Unit caused by such other Owner.
10.4 Notice to Owners and Listed Mortgagees.
The Board, immediately upon having knowledge of any damage or destruction affecting a material portion of the Common Property, shall promptly notify all Owners, Beneficiaries, insurers and guarantors of first Mortgages on Condominiums in the Project. The Board, immediately upon having knowledge of any damage or destruction affecting a Condominium, shall promptly notify any Beneficiary, insurer or guarantor of any Mortgage encumbering such Condominium.
ARTICLE XI
11. Eminent Domain.
The term “taking” as used in this Article shall mean condemnation by exercise of the power of eminent domain or by sale under threat of the exercise of the power of eminent domain. The Board shall represent the Owners in any proceedings, negotiations, settlements, or agreements regarding takings. All takings proceeds shall be payable to the Association for the benefit of the Unit Owners and their Mortgagees, and shall be distributed to such Owners and Mortgagees as provided in this Article XI.
11.1 Project Condemnation.
If there is a taking of an interest in all or part of the Property such that the ownership, operation and use of the Property in accordance with the provisions of this Declaration is substantially and adversely affected, and within one hundred twenty (120) days after the effective date of the taking the Owners of Units (a) not taken, or (b) only partially taken but capable of being restored to at least ninety-five percent (95%) of their floor area and to substantially their condition prior to the taking (collectively, the “Remaining Units”) do not by affirmative vote of at least one-third (1/3rd) of their voting power approve the continuation of the Project and the repair, restoration and replacement to the extent feasible of the Common Property and the Remaining Units, then the Board shall proceed with the sale of that portion of the Property which was not taken and distribute the net proceeds of such sale after deducting any incidental fees and expenses, in the same proportion and manner as provided in Section 10.2.
11.2 Condemnation of Common Property.
If there is a taking of all or any portion of the Common Property, or any interest therein, other than the taking of an undivided interest therein taken as a result of the taking of a Condominium, then the award in condemnation shall be paid to the Association and shall be deposited in the Operating Fund.
76 11.3 Condemnation of Condominiums.
If there is a taking of a Condominium, the award in condemnation shall be paid to the Owner of the Condominium; provided, however, that such award shall first be applied to the balance then due on any Mortgages encumbering such Owner’s Condominium, in order of priority.
11.4 Condemnation of Portions of Units.
(a) Minor Takings Within Limits. If (i) there is a taking of a portion of one or more Units such that the intended use of the Units is not substantially and adversely affected, and (ii) restoration of such Units can be accomplished at a cost less than or equal to the sum of (A) the amount of the condemnation awards for such takings plus (B) any amounts the Owners of the taken Units wish to contribute to restoration plus (C) an amount less than or equal to five percent (5%) of the Budgeted gross expenses of the Association for that Fiscal Year (collectively, the “Allowable Cost”), then the Board shall contract for such restoration and levy a Reconstruction Assessment in an amount equal to the Allowable Cost minus the amount of the condemnation awards and Owners’ contributions, and the condemnation awards, Owners’ contributions and Reconstruction Assessment shall be applied to such restoration. If the restoration is accomplished at a cost less than the amount of the condemnation awards, then that portion of the condemnation awards in excess of the restoration costs shall be paid to the Owners of the partially taken Units in proportion to the decreases in the fair market values of their Condominiums; provided, however, that such awards shall first be applied to the balance then due on any Mortgages encumbering such Owners’ Condominiums, in order of priority. (b) Minor Takings Exceeding Limits. If (i) there is a taking of a portion of one or more Units such that the intended use of the Units is not substantially and adversely affected, and (ii) restoration cannot be accomplished at a cost less than or equal to the Allowable Cost, then the Board shall call a Special Meeting of the Members. If more than fifty percent (50%) of the Members are represented at such Special Meeting, either in person or by proxy, and a majority of the votes cast at such Special Meeting are in favor of levying a Reconstruction Assessment in an amount equal to the restoration costs minus the sum of the amount of the condemnation awards and the amounts the Owners of the taken Units wish to contribute to such restoration, then the Board shall contract for such restoration and levy a Reconstruction Assessment, and the condemnation awards, Owners’ contributions and Reconstruction Assessment shall be applied to such restoration. (c) Major Takings. If the requisite approval is not obtained at the Special Meeting referred to in Section 11.4(b), or if there is a taking of a portion of one or more Units such that the Units are not capable of being restored in such a manner that the intended use of the Units is not substantially and adversely affected, then the award in condemnation shall be paid to the Owners of the taken Units; provided, however, that such award shall first be applied to the balance then due on any Mortgages encumbering such Owner’s Condominium, in order of priority. The Board shall have the remaining portions of the taken Units razed. The remaining portions of the taken Units shall become part of the Common Area. The Owners of such taken Units, by acceptance of the award allotted to them in taking proceedings, hereby relinquish to the other Owners in the Project, on the basis of their relative ownership of the Common Area therein, such Owners’ undivided interest in the Common Area. Each Owner relinquishing his 77 or her interest in the Common Area pursuant to this Section shall, at the request of the Board and at the expense of the Association, execute and acknowledge such deeds and other instruments which the Board deems necessary or convenient to evidence such relinquishment. Each Owner of a taken Unit or Residence shall not be liable for assessments under this Declaration which accrue on or after the date such Owner accepts his or her condemnation award.
11.5 Portions of Awards in Condemnation Not Compensatory for Value of Real Property.
Those portions of awards in condemnation which do not directly compensate Owners for takings of real property (e.g., awards for takings of personal property, relocation expenses, moving expenses, or other allowances of a similar nature intended to facilitate relocation) shall be paid to the Owners whose personal property is taken, or whose relocation is intended to be facilitated.
11.6 Notice of Owners and Mortgagees.
The Board, upon learning of any taking affecting a material portion of the Property, or any threat thereof, shall promptly notify all Owners and those Beneficiaries, insurers and guarantors of Mortgages on Condominiums in the Project. The Board, upon learning of any taking affecting a Condominium, or any threat thereof, shall promptly notify any Beneficiary, insurer or guarantor of a Mortgage encumbering such Condominium.
ARTICLE XII
12. Rights of Mortgagees.
Notwithstanding any other provision of this Declaration, no amendment or violation of this Declaration shall operate to impair, defeat or render invalid the rights of the Beneficiary under any Deed of Trust upon a Condominium made in good faith and for value, provided that after the foreclosure of any such Deed of Trust such Condominium shall remain subject to this Declaration, as amended. For purposes of this Declaration, “first Mortgage” shall mean a Mortgage with first priority over other Mortgages or Deeds of Trust on a Condominium, and “first Mortgagee” shall mean the Beneficiary of a first Mortgage. For purposes of any provision of this Declaration or the other Restrictions which require the vote or approval of a specified percentage of first Mortgagees, such vote approval shall be determined based upon one (1) vote for each Condominium encumbered by each such first Mortgage. To the extent the following provisions conflict with any other provisions of this Declaration or any other of the Restrictions, these restrictions shall control:
(a) Mortgagees, and insurers or guarantors of first Mortgages, shall be entitled to timely written notice of:
(1) any condemnation or any casualty loss which affects a material portion of the Project or any Condominium on which there is a first Mortgage held, insured, or guaranteed by such Mortgagee insurer or guarantor, as applicable; 78 (2) any default in performance of obligations under the Project Documents or delinquency in the payment of Assessments or charges owed by an Owner of a Condominium subject to a first Mortgage held, insured or guaranteed by such Mortgagee, insurer or guarantor, which remains uncured for a period of sixty (60) days; (3) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Association; and (4) any proposed action under this Declaration which would require the consent of a specified percentage of first Mortgagees. (b) Every Owner, including every first Mortgagee of a Mortgage encumbering any Condominium who obtains title to such Condominium pursuant to the remedies provided in such Mortgage, or pursuant to foreclosure of the Mortgage, or by deed (or assignment) in lieu of foreclosure, shall be exempt from any “right of first refusal” created or purported to be created by the Restrictions.
(c) Each first Mortgagee of a Mortgage encumbering any
Condominium, which obtains title to such Condominium, pursuant to judicial foreclosure or the powers provided in such Mortgage, shall take title to such Condominium free and clear of any claims for unpaid assessments or charges against such Condominium which accrued prior to the time such Mortgagee acquires title to such Condominium in accordance with Section 5.11. (d) Unless at least sixty-seven percent (67%) of the first Mortgagees or sixty-seven percent (67%) of the Owners (other than Declarant) have given their prior written approval, neither the Association nor the Owners shall:
(1) by act or omission seek to abandon or terminate the Project; or
(2) change the method of determining the obligations,
assessment dues or other charges which may be levied against any Owner or change the pro rata interest or obligations of any Condominium for purposes of levying assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards or for determining the pro rata share of ownership of each Owner in the Common Area; or (3) partition or subdivide any Unit; or
(4) by act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Property. (The granting of easements for public utilities or for other purposes consistent with the intended use of the Common Property under this Declaration, and the granting of exclusive easements to Owners over portions of the Common Property to conform the boundaries of the Common Property to the as-built location of Improvements installed or constructed by Declarant shall not be deemed a transfer within the meaning of this clause); or
(5) use hazard insurance proceeds for losses to any Property (i.e., Improvements to the Units or Common Property) for other than the repair, replacement or 79 reconstruction of such Property, except as provided by statute in case of substantial loss to the Units or Common Property; or
(6) by act or omission change, waive or abandon the provisions of this Declaration, or the enforcement thereof, pertaining to the architectural design or control of the exterior appearance of Improvements on the Property or the maintenance of the Common Property, or any walks, fences, driveways, or landscaping in the Project; or (7) fail to maintain or cause to be maintained fire and extended coverage on insurable Common Property as provided in Article IX of this Declaration. (e) All Mortgagees, insurers and guarantors of first Mortgages shall have the right to (1) examine the books and records of the Association, including current copies of all the Restrictions and financial statements, during normal business hours, (2) require the Association to submit an annual audited financial statement for the preceding Fiscal Year within one hundred twenty (120) days of the end of the Association’s Fiscal Year, if one is available, or have one prepared at the expense of the requesting entity if such statement is not otherwise prepared by the Association, (3) receive written notice of all meetings of the Owners, and (4) designate in writing a representative to attend all such meetings. All Owners shall also have the right to examine the books and records of the Association, including current copies of all the Restrictions and financial statements, during normal business hours. (f) All Mortgagees, insurers and guarantors of first Mortgages, shall be given sixty (60) days’ written notice prior to the effective date of (1) any proposed material amendment to the Restrictions or Condominium Plans; (2) any termination of an agreement for professional management of the Property following any decision of the Owners to assume selfmanagement of the Project; and (3) any proposed termination of the Property as a condominium project.
(g) The Reserve Fund described in Article V of this Declaration must be funded by regular scheduled monthly, quarterly, semiannual or annual payments rather than by large special assessments.
(h) The Board shall secure and cause to be maintained in force at all times a fidelity bond for any Person handling funds of the Association, including, but not limited to, employees of the professional Manager.
(i) No provision of the Restrictions shall be construed or applied to give any Owner, or any other party, priority over any rights of the Mortgagees of a first Mortgage in the case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or taking of Condominiums and/or Common Property.
(j) In addition to the foregoing, the Board may enter into such contracts or agreements on behalf of the Association as are required in order to satisfy the guidelines of VA, FHA, FHLMC, FNMA or GNMA or any similar entity, so as to allow for the purchase, guaranty or insurance, as the case may be, by such entities of first Mortgages encumbering Condominiums. Each Owner hereby agrees that it will benefit the Association and the Membership of the Association, as a class of potential Mortgage borrowers and potential 80 sellers of their residential Condominiums, if such agencies approve the Property as a qualifying subdivision under their respective policies, rules and regulations, as adopted from time to time. (k) Each Owner hereby authorizes the first Mortgagee of a first Mortgage on his or her Condominium to furnish information to the Board concerning the status of such first Mortgage and the loan which it secures.
(l) First Mortgagees may require the Association to use professional management upon the approval of the majority of the Mortgagees of first Mortgages in the Project. When professional management has been previously required by the Restrictions or the majority of Mortgagees, insurers, or guarantors of first Mortgages, any decision to establish selfmanagement by the Association shall require the approval of sixty-seven percent (67%) of the voting power of the Association and fifty-one percent (51%) of the Mortgagees of first Mortgages of Condominiums in the Project.
(m) All intended Improvements in the Project shall be substantially completed or the completion of such Improvements shall be secured by a bond or other arrangement acceptable to the DRE prior to the first Close of Escrow for the sale of a Condominium in the Project.
(n) First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Property and may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for Common Property, and First Mortgagees making such payments shall be owed immediate reimbursement therefor from the Association. (o) It is the intent of Declarant that this Declaration and the Articles and Bylaws of the Association, and the Project in general, shall now and in the future meet all requirements necessary to purchase, guarantee, insure, or subsidize any mortgage of a Condominium in the Project by FNMA, FHLMC, GNMA, FHA and VA. The Association and each Owner shall take any action or shall adopt any resolutions required by Declarant or the Board to conform this Declaration or the Project to the requirements of any of these entities or agencies.
ARTICLE XIII
13. Duration and Amendment.
13.1 Duration.
This Declaration shall run with the land and shall continue in full force and effect until a Declaration of Termination is Recorded, satisfying the requirements of an amendment to this Declaration as set forth in Section 13.2. There shall be no severance by sale, conveyance, encumbrance or hypothecation of an interest in any Unit from the concomitant Membership in the Association, as long as this Declaration shall continue in full force and effect. The provisions of this Article are subject to the provisions of Sections 10.2 and 11.4 of this Declaration. 81 13.2 Amendment.
(a) Notice of the subject matter of a proposed amendment to this Declaration in reasonably detailed form shall be included in the notice of any meeting or election of the Association at which a proposed amendment is to be considered. Such notice of meeting or election shall be given to each Member of the Association at least twenty-five (25) days in advance, if the meeting is for an amendment of a material or extraordinary nature (as defined by VA in the VA Pamphlet 26-7, as such Pamphlet is revised from time to time), and ten (10) days in the case of a meeting for other purposes, pursuant to the Bylaws. Such notice must (i) state the purpose of the meeting and contains a summary of any material amendments or extraordinary actions proposed; and (ii) contains a copy of the proxy that can be cast in lieu of attendance at the meeting. The resolution shall be adopted by the vote, in person or by proxy, or affirmative written ballot of Members representing not less than (i) sixty-seven percent (67%) of the voting power of the Association, and (ii) sixty-seven percent (67%) of the voting power of the Association residing in Members other than Declarant, provided that the specified percentage of the voting power of the Association necessary to amend a specified Section or provision of this Declaration shall not be less than the percentage of affirmative votes prescribed for action to be taken under that Section or provision. The amendment or Extraordinary Action approved by the Membership of the Association shall be submitted to VA for approval. So long as there exists a Class B membership, the prior approval of VA shall be required for any amendment of this Declaration or Extraordinary Action, if it is providing financing with respect to any Separate Interest. The Declarant must provide a copy of all amendments to VA. In addition to any other applicable requirements for amendment of this Declaration, there shall be no amendment to any provisions of this Declaration or set forth in a Supplemental Declaration which pertains to a Cost Center, Cost Center Benefit, or Cost Center Assessment without the approval of a majority of the voting power of the Members of the affected Cost Center. (b) In addition to the required notice and consent of Members and Declarant provided above, the Mortgagees of fifty-one percent (51%) of the first Mortgages on all the Condominiums in the Project must approve any amendment to this Declaration which is of a material adverse nature to Mortgagees, including, without limitation, the following:
(1) Any amendment which affects or purports to affect the validity or priority of encumbrances or the rights or protection granted to Mortgagees, insurers or guarantors of first Mortgages as provided in Articles V, IX, X, XI, XII and XIII hereof. (2) Any amendment which would necessitate an encumbrancer after it has acquired a Condominium through foreclosure to pay more than its proportionate share of any unpaid assessment or assessments accruing after such foreclosure. (3) Any amendment which would or could result in an
encumbrance being canceled by forfeiture, or in a Condominium not being separately assessed for tax purposes.
(4) Any amendment relating to the insurance provisions as set out in Article IX hereof, or to the application of insurance proceeds as set out in Article X hereof, or to the disposition of any money received in any taking under condemnation proceedings. 82 (5) Any amendment which would or could result in partition or subdivision of a Condominium Unit in any manner inconsistent with the provisions of this Declaration.
(6) Any amendment which would subject any Owner to a right of first refusal or other such restriction, if such Condominium is proposed to be sold, transferred, or otherwise conveyed.
(7) Any amendment concerning:
(A) The weight of any Owner’s voting rights;
(B) Rights to use the Common Property;
(C) Reductions in reserves for or responsibility for
maintenance, repair and replacement of the Common Property; (D) Boundaries of any Unit;
(E) Owners’ interests in the Common Property;
(F) Convertibility of Common Property into Units or
Units into Common Property;
(G) Leasing of Units;
(H) Establishment of self-management by the
Association where professional management has been required by any Mortgagee, insurer or guarantor of a first Mortgage;
(I) Rights concerning expansion or contraction of the
Project, or the addition, annexation or withdrawal of real property to or from the Project; (J) Increases in assessments that raise the previously
assessed amount by more than 25%, assessment liens, or the priority or subordination of such liens; or
(K) Any provisions that expressly benefit Mortgage
holders, insurers, or guarantors.
(c) Notwithstanding anything to the contrary contained in this Declaration, Sections 2.2(b), 2.2(c), 2.2(d) and 15.4 of this Declaration shall not be amended without the vote or approval by written ballot of at least (a) ninety percent (90%) of the voting power of the Members of the Association other than Declarant, and (b) at least ninety percent (90%) of the Mortgagees.
(d) Termination of this Declaration shall require approval by the Members as provided in subsection (a) of this Section 13.2. No such termination shall be 83 effective unless it is also approved in advance either by fifty-one percent (51%) of the Mortgagees of the first Mortgages on all of the Condominiums in the Project (if said termination is proposed by reason of the substantial destruction or condemnation of the Project) or by sixtyseven percent (67%) of such Mortgagees (if said termination is for reasons other than such substantial destruction or condemnation). Any distribution of excess funds held by the Association upon the termination of the Project shall be made equally to each Owner. (e) Each Mortgagee of a first Mortgage on a Condominium in the Project which receives proper written notice of a proposed amendment or termination of this Declaration by certified or registered mail with a return receipt requested shall be deemed to have approved the amendment or termination if the Mortgagee fails to submit a response to the notice within sixty (60) days after the Mortgagee receives the notice. (f) A copy of each amendment shall be certified by at least two (2) officers of the Association, and the amendment shall be effective when a Certificate of Amendment is Recorded. The Certificate, signed and sworn to by two (2) officers of the Association, stating that the requisite number of Owners and Mortgagees have either voted for or consented in writing to any amendment adopted as provided above, when Recorded, shall be conclusive evidence of that fact. The Association shall maintain in its files the record of all such votes or written consents for a period of at least four (4) years. (g) Notwithstanding any other provision of this Section 13.2, at any time prior to the first Close of Escrow for the sale of a Condominium within the Project, Declarant may unilaterally amend or terminate this Declaration by Recording a written instrument which effects the amendment or termination and is signed and acknowledged by Declarant.
(h) Notwithstanding any other provision of this Declaration, any proposed amendment which may adversely affect the interests of any Commercial Owner shall require the prior written consent of the affected Commercial Owner. (i) Notwithstanding any other provision of this Declaration, for so long as Declarant owns any portion of the Property or Unit thereon, Declarant may, in its sole discretion, unilaterally amend this Declaration by Recording a written instrument signed by Declarant without the consent of the Association or any other Owner, provided that such amendment is made (1) to correct a typographical error or internal inconsistency herein, and such amendment does not adversely affect the interests of any Owner without such Owner’s written consent, or (2) to conform this Declaration to the requirements of the VA, FHA, DRE, FNMA, GNMA or FHLMC then in effect or to any City requirements and/or applicable statutory legal requirements.
13.3 Protection of Declarant.
The prior written approval of Declarant, as developer of the Property, will be required before any amendment which would impair or diminish the rights of Declarant complete the Property or sell or lease Condominiums therein in accordance with this Declaration shall become effective. Notwithstanding any other provisions of the Restrictions, until such time as 84 Declarant no longer owns any Condominiums in the Property, the following actions, before being undertaken by the Association, shall first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of first Mortgagees pursuant to this Declaration, including without limitation all amendments and actions specified in Section 13.2;
(b) The annexation to the Property of real property;
(c) The levy of a Capital Improvement Assessment for the construction of new facilities not constructed on the Common Property by Declarant; (d) Subject to Section 5.5 regarding limitations on Annual Assessment increases, any significant reduction of Association maintenance or other services; or
(e) Any modification of the rights reserved and granted to Declarant herein, including, without limitation, those rights set forth in Section 6.1, Article VII, Article XV and Article XVI.
ARTICLE XIV
14. Enforcement of Certain Bonded Obligations.
14.1 Consideration by Board of Directors.
If (1) the Improvements to be located on the Common Property are not completed prior to the issuance of a Final Subdivision Public Report by the DRE for the sale of Condominiums in the Project, and (2) the Association is obligee under a bond or other arrangement (“Bond”) required by the DRE to secure performance of the commitment of Declarant to complete such Improvements, the Board of Directors of the Association shall consider and vote on the question of action by the Association to enforce the obligations under the Bond, with respect to any such Improvement for which a Notice of Completion has not been filed within sixty (60) days after the completion date specified for that Improvement in the Planned Construction Statement appended to the Bond. If the Association has given an extension in writing for the completion of any Improvement on the Common Property, the Board shall be directed to consider and vote on the aforesaid question (if a Notice of Completion has not been filed), within thirty (30) days after the expiration of the extension.
14.2 Consideration by the Members.
A special meeting of Members, for the purpose of voting to override a decision by the Board not to initiate action to enforce the obligations under the Bond or on the failure of the Board to consider and vote on the question, shall be held no fewer than thirty-five (35) days nor more than forty-five (45) days after receipt by the Board of a petition for such a meeting signed by Members representing five percent (5%) of the total voting power of the Association residing in Members other than Declarant. A vote at such meeting to take action to enforce the obligations under the Bond by Members representing a majority of the total voting power of the Association 85 residing in Members other than Declarant shall be deemed to be the decision of the Association, and the Board shall thereafter implement this decision by initiating and pursuing appropriate action in the name of the Association.
ARTICLE XV
15. General Provisions.
15.1 Legal Proceedings; Arbitration; Actions Arising From Restrictions.
Failure to strictly comply with any of the terms of the Restrictions by an Owner, his or her Family, guests, employees, contractors, invitees or tenants, shall be grounds for relief which may include, without limitation, an action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any combination thereof. Failure to enforce any provision hereof shall not constitute a waiver of the right to enforce that provision, or any other provision hereof.
The Board, any Owner (not at the time in default hereunder), or Declarant (so long as Declarant is an Owner) shall be entitled to bring an action for damages against any defaulting Owner, and in addition may enjoin any violation of this Declaration. Any judgment rendered in any action or proceeding pursuant to this Declaration shall include a sum for attorneys’ fees in such amount as the Court may deem reasonable, in favor of the prevailing party, as well as the amount of any delinquent payment, late payment fee, costs of collection and court costs, and interest thereon.
Each remedy provided for in this Declaration shall be cumulative and not exclusive or exhaustive.
Each Owner shall have a right of action against the Association for the failure by the Association to comply with the Restrictions.
Notwithstanding anything above to the contrary, any action or claim for enforcement of the Restrictions shall be subject to the following provisions:
(a) Claims for Declaratory Relief or Enforcement of Project Documents: Prior to the filing of an enforcement action for declaratory, injunctive, or writ relief in conjunction with a claim for monetary damages not in excess of Five Thousand Dollars ($5,000), the Board, or any Owner who seeks such relief, shall first endeavor to submit the matter to alternative dispute resolution in compliance with the provisions of California Civil Code §§ 5925 – 5960 (or any successor or replacement statutes). (b) The Board shall comply with the requirements of California Civil Code § 5965 (or any successor or replacement statute) by providing Members of the Association annually with a summary of the provisions of Article 3 (commencing with California Civil Code § 5925) of Chapter 10 (Division 4, Part 5) of the California Civil Code (or any successor or replacement statute), including the following language:
“Failure of a Member of the Association to comply with the alternative dispute resolution requirements of § 5930 of the California Civil Code may result in the loss of your right to sue the Association or another Member of the Association regarding enforcement of the Governing Documents or the applicable law.”
86 15.2 Notification of Construction Claims.
(a) Before the Association or any Owner commences an action for damages against Declarant, Declarant’s general contractor or broker, or either of their agents and employees, based upon a claim for defects in the design or construction of the “Common Interest Development” as defined in California Civil Code § 4100 (or any successor or replacement statute), or any portion thereof, all of the requirements of subsections (b), (c) and (d) below shall be met:
(b) A resolution authorizing the Board to commence an action must be approved by Members representing more than sixty-seven percent (67%) of the voting power of the Association. The Board shall provide notice by first-class mail to all Members of a special meeting of Members, for the purpose of voting to authorize the Board to initiate action based upon a claim for defects in the design or construction of the Common Interest Development or any portion thereof, not less than thirty (30) nor more than sixty (60) days prior to the date of such a meeting. The notice to the Members shall include all of the following information:
(1) A description of the disputes;
(2) A certification from an engineer licensed in the State of California that a repair issue exists, along with a description of the scope of work necessary to cure such repair issue;
(3) The estimated cost to repair such repair issue;
(4) The name and professional background of the attorney(s) the Association may want to retain to pursue the claim against Declarant and a description of the relationship between such attorney and any members of the Board (if any); (5) Estimated attorneys’ fees, expert fees and other costs necessary to pursue the claim against Declarant and the source of funds which will be used to pay such fees and expenses;
(6) The estimated time necessary to conclude the action against Declarant;
(7) Potential benefits and adverse consequences of a civil action, including among other things, potential effects on property values and any disclosure regarding such action which may be required to be disclosed to lenders and prospective purchasers of Units in the Project;
(8) How the action will be funded;
(9) Offers of settlement; and
(10) How proceeds from the action or settlement of such action would be used.
87 (c) All applicable requirements of California Civil Code §§ 6000 and 6150, as such Sections may be amended from time to time, or any successor statute thereto shall be satisfied (notwithstanding the fact that said § 6000 does not by its terms apply to Owners), including, without limitation, all notice and dispute resolution requirements. (d) The Association shall finance any legal proceeding with monies that are specifically collected for same and may not borrow money or use the reserve funds or other monies collected for specific Association obligations other than legal fees.
15.3 Notice to Members of Other Civil Action Against Declarant. (a) Not later than thirty (30) days prior to the filing of any civil action by the Association against the Declarant for alleged damage to the Common Property, alleged damage to the Separate Interests that the Association is obligated to maintain or repair, or alleged damage to the Separate Interests that arises out of, or is integrally related to, damage to the Common Property or Separate Interests that the Association is obligated to maintain or repair, the Board of Directors of the Association shall a provide written notice to each Member of the Association who appears on the records of the Association when the notice is provided. This notice shall specify all of the following:
(1) that a meeting will take place to discuss problems that may lead to the filing of a civil action;
(2) the options, including civil actions, that are available to address the problems; and
(3) the date, time and place of this meeting.
(b) Notwithstanding subdivision (a), if the Association has reason to believe that the applicable statute of limitations will expire before the Association files the civil action, the Association may give the notice, as described above, within thirty (30) days after the filing of the action.
15.4 Alternative Dispute Resolution.
(a) Disputes and Remedies. In addition to the notification and dispute resolution procedures set forth in Sections 15.2 and 15.3 and notwithstanding anything in the Restrictions to the contrary, it is the desire and intention of this Section to provide an expedited means of resolving any claims, disputes and disagreements which may arise between Owner or the Association and the Declarant (individually a “Declarant Party,” collectively the “Declarant Parties”) after the Close of Escrow or other conveyance of any portion of the Property by Declarant concerning the Property and/or any express or implied warranties that are not resolved pursuant to any applicable statutory dispute resolution procedures (individually referenced to herein as “Dispute” and collectively as “Disputes”). Initially, the Declarant Parties will attempt to resolve any Dispute asserted by an Owner or the Association of which it is given notice. If the Dispute cannot be resolved between the parties in this manner, it will be decided through the arbitration procedure as set forth below. Alternatively, a Declarant Party, an Owner or the Association may elect to resolve such Disputes through a small claims court proceeding. THIS 88 PROCESS INVOLVES WAIVER OF THE RIGHT TO A JURY TRIAL. BY
EXECUTING THIS DECLARATION, DECLARANT, AND BY ACCEPTING A DEED
TO ANY PORTION OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION, AGREE TO BE BOUND BY THE PROVISIONS OF THIS SECTION.
(1) Notice. Any person with a claim defined as a Dispute, above (“Claimant”), shall notify the Declarant Party in writing of the claim, which writing shall describe the nature of such claim and any proposed remedy (“Claim Notice”). (2) Right to Inspect and Right to Take Corrective Action.
Within a reasonable period after receipt of the Claim Notice, which period shall not exceed sixty (60) days, the Declarant Party and the Claimant(s) shall meet at a mutually-acceptable place within or near the Project to discuss the Dispute. At such meeting or at such other mutually agreeable time, Declarant Party and its representatives shall have full access to the property that is subject to the Dispute claim and shall have the right to conduct inspections, testing and/or destructive or invasive testing the same in a manner deemed appropriate by Declarant Party which rights shall continue until such time as the Dispute is resolved as provided in this Section. The parties to the Dispute shall negotiate in good faith in an attempt to resolve the claim. If Declarant Party elects to take any corrective action, Declarant Party and its representatives and agents shall be provided full access to the Project that is subject to the Dispute to take and complete corrective action. (3) California Civil Code §§ 6000, 6100 and 6150. Nothing contained herein shall be deemed a waiver or limitation of the provisions of California Civil Code § 6150 (or any successor or replacement statute) and Section 15.3 of the Declaration. If the Dispute is subject to the provisions of California Civil Code §§ 6000 and 6100, as they may be amended from time to time, compliance with the procedures of these Sections shall satisfy the requirements of Sections 15.4.(a)(1) and 15.4(a)(2), as applicable. With respect to any suit that would be governed by California Civil Code § 6000 (or any successor or replacement statute), and as hereafter amended, if the parties had not agreed to arbitration hereunder, the Association or any other party required to proceed under California Civil Code § 6000 (or any successor or replacement statute) as a condition to filing a complaint must do so as a condition to commencing an arbitration. Compliance with California Civil Code § 6150 (or any successor or replacement statute) is a condition to the Association’s commencing an arbitration. (4) Mediation. If the parties to the Dispute that is not subject to California Civil Code § 6000 (or any successor or replacement statute) cannot resolve the claim pursuant to the procedures described in Section 15.4(a)(2) above (including, if applicable, California Civil Code § 6000 procedures), the matter shall be submitted to mediation pursuant to the mediation procedures adopted by the Judicial Arbitration and Mediation Services (“JAMS”) (except as such procedures are modified by the provisions of this Section) or any successor thereto or to any other entity offering mediation services that is acceptable to such parties. No person shall serve as a mediator in any Dispute in which the person has any financial or personal interest in the result of the mediation, except by the written consent of all parties to the Dispute participating in the mediation. Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a prompt commencement of the mediation process. Except as provided in the Declaration of Alternative Dispute Resolution for Palladium, the Association and each Owner covenants that each shall not 89 commence any litigation against Declarant without complying with the procedures described in this Section.
(A) Position Memoranda; Pre-Mediation Conference.
Within ten (10) days of the selection of the mediator, each party to the Dispute participating in the mediation shall submit a brief memorandum setting forth its position with regard to the issues that need to be resolved. The mediator shall have the right to schedule a pre-mediation conference and all parties to the Dispute participating in the mediation shall attend unless otherwise agreed. The mediation shall be commenced within ten (10) days following the submittal of the memoranda and shall be concluded within fifteen (15) days from the commencement of the mediation unless the parties to the Dispute participating in the mediation mutually agree to extend the mediation period.
The mediation shall be held in the county in which the Project is located or such other place as is mutually acceptable to the parties to the Dispute participating in the mediation. (B) Conduct of Mediation. The mediator has discretion
to conduct the mediation in the manner in which the mediator believes is most appropriate for reaching a settlement of the Dispute. The mediator is authorized to conduct joint and separate meetings with the parties to the Dispute participating in the mediation and to make oral and written recommendations for settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical aspects of the Dispute, provided the parties to the Dispute participating in the mediation agree and assume the expenses of obtaining such advice. The mediator does not have the authority to impose a settlement on the parties to the Dispute participating in the mediation. (C) Exclusion Agreement. Prior to the commencement
of the mediation session, the mediator and all parties to the Dispute participating in the mediation shall execute an agreement pursuant to California Evidence Code § 1115, et seq. (or any successor statute) in order to exclude the use of any testimony or evidence produced at the mediation in any subsequent dispute resolution forum, including, but not limited to, court proceedings, reference proceedings or arbitration hearings. Pursuant to California Evidence Code § 1115, et seq. (or any successor statute) the agreement shall specifically state that evidence of anything said or of any admission made in the course of the mediation is not admissible evidence, and disclosure of any such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the document provides otherwise, no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy thereof, is admissible in evidence; and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. The provisions of California Evidence Code §§ 1115 through 1128 (or any successor or replacement statutes) shall also be applicable to such mediation process.
(D) Persons Permitted at Sessions. Persons other than
the parties to the Dispute participating in the mediation, their representatives and the mediator may attend mediation sessions only with the permission of the parties to the Dispute participating in the mediation and the consent of the mediator; provided, however, that such permission and consent shall not be required to allow participation of such party’s insurer in the mediation to the extent required under such parties’ liability insurance policy. Confidential information disclosed to a mediator by such parties or by witnesses in the course of the mediation while serving in such capacity shall be confidential. There shall be no stenographic record of the mediation process. 90 (E) Expenses. The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including, but not limited to, the fees and costs charged by the mediator and the expenses of any witnesses or the cost of any proof or expert advice produced at the direct request of the mediator, shall be borne equally by the parties to the Dispute participating in the mediation unless they agree otherwise. Each party to the Dispute participating in the mediation shall bear its own attorneys’ fees and costs in connection with such mediation.
(5) Arbitration. Should either proceedings governed by
California Civil Code § 6000 (or any successor or replacement statute), or mediation pursuant to Section 15.4(a)(4) above not be successful in resolving any Dispute, any and all claims, controversies, breaches or disputes (each a “dispute”) by or between or among the Association, any Owner or Owners, and/or Declarant Party arising from or related to this Declaration, the Common Property, any Unit, the sale of any Unit, or any transaction related hereto, whether such dispute is based on contract, tort, statute, or equity shall be determined and resolved by the alternative dispute resolution procedures set forth below:
(A) Waiver of Trial by Judge or Jury. The dispute shall be resolved through binding arbitration. The Claimant and Declarant each gives up the right to have their respective claims and defenses decided by a judge or a jury. Instead all claims and disputes will be decided by the arbitrator.
(B) Rules Applicable to All Cases. The arbitration will be conducted by Judicial Arbitration and Mediation Services (“JAMS”) in accordance with the JAMS rules (“JAMS Rules”) then applicable to the claims presented, as supplemented by this Section. The following supplemental rules shall apply to all arbitration proceedings and shall govern in the event of a conflict between the rules set forth below and the JAMS Rules. (i) Qualification of Arbitrators. The arbitrator
shall be neutral and impartial and either a retired judge or a member or former member of the California State Bar with at least ten (10) years’ experience as a practicing lawyer in the area of construction law.
(ii) Appointment of Arbitrator. The arbitrator to
preside over the dispute shall be selected in accordance with the JAMS Rules, but no later than sixty (60) days after a notice of claim is filed.
(iii) Expenses. The fees and costs of the
arbitration and/or the arbitrator shall be borne equally by the parties to the arbitration; provided, however, that the fees and costs of the arbitration and/or the arbitrator ultimately shall be borne as determined by the arbitrator; provided that the arbitrator may not award against any party any expenses in excess of those that would be recoverable as costs if the dispute had been litigated to final judgment in court.
(iv) Preliminary Procedures. If state or federal
law requires the Claimant or Declarant to take steps or procedures before commencing an action in court, then the Claimant or Declarant must take such steps or follow such procedures, as the 91 case may be, before commencing the arbitration. Nothing contained herein shall be deemed a waiver or limitation of the provisions of California Civil Code §§ 6000, 6100 or 6150 (or any successor or replacement statutes).
(v) Rules of Procedure. The arbitration shall be
administered by JAMS pursuant to its streamlined arbitration rules and procedures when the amount in controversy is Two Hundred Fifty Thousand Dollars ($250,000) or less. (vi) Participation By Other Parties. Each
Claimant and Declarant, to the extent either such party is defending a claim in the arbitration, may, if it chooses, have all necessary and appropriate parties included as parties to the arbitration. (vii) Rules of Law. The arbitrator must follow
California substantive law (including statutes of limitations) but strict conformity with the Rules of Evidence is not required, except that the arbitrator shall apply applicable law relating to privilege and work product. The arbitrator shall be authorized to provide all recognized remedies available at law or equity for any cause of action.
(viii) Attorney’s Fees and Costs. Each party shall
bear its own attorneys’ fees and costs (including expert witness costs) in the arbitration. (C) Additional Rules Applicable to Certain Cases. In
any arbitration in which a claim of any party exceeds Two Hundred Fifty Thousand Dollars ($250,000) in value, the following additional rules will supplement the JAMS rules and govern in the event of a conflict between the following rules and the rules set forth above, the JAMS rules, or both.
(i) Qualifications of Arbitrator. The arbitrator
shall be neutral and impartial and either a retired judge or a member or former member of the California State Bar with at least fifteen (15) years’ experience as a practicing lawyer in the area of construction law with substantial experience in the resolution of complex construction disputes. (ii) Rules of Procedure. The arbitration shall be
administered by JAMS pursuant to its comprehensive arbitration rules and procedures. (iii) Written Decision. Within thirty (30) days
after the hearing is closed, the arbitrator must issue a written decision. If any party requests it, the arbitrator must issue a reasoned award.
(D) AGREEMENT TO ARBITRATION AND
WAIVER OF JURY TRIAL. BY EXECUTING THIS DECLARATION, DECLARANT, AND
BY ACCEPTING A DEED FOR A UNIT AND/OR ACCEPTANCE OF THE TRANSFER OF
THE COMMON PROPERTY, AS THE CASE MAY BE, EACH OWNER AND THE ASSOCIATION, AGREE (1) TO HAVE ANY DISPUTE DECIDED BY NEUTRAL
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE
CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT; (2) TO GIVE UP ANY
RIGHTS THEY MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR 92 JURY TRIAL; AND (3) TO GIVE UP THEIR RESPECTIVE JUDICIAL RIGHTS TO
DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS DECLARATION. IF ANY PARTY REFUSES TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, SUCH PARTY MAY BE COMPELLED TO
ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT.
(E) Federal Arbitration Act. The Federal Arbitration Act (9 U.S.C. § 1, et seq.) now in effect and as it may be hereafter amended will govern the interpretation and enforcement of these arbitration provisions. (F) Final and Binding Award. The decision of the
arbitrator shall be final and binding. A petition to confirm, vacate, modify or correct an award may be filed in any court of competent jurisdiction, but the award may be vacated, modified or corrected only as permitted by the Federal Arbitration Act. (G) Severability. If the arbitrator or any court determines that any provision of this Section is unenforceable for any reason, that provision shall be severed, and proceedings in this Section shall be conducted under the remaining enforceable terms of this Section.
(H) Waiver of Jury Trial. In the event the foregoing
arbitration provision is held not to apply or is held invalid, void or unenforceable in its entirety for any reason, all disputes shall be tried before a judge in a court of competent jurisdiction without a jury. The judge in such court of competent jurisdiction shall have the power to grant all legal and equitable remedies and award compensatory damages. This mutual waiver of jury trial shall be binding upon their respective successors and assigns and upon all persons and entities asserting rights or claims or otherwise acting on behalf of Declarant or Claimant or their successors and assigns.
(I) Application of Award. Any proceeds awarded to the
Association or any Owner arising from any dispute by settlement, award or otherwise shall be applied first for the purpose of repairing any defect claimed under such dispute or replacing reserve funds previously utilized by the Association to cause such repairs and then to the costs of such litigation. Any excess proceeds shall be applied as determined by the Board or the Owner subject to any requirements established by the non-profit mutual benefit laws of the State of California and any other applicable laws.
(J) Statute of Limitations. Subject to the terms of Civil Code § 895, et seq. (or any successor or replacement statutes) and, as hereafter amended, nothing in this Section shall be considered to toll, stay, reduce or extend any applicable statute of limitations; provided, however, that the Declarant, the Association or any Owner shall be entitled to commence a legal action which in the good faith determination of the Declarant, the Association or Owner is necessary to preserve the Declarant’s, the Association’s or any Owner’s rights under any applicable statute of limitations, provided that the Declarant, Association or Owner shall take no further steps in processing the action until it has complied with the procedures described above. 93 (K) Notwithstanding the foregoing, an aggrieved party may seek relief in a small claims court of competent jurisdiction, and nothing in this agreement shall prevent the parties from agreeing to mediate a dispute at any time. (b) Notwithstanding any other provision of this Declaration to the contrary, this Section shall not be amended without the consent of Declarant and the vote or approval by written ballot of at least (a) ninety percent (90%) of the voting power of the Members of the Association other than Declarant, and (b) at least ninety percent (90%) of the Mortgagees.
15.5 Violation of Restrictions.
Without in any way limiting the generality of the foregoing, if the Board of Directors determines that there is a violation of any provision of this Declaration, or the Architectural Committee determines that an Improvement which is the maintenance responsibility of an Owner is in need of installation, repair, restoration or painting, then the Board shall give written notice to the responsible Owner of the condition or violation complained of. Unless the Architectural Committee has approved in writing corrective plans proposed by the Owner to remedy the condition complained of within such period of time as may be determined reasonable by the Board after it has given said written notice, and such corrective work so approved is completed thereafter within the time allotted by the Board, the Board, after Notice and Hearing, shall undertake to remedy such condition or violation complained of, and the cost thereof shall be charged to the Owner and his or her separate Condominium whose Residence is the subject matter of the corrective work. Such cost shall be deemed to be a Special Assessment to such Owner and shall be subject to enforcement and collection by the Board in accordance with the procedures provided for in this Declaration. The Board may also adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, it may assess against an Owner for the failure of such Owner, or of a resident of or visitor to such Owner’s Unit, to comply with any provision of the Restrictions. Such fines or penalties shall be deemed to be a Special Assessment and may only be assessed by the Board after Notice and Hearing.
15.6 Severability.
The provisions of this Declaration shall be deemed independent and severable, and a determination of invalidity or partial invalidity or unenforceability of any one provision or portion hereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provisions hereof.
15.7 Interpretation.
The provisions of this Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for the creation and operation of a condominium development and for the maintenance of the Common Property, and any violation of this Declaration shall be deemed to be a nuisance. The Article and Section headings, titles and captions have been inserted for convenience only, and shall not be considered or referred to in resolving questions of interpretation or construction. As used herein, the singular shall include the plural and the masculine, feminine and neuter shall each include the other, unless the context dictates otherwise.
In interpreting the Restrictions and the deed to any Unit, the physical as-built boundaries of 94 Improvements which are constructed or reconstructed in substantial accordance with the original plans for the Project shall be conclusively presumed to be the boundaries of the Units, regardless of settling or lateral movement of the Improvements and regardless of minor variances between Unit boundaries, as defined in this Declaration or any Unit deed, and the boundaries of those Improvements, as constructed or reconstructed. As used in this Declaration, the term “including” shall be construed and understood to mean “including, without limitation” or “including, but not limited to.”
15.8 Mergers or Consolidations.
Upon a merger or consolidation of the Association with another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights and obligations of the Association as a surviving corporation pursuant to a merger. The surviving or consolidated association may administer and enforce the covenants, conditions and restrictions established by this Declaration governing the Property, together with the covenants and restrictions established upon any other property, as one (1) plan.
15.9 Use of Common Property.
The Board of Directors shall have the right to limit the number of guests that an Owner or such Owner’s tenant may permit to use any open parking area or other facilities, including recreational facilities, if any, on the Common Property, and the Board shall have the right to set further reasonable restrictions on the time and manner of use of said parking areas, recreational facilities, and other facilities in accordance with the Rules and Regulations, including, without limitation, Rules and Regulations restricting or prohibiting the use of all or designated portions of the recreational facilities of the Property by minors, guests of an Owner or his or her tenants.
15.10 No Public Right or Dedication.
Except as may otherwise be expressly provided herein, nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any part of the Property to the public, or for any public use; provided, that the foregoing provisions shall not be construed or understood to limit the effectiveness of any public dedication expressly set forth on any subdivision map Recorded or any other instrument with respect to the Property, or any portion thereof.
15.11 No Representations or Warranties.
No representations or warranties of any kind, express or implied, have been given or made by Declarant, or its agents or employees in connection with the Property, or any portion thereof, concerning its physical condition, zoning, compliance with applicable laws, or fitness for intended use, or in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation thereof as a Condominium project, except as specifically and expressly set forth in this Declaration and except as may be filed by Declarant from time to time with the DRE.
95 15.12 Nonliability and Indemnification.
(a) General Limitation. Except as specifically provided in the Restrictions or as required by law, no right, power, or responsibility conferred on the Board or the Architectural Committee by this Declaration, the Articles or the Bylaws shall be construed as a duty, obligation or disability charged upon the Board, the Architectural Committee, any member of the Board or of the Architectural Committee, or any other officer, employee or agent of the Association. No such Person shall be liable to any party (other than the Association or a party claiming in the name of the Association) for injuries or damage resulting from such Person’s acts or omissions within what such Person reasonably believed to be the scope of his or her Association duties (“Official Acts”), except to the extent that such injuries or damage result from such Person’s willful or malicious misconduct. No such Person shall be liable to the Association (or to any party claiming in the name of the Association) for injuries or damage resulting from such Person’s Official Acts, except to the extent that such injuries or damage result from such Person’s negligence or willful or malicious misconduct. (b) Indemnification. The Association shall pay all expenses incurred by, and satisfy any judgment or fine levied against, any Person as a result of any action or threatened action against such Person to impose liability on such Person for his or her Official Acts, provided that:
(1) The Board determines that such Person acted in good faith and in a manner such Person reasonably believed to be in the best interests of the Association; (2) In the case of a criminal proceeding, the Board determines that such Person had no reasonable cause to believe his or her conduct was unlawful; and (3) In the case of an action or threatened action by or in the right of the Association, the Board determines that such Person acted with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Any determination of the Board required under this Section must be approved by a majority vote of a quorum consisting of Directors who are not parties to the action or threatened action giving rise to the indemnification. If the Board fails or refuses to make any such determination, such determination may be made by the vote or written consent of a majority of a quorum of the Members of the Association, provided that the Person to be indemnified shall not be entitled to vote.
Payments made hereunder shall include amounts paid and expenses incurred in settling any such action or threatened action. This Section shall be construed to authorize payments and indemnification to the fullest extent now or hereafter permitted by applicable law.
The entitlement to indemnification hereunder shall inure to the benefit of the estate, executor, administrator, heirs, legatees, or devisees of any Person entitled to such indemnification. 96 15.13 Notices.
Except as otherwise provided in this Declaration, in each instance in which notice is to be given to an Owner, the same shall be in writing and may be delivered personally to the Owner, in which case personal delivery of such notice to one (l) or more co-owners of a Condominium or to any general partner of a partnership owning a Condominium shall be deemed delivery to all co-owners or to the partnership, as the case may be. Personal delivery of such notice to any officer or agent for the service of process on a corporation shall be deemed delivery to the corporation. In lieu of the foregoing, such notice may be delivered by regular United States mail, postage prepaid, addressed to the Owner at the most recent address furnished by such Owner to the Association or, if no such address shall have been furnished, to the street address of such Owner’s Unit. Such notice shall be deemed delivered three (3) business days after the time of such mailing, except for notice of a meeting of Members or of the Board of Directors in which case the notice provisions of the Bylaws of the Association shall control. Any notice to be given to the Association may be delivered personally to any member of the Board, or sent by United States mail, postage prepaid, addressed to the Association at such address as shall be fixed from time to time and circulated to all Owners. Any notice to be given to the Declarant shall be delivered personally, or sent by registered or certified mail, return receipt requested, addressed to the principal office of the Declarant, or such other address as may be provided from time to time by the Declarant.
15.14 Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration and the Articles of Incorporation, the Bylaws of the Association, or any Condominium Plan Recorded in furtherance of the Project contemplated by this Declaration, then the terms and provisions of this Declaration shall prevail. If there are conflicts or inconsistencies between this Declaration and the Limited Warranty, the terms and provisions in the Limited Warranty shall prevail.
15.15 Constructive Notice and Acceptance.
Every Person who owns, occupies or acquires any right, title, estate or interest in or to any Condominium or other portion of the Property does hereby consent and agree, and shall be conclusively deemed to have consented and agreed, to every limitation, restriction, easement, reservation, condition and covenant contained herein, whether or not any reference to these restrictions is contained in the instrument by which such Person acquired an interest in the Property, or any portion thereof.
15.16 Declarant Delivery of Documents.
(a) Commencing not later than ninety (90) days after the Close of Escrow for the sale of the first Condominium in the Project, copies of the documents listed below, as soon as readily obtainable, shall be delivered by the Declarant to the Board of Directors at the office of the Association, or at such other place as the Board of Directors shall prescribe.
The obligation to deliver the documents listed below shall apply to any documents obtained by the Declarant no matter when obtained, provided, however, such obligation shall terminate upon 97 the earlier of (i) the conveyance of the last Condominium in the Project or (ii) three (3) years after expiration of the most recently issued Final Subdivision Public Report for the Project:
(1) The Recorded Subdivision Map for the Project;
(2) The Recorded Condominium Plan for the Project, and all amendments thereto;
(3) The deeds and easements executed by the Declarant
conveying any property to the Association, to the extent applicable; (4) The Recorded Declaration;
(5) The Association’s filed Articles of Incorporation, and all amendments thereto;
(6) The Association’s Bylaws, and all amendments thereto; (7) All architectural guidelines and all other rules regulating the use of an Owner’s interest in the Project or use of the Common Property which have been promulgated by the Association;
(8) The plans approved by the local agency or county where the subdivision is located for the construction or improvement of facilities that the Association is obligated to maintain or repair; provided, however, that the plans need not be as-built plans and that the plans may bear restrictions on their commercial exploitation or use and may contain disclaimers regarding their accuracy;
(9) All notice of completion certificates issued for Common Property Improvements;
(10) Any bond or other security device in which the Association is the beneficiary;
(11) Any written warranty being transferred to the Association for Common Property equipment, fixtures or improvements; (12) Any insurance policy procured for the benefit of the Association, its governing board or the Common Property; (13) Any lease or contract to which the Association is a party; (14) The Membership register, including mailing addresses and telephone numbers, books of account and minutes of meetings of the Members, of the governing body and of committees of the governing body of the Association; and 98 (15) Any instrument referred to in California Business and Professions Code § 11018.6(d) but not described above which establishes or defines the common, mutual or reciprocal rights or responsibilities of Members of the Association.
15.17 Mixed Use Development Disclosure. The Commercial Units within the Project are zoned for commercial uses. Commercial operations may cause Owners and occupants in the Project to be subject to inconveniences or discomfort, resulting from such conditions as noise, odors, fumes, dust, smoke, operations of equipment at any hour of the day or night. Each Owner, by accepting a deed to a Condominium, hereby acknowledges that (i) normal commercial practices will continue indefinitely in the Project, (ii) the Owners of such nearby Commercial Units have a right to continue such normal commercial operations using current industry-accepted methods, with the potential for traffic, noise, light, dust, fumes, and odor impacts that may affect the Project, (iii) Owner agrees to waive any legal right(s) to oppose or object to such operations and any impacts arising therefrom now and in the future, and (iv) under no circumstances shall Declarant be responsible for any adverse impact related to the existence, use and operation of any commercial business.
15.18 Security.
The Association may, but shall not be required to, from time to time, provide measures or take actions which directly or indirectly improve safety on the Project; however, each Owner, for himself or herself and his or her tenants, guests, licensees, and invitees, acknowledges and agrees that the Association is not a provider of security and shall have no duty to provide security on the Project. It shall be the responsibility of each Owner to protect his or her person and property and all responsibility to provide such security shall lie solely with each Owner.
Neither Declarant nor the Association shall be held liable for any loss or damage by reason of the failure to provide adequate security or the ineffectiveness of safety measures undertaken.
15.19 Additional Provisions.
Notwithstanding the provisions contained in the Restrictions, the Association and the Owners should be aware that there may be provisions of various laws, including, without limitation, the Davis-Stirling Common Interest Development Act contained in the California Civil Code, which may modify, supplement or override the Restrictions as a matter of law.
ARTICLE XVI
16. Covenants in Favor of Local Jurisdiction.
16.1 Conflict with Other Articles. In the event of any conflict between this ARTICLE XVI and any other ARTICLE of the Declaration, ARTICLE XVI shall prevail.
16.2 City Rights to Common Areas. Whenever there are areas of common ownership within this Project, the use and operation of which is administered by the Association 99 regulated by covenants, conditions, and restrictions, said covenants, conditions, and restrictions shall, and hereby does, incorporate the following provisions:
(a) The City shall be granted the right of immediate access to all portions of the common areas for the purpose of preserving public health, safety, and welfare.
(b) The Association shall have the duty to maintain and repair all fire suppression systems, on-site sewer, water, and storm drainage facilities, unless the City has determined that a particular facility should be public to provide necessary system completion or otherwise protect public, health, safety, and welfare. (c) The Association shall have the duty to pay all utility and waste collection charges that are not separately metered and billed, including but not limited to charges for sewer, water, gas, solid waste, sanitation, and electric services. (d) No property owner shall alter, modify, reconstruct, or do any other thing to any party wall or to any plumbing, electrical, or mechanical fixture located along such wall which will impair the integrity of the wall as a fire separation without the review and approval of the building official of the City. (e) Landscaping shall be provided and maintained by the Association in those common areas adjacent to public streets and highways. The Association shall provide and maintain the landscaping in such areas in a manner compatible with the requirements of the Grover Beach Municipal Code, and shall not decrease the amount of assessments charged against members of the Association if such decrease will adversely affect the ability of the Association to perform this maintenance.
16.3 Amendment. Any amendment by the Association of the provisions of this ARTICLE XVI shall require the prior written consent of the City Manager of the City.
This Declaration is dated for identification purposes ______________, 2024. “Declarant”
GB TOWERS, LLC,
a California limited liability company
By:
Name:
Title:
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 _________________________ )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, 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.
Notary Public
SUBORDINATION AGREEMENT
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed of Trust dated ________________, 20___ and recorded on ____________________, 20___ as Instrument No. ___________________________, in the Official Records of San Luis Obispo County, California (the “Deed of Trust”) hereby expressly subordinates said Deed of Trust and its beneficial interest thereunder to the foregoing Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for Palladium (“Declaration”), and to all other interests to be conveyed to the Association in accordance with the Declaration. By executing this Subordination, the undersigned agrees that should the undersigned or its successors or assigns acquire title to all or any portion of the Property by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned and such successors and assigns will acquire title subject to the provisions of the Declaration, which shall remain in full force and effect.
Dated: __________________, 202__ ___________________________________, ____________________________________
By:
Name:
Its:
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 )
)
COUNTY OF _________________ )
On ____________________, before me, ____________________________, a Notary Public, personally appeared _______________________________, 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 ___________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
Agenda Item No. 13
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: January 22, 2024 FROM: Matthew Bronson, City Manager
PREPARED BY: Kristin Eriksson, Assistant City Manager
SUBJECT: 2023 Community Survey Results
RECOMMENDATION
Receive the results of the 2023 community survey of Grover Beach residents on topics such as key community issues and importance and satisfaction of City services and provide input to staff.
BACKGROUND:
In fall 2017, the City conducted its first community survey to gauge resident perceptions on topics including key issues facing Grover Beach, importance and satisfaction with City services, customer service by City departments, accessing information about City services and events, and potential revenue measures. The survey was carried out by an outside survey research firm (Godbe Research) with both phone and online (from email and text invites) responses from a representative sample of 395 community members reflecting the population characteristics of residents. The survey results were used to inform policy, budgetary, and operational decisions such as updating Council Goals, prioritizing City services for funding, assessing service quality and customer service, expanding City communication, and placing increased Business Tax Certificate and transient occupancy tax measures on the November 2018 ballot. Similar surveys were conducted in 2019 and 2021 to again gauge resident perceptions and determine changes from the results of prior surveys. Conducting such surveys every 2-3 years is useful to assess changes in resident perceptions over time and identify pressing community issues.
Following a Request for Proposals process, staff contracted with Probolsky Research to conduct the 2023 community survey with phone, text, and email responses from a representative sample of 400 residents who are likely voters. The survey was conducted from October 11th through October 25th with a margin of error of +/- 5% and a confidence level of 95%. The survey was translated in Spanish for residents for whom Spanish was their preferred language. The survey results are again intended to inform policy, budgetary, and operational decisions such as updating Council Goals, prioritizing City services for funding, assessing service quality and customer service, improving City communication, and gauging sentiments on potential future tax measures.
The survey results will be presented by Probolsky Research along with overall demographics of survey respondents. Below is a summary of key results from the 2023 survey:
• 79% of respondents think the quality of life in Grover Beach is better or the same than it was five years ago, which is 10% higher than in 2021, compared with 18% who think it is worse than five years ago
• 75% of respondents indicated satisfaction with City services which is 5% higher than 2021 and 15% higher than the initial survey in 2017
Staff Report: 2023 Community Survey Results Page 2
January 22, 2024
• The top issues identified facing Grover Beach were “Homelessness” (21.3%) followed by “Transportation/Traffic/Roads” (17.5%) and “Public Safety/Drugs/Crime” (9.3%) • 54% of respondents of respondents were favorable of the City’s management of public funds compared with 32% who were unfavorable
• The most important City services indicated by respondents related to street repair and maintenance, repairing and maintaining sidewalks, public safety, and economic development
• Respondents indicated they are most satisfied by the City’s performance in rapidly responding to 9-1-1 emergency calls, maintaining fire and emergency medical services, providing festivals and community events, and maintaining police patrols and crime prevention services
• Regarding Major City Goals, respondents indicated varying, but generally positive rates of satisfaction with the City’s efforts:
o On Economic Development and Community Promotion, 73% of respondents indicated the City’s efforts are Good or Fair
o On Housing and Homelessness, 66% of respondents indicated the City’s efforts are Good or Fair
o On Public Safety, 87%, of respondents indicated the City’s efforts are Good or Fair o On Street Maintenance and Complete Streets, 70% of respondents indicated the City’s efforts are Good or Fair
• Respondents who have contacted the City in the past year were generally satisfied with the response particularly with the “courtesy of City staff” • Respondents were generally not in favor of a local tax measure at this time • Top sources of information about local activities and City government were local news channels, word of mouth, the City’s social media platforms and the City’s website The Council is encouraged to ask questions of Probolsky Research about the results and provide comments and input. Staff will review these results in further detail and integrate them into future Council goal-setting processes and future budget development processes. Staff will also work with City departments to determine how these results can continue to improve service delivery and operations. Staff recommends that a similar survey be conducted in 2025 to determine continued changes in perceptions and results from previous surveys.
FISCAL IMPACT
There is no fiscal impact from this item. The survey cost was included in the City Manager’s Office operating budget.
ALTERNATIVES
The Council has the following alternatives to consider:
1. Receive the results of the 2023 Community Survey of Grover Beach residents on topics such as key community issues and importance and satisfaction of City services and provide input to staff; or
2. Provide alternative direction to staff
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Agenda Item No. 14
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: January 22, 2024 FROM: Matthew Bronson, City Manager
PREPARED BY: Kristin Eriksson, Assistant City Manager
SUBJECT: State Legislation Update and Review of City Legislation Platform
RECOMMENDATION
Receive a presentation on recently adopted State legislation and provide direction to staff regarding any desired changes to the City of Grover Beach Legislative Platform.
BACKGROUND
2023 City of Grover Beach Legislative Platform
Legislation at the State and Federal level often affects cities’ revenue sources, mandated services and local control of governance. The purpose of a City Council-approved Legislative Platform is to clearly set forth the City’s positions on priority issues that impact City operations. Often, the timeframe to respond to proposed legislation does not allow for full Council approval at the next City Council meeting. Therefore, the proposed 2023 Legislative Platform (see Attachment 1) will authorize the City Manager to prepare a letter under the Mayor’s signature to take positions on legislation that are consistent with the platform to allow for quick response communications, through opposition or support letters, to legislators when time is of the essence. The priorities expressed in the platform are also intended to assist the Council and staff to appropriately address legislation to promote the City’s interests.
The platform is designed to express high-level priorities for the City to allow the City to effectively respond to proposed legislation throughout the year. The platform is organized in the following topic-based categories:
1) General Government - Generally supports local control to address local needs and opposes State preemption of local authority and unfunded or underfunded mandates; 2) Local Government Finance – Generally supports legislation protecting or enhancing City revenues and opposes unfunded mandates, restrictions on revenues and restrictions on contracting for cities;
3) Public Safety – Generally supports funding and support for emergency response and crime reduction programs;
4) Transportation and Public Works - Generally supports funding and expedited processes capital and infrastructure projects, supports funding for key water supply projects, and funding for implementation of organic waste disposal requirements; 5) Community Development – Generally supports funding and programs to address homelessness, supports legislation to reform cannabis regulations and supports protection of transient occupancy tax revenue.
Staff Report: Legislation Update and Review of Legislative Platform Page 2 January 22, 2024
In line with the established platform, the City issued letters of support for the following bills in 2023 as seen in Attachment 2:
1. AB 972 – Local Assistance and Grant Program Streamlining Workgroup
2. AB 1657 – The Affordable Housing Bond Act of 2024
3. ACA 13 – Voting Thresholds for Constitutional Amendments by Initiative 2023 Legislation Update
The City works with the League of California Cities to track legislation that impacts local government. Staff reviewed several bills passed in 2023 and made note of some which will impact City operations and provided planned actions, as summarized in Attachment 3.
FISCAL IMPACT
There is no fiscal impact associated with these actions.
ALTERNATIVES
The Council has the following alternatives to consider:
1) Receive a presentation on recently adopted State legislation and provide direction to staff regarding any desired changes to the City of Grover Beach Legislative Platform; or 2) Provide alternative direction to staff.
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Attachments
1. 2023 City of Grover Beach Legislative Platform
2. 2023 Letters of Support
3. 2023 Legislation Impacts
City of Grover Beach
2023 Legislative Platform
Approved by City Council March 27, 2023
Attachment 1
Contents
SECTION 1 – INTRODUCTION................................................................................................. 1
1.1 General Purpose.......................................................................................................... 1
1.2 Authority ...................................................................................................................... 1
1.2.1 Adoption. .............................................................................................................. 1
1.2.2 City Manager Authority. ........................................................................................ 1
1.2.3 Limit to City Manager Authority. ............................................................................ 1
1.3 Distribution................................................................................................................... 1 SECTION 2 – GENERAL GOVERNMENT................................................................................. 1
2.1 Local Control................................................................................................................ 1 SECTION 3 – LOCAL GOVERNMENT FINANCE...................................................................... 2 SECTION 4 – PUBLIC Safety .................................................................................................... 2
4.1 Emergency Response.................................................................................................. 2
4.2 Crime Reduction .......................................................................................................... 2
4.3 Victim’s Rights ............................................................................................................. 2 SECTION 5 – TRANSPORTATION AND PUBLIC WORKS....................................................... 3
5.1 General Infrastructure.................................................................................................. 3 SECTION 6 – RESOURCES AND ENVIRONMENT .................................................................. 3
6.1 Water Resiliency.......................................................................................................... 3
6.2 Organic Waste Disposal............................................................................................... 3 SECTION 7 – COMMUNITY DEVELOPMENT........................................................................... 3
7.1 Housing and Homelessness ........................................................................................ 3
7.2 Commercial Cannabis.................................................................................................. 4
7.3 Travel and Tourism...................................................................................................... 4 1 SECTION 1 – INTRODUCTION
1.1 General Purpose
The City of Grover Beach Legislative Platform (Platform) is adopted to formalize Council priorities and allow for expedient promotion of the City’s interests in legislative matters.
The Platform is designed to guide the Council and staff in taking appropriate action on legislative proposals and actions in the State and Federal governments.
1.2 Authority
1.2.1 Adoption - The Platform is developed with input from all City departments and is adopted by the City Council annually.
1.2.2 City Manager Authority – The City Manager or designee may take actions to support or oppose proposed legislation without prior approval of the City Council when consistent with the platform, provided that the City Council may set or change the City’s established position on any specific legislation even it inconsistent with this Platform’s general position.
1.2.3 Limit to City Manager Authority – The City Council will maintain sole authority to establish an initial position for any proposed legislation that would result in the matter coming before voters as a statewide ballot measure, such as California constitutional amendments, a statewide bond measure, or a measure amending a previously-approved statewide ballot measure.
1.3 Distribution
Upon the Council’s annual approval, the Legislative Platform shall be distributed to California’s U.S. Senators, U.S. Congressmembers, as well as all California State Constitutional offices representing the City, all California State Senator(s) and Assemblymember(s) representing the City, the National League of Cities and the League of California Cities.
SECTION 2 – GENERAL GOVERNMENT
2.1 Local Control
• Support legislation that enhances local control for various permitting, land use, contracting and discretionary actions and allows cities to address the needs of local communities within a framework of regional cooperation
• Oppose legislation that preempts local authority and impedes the City’s ability to address community needs.
• Oppose legislation that imposes unfunded or insufficiently funded mandates by the State.
2 SECTION 3 – LOCAL GOVERNMENT FINANCE
• Support legislation that protects, increases and/or modernizes revenue streams for local priorities.
• Support legislation to provide full and prompt reimbursement to all local agencies for all state-mandated programs and/or infractions and losses associated with local revenue shifts.
• Support legislation that creates streamlined and less competitive funding opportunities for cities with smaller budgets, geographical size and population, such as the City. • Support legislation that fully funds positions in State and Federal agencies that can accelerate the prompt administration of funding and reimbursements from those agencies to the City.
• Oppose legislation that mandates new duties, responsibilities or obligations to a City under state realignment.
• Oppose legislation that increases the threshold for voters to pass new or increased state or local taxes needed to fund local services and infrastructure. • Oppose legislation that eliminates or restricts control of or creates barriers to the City’s revenue sources.
• Oppose legislation that restricts the City’s ability to contract for goods or services or otherwise increases costs of contracting for goods or services.
SECTION 4 – PUBLIC SAFETY
4.1 Emergency Response
• Support legislation to provide funding for disaster prevention efforts, emergency response planning, and training and equipment for response and recovery efforts. • Support legislation to develop and implement statewide-integrated public safety communication systems.
4.2 Crime Reduction
• Support legislation to allow for greater crime reduction in the community. • Support legislation to add fentanyl to the list of illegal substances subject to the existing weight enhancements for criminal sentencing.
4.3 Victim’s Rights
• Support legislation increasing the rights of victims of crimes. 3 SECTION 5 – TRANSPORTATION AND PUBLIC WORKS
5.1 General Infrastructure
• Support legislation providing funding for revolving loan fund programs to assist with financing capital costs of infrastructure improvements, including facility replacements. • Support legislation to expedite project delivery processes and expand project delivery methods for use by all cities for facilities and infrastructure. • Support legislation that secures state and federal fees and taxes originally programmed for roadway repairs, highway congestion management and transportation improvement projects.
• Oppose legislation that slows, impairs or eliminates funding for public infrastructure.
SECTION 6 – RESOURCES AND ENVIRONMENT
6.1 Water Resiliency
• Support legislation and administrative actions that provide funding or grant programs for energy and water efficiency improvements.
• Support legislation that provides funding for key water supply and infrastructure grant and loan programs.
6.2 Organic Waste Disposal
• Support legislation that provides additional funding or other assistance to implement organic waste disposal requirements.
• Support legislation providing funding for smaller cities to pursue carbon neutral solutions.
SECTION 7 – COMMUNITY DEVELOPMENT
7.1 Housing and Homelessness
• Support legislation to streamline all types of housing development while protecting the City’s permitting, fees and regulatory processes.
• Support legislation to providing funding mechanisms for infrastructure needed for housing development.
• Support legislation providing funding for homeless services and shelter projects and operations.
• Support legislation to allow the City more flexibility in creating shelters and temporary and permanent housing.
• Support legislation to provide funding for cleanup efforts as a result of homeless encampments.
4 7.2 Commercial Cannabis
• Support legislation that provides for reforms of regulatory barriers to the legal cannabis industry
• Support legislation that allows for the sale of food and non-alcoholic drinks at cannabis retailers that permit onsite consumption of cannabis products.
7.3 Travel and Tourism
• Oppose legislation that would reduce or eliminate online travel agencies or platforms from collecting and remitting Transient Occupancy Tax to local jurisdictions.
City of Grover Beach
Mayor Karen Bright Mayor Pro Tern Anna Miller
Council Member Robert Robert, Council Member Daniel Rushing, Council Member Clint Weirick Matthew Bronson
City Manager
April 20, 2023
The Honorable Cecilia M. Aguiar-Curry
Chair, Committee on Local Government
State Capitol Office
1021 0 Street, Suite 6350
Sacramento, CA 95814
RE: AB 972 (Maienschein) Local Assistance and Grant Program Streamlining Workgroup.
Notice of SUPPORT (as of April 20, 2023)
Dear Chair Aguiar-Curry,
The City of Grover Beach is pleased to support AB 972 (Maienschein), which would coordinate, align, and streamline local government assistance resources to ensure that every community has the same opportunity to compete for state funding opportunities by convening a statewide, cross-agency Local Assistance and Grant Program Streamlining Workgroup, no later than April 2024.
At the state level, local assistance efforts are largely conducted by individual grant programs, and, although centrally located via the California State Library's Grants Portal, nearly all state grant programs have unique and widely varied procedures for application and scoring. Further, although best practices for local assistance have been developed and published by the Strot 'n Growth local assistance efforts are not uniformly conducted across state departments, offices, boards, commissions, and agencies.
Local municipalities often lack the resources, staff capacity, implementation experience, and technical expertise to apply for and secure competitive statewide targeted grant funding. Additionally, like other sectors, California cities are facing staffing shortages, a wave of early retirement, and other workforce stressors on existing municipal staff.
Streamlined application processes and robust, uniform local assistance from the state is crucial for cities to effectively access state funding opportunities.
Climate resiliency, natural resources, and environmental quality programs are nearly always funding with a combination of federal, state, and local resources. Cities are left to compete for scarce funding and stack various grant opportunities which increases the complexity and decreases the likelihood of successfully securing grant program funding. 154 South Eighth Street Fo Grover Beach', California 93433 fo www.groverheach.org Administrative Services/Water (805) 473-4550 it) City Council/City Manager (805) 473-4567 Po City Clerk (805) 473-4568 Community Development - Building, Planning & Economic Development (805) 473-4520 Po Human Resources (805) 473-4564 Parks & Recreation (805) 473-4580 Fo Police/Non-Emergency (805) 473-4511 Fo Public Works (805) 473-4530 Attachment 2
As a City with just under 13,000 residents and a lean staff of 80 full time employees, it is difficult to find capacity to successfully navigate state grant programs with their varied procedures and requirements. To this end, our City Council's 2023 Legislative Platform includes support for legislation that "...modernizes revenue streams for local priorities" and that "creates streamlined and less competitive funding opportunities...". We support any effort to align and streamline the process and requirements for state grants.
By aligning procedures of the financing programs under the purview of the California Natural Resources Agency and the California Environmental Protection Agency, AB 972 will help stretch limited funding as far as possible and bolster efforts to address shared state and local climate resiliency goals. For these reasons, City of Grover Beach supports AB 972 (Maienschein) and urges the passage of this important measure.
Sincerely,
°1 ' c
Karen Bright -
Mayor
City of Grover Beach
tA----
cc: The Honorable Cecilia M. Aguiar-Curry
Members, Committee on Local Government
League of California Cities (via email: [email protected]) City of Grover Beach
Mayor Karen Bright Mayor Pro Tem Anna Miller
Council Member Robert Robert, Council Member Daniel Rushing, Council Member Clint Weirick Matthew Bronson
City Manager
154 South Eighth Street Grover Beach, California 93433 www.groverbeach.org Administrative Services/Water (805) 473-4550 City Council/City Manager (805) 473-4567 City Clerk (805) 473-4568 Community Development - Building, Planning & Economic Development (805) 473-4520 Human Resources (805) 473-4564 Parks & Recreation (805) 473-4580 Police/Non-Emergency (805) 473-4511 Public Works (805) 473-4530 July 14, 2023
The Honorable Anna Caballero
Chair, Senate Governance and Finance Committee
State Capitol Building, Room 407
Sacramento, CA 95814
RE: AB 1657 (Wicks) The Affordable Housing Bond Act of 2024.
Notice of Support (As of 04/17/23)
Dear Senator Caballero,
The City of Grover Beach is pleased to support AB 1657 (Wicks), which would place a $10 billion bond measure on the March 2024 ballot to spur the production of affordable and supportive housing.
Housing affordability and homelessness are among the most critical issues facing Californians today.
City officials intimately understand these crises firsthand. Local leaders are working to find creative solutions so homes of all income levels can be built. That is why cities are calling on the Legislature and the Governor to provide ongoing funding to help cities prevent and reduce homelessness and spur housing development.
AB 1657 would provide targeted and significant funding to support community-based solutions that get our residents off the streets and keep them in their homes. A recent statewide survey by Cal Cities underscores the need for funding. The results show that cities believe limited supportive housing options and lack of ongoing funding are the top two barriers to preventing and reducing homelessness.
High housing costs and scarcity of housing are critical issues in Grover Beach and surrounding communities, contributing to homelessness and a lack of labor. As such, the City’s 2023 legislative platform supports legislation provide funding for temporary and permanent housing.
The investments proposed in AB 1657 would come at a critical time as the last round of funding for the state’s flagship multi-family affordable housing program, the Multifamily Housing Program, was oversubscribed ten to one. Affordable housing projects are ready to go if funding is available.
The City of Grover Beach believes that now is the time to invest in affordable housing. With the slowing economy, stubbornly high inflation, and the heightened threat of an economic recession, we know that our residents, now more than ever, are at risk of housing instability, losing their homes DocuSign Envelope ID: DD99060D-EAA0-4D5C-9671-98AF81EE371F altogether, and falling into homelessness.
For these reasons, the City of Grover Beach supports AB 1657.
Sincerely,
Karen Bright
Mayor
City of Grover Beach
cc: The Honorable Buffy Wicks
The Honorable Senator John Laird
The Honorable Assemblymember Dawn Addis
League of California Cities
DocuSign Envelope ID: DD99060D-EAA0-4D5C-9671-98AF81EE371F
2023 Legislation Impacts
General Government
• SB 553 – Occupational Safety – Workplace Violence. Restraining Orders and Workplace Violence Prevention Plan. This measure, commencing January 1, 2025, authorizes a collective bargaining representative of an employee to seek a temporary restraining order and an order after hearing on behalf of the employee and other employees at the workplace. It also requires employers to establish, implement and maintain an effective workplace violence prevention plan that includes, among other elements, requirements to maintain incident logs, provide specified trainings, and conduct periodic reviews of the plan.
o Impact: The City’s existing personnel rules prohibit workplace violence, however staff will need to update personnel policies to include a workplace violence prevention plan, as required in the next year.
• SB 329 – City Council Members Compensation. This measure allows general law cities to adjust council member salaries beyond the maximum amount for inflation each calendar year, not to exceed 10% per year. The bill also requires the Council to consider adoption of an ordinance to increase council member compensation in open session during at least two regular meetings.
o Impact: Should the Council choose to adjust compensation for Council Members in the future, they may increase salaries for inflation, not to exceed 10% each calendar year over the maximum of $950 per month. This action, if taken, would have minor budgetary impacts to the General Fund.
• AB 1637 – Website Domains. This measure requires the City to adopt a .gov domain name by 2029. Staff is planning to implement this prior to the deadline, as required. This will incur costs associated with changing the City’s web address on letterhead, business cards, etc., some of which will be reimbursed by the State.
Public Safety
• AB 701 – Controlled Substances: Fentanyl. This measure adds fentanyl to the list of enumerated controlled substances eligible for sentence enhancements for large quantities.
• AB 1448 – Cannabis: Enforcement by Local Jurisdictions. This measure provides that local jurisdictions that enforce state law regarding unlicensed cannabis activities will receive a 50/50 state-local split of the statutory penalties recovered in actions brought by local jurisdictions. This may reduce the cost to prosecute such cases. • AB 1418 – Tenancy: Local Regulations: Contact with Law Enforcement or Criminal Convictions. This measure will restrict the Police Department from requiring or encouraging a landlord to evict or penalize a tenant because of the tenant’s association with another tenant or household member who has had contact with the department.
Attachment 3
Transportation and Public Works
• AB 1594 – Medium and Heavy Duty Zero-Emission Vehicles: Public Agency Utilities. This measure authorizes the City to purchase replacement medium and heavy-duty utilityspecialized vehicles that do not meet zero-emission standards when they are necessary to maintain reliable service and respond to major foreseeable events.
Resources and Environment
• SB 272 – Sea Level Rise: Planning and Adaptation. This measure requires the City to submit either a local coastal program or a shoreline resiliency plan that implements sea level rise planning by January 2034. Staff plan to pursue a Local Coastal Program update in 2025 or 2026 which will incorporate sea level rise planning and adaptation policy and measures. Staff anticipates additional SB 2 grant funding should be available to complete this task.
• AB 1132 – Solar Energy: Permit Fees. This measure extends the provision that limits what the City may charge for a residential or commercial solar energy system to 2034. Staff will ensure the City’s master fee schedule includes these limitations. • AB 976 – Accessory Dwelling Unites: Owner-Occupancy Requirements. This measure grants the City authority to require rental terms for ADUs that are 30 days or longer and eliminates the City’s ability to impose owner-occupancy requirements on ADUs, regardless of when they were permitted. Staff is seeking clarification as to wither this legislation applies to Junior ADUs and, if so, will remove the owner-occupancy requirement in the development code.