CITY OF MORRO BAY
City Council Regular Meeting Agenda
Tuesday, December 9, 2025, 5:30 p.m.
Veterans Memorial Hall
209 Surf St., Morro Bay, CA
Public Participation
Public participation is offered in the following ways:
• Community members may attend the meeting in person at the Morro Bay Veterans Hall.
Alternatively, members of the public may watch the meeting and speak during general Public Comment or on a specific agenda item by logging into the Zoom webinar using the information provided below. Please use the "raise hand" feature to indicate your desire to provide public comment.
•
• NEW!! Zoom webinar link: https://us02web.zoom.us/j/82429164990 Or Telephone Attendee: 1 (669) 444-9171 or 1 (669) 900-9128 or 1 (346) 248-7799; Webinar ID: 824 2916 4990. Press *9 to raise hand for public comment. •
• Meetings are also livestreamed on the City's website.
Community Members are encouraged to submit agenda correspondence via email to the City Council at [email protected] prior to the meeting. Agenda correspondence received by 10:00 a.m. on the meeting day will be posted on the City website.
•
Pages
1. ESTABLISH QUORUM AND CALL TO ORDER
2. PLEDGE OF ALLEGIANCE
3. REPORTS
3.a Closed Session Report
3.b Mayor and Councilmembers' Reports, Announcements and Presentations
3.c City Manager Reports, Announcements and Presentations
3.d Subcommittee Reports - Verbal Update of Current Subcommittee Activities
1. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA
2. Morro Bay Power Plant (Vistra)
3. Offshore Wind Energy
4. Morro Elementary School
4. RECOGNITION AND PRESENTATIONS
None.
5. PUBLIC COMMENT
Members of the audience wishing to address the Council on City business matters not on the agenda may do so at this time. For those desiring to speak on items on the agenda, but unable to stay for the item, may also address the Council at this time.
Public comment is an opportunity for members of the public to provide input to the governing body. To increase the effectiveness of the Public Comment Period, the City respectfully requests the following guidelines and expectations be followed:
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Those desiring to speak are asked to complete a speaker slip, which are located at the entrance, and submit it to the City Clerk. However, speaker slips are not required to provide public comment.
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When recognized by the Mayor, please come forward to the podium to speak.
Though not required, it is helpful if you state your name, city of residence and whether you represent a business or group. Unless otherwise established by the Mayor, comments are to be limited to three minutes. •
All remarks should be addressed to Council, as a whole, and not to any individual member thereof.
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The Council respectfully requests that you refrain from making slanderous, profane or personal remarks against any elected official, commission and/or staff.
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Please refrain from public displays or outbursts such as unsolicited applause, comments or cheering.
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Any disruptive activities that substantially interfere with the ability of the City Council to carry out its meeting will not be permitted and offenders will be requested to leave the meeting.
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Your participation in City Council meetings is welcome and your courtesy will be appreciated.
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The Council in turn agrees to abide by its best practices of civility and civil discourse according to Resolution No. 07-19.
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6. CONSENT AGENDA
Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.
Recommended Action
Approve Consent Agenda items 6.a through 6.k as submitted.
6.a Approval of Minutes
(City Clerk)
Recommended Action
Approve as submitted.
1. October 28, 2025 - Regular Council Meeting 6
2. November 12, 2025 - Special Closed Session Meeting 12
3. November 12, 2025 - Regular Council Meeting 14
4. November 14, 2025 - Special Closed Session Meeting 21
5. November 15, 2025 - Special Closed Session Meeting 22
6. November 18, 2025 - Special Closed Session Meeting 23
7. November 24, 2025 - Special Closed Session Meeting 25
6.b Appointment of Mayor Pro Tempore; Appointment of Representatives on Discretionary Boards; approval of Council Liaison Assignments and various Council Sub-Committees for 2026
26 (City Clerk)
Recommended Action
Appoint Council Member Jeff Eckles as Mayor Pro Tempore for calendar year 2026; confirm representatives to serve on the various County or Regional Discretionary Boards; and approve Council Liaison Assignments and Council Sub-Committees for calendar year 2026 as shown on the attached appointment list.
6.c Adoption of Resolution No. 61-25 Establishing the 2026 City Council Meeting Calendar and Budget Development Schedule
32 (City Clerk)
Recommended Action
Adopt Resolution No. 61-25 approving the 2026 City Council Meeting Calendar and Budget Development Schedule.
6.d Approval of Final Map for Tract 2859 (2783 Coral Avenue) 37 (Public Works Department)
Recommended Action
Adopt Resolution No. 62-25:
1. Approving the Final Map for Tract 2859 (2783 Coral Avenue); Authorizing the Public Works Director and City Engineer to execute a Subdivision Improvement Agreement in a form subject to the approval of the City Attorney; and
2. Directing staff to seek expansion of the existing Cloisters Assessment District incorporating the newly created lots or providing equivalent funding assessment mechanism prior to issuance of building permits.
3. 6.e Fiscal Year 2026 Quarter 1 Water Reclamation Facility (WRF) Program Quarterly Report
165
(Public Works Department)
Recommended Action
Receive and file the Fiscal Year (FY) 2026 Quarter 1 Report for the period July through September 2025 for the Water Reclamation Facility (WRF) Program.
6.f Fiscal Year (FY) 2024-25 Status Report on Receipt and Use of Development Impact Fees (Annual Report and Five-Year Findings re Unexpended Funds) 172
(Finance Department)
Recommended Action
Adopt Resolution No. 63-25 accepting the Fiscal Year (FY) 2024-25 status report on receipt and use of Development Impact Fees.
6.g Authorization for Attendance and Award Acceptance for the CMANC Annual Washington, D.C., "Washington Week" Conference
184
(Harbor Department)
Recommended Action
Accept grant of $10,000 from the Central Coast Joint Cable/Fisheries Liaison Committee to be used for attendance and travel expenses for the California Marine Affairs and Navigation Conference (CMANC) meetings in Washington DC and California.
Authorize up to a three-person delegation to attend the CMANC 2026 “Washington Week” Conference in Washington, D.C. slated for February 2026, and to represent the City’s interests in the nation’s capital. It is anticipated this may include the Mayor, the Harbor Vitality Director, and an alternative staff or Council Member.
6.h Adoption of Resolution No. 64-25 Declaring Gulls at Bayshore Village have become so Numerous or Destructive as to Constitute a Menace and Danger to the Public Health, Safety or Property, and Therefore Providing an Exemption from Morro Bay Municipal Code
186
Section 7.08.015 Authorizing the Homeowners Association to Haze and Harass Gulls, to Remove Gull Nests from their Property and to Carryout Addling of Gull Eggs
(Community Development Department)
Recommended Action
Adopt Resolution No. 64-25 declaring the existence of Gulls at the Bayshore Village have become so numerous or destructive as to constitute a menace and danger to the public health, safety or property, authorizing an exemption for Bayshore Village from Morro Bay Municipal Code (MBMC) section
7.08.015, and authorizing the Homeowner’s Association’s request to haze and harass Gulls, to remove Gull nests from their property and carryout addling of Western Gull eggs.
6.i Status Update and Reconfirm Emergency for Morro Creek Bank Stabilization Project
210
(Public Works Department)
Recommended Action
Receive and file status update and reconfirm the declaration of emergency for the Morro Creek Bank Stabilization Project by four fifths vote.
6.j Contract Term Extension for Agreement with Newton Construction & Management, Inc. for BWRO Re-skin and Re-roofing Project 212
(Public Works Department)
Recommended Action
Authorize the City Manager to execute Amendment No. 1 extending the term of the agreement with Newton Construction & Management, Inc. for the Brackish Water Reverse Osmosis (BWRO) facility Re-skin and Re-roofing project to June 30, 2026.
6.k Contract Term Extension for Agreement with Filippin Engineering, Inc. for the Pavement Rehabilitation Project
214
(Public Works Department)
Recommended Action
Authorize the City Manager to execute Amendment No. 1 extending the term of the agreement with Filippin Engineering, Inc. for the 2024 Pavement Rehabilitation Project to June 30, 2026.
7. PUBLIC HEARING ITEMS
None.
8. BUSINESS ITEMS
8.a Receive and file General Plan Annual Progress Report for calendar year 2024; provide direction as necessary regarding the Community Development Department's workload priorities; and review draft amendments to various sections of the City's Zoning Code
217
(Community Development Department)
Recommended Action
Receive and file the attached General Plan Annual Progress Report for calendar year 2024 and provide direction, as necessary, regarding the Community Development Department’s workload priorities.
9. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS
10. ADJOURNMENT
The next Regular Meeting will be held on January 13, 2026.
This agenda is subject to amendment up to 72 hours prior to the date and time set for the meeting. Please refer to the agenda posted at City Hall, 595 Harbor Street, Morro Bay, CA 93442 for any revisions or call the Clerk's office at (805) 772-6205 for further information.
Materials related to an item on this agenda submitted to the City Council after distribution of the agenda packet are available for public inspection upon request by calling the City Clerk's office at (805) 772-6205.
In compliance with the Americans Disability Act, if you need special assistance to participate in a City meeting, please contact the Clerk's office 24 hours prior to the meeting to insure reasonable arrangements can be made to provide accessibility to the meeting.
1 MINUTES - MORRO BAY CITY COUNCIL
REGULAR MEETING
October 28, 2025, 5:30 p.m.
Veterans Memorial Hall
209 Surf St., Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
City Attorney Brian Stack
City Clerk Dana Swanson
Finance Director Emily Conrad
Public Works Director Greg Kwolek
Community Development Director Airlin Singewald
Police Chief Amy Watkins
Fire Chief Dan McCrain
Harbor Vitality Director Chris Munson
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 5:30 p.m. with all members present.
2. PLEDGE OF ALLEGIANCE
3. REPORTS
3.a Closed Session Report
City Attorney Stack announced the Council met in closed session to discuss three items: City Manager recruitment, real property negotiations related to the Morro Elementary site, and real property negotiations regarding the former treatment plant site. No reportable action pursuant to the Brown Act was taken on any item.
3.b Mayor and Councilmembers' Reports, Announcements and Presentations
3.c City Manager Reports, Announcements and Presentations Due to technology issues, a brief recess was taken at 5:50 p.m.; the meeting resumed at 5:53 p.m. with all members present.
3.d Subcommittee Reports - Verbal Update of Current Subcommittee Activities
1. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA
2 2. Morro Bay Power Plant (Vistra)
3. Offshore Wind Energy
4. Morro Elementary School
4. RECOGNITION AND PRESENTATIONS
5. PUBLIC COMMENT
John Rohner, SoCal Gas Public Affairs Manager, introduced himself as the new Public Affairs Manager for our region, and Morro Bay resident. Dr. Jill Stearns, Superintendent/President of Cuesta College, commented on the dual enrollment programs offered by Cuesta College, noting the program served 343 Morro Bay High School students from 2021 - 2024.
Linda Winters and Lauren Leidenger announced the annual Morro Bay Community Thanksgiving Dinner to be held Thanksgiving Day. Lisa Breen Strickland, Lumina Alliance volunteer, appreciated the recognition for the month of October as Domestic Violence Awareness Month and shared information regarding the programs and services offered. Dina Lundquist, Morro Bay Chamber of Commerce CEO, shared an update regarding the Chamber Foundation's scholarship program. Betty Winholtz, Morro Bay, encouraged the City to investigate potential annexation of two properties currently in the sphere of influence.
End of public comment.
6. CONSENT AGENDA
Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.
Mayor announced Item 6.c. has been pulled from the agenda and will come back at a future meeting.
Paula Juelke Carr, San Luis Obispo resident and architectural historian, commented in favor of Item 6.b.
Bob Fowler, Chamber of Commerce Board and Business Advisory Committee member, supported the approval of an MOU regarding Morro Elementary as it supports the goal of historical preservation and need for workforce housing. D'Arcy Castro, Morro Bay, spoke on behalf of Friends of Morro Elementary, thanking the City for the hopeful MOU with San Luis School District, and urging the City to allow current tenants to remain on site to support maintenance costs and avoid the property becoming vacant.
Emily Thorne, Morro Bay, supported Item 6.b, and hoped the City will consider retaining the current leases until a decision is made about the property's future.
3 Betty Winholtz, Morro Bay, commented in support of Item 6.b. and, regarding Item 6.d., sought clarification as to whether the pictures provided are a model of something being considered or an exact representation.
End of public comment.
Mayor Wixom pulled Item 6.d and Council Member Landrum pulled Item 6.a.
Motion by Mayor Wixom
Seconded by Council Member Luffee
Approve Consent Agenda Item 6.b as submitted.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
6.a Approval of Minutes
Motion by Mayor Wixom
Seconded by Council Member Landrum
Approve Items 6.a.1 and 6.a.2 as submitted.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
1. October 13, 2025 - Special Closed Session Meeting
2. October 14, 2025 - Special Closed Session Meeting
3. October 14, 2025 - Regular Council Meeting
Council Member Landrum requested review of her future agenda item request during the October 14th Regular Meeting.
6.b Memorandum of Understanding Between San Luis Coastal Unified School District and City of Morro Bay
Approve entering into the Memorandum of Understanding (“MOU”) with San Luis Coastal Unified School District (“School District”) for exclusive negotiations regarding the potential purchase of the Morro Elementary School Property (“Property”).
6.c Adopt Resolution Nos. 55-25 and 56-25 for Grant Applications for Potential Rancho Colina Utilities Consolidation
This item was pulled from the agenda.
6.d Authorize Purchase of $333,169 for Restroom from CTX for Coleman Park Project
4 Public Works Director Kwolek and Senior Engineer Della responded to questions raised during public comment, noting adding windows will change the roofline and increase the cost by $8,000.
Following Council questions and comments, there was consensus to approve the contract with the addition of windows.
Motion by Mayor Wixom
Seconded by Council Member Luffee
Authorize the City Manager to purchase and a restroom from CXT for the Coleman Park Project in the amount of $341,169 with the addition of windows.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
7. PUBLIC HEARING ITEMS
7.a Ordinance No. 673, repealing and reenacting multiple chapters of Title 14 (Buildings and Construction) of the MBMC to incorporate the 2025 California Building Standards Code, including the 2025 Wildland-Urban Interface and related local amendments,
Community Development Director Singewald and Fire Chief McCrain presented the report and responded to Council inquiries.
Mayor Wixom opened the public hearing and public comment on Item 7.a. Barry Branin, Morro Bay, commented regarding fire concerns near Morro Strand Campground.
Betty Winholtz, Morro Bay, appreciates the ban on safe and sane fireworks and appreciated clarification regarding battery storage.
End of public comment.
The public hearing was closed.
Chief Plans Examiner, Chad Ouimet, responded to Council questions regarding the requirements for electric-ready (pre-wired) kitchen and bicycle parking in nonresidential, residential, multi-family developments.
Motion by Council Member Eckles
Seconded by Council Member Luffee
Introduce for first reading by title only and with further reading waived, Ordinance No. 673: “An Ordinance of the City Council of the City of Morro Bay, California, repealing, amending and reenacting Chapters 14.01 – 14.12 of Title 14 (Buildings and Construction) of the Morro Bay Municipal Code, thereby adopting by reference and amending the 2025 California Building Code (Volumes 1 and 2), Residential, Electrical, Mechanical, Plumbing, Energy, Historical Building, Fire, Existing Building, Green Building, Administrative, and Reference Standards Codes, the 2021 International Property Maintenance Code, the 1997 Uniform
5 Code for the Abatement of Dangerous Building Code, and the 2025 WildlandUrban Interface Code.” Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
8. BUSINESS ITEMS
8.a Determination of Public Convenience or Necessity for ABC License - 640 Quintana Road, Morro Bay Cigarettes
Police Chief Watkins presented the report and responded to Council inquiries.
Mayor Wixom opened public comment for Item 8.a.
Feras Mawas, owner of Morro Bay Cigarettes, stated he was not trying to add a liquor license in town and understood he purchased the Morro Bay Rite Aid license.
Betty Winholtz, Morro Bay, suggested the Council consider a one-year conditional approval to see what effect, if any, it had on the crime rate.
Council Member Luffee invited Mr. Mawas to the podium to respond to Council questions.
End of public comment.
Motion by Council Member Luffee
Seconded by Council Member Edwards
Make the Determination of Public Convenience or Necessity and approve the request to allow sales of alcohol for an off sale general Type 21 license at 640 Quintana Road with certain conditions placed on approval, including a written agreement between the city and the business owner stating no alcohol sales will take place on the premises and the alcohol license will be surrendered to ABC for a period of one year.
Ayes (2): Council Member Edwards, and Council Member Landrum Noes (3): Mayor Wixom, Council Member Eckles, and Council Member Luffee FAILED (2 to 3)
Motion by Mayor Wixom
Seconded by Council Member Luffee
Take no action, deny the request and adhere to recommendations of the Police Chief
Ayes (4): Mayor Wixom, Council Member Edwards, Council Member Eckles, and Council Member Luffee
Noes (1): Council Member Landrum
6 CARRIED (4 to 1)
8.b Quarterly Update on the Status of City Council Goals The Council took a brief recess at 7:38 p.m. and the meeting reconvened at 7:50 p.m. with all members present.
Interim City Manager Lueker presented the report and responded to Council inquiries.
Mayor Wixom opened public comment for Item 8.b.
Dina Lundquist, Morro Bay Chamber CEO, commented on City's Economic Vitality / Fiscal Health goal.
Susan Stewart, Morro Bay business owner and Chamber member, stated her desire to have a point of contact for economic development, implementation plan and measurements for success.
End of public comment.
As a receive and file report, no formal action was taken by the City Council.
9. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS
Council Member Landrum requested support for discussion of listing pending future agenda items on the bottom of the agenda.
10. ADJOURNMENT
The meeting adjourned at 8:02 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
1 MINUTES - MORRO BAY CITY COUNCIL
CLOSED SESSION MEETING
November 12, 2025, 4:00 p.m.
City Hall Conference Room
595 Harbor Street, Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
City Attorney Brian Stack
Community Development Director Airlin Singewald
Human Resources/Risk Manager Rachael Hendricks
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 4:00 p.m. with all members present.
2. SUMMARY OF CLOSED SESSION ITEMS
3. CLOSED SESSION PUBLIC COMMENT
Mayor Wixom opened public comment for items on the agenda. Betty Winholtz, on behalf of Friends of Morro Bay Elementary, announced the Friends were aware of a State Parks SPP Round 5 grant to establish new parks and will submit an application to contribute toward development of a park at the Morro Elementary site.
End of public comment.
4. THE COUNCIL WILL CONVENE IN CLOSED SESSION
4.a CONFERENCE WITH REAL PROPERTY NEGOTIATOR - GOVERNMENT CODE SECTION 54956.8
Property: APNs 066-280-045 and 066-044-011, 1130/1330 Napa Ave., Morro Elementary
Property Negotiators: San Luis Coastal Unified School District Agency Negotiators: Airlin Singewald, Community Development Director; Emily Conrad, Finance Director; Andrea Lueker, Interim City Manager; Brian Stack, City Attorney
2 Negotiations: Price and Terms of Payment
4.b PUBLIC EMPLOYEE EMPLOYMENT
City Manager pursuant to Government Code Section 54957.
5. RECONVENE IN OPEN SESSION
The City Council reconvened in Open Session and City Attorney Stack announced the Council did not take any reportable action in accordance with the Brown Act.
6. ADJOURNMENT
The meeting adjourned at 5:08 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
1 MINUTES - MORRO BAY CITY COUNCIL
REGULAR MEETING
November 12, 2025, 5:30 p.m.
Veterans Memorial Hall
209 Surf St., Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
City Attorney Brian Stack
City Clerk Dana Swanson
Finance Director Emily Conrad
Community Development Director Airlin Singewald
Police Chief Amy Watkins
Fire Chief Dan McCrain
Harbor Vitality Director Chris Munson
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 5:32 p.m. with all members present.
2. PLEDGE OF ALLEGIANCE
3. REPORTS
3.a Closed Session Report
City Attorney Stack announced the Council met in closed session to discuss two matters: real property negotiations regarding the former Morro Elementary School site and the City Manager recruitment. No reportable action was taken pursuant to the Brown Act.
3.b Mayor and Councilmembers' Reports, Announcements and Presentations Mayor Wixom announced Item 8.b., the Morro Creek Stabilization Project, was being pulled from the agenda and will be discussed at a Special Meeting next week, and that public comment on this item would be taken during general Public Comment.
3.c City Manager Reports, Announcements and Presentations
3.d Subcommittee Reports - Verbal Update of Current Subcommittee Activities a. Water Reclamation Facility & Morro Bay / Cayucos Sanitary District JPA
2 b. Morro Bay Power Plant (Vistra)
c. Offshore Wind Energy
d. Morro Elementary School
4. RECOGNITION AND PRESENTATIONS
None.
5. PUBLIC COMMENT
Linda Winters, Morro Bay, provided a Monday Night Dinner update and announced the upcoming Annual Thanksgiving Dinner.
Betty Winholtz, Morro Bay, announced the Recreation & Parks Commission will discuss the Events Policy at its November 20th Meeting, commented on her experience observing bicyclists safely cross at Main and Highway 41, and requested a PEG Fund status update.
Margaret Carman, Morro Bay, expressed concern about microplastics, pollution and offshore wind.
Jeremiah O'Brien, Morro Bay, commented in support of the Morro Creek stabilization project and asked the City keep the commercial fishermen informed during the project.
Bill Blue, President of the Morro Bay Commercial Fishermen's Organization, strongly supported the Morro Creek restoration project as continued access to the gear storage was imperative and offered to be a point of contact if and when construction takes place.
End of public comment.
6. CONSENT AGENDA
Unless an item is pulled for separate action by the City Council, the following actions are approved without discussion. The public will also be provided an opportunity to comment on consent agenda items.
Betty Winholtz, Morro Bay, commented on Item 6.e., noting paving needs on Pacific Street and Shasta Avenue. Regarding Item 6.f, she asked if the City plans to amend policies in order to provide water service outside the city limits.
End of public comment.
Mayor Wixom pulled Item 6.b. Council Member Luffee pulled Items 6.e. and 6.f.
Motion by Council Member Landrum
Seconded by Council Member Eckles
Approve all items on Consent, except Items 6.b, 6.e and 6.f, as submitted.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
3 6.a Approval of Minutes
Approve as submitted.
a. October 14, 2025 - Regular Council Meeting
b. October 21, 2025 - Special Joint Council and CFAC Meeting c. October 28, 2025 - Special Closed Session Meeting
6.b Consideration of forming Council Sub-committee regarding Examining the feasibility of shared Fire and EMS services with LOCSD titled the "Shared Fire Services subcommittee"
Interim City Manager Lueker requested the Council nominate two members to participate on this new subcommittee. Mayor Wixom offered to serve and invited Council Member Eckles to join her. Council Member Landrum nominated the Mayor and Council Member Eckles to serve on the subcommittee and Council Member Luffee added his support.
Motion by Mayor Wixom
Seconded by Council Member Luffee
Establish a Council sub-committee consisting of Mayor Wixom and Council Member Eckles regarding the Letter of Interest received from the Los Osos CSD regarding examining the feasibility of shared Fire and EMS services. If a subcommittee is established, pursuant to Council Policies Section 3.13, a defined purpose, parameters, and anticipated duration of the sub-committee should be established.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
6.c Approval of Fiscal Year 2024-25 Year-End Budget Adjustments Adopt Resolution No. 57-25 approving FY 2024-25 Year-End Budget Adjustments.
6.d First Quarter Investment Report (period ending September 30, 2025) for Fiscal Year (FY) 2025-26
Receive the attached First Quarter Investment Report (period ending September 30, 2025) for FY 2025-26.
6.e Authorize a Professional Services Agreement with Pavement Engineering, Inc. for Pavement Evaluation and Design Services for the 2026 Pavement Rehabilitation Project
Staff responded to Council inquiries and questions raised during public comment.
Motion by Council Member Luffee
Seconded by Council Member Landrum
4 Authorize the City Manager to execute a Professional Services Agreement with Pavement Engineering, Inc. in the amount of $343,334.00 for Pavement Evaluation and Design Services for the 2026 Pavement Rehabilitation Project.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
6.f Adopt Resolution Nos. 55-25 and 56-25 for Grant Applications for Potential Rancho Colina Utilities Consolidation
Staff responded to questions related to potential annexation of the property, noting consideration and analysis would come at a later stage in the project.
Motion by Council Member Luffee
Seconded by Council Member Landrum
Adopt Resolution Nos. 55-25 and 56-25 for the Clean Water State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF) Grant Applications for the Rancho Colina Consolidation Evaluation Projects. These resolutions only modify previously approved City Council Resolution Nos. 51-23 and 52-23.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
6.g Ordinance No. 673, repealing and reenacting multiple chapters of Title 14 (Buildings and Construction) of the MBMC to incorporate the 2025 California Building Standards Code, including the 2025 Wildland-Urban Interface Code and related local amendments,
Adopt Ordinance No. 673: “An Ordinance of the City Council of the City of Morro Bay, California, repealing, amending and reenacting Chapters 14.01 – 14.12 of Title 14 (Buildings and Construction) of the Morro Bay Municipal Code, thereby adopting by reference and amending the 2025 California Building Code (Volumes 1 and 2), Residential, Electrical, Mechanical, Plumbing, Energy, Historical Building, Fire, Existing Building, Green Building, Administrative, and Reference Standards Codes, the 2021 International Property Maintenance Code, the 1997 Uniform Code for the Abatement of Dangerous Building Code, and the 2025 Wildland-Urban Interface Code.”
6.h Approval of Contract with San Luis Obispo County for Animal Care and Control Services for FY 2025/26 through FY 2029/30 and adoption of Resolution No. 58-25 Authorizing the Related Budget Amendment Authorize the City Manager to execute a five-year contract with the County of San Luis Obispo, for the continued provision of Animal Care and Control Services from July 1, 2025 to June 30, 2030 and adopt Resolution No. 58-25 amending the Operating Budget to the full contract amount for FY 2025/26.
7. PUBLIC HEARING ITEMS
5 7.a Review and Adopt Draft Funding Recommendations for the 2026 Community Development Block Grant (CDBG) Program
Community Development Director Singewald presented the report and responded to Council inquiries.
Mayor Wixom opened the public hearing and public comment for Item 7.a. Betty Winholtz, Morro Bay, commented in support of staff's recommendation and appreciated this year's focus on housing needs.
End of public comment.
Mayor closed the public hearing.
Motion by Mayor Wixom
Seconded by Council Member Luffee
Conduct a public hearing to review and adopt Resolution No. 59-25 approving draft funding recommendations for the 2026 Community Development Block Grant (CDBG) funds and forward recommendations to the San Luis Obispo (SLO) County Board of Supervisors for inclusion with the other draft funding requests from the Urban County Consortium. The funding recommendation is for two of the three applications received, both from Community Action Partnership of San Luis Obispo County, Inc. (CAPSLO) for a total estimated funding allocation of $64,262. Additionally, staff recommends the City Council authorize the City Manager to make pro rata adjustments to the allocation based on the final funding amount from SLO County based on the approval of the Federal budget and HUD’s final grant amount to the County.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
8. BUSINESS ITEMS
8.a Reinstate of an Assistant City Manager to Prioritize and Manage Economic Development Efforts and Other Duties
Interim City Manager Lueker presented the report and responded to Council inquiries.
Mayor Wixom opened public comment for Item 8.a.
Jim Gross, Morro Bay, appreciated the report and offered his support as the City moves forward to define the role of the Assistant City Manager and economic development goals.
Bob Fowler, Member of the Chamber of Commerce Board of Directors and Business Advisory Committee, offered the Chamber's support and suggested the new city manager have a role in defining economic development for our city and selecting the person to lead those efforts.
6 Dina Lundquist, Morro Bay Chamber of Commerce CEO, strongly supported the City's economic development efforts, noting the Chamber stands ready to be a strategic partner.
Betty Winholtz, Morro Bay, questioned the timing and suggested waiting until the new city manager is on board.
Margaret Carman, Morro Bay, agreed it was not time to hire an Assistant Manager and urged the City to wait until the new city manager was on board and gets a feel for the organization.
End of public comment.
Following discussion, there was consensus to pause until the permanent city manager has an opportunity to audit the organization's integrity and efficiency then provide recommendations to Council regarding economic development policies and goals, revenue generation ideas, and alternatives to lead those efforts. Mayor Wixom directed the Clerk to add a follow-up item to the agenda planning track (estimated timeframe more than 90 days, less than 9 months).
8.b Declaration of Emergency and Authorize Actions required for the Morro Creek Stabilization Project
This item was pulled from the agenda and a special meeting will be held the week of November 17th to address this issue.
8.c Discussion of Potential Ordinance Framework for Establishing Local Business Regulations for Massage Establishments and Technicians The Council took a brief recess at 7:14 p.m. and reconvened at 7:23 p.m. with all members present.
Police Chief Watkins presented the report and responded to Council inquiries.
Mayor Wixom opened public comment for Item 8.c.
Michelle Leicester-Cadaret, Morro Bay, appreciated the proposed ordinance, urged enforcement of sign regulations requiring neon signs to be turned off at night, and suggested hours of operation be limited. Susan Stewart, Morro Bay business owner, appreciated the recommendations and suggestions, reminding staff of the importance of informing affected business owners.
End of public comment.
Following Council discussion, there was consensus to return with an ordinance that, in addition to what was presented, addressed the number of establishments and proximity to each other. Individual comments suggested regulations related to window coverings that require visibility from the street into the lobby during business hours.
Motion by Council Member Landrum
Seconded by Council Member Edwards
7 Direct staff regarding the potential adoption of an Ordinance establishing local business regulations specific to massage establishments and technicians with comments that have been made tonight.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
9. COUNCIL DECLARATION OF FUTURE AGENDA ITEMS
Council Member Landrum requested and received support for a status report on the Veterans Hall A/V project be presented to PWAB.
Council Member Landrum requested a conversation regarding the City's response to the gentleman who presented concerns about arsenic contamination at the power plant.
10. ADJOURNMENT
The meeting adjourned at 8:15 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
1 MINUTES - MORRO BAY CITY COUNCIL
CLOSED SESSION MEETING
November 14, 2025, 9:00 a.m.
Community Center Studio
1001 Kennedy Way, Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 9:00 a.m. with all members present.
2. SUMMARY OF CLOSED SESSION ITEMS
3. CLOSED SESSION PUBLIC COMMENT
Mayor Wixom opened public comment; seeing none, public comment was closed.
4. THE COUNCIL WILL CONVENE IN CLOSED SESSION
4.a PUBLIC EMPLOYEE EMPLOYMENT
City Manager pursuant to Government Code section 54957.
5. RECONVENE IN OPEN SESSION
The City Council reconvened in Open Session. The Council did not take any reportable action in accordance with the Brown Act.
6. ADJOURNMENT
The meeting adjourned at 4:15 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
1 MINUTES - MORRO BAY CITY COUNCIL
CLOSED SESSION MEETING
November 15, 2025, 9:00 a.m.
City Hall Conference Room
595 Harbor Street, Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 9:00 a.m. with all members present.
2. SUMMARY OF CLOSED SESSION ITEMS
3. CLOSED SESSION PUBLIC COMMENT
Mayor Wixom opened public comment; seeing none, public comment was closed.
4. THE COUNCIL WILL CONVENE IN CLOSED SESSION
4.a PUBLIC EMPLOYEE EMPLOYMENT
City Manager pursuant to Government Code section 54957.
5. RECONVENE IN OPEN SESSION
The City Council reconvened in Open Session. The Council did not take any reportable action in accordance with the Brown Act.
6. ADJOURNMENT
The meeting adjourned at 2:30 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
1 MINUTES - MORRO BAY CITY COUNCIL
SPECIAL MEETING OF CITY COUNCIL
November 18, 2025, 3:30 p.m.
Veterans Memorial Hall
209 Surf St., Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: City Attorney Brian Stack
Finance Director Emily Conrad
Public Works Director Greg Kwolek
Community Development Director Airlin Singewald
Harbor Vitality Director Chris Munson
City Engineer Nate Stong
Senior Planner Susana Toner
_____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 3:30 p.m. with all members present.
2. PUBLIC COMMENT FOR ITEMS ON THE AGENDA
Mayor Wixom opened public comment; seeing none, public comment was closed.
3. SPECIAL MEETING AGENDA ITEM(S)
3.a DECLARATION OF EMERGENCY AND AUTHORIZE ACTIONS REQUIRED
FOR THE MORRO CREEK BANK STABILIZATION PROJECT
Public Works Director Kwolek, City Engineer Stong and Finance Director Conrad presented the report and staff responded to Council inquiries.
Mayor Wixom re-opened public comment.
Paul Donnelly, Morro Bay, opined this project does not meet the definition of an emergency project and suggested it follow the regular regulatory review process.
Interim City Manager Lueker, who was attending the meeting remotely, reminded the City Council about comments received last week from Commercial Fisherman about the importance of the area.
Public Comment was closed.
2 Motion by Council Member Luffee
Seconded by Council Member Landrum
Adopt Resolution No. 60-25 authorizing emergency actions for the Morro Creek bank stabilization project.
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
Motion by Council Member Luffee
Seconded by Council Member Eckles
1. Authorize the City Manager to negotiate and award an emergency public works contract for the project in an amount not to exceed $500,000;
2. Authorize the City Manager, or designee, to approve construction contingency amounts up to a total of $168,093;
3. Authorize the City Manager, or designee, to approve professional services agreements for design, environmental permitting and monitoring, and engineering during construction services for an amount not to exceed $200,000; and
4. Find that the project is exempt from review under the California Environmental Quality Act Guidelines, pursuant to Section 15269(b) and (c).
Ayes (5): Mayor Wixom, Council Member Edwards, Council Member Eckles, Council Member Landrum, and Council Member Luffee
CARRIED (5 to 0)
4. ADJOURNMENT
The meeting adjourned at 4:50 p.m.
Respectfully submitted,
/s/ Susana Toner, Senior Planner
1 MINUTES - MORRO BAY CITY COUNCIL
CLOSED SESSION MEETING
November 24, 2025, 1:00 p.m.
City Hall Conference Room
595 Harbor Street, Morro Bay, CA
Members Present: Mayor Carla Wixom
Council Member Cyndee Edwards
Council Member Jeff Eckles
Council Member Zara Landrum
Council Member Bill Luffee
Staff Present: Interim City Manager Andrea Lueker
Human Resources/Risk Manager Rachael Hendricks
Executive Recruiter Roberta Greathouse, Peckham & McKenney _____________________________________________________________________
1. ESTABLISH QUORUM AND CALL TO ORDER
Mayor Wixom called the meeting to order at 1:00 p.m. with all members present.
2. SUMMARY OF CLOSED SESSION ITEMS
3. CLOSED SESSION PUBLIC COMMENT
Mayor Wixom opened public comment; seeing none, the public comment period was closed.
4. THE COUNCIL WILL CONVENE IN CLOSED SESSION
4.a PUBLIC EMPLOYEE EMPLOYMENT
City Manager pursuant to Government Code section 54957.
5. RECONVENE IN OPEN SESSION
The City Council reconvened in Open Session. The Council did not take any reportable action in accordance with the Brown Act.
6. ADJOURNMENT
The meeting adjourned at 2:28 p.m.
Respectfully submitted,
/s/ Dana Swanson, City Clerk
Prepared By: ___DS___ Dept Review:___________
City Manager Review: __AL___ City Attorney Review: ___BS____
Council Report
TO: City Council DATE: November 20, 2025
FROM: Carla Wixom, Mayor
Dana Swanson, City Clerk
SUBJECT: Appointment of Mayor Pro Tempore; Appointment of Representatives on Discretionary Boards; approval of Council Liaison Assignments and various Council Sub-Committees for 2026
RECOMMENDED ACTION
Appoint Council Member Jeff Eckles as Mayor Pro Tempore for calendar year 2026; confirm representatives to serve on the various County or Regional Discretionary Boards; and approve Council Liaison Assignments and Council Sub-Committees for calendar year 2026 as shown on the attached appointment list.
DISCUSSION
Mayor Pro Tempore
The City Council Policies and Procedures Section 3.2 (Appointment of Mayor Pro Tempore) states:
“The appointment of the Mayor Pro Tempore shall be for a one-year term and shall be made at the first meeting in January. For appointment as Mayor Pro Tempore, a Council Member must be on the Council at least one year. Of those who have been on the Council for at least one year, the Council Member who has not yet held the position shall be appointed Mayor Pro Tempore. If there are two Council Members who have not yet held the position, then the Council Member receiving the highest number of votes in the most recent election shall be appointed Mayor Pro Tempore. If all have held the position, then the Council Member who has held it the least number of times shall be appointed Mayor Pro Tempore. If all Council Members have held it for the same number of years, then the Council Member for whom it has been the longest period of time since holding the position shall be appointed Mayor Pro Tempore.”
Based on the above policy, Council Member Eckles shall be appointed as Mayor Pro Tempore for calendar year 2026.
AGENDA NO: 6.b
MEETING DATE: December 9, 2025
Representatives to serve on County or Regional Discretionary Boards The City Council Policies and Procedures Section 6.1 (“County or Regional Representation”) states:
“Annually the Mayor shall make appointments to a variety of County and/or regional committees and boards. One Member of the Council shall serve as a voting representative and one member shall serve as alternate. To the best of their ability, Voting Delegates shall reflect the majority view of the Council as a whole, rather than their own personal opinions.”
Consistent with Council Policies and Procedures Section 6.1, the Mayor may seek input from City Council regarding appointments to County and/or Regional Boards, but ultimately, the Mayor is responsible for the appointment of these positions.
The only proposed change to the Discretionary Appointment list is Council Member Eckles, as Mayor Pro Tem, will serve as the Alternate on the City Selection Committee.
Council Liaison Assignments
The City Council Policies and Procedures Section 6.2.1 (“Council Liaison Assignments”) states:
“The City Council shall assign a Council liaison to each of the following advisory bodies: Recreation & Parks Commission, Harbor Advisory Board, Public Works Advisory Board, the Citizens Finance Advisory Committee, and the Planning Commission. Council liaisons will also be appointed to the special purpose advisory bodies.
The purpose of the liaison assignment is to facilitate communication between the City Council and the advisory body. The liaison also helps to increase the Council’s familiarity with the membership, programs and issues of the advisory body. In fulfilling their liaison assignment, members should either attend advisory body meetings or watch the meeting broadcasts and present information regarding advisory body meetings to the Council during Council announcements.
Council Members are not participating members of the advisory body, but are there rather to create a linkage between the City Council and the advisory body. In interacting with advisory bodies, Council Members are to reflect the views of the Council as a body. Being an advisory body liaison bestows no special right with respect to advisory body business.”
The current Council Liaison assignments are recommended to continue through 2026.
Council Sub-Committees
The City Council Policies and Procedures Section 3.13 (“Council Sub-Committees”) states:
“From time to time it may be desirable for the City Council to appoint a subcommittee of the whole to address a particular issue. That is especially the case if the issue requires additional work or research. Per the Brown Act, subcommittees must consist of less than a quorum of the body and serve for a limited purpose and time. Therefore, the City Council sub-committees may consist of two members. Sub-committees shall report back to the full Council for discussion before any formal action can be taken on the pertinent issue. Establishing a subcommittee requires the body to define the purpose, parameters, and duration
of the sub-committee. The City Clerk will keep the list of sub-committees and defined description as a record with Council liaison assignments for review annually.”
The current list of Council Sub-Committees and assignments is included for review and approval to continue through 2026.
ATTACHMENT
1. Proposed City Council Discretionary Appointments, Liaison Assignments and Council Sub-Committees for 2026.
CITY COUNCIL DISCRETIONARY APPOINTMENTS (2026)
INTEGRATED WASTE MANAGEMENT AUTHORITY (meets the 2nd Wednesday of every month; 1:30pm; Board of Supervisors Chambers, SLO Government Center)
Cyndee Edwards Member
Bill Luffee Alternate
COUNTY WATER RESOURCES ADVISORY COMMITTEE (meets the 1st Wednesday of the month; 1:30- 3:30pm; City County Library Room, 995 Palm, SLO)
Zara Landrum Member
Cyndee Edwards Alternate
SAN LUIS OBISPO REGIONAL TRANSIT AUTHORITY (SLORTA) & SAN LUIS OBISPO AREA COORDINATING COUNCIL (SLOCOG) (RTA meets the 1st Wednesday of odd-numbered months; 8:30am; Board of Supervisors Chambers, SLO County Government Center) (COG meets the 1st Wednesday of month in January, February, April, June, August, October & December; 9:00am; Board of Supervisors Chambers, SLO County Government Center. Occasionally, SLOCOG will hold an off-month meeting immediately following a regularly scheduled RTA meeting.) Carla Wixom Member
Jeff Eckles Alternate
AIR POLLUTION CONTROL DISTRICT (meets the 4th Wednesday of every other odd numbered month; 9:00am; Board of Supervisors Chambers, SLO County Government Center) Jeff Eckles Member
Cyndee Edwards Alternate
COMMUNITY ACTION PARTNERSHIP OF SAN LUIS OBISPO COUNTY, INC. (meets the 3rd Thursday of every month; 5pm; CAPSLO Board Room, 1030 Southwood, SLO). Morro Bay rotated off the Board in 2014, Los Osos CSD is the current coastal city representative.
NATIONAL ESTUARY PROGRAM (Executive Committee meets quarterly; 3rd Wednesday of the month in February, May, August and November; 4-6pm)
Zara Landrum Member
Bill Luffee Alternate
CITY SELECTION COMMITTEE (SLO County Committee meets semiannually, or as needed, in order to appoint city representatives to boards, commissions and agencies as provided by law. Mayor serves as the City’s representative and, when unable to attend, shall designate another member of the legislative body to attend and vote in the mayor’s place)
Carla Wixom (Mayor) Member
Jeff Eckles (Mayor Pro Tem) Alternate
SAN LUIS OBISPO COUNTY HOUSING TRUST FUND
City Manager or designee (Comm. Dev.) Member
HOMELESS SERVICES OVERSIGHT COUNCIL (meets the 3rd Wednesday of odd numbered months; 1- 3pm; Family Care Network Conference Room, 1255 Kendall Road. SLO) Bill Luffee Member
Cyndee Edwards Alternate
REACH CENTRAL COAST ECONOMIC DEVELOPMENT ROUNDTABLE (meets twice annually) Jeff Eckles Member
CITY COUNCIL DISCRETIONARY APPOINTMENTS (2026)
CALIFORNIA JPIA (“CJPIA”) ANNUAL BOARD OF DIRECTORS MEETING (held annually the 3rd Wednesday in July)
Carla Wixom, Mayor Voting Delegate
Rachael Hendricks, Human Resources Mgr 1
st Alternate
City Manager 2
nd Alternate
CENTRAL COAST COMMUNITY ENERGY POLICY BOARD (meets quarterly in March, June, September and December at a date, time and location established by resolution in September of each year) Carla Wixom Member
Zara Landrum Alternate
CENTRAL COAST COMMUNITY ENERGY OPERATIONS BOARD (meets monthly on the 2nd Wednesday, except in March, June, July and December, at dates and times established by resolution in September of each year)
City Manager Member
Whitney McDonald, San Luis Obispo City Manager Alternate CITY COUNCIL LIAISON ASSIGNMENTS (2026)
PLANNING COMMISSION (meets 1
st and 3rd Tuesday of every month; 6:00pm; Vets Hall)
Jeff Eckles Liaison
HARBOR ADVISORY BOARD (meets the 1st Thursday of the month, except January, July, and November; 5:30pm; Vets Hall)
Zara Landrum Liaison
RECREATION AND PARKS COMMISSION (meets the 3rd Thursday of the month in odd-numbered months; 6:00pm; Vets Hall)
Bill Luffee Liaison
PUBLIC WORKS ADVISORY BOARD (meets the 3rd Wednesday of the month except July, November and December; 5:30pm; Vets Hall)
Carla Wixom Liaison
SAN LUIS OBISPO COUNTY TOURISM MARKETING DISTRICT ADVISORY COMMITTEE (meets semiannually on the first Thursday of May and December at Embassy Suites, 333 Madonna Rd., SLO) Carla Wixom Liaison
CITIZENS OVERSIGHT / FINANCE COMMITTEE (meets the 3rd Tuesday of the month in January, February, May, August and October; 3:00pm; Vets Hall)
Cyndee Edwards Liaison
CITY COUNCIL SUB-COMMITTEES (2026)
WATER RECLAMATION FACILITY / JPA SUB-COMMITTEE
Carla Wixom Member
Zara Landrum Member
MORRO BAY POWER PLANT
Jeff Eckles Member
Cyndee Edwards Member
OFFSHORE WIND ENERGY
Carla Wixom Member
Zara Landrum Member
MORRO ELEMENTARY SCHOOL (formed 4/22/25)
The purpose of the Morro Elementary School Subcommittee is to unite the community and City efforts for the accomplishment of the City Council goal to acquire the Morro Elementary School site and/or work with a developer on this project. To this end, two council members are appointed to facilitate communication and cooperation between the citizen’s group, Friends of Morro Elementary, and the Community Development Director regarding applicable State law, potential financial resources, and the San Luis Coastal Unified School District. The City Council as a whole will be kept up to date weekly, if not more frequently, as events unfold. This subcommittee’s work is complete when an agreement is signed between the School District and the City; or it is determined that acquisition is beyond the City’s reach. At either conclusion, the City Council will revisit whether the subcommittee has a related purpose or should be terminated.
Zara Landrum Member
Bill Luffee Member
SHARED FIRE SERVICES SUBCOMMITTEE (formed 11/12/25)
The Shared Fire Services subcommittee is created for the purpose of determining the scope of a shared services agreement..
Parameters: Under the City Council’s collective policy direction, the Subcommittee will collaborate with staff in identifying opportunities and exploring options for shared services for fire and emergency medical responses which may include hiring of personnel, providing emergency response, Fire Marshal services, and Emergency Operations Center coverage. The subcommittee is expected to research pertinent topics, engage with the community and share information with the Council, staff and the community.
Duration: The Subcommittee will function for the duration necessary to enable the Council to decide on the scope of the response to the letter of Interest received and negotiation of an agreement if both agencies determine the proposal is feasible.
Carla Wixom Member
Jeff Eckles Member
Prepared By: DS Dept Review: ________
City Manager Review: _AL City Attorney Review: __BS__
Staff Report
TO: Honorable Mayor and City Council DATE: November 20, 2025 FROM: Andrea Lueker, Interim City Manager
SUBJECT: Adoption of Resolution No. 61-25 Establishing the 2026 City Council Meeting Calendar and Budget Development Schedule
RECOMMENDED ACTION
Adopt Resolution No. 61-25 approving the 2026 City Council Meeting Calendar and Budget Development Schedule.
ALTERNATIVES
The Council may alter the proposed meeting calendar and schedule.
FISCAL IMPACT
None
BACKGROUND/DISCUSSION
Strategic Planning and Budget Calendar
Over the past several years, City Council has adopted an annual calendar that incorporates the strategic planning and budget discussions in a methodical way to link those efforts. Adoption of a calendar by resolution informs the community of the planned dates for important work on the City’s goals and objectives, adoption of the budget, and more. In March 2025, the Council adopted a set of goals, goal statements and short-term actions following a deliberated process that will continue to guide staff efforts through June 2027 (Attachment 2).
With regard to the budget process, the calendar provides two budget study sessions in late May to provide City Council with an overall financial picture for the City and allow for review of each department’s proposed budgets and consideration of adjustments, as necessary, to balance the budget. Council then has two regular meetings in June to formally consider and adopt the annual budget prior to year-end.
2026 Meeting Calendar
A Council meeting schedule which includes proposed regular meetings, as well as proposed special meetings and study sessions (known as of the date of this report) is provided for in Exhibit A to Resolution No. 61-25.
AGENDA NO: 6.c
MEETING DATE: December 9, 2025
Budget Calendar
Exhibit B to Resolution No. 61-25 includes the Fiscal Year (FY) 2026-27 Budget calendar which lays out the projected schedule for the staff development, public briefing, Citizens Finance Advisory Committee consideration, Council review, and eventual Council approval of the FY 2026-27 Operating and Capital Budget. Staff is recommending that Council hold their study session meetings on back-to-back days in May. Council would reserve the regularly scheduled June 9, 2026 Council meeting date to formally adopt the FY 2026-27 Budget (with June 23, 2026 as a backup date if needed).
CONCLUSION
Staff recommends Council adopt Resolution No. 61-25 that includes the City Council’s Meeting Calendar, as well as Budget Development Schedule for calendar year 2026.
ATTACHMENTS
1. Resolution No. 61-25 with Exhibits A and B
2. Link to FY 2025-26 and 2026-27 Adopted City Goals and Action Items
RESOLUTION NO. 61-25
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA
ADOPTING THE 2026 CITY COUNCIL MEETING CALENDAR
AND BUDGET DEVELOPMENT SCHEDULE
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, the City Council adopts an annual calendar providing for the orderly course of business and to provide transparency and accountability to the public; and WHEREAS, in accordance with the Strategic Planning Framework Policy established by Resolution No. 83-18, the City Council adopts a schedule for the development of the annual budget.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California, the 2026 City Council Meeting Calendar is adopted, as set forth in Exhibit A, and the Budget Development schedule is adopted, as set forth in Exhibit B.
PASSED AND ADOPTED by the City Council of the City of Morro Bay at a regular meeting thereof held on this 9
th day of December 2025 on the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSE:
CARLA WIXOM, Mayor
ATTEST:
DANA SWANSON, City Clerk
Reso. 61-25 Exhibit A
2026 Meeting Calendar
January 13
Regular Meeting
January 27
Regular Meeting
February 10
Regular Meeting
February 24
Budget Forecast Study Session
Regular Meeting
March 10
Regular Meeting
March 24
Regular Meeting
April 14
Regular Meeting
April 28
Regular Meeting
May 12
Regular Meeting
May 26
Budget Study Session #1
Regular Meeting
May 27
Budget Study Session #2 (if needed)
June 9
Budget Adoption
Regular Meeting
June 23
Regular Meeting
July 14
HOLIDAY BREAK
July 28
Regular Meeting
August 11
Regular Meeting
August 25
Regular Meeting
September 8
Regular Meeting
September 22
Regular Meeting
October 13
Regular Meeting
October 27
Regular Meeting
November 10
Regular Meeting
November 24
HOLIDAY BREAK
December 8
Regular Meeting
December 22
HOLIDAY BREAK
Reso. No. 61-25 - Exhibit B
Budget Development Calendar
Fiscal Year 2026-27
February Finance prepares budget framework, training, and instructions Feb 17 FY 2025-26 Measure Q/E Midyear budget presentation to CFAC Feb 24 FY 2025-26 Midyear Budget Presentation to Council March Departments prepare FY 2026-27 budget submittals April City Manager/Exec Team budget meetings; draft budget development April Preliminary Council input on budget and/or fiscal policies if needed May 7 City Manager delivers draft proposed budget numbers to Council May 19 CFAC reviews budget and provides input, emphasis on Measure Q/E May 26 Council Budget Study Session #1 (Special or Regular Meeting) May 27 Council Budget Study Session #2 (if needed)
Jun 9 Budget Adopted at Council Meeting
Jun 23 Backup date for Budget Adoption
Legend
o Council Meetings
o Advisory Board Meetings
o Internal Staff Actions
Prepared By:___NS/PN____ Department Review: __GK______
City Manager Review:__AL_____ City Attorney Review: ___BS_____
Staff Report
TO: Honorable Mayor and City Council DATE: December 4, 2025
FROM: Nate Stong, City Engineer
Pamela Newman, Associate Engineer
SUBJECT: Approval of Final Map for Tract 2859 (2783 Coral Avenue)
RECOMMENDED ACTION
Adopt Resolution No. 62-25:
1. Approving the Final Map for Tract 2859 (2783 Coral Avenue);
2. Authorizing the Public Works Director and City Engineer to execute a Subdivision Improvement Agreement in a form subject to the approval of the City Attorney; and
3. Directing staff to seek expansion of the existing Cloisters Assessment District incorporating the newly created lots or providing equivalent funding assessment mechanism prior to issuance of building permits.
FISCAL IMPACT
There is no new fiscal impact to the City associated with approving the final map for Tract 2859. The interior access road, on-site utilities, frontage landscape, and stormwater improvements are private and will be maintained by the Homeowner’s Association. The public improvements that will be constructed with this tract will result in an increase in maintenance costs for the public street improvements, water/fire services, and other infrastructure upon acceptance of the improvements by the City. These costs will be shown in future proposed budgets as the facilities are accepted and begin to require standard maintenance.
DISCUSSION
Tract 2859 is located at 2783 Coral Avenue, a 0.99-acre parcel (APN 065-386-015), identified as Lot 124 within the Cloisters Subdivision (Tract 1996). A Vesting Tentative Tract Map (SOO127), along with a Conditional Use Permit (UPO-470), Coastal Development Permit (CPO530), and a Mitigated Negative Declaration was approved by the Planning Commission on August 7, 2018, by Resolution 20-18 for a 6-lot residential subdivision. An appeal of the Planning Commission action was heard by the City Council on November 13, 2018, and denied by Resolution No. 87-18.
A Major Modification Amendment (MAJ21-005) and a new Coastal Development Permit (CDP21-036) for Tract 2859 were subsequently approved by the City Council on October 26, AGENDA NO: 6.d
MEETING DATE: December 9, 2025
2021, by Resolution No. 71-21. This approval modified the vesting tentative map from a 6-lot residential subdivision to a 5-lot residential subdivision. The tentative map is provided as Attachment 2.
Tentative Map Status
The original approval for a 6-unit subdivision had an expiration of November 13, 2020. The California Coastal Commission requested the City void the original approval of a Coastal Development Permit and processed an immaterial amendment to the original (1992) coastal development permit for the Cloisters Subdivision on March 13, 2020. The applicant then applied for a Major Amendment to the Tentative Map for a 5-unit subdivision, which was approved by City Council on October 26, 2021, this decision was appealed to the California Coastal Commission. The appeal was denied February 11, 2022, making City Council’s October decision effective and bringing the expiration date to February 11, 2024. The applicant requested a one-year time extension in August of 2023, pushing the expiration date to February 11, 2025. In January of 2025, under AB 2729, the approvals were extended for 18 months, consistent with State Law, bringing the expiration date to August 11, 2026.
Final Map Review & Approval
The draft Final Map, provided as Attachment 3 has been reviewed for technical correctness and completeness and is ready for approval and recordation with the San Luis Obispo County Recorder’s office. The Public Works Director and Community Development Director have determined the final map is in substantial compliance with the tentative map. Section 66474.1 of the Subdivision Map Act states that “a Legislative body shall not deny approval of a final or parcel map if it has previously approved a tentative map for the proposed subdivision and it if finds that the final or parcel map is in substantial compliance with the previously approved tentative map.” In other words, the approval of a final map is considered a ministerial action because approval is required if the final map is in substantial conformance with the approved tentative map.
Parkland Dedication or In-Lieu Fees
The Vesting Tentative Map and project Conditions of Approval require the developer to either dedicate land for park purposes or pay an in-lieu fee, in accordance with City Municipal Code Section 16.52.060 and the Quimby Act (Government Code Section 66477) as part of the Subdivision Map Act. The developer elected to pay the in-lieu fee. Following the City Council’s approval of the Major Modification Amendment, the fee was calculated based on the revised 5-lot residential subdivision. The developer has since submitted payment for the in-lieu fee.
Subdivision Improvement Agreement
The public improvements required for this subdivision consist of street, utility improvements, and sidewalk upgrades with a curb ramp along the project frontage on Coral Avenue and San Jacinto. Access to the subdivision is provided by Coral Street on the west side and the addition of Verdon Court as the entrance and private access to the subdivision. The in-tract utilities and street will be privately owned and maintained. The Subdivision improvement plans for the proposed street and utilities for both on-site and off-site improvements are approved by the city.
The scope of the proposed subdivision improvements to be constructed with Tract 2859 have
been reviewed by Engineering staff and found to be consistent with the approved project entitlements and conditions of approval. Appropriate securities will be submitted prior to map recordation to guarantee completion of the required subdivision improvements as shown in the Subdivision Improvement Agreement provided as Attachment 4.
Maintenance Agreements
The proposed Declaration of Covenants, Conditions and Restrictions (CC&Rs) for the subdivision provided as Attachment 5 will be recorded concurrently with the final map and assigns responsibility for maintenance of privately-owned facilities located within the public right of way to the Homeowner’s Association, including landscaping, irrigation, and private water & sewer lines. Maintenance and annual self-inspections of private stormwater quality features including an underground storage system is addressed in the Notice of Additional Information for Private Stormwater Management System Operations and Maintenance document, to be recorded concurrently with the final map. See Attachment 6.
Landscape and Lighting Maintenance Assessment District
Lot 124 of the Cloisters Subdivision was dedicated for a fire station at time of approval of the Tract 1996 map, and was therefore originally excluded from the Cloisters Landscape and Lighting Maintenance Assessment District (LLMAD) as it would have resulted in the City taxing itself. Lot 124 was declared as surplus by the City and sold in 2021. The Conditions of Approval for the original Tract 1996 map and the new residential lots approved by the Tract 2859 tentative map require participation in the LLMAD. The proposed CC&R’s require participation in the LLMAD prior to individual sale of lots or issuance of building permits. Staff intends to pursue extension of the LLMAD to cover these new lots in the near future and will bring the item to the City Council for action.
ENVIRONMENTAL REVIEW
The Tract 2859 Final Map project was analyzed in a project-specific Mitigated Negative Declaration (MND), originally adopted on August 7, 2018. The project modifications approved in 2021 reduced the overall density and did not introduce any new impacts or substantially increase the severity of previously identified impacts. As a result, the environmental conclusions in the adopted MND remain valid and unchanged.
ALTERNATIVES
The City Council can deny approval of the final map if findings are made that the requirements or conditions of the tentative map have not been met or performed (Section 66473 of the Subdivision Map Act) or if findings are made that the final map is not in substantial compliance with the previously approved tentative map (Section 66474.1 of the Subdivision Map Act).
Since the final map is in substantial compliance with the tentative map, sections 66474.1 and 66473 of the Subdivision Map Act require that City Council approve the map. Therefore, denying approval of the final map is not a recommended alternative unless the required findings are made.
ATTACHMENTS
1. Resolution No. 62-25
2. Tract 2859 Vesting Tentative Tract Map
3. Tract 2859 Final Map
4. Subdivision Improvement Agreement
5. Declaration of Covenants, Conditions and Restrictions for The View at Morro Bay
6. Private Stormwater Management System Operations and Maintenance
RESOLUTION NO. 62-25
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF MORRO BAY, CALIFORNIA,
APPROVING THE FINAL MAP FOR TRACT 2859 (2783 CORAL AVENUE; SOO-127)
T H E C I T Y C O U N C I L
City of Morro Bay, California
WHEREAS, on August 7, 2018 the Planning Commission did hold a public hearing, received public testimony, and after closing the public hearing fully considered the various issues surrounding the case; and
WHEREAS, the Planning Commission did approve Vesting Tentative Tract Map 2859, and associated development applications, subject to certain Conditions of Approval; and WHEREAS, the Planning Commission has previously made findings required by the California Environmental Quality Act (CEQA) and the City of Morro Bay procedures for implementation of CEQA; and
WHEREAS the applicant has since satisfied all Conditions of Approval and requests permission to record the Final Map; and
WHEREAS, the recordation of the Final Map is a ministerial act pursuant to the City of Morro Bay Subdivision Ordinance and California Subdivision Map Act; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Morro Bay, California, that the City hereby approves the Final Map for Tract 2859, and consents to the recording thereof.
PASSED AND ADOPTED by the City Council of the City of Morro Bay, California, at a regular meeting held on the 9
th day of December 2025 by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
RECUSE:
CARLA WIXOM, Mayor
ATTEST:
DANA SWANSON, City Clerk
HIGHWAY 1 SAN JACINTO STREET MAIN STREETSAN JACINTO ST CORAL AVENUE GARING , TAYLOR & ASSOCIATES , INC. CIVIL ENGINEERS SURVEYORS PLANNERS 141 SOUTH ELM STREET · ARROYO GRANDE , CA 93420 · (805) 489-1321 V E S T I N G T E N T A T I V E M A P T R A C T N o. 2 8 5 9 VICINITY MAP PROJECT DATA STATISTICS PROJECT NOTES VESTING TENTATIVE MAP EXISTING CONDITIONS ABBREVIATIONS LEGEND Page 42 of 266 HIGHWAY 1
SAN JACINTO ST
CORAL AVENUE GARING , TAYLOR & ASSOCIATES , INC. CIVIL ENGINEERS SURVEYORS PLANNERS 141 SOUTH ELM STREET · ARROYO GRANDE , CA 93420 · (805) 489-1321 V E S T I N G T E N T A T I V E M A P T R A C T N o. 2 8 5 9 VICINITY MAP PRELIMINARY GRADING & DRAINAGE PLAN EXISTING CONDITIONS AND PROPOSED IMPROVEMENTS PROJECT DATA STATISTICS PROJECT NOTES LEGEND ABBREVIATIONS VERDON COURT PROFILE SECTION A-A TYPICAL ROAD SECTION VERDON COURT Page 43 of 266 HIGHWAY 1 GARING , TAYLOR & ASSOCIATES , INC. CIVIL ENGINEERS SURVEYORS PLANNERS 141 SOUTH ELM STREET · ARROYO GRANDE , CA 93420 · (805) 489-1321 V E S T I N G T E N T A T I V E M A P T R A C T N o. 2 8 5 9 VICINITY MAP PRELIMINARY SITE & UTILITY PLAN EXISTING CONDITIONS AND PROPOSED IMPROVEMENTS PROJECT DATA STATISTICS PROJECT NOTES LEGEND ABBREVIATIONS Page 44 of 266 GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS SURVEYORS PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321
VICINITY MAP
SAN JACINTO STREET
CORAL AVENUE
GARING, TAYLOR & ASSOCIATES, INC.
CIVIL ENGINEERS SURVEYORS PLANNERS
141 SOUTH ELM STREET · ARROYO GRANDE, CA 93420 · (805) 489-1321 AZURE ST
01181.0005/902657.3 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Morro Bay
595 Harbor Ave
Morro Bay CA 93442
Attn: Public Works Department
SUBDIVISION IMPROVEMENT AGREEMENT
APN NO. 065-386-015 (For Recorder’s Use Only)
Exempt from recording fees pursuant to Govt Code §§ 6103, 27383 THIS SUBDIVISION IMPROVEMENT AGREEMENT (“Agreement”) is entered into this ____ day of __________, 202__, by and between City OF MORRO BAY, a municipal corporation, organized and existing in the County of San Luis Obispo, under and by virtue of the laws of the State of California, (“City”), and Morro Bay Ventures, LLC., a California Limited Liability Company, (“Subdivider”). This Agreement shall be effective as of the date executed and delivered by City as noted on the signature page (“Effective Date”).
RECITALS
A. Subdivider is the owner of, and has obtained approval of, a subdivision map identified as Tract Map No. 2859 (“Map”), located in City of Morro Bay, County of San Luis Obispo, State of California (“Property”), as described on Exhibit “A”.
B. Pursuant to the Conditions and on the Map, Subdivider has offered for dedication to City for public use of the streets and easements shown on the Map. City desires to accept the streets and easements shown on the Map for public use, and certain other improvements described in this Agreement.
C. Subdivider has delivered to City, and City has approved, plans and specifications and related documents for certain “Works of Improvement” (as hereinafter specifically defined in Section 1.1) which are public improvements required to be constructed and installed in order to accommodate the development of the Property.
D. Subdivider’s agreement to construct and install the Works of Improvement pursuant to this Agreement and its offer of dedication of the streets, easements and other improvements and facilities, as shown on the Map, are material consideration to City in approving Final Map No. 2859 (“Final Map”) for the Property and permitting development of the Property to proceed.
COVENANTS
Based upon the foregoing Recitals which are incorporated herein by reference and in consideration of City’s approving the Map for the Property and permitting development of the Property to proceed, Subdivider agrees to timely perform all of its obligations as set forth herein.
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1. Construction Obligations.
1.1. Works of Improvement. Subdivider agrees, at its sole cost and expense, to construct or install, or cause to be constructed or installed those certain street, drainage, domestic water, sanitary sewer, street lighting, landscaping, and utility improvements (collectively, the “Works of Improvement”), in accordance with the Conditions, as the same may be supplemented and revised from time to time as set forth in this Agreement (said plans and specifications, together with all related documents, the “Plans”). The estimated construction cost for the Works of Improvement is $ 473,018.06 (“Estimated Construction Cost”).
1.2. Other Obligations Referenced in Conditions of Tentative Map Approval.
In addition to the Conditions, Subdivider shall satisfy all requirements applicable to the Map for the Property. In addition, Subdivider shall comply with the following project-unique conditions:
(a) The terms of such recorded Covenants, Conditions and Restrictions (“CC&Rs”) as may be recorded upon the Property pursuant to the Map, the Conditions and/or Works of Improvement.
1.3. Intent of Plans. The intent of the Plans (defined in Section 1.1) is to prescribe a complete work of improvement which Subdivider shall perform or cause to be performed in a manner acceptable to City Engineer (or designee), and in full compliance with all applicable codes, including without limitation of all applicable provisions of the Morro Bay Municipal Code (“MBMC”) Titles 8 through 17, all other applicable MBMC requirements, and the terms of this Agreement. Subdivider shall complete a functional or operable improvement or facility, in compliance with the Plans.
Subdivider recognizes that the Plans consist of general drawings. All authorized alterations affecting the requirements and information given on the Plans shall be in writing and approved by City Engineer. The Plans shall be supplemented by such working or shop drawings as are necessary to adequately control the work. Without City Engineer’s prior written approval, no change shall be made by Subdivider or its contractor to any plan, specification, or working or shop drawing after it has been stamped as approved.
1.4. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments as shown on the Final Map in accordance with the provisions of the State Subdivision Map Act and the Subdivision Ordinance of City of Morro Bay.
Subdivider shall provide security for such obligation as provided in Section 4.1(a)(iii) and, after setting the monuments, Subdivider shall furnish City Engineer written notice of the setting of said monuments and written proof of having paid the engineer or surveyor for the setting of said monuments.
1.5. Performance of Work. Subdivider shall furnish or cause to be furnished all materials, labor, tools, equipment, utilities, transportation, and incidentals required to perform Subdivider’s obligations under this Agreement. Subdivider and Subdivider’s subcontractors shall pay for any materials, provisions, and other supplies used in, upon, for, or about the performance of the Works of Improvement 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
01181.0005/902657.3 3
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.
1.6. Changes in the Work. , City Engineer, without invalidating this Agreement and without notification to any of the sureties or financial institutions referenced in Section 4, may make changes by altering or deleting any portion of the Works of Improvement as specified herein as City Engineer reasonably determines necessary to accomplish the purposes of this Agreement and to protect the public health, safety, or welfare. City Engineer shall notify Subdivider or its contractor in writing (“Correction Notice”) at the time a determination has been made to require changes in the work. Subdivider shall review any Correction Notice and provide any comments to City Engineer. City and Subdivider shall mutually agree upon changes to the Works of Improvement, subject to the security requirements in Section 4. No field changes performed or proposed by Subdivider or its contractor shall be binding on City unless approved in writing by City Engineer.
1.7. Defective Work. Following recordation of a Notice of Acceptance (defined in Section 6), Subdivider shall or cause its contractor to repair, reconstruct, replace, or otherwise make acceptable any work found by City Engineer to be materially defective as determined by City Engineer as provided in Section 7. Following recordation of the Notice of Acceptance for the last of the Works of Improvement, the terms of Section 7 shall apply to any defective work.
1.8. No Warranty by City. The Plans for the Works of Improvement have been prepared by or on behalf of Subdivider or its consultants or contractors, and City makes no representation or warranty, express or implied, to Subdivider or to any other person regarding the adequacy of the Plans or related documents; provided, however, to the extent City Engineer actually becomes aware of any such inadequacies, City shall notify Subdivider thereof.
1.9. Authority of City Engineer. In addition to the authority granted to City Engineer elsewhere in this Agreement, City Engineer shall have the authority to decide all questions which may arise as to whether the quality and acceptability of materials furnished and work performed are consistent with the Plans.
1.10. Documents Available at the Site. Subdivider shall cause its contractor to keep a copy of all approved Plans at the job site and shall give access thereto to City’s inspectors and engineers at all times during working hours.
1.11. Inspection. Subdivider shall designate an authorized representative with which City Engineer may discuss and resolve issues. Subdivider shall cause its contractor to furnish City with reasonable facility for ascertaining whether or not the Works of Improvement as performed are in accordance with the requirements and intent of this Agreement, including the Plans. If City inspector requests it, the Subdivider’s contractor, at any time before acceptance of the Works of Improvement, shall remove or uncover such portions of the finished work as may be directed which have not previously been inspected.
After examination, the Subdivider’s contractor shall restore said portions of the work to the standards required hereunder. Inspection or supervision by City Engineer (or designee) shall
01181.0005/902657.3 4
not be considered as direct control of the individual workmen on the job site. City’s inspectors shall have the authority to stop any and all work not in accordance with the requirements contained or referenced in this Agreement.
The inspection of the work by City shall not relieve Subdivider or its contractor of any obligations to fulfill this Agreement as herein provided, and unsuitable materials used or work performed that is not in accordance with Plans may be rejected notwithstanding that such materials or work may have been previously overlooked or accepted.
1.12. Compliance With Law; Applicable Standards for Improvements. In addition to the express provisions of this Agreement and the Plans, Subdivider shall cause construction of the Works of Improvement to be completed in accordance with all applicable federal, state, and local laws, ordinances including the MBMC, governmental rules and regulations. In addition, without limiting the foregoing, Subdivider shall, at its expense, obtain and comply with the conditions of all necessary permits and licenses for the construction of the Works of Improvement. The Subdivider shall also give all necessary notices and pay all fees and taxes as required by law. Subdivider shall construct the improvements in accordance with City codes and regulations that were in effect at the time of the adoption of the Approved Tentative Map
1.13. Suspension of Work. City Engineer shall have authority to order suspension of the work for failure of the Subdivider’s contractor to comply with law pursuant to Section
1.12. In case of suspension of the Works of Improvement pursuant to this Section 1.13, Subdivider and its contractor shall be responsible for all materials and shall store them properly and safely and shall provide suitable interim drainage and/or dust control measures.
1.14. Erosion and Dust Control and Environmental Mitigation. All grading, landscaping, and construction activities the Works of Improvement shall be performed in a manner to control erosion and prevent flooding problems, including compliance with the MBMC and any applicable Geotechnical Report. City Engineer shall have the authority to require erosion plans to prescribe reasonable controls on the method, manner, and time of grading, landscaping, and construction activities to prevent nuisances to surrounding properties.
Plans shall include without limitation temporary drainage and erosion control requirements including without limitation compaction, dust control procedures, restrictions on truck and other construction traffic routes, noise abatement procedures, storage of materials and equipment, removal of garbage, trash, and refuse, securing the job site to prevent injury, and similar matters. Geologic 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.
1.15. Final Acceptance of Works of Improvement. After Subdivider’s contractor has completed all of the Works of Improvement, Subdivider shall then request a final inspection of the work to determine if such Works of Improvement have been completed pursuant to the Plans. If items are found by City’s inspectors to be incomplete or not in compliance with this Agreement or any of the requirements contained or referenced herein, City will inform the Subdivider or its contractor of such items. After the Subdivider’s contractor has completed these items, the procedure shall then be the same as specified
01181.0005/902657.3 5
above for the Subdivider’s contractor’s initial request for final inspection. If items are found by City’s inspectors to be incomplete or not in compliance after two (2) “final” inspections, City may require the Subdivider or its contractor, as a condition to performing further field inspections, to submit in writing a detailed statement of the work performed subsequent to the date of the previous inspection which was found to be incomplete or not in compliance at that time. Subdivider shall be responsible for payment to City Engineer of re-inspection fees in the amount necessary to cover City’s direct reasonable costs for additional final inspections, if such inspections exceed two (2) as determined by City Engineer.
No inspection or acceptance pertaining to specific parts of the Works of Improvement shall be construed as final acceptance of any part until the overall final acceptance by City Engineer is made. City Engineer shall make a certification of completion and acceptance on the Works of Improvement by recordation of a Notice of Acceptance (as defined in Section
6.) Final acceptance shall not constitute a waiver by City Engineer of defective work subsequently discovered, for which the warranty under Section 7 shall apply.
The date on which the Works of Improvement will be considered as complete shall be the date of the Notice of Acceptance. The obligations under this Agreement shall terminate two (2) years after the recordation of the last Notice of Acceptance for the Works of Improvement except for those that by this Agreement remain in effect, including but not limited to, the warranties, maintenance obligations, and indemnity provisions.
1.16. Vesting of Ownership. Upon recordation of the Notice of Acceptance, ownership of the Works of Improvement shall vest in City.
1.17. Subdivider’s Obligation to Warn Public During Construction. Until recordation of the Notice of Acceptance, Subdivider shall give good and adequate warning to the public of any dangerous condition of the Works of Improvements and shall take reasonable actions to protect the public from such dangerous condition. Prior to commencing any work that will affect immediately adjacent property owners and/or their tenants, Subdivider shall provide, as reasonably practical by visibly posting notices on the property where the Work of Improvement will be performed, forty-eight (48) hours’ advance written notice of the planned hours, dates and duration construction activities.
1.18. Injury to Public Improvements, Public Property or Public Utility. Until recordation of the Notice of Acceptance of the Works of Improvement, Subdivider assumes responsibility for the care and maintenance of, and any damage to, the Works of Improvements. Subdivider shall replace or repair all Works of Improvements, public property, public utility facilities, and surveying or subdivision monuments and benchmarks which are destroyed or damaged for any reason (other than the negligence of City or its agents), regardless of whether resulting from the acts of the Subdivider, prior to the recordation of the Notice of Acceptance, except to the extent caused by the gross negligence or wilful misconduct of the City or its agents. Subdivider shall bear the entire cost of such replacement or repairs regardless of what entity owns the underlying property. Any repair or replacement shall be to the satisfaction, and subject to the reasonable approval, of City Engineer, which shall not be unreasonably withheld, conditioned or delayed.
01181.0005/902657.3 6
2. Time for Performance.
2.1. Commencement and Completion Dates. Subject to Sections 2.2 and 2.3 below, Subdivider shall (i) commence with construction and installation of the Works of Improvement one hundred eighty (180) days following the Effective Date (“Commencement Date”); and (ii) complete or cause to be completed all of the Works of Improvement within two (2) years after the Commencement Date. In the event good cause exists as determined by City Engineer, the time for commencement of construction or completion of the Works of Improvement hereunder may be extended for a period or periods not exceeding two (2) years. Extensions shall be executed in writing by City Engineer. City Engineer shall determine whether or not the Subdivider has established good cause for an extension. As a condition of such extension, City Engineer may require Subdivider to furnish new security guaranteeing performance of this Agreement, as extended, in an increased amount to compensate for any increase in construction costs as determined by City Engineer.
2.2. Phasing Requirements. Notwithstanding the provisions of Section 2.1, City reserves the right to control and regulate the phasing of completion of specific Works of Improvement as required to comply with applicable City ordinances, regulations, and rules relating to the timely provision of public services and facilities. In addition to whatever other remedies City may have for Subdivider’s failure to satisfy such phasing requirements, as the same now exist or may be amended from time to time, Subdivider acknowledges City’s right to withhold the issuance of further building permits on the Property until such phasing requirements are satisfied. Prior to issuance of building permits, Subdivider shall provide satisfactory evidence that all applicable requirements that are a condition to issuance of building permits have been satisfied. Such requirements may include the payment of fees, construction of improvements, or both. Final inspections or issuance of Certificates of Occupancy may be withheld from the Subdivider by City, if, upon a determination by City Engineer, completion of specific Works of Improvements or other requirements associated with the development of the Property have not been completed to City Engineer’s satisfaction.
2.3. Force Majeure. Notwithstanding the provisions of Section 2.1, Subdivider’s time for commencement and completion of the Works of Improvement shall be extended for the period of any enforced delay caused due to circumstances beyond the control and without the fault of Subdivider, including without limitation to the extent applicable adverse weather conditions, flood, earthquakes, strikes, lockouts, acts or failures to act of a public agency (including City), required changes to the scope of work required by City, and similar causes; provided, however, that the period of any enforced delay hereunder shall not include any period longer than five (5) days prior to City’s receipt of a written notice from Subdivider or its contractor detailing the grounds for Subdivider’s claim to a right to extend its time for performance hereunder. City Engineer shall determine the length of all claims of Force Majeure and City Engineer’s decision shall be final.
2.4. Continuous Work. After commencement of construction of the Works of Improvement (or separate portion thereof), Subdivider shall cause such work to be diligently pursued to completion, and shall not abandon the work for a consecutive period or more than thirty (30) days, events of Force Majeure and suspensions pursuant to Section 1.13 excepted.
01181.0005/902657.3 7
3. Labor.
3.1. Labor Standards. This Agreement is subject to, and Subdivider in constructing the Works of Improvement agrees to comply with, all of the applicable provisions of the Labor Code , worker compensation, and various other mandatory labor requirements pursuant to California law. Subdivdier has been alerted to the requirements of California Labor Code section 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements if it is determined that this Agreement constitutes a public works contract. It shall be the sole responsibility of the Subdivider to determine whether to pay prevailing wages for any or all work required by this Agreement. As a material part of this Agreement, Subdivider to assume all risk of liability arising from any decision not to pay prevailing wages for work required by this Agreement. .
Subdivider shall expressly require all contractors and subcontractors to comply with the provisions of this Section with respect to Works of Improvement.
3.2. Nondiscrimination. In accordance with the California Fair Employment and Housing Act (“FEHA”), California Government Code Section 12940 et seq., Subdivider agrees that Subdivider, its agents, employees, contractors, and subcontractor performing any of the Works of Improvement shall not discriminate, in any way, against any person on the basis of race, ethnicity, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
Subdivider shall expressly require compliance with the provisions of this Section in all agreements with contractors and subcontractors for the performance of this Agreement.
3.3. Licensed Contractors. Subdivider shall cause all of the Works of Improvement to be constructed by contractors and subcontractors with valid California Contractors’ licenses for the type of work being performed. All of Subdivider’s contractors and subcontractors shall obtain a valid City of Morro Bay business license prior to performing any work pursuant to this Agreement. Subdivider shall provide City Engineer with a list of all of its contractors and subcontractors prior to initiating any work, and all valid Contractor’s licenses and business licenses issued thereto as a condition of constructing the Works of Improvements.
3.4. Worker’s Compensation. Subdivider shall cause every contractor and subcontractor performing any of the Works of Improvement to carry Workers’ Compensation Insurance as required by the Labor Code of the State of California and shall cause each such contractor and subcontractor to submit to City a Certificate of Insurance verifying such coverage prior to such contractor or subcontractor entering onto the job site.
4. Security.
4.1. Required Security.
(a) Concurrently with the delivery of this Agreement to City, Subdivider shall deliver to City the following bonds, letters of credit, instruments of credit (assignment of deposit account) or other security satisfying the requirements of the applicable provisions of this Section 4 below (“Security Instruments”):
01181.0005/902657.3 8
(i) A Security Instrument securing Subdivider’s faithful performance of all of the Works of Improvement (“Faithful Performance Security Instrument”), in the amount of $ 473,018.06 equal to 100% of the Estimated Construction Cost (specified in Section
1.1.)
(ii) A Security Instrument guaranteeing the payment to contractors, subcontractors, and other persons furnishing labor, materials, and/or equipment (“Labor and Materials Security Instrument”) with respect to the Works of Improvement in an amount equal to $ 236,509.30 equal to 50% of the Estimated Construction. (iii) A Security Instrument guaranteeing the payment of the cost of setting monuments as required in Section 1.4 in the amount of $2,000 equal to 100% of the cost thereof.
(b) Required Security Instrument for Maintenance and Warranty. Prior to City Council’s acceptance of the Works of Improvement and recordation of a Notice of Acceptance, Subdivider shall deliver a Security Instrument warranting the work accepted for a period of one (1) year following the recordation of the Notice of Acceptance (“Maintenance and Warranty Security Instrument”), in the amount of $ 70,95.71, which is equal to fifteen percent (15%) of the Estimated Construction Cost.
(c) Form of Security Instruments. All Security Instruments shall be in the amounts required under Section 4.1, as applicable, shall meet the following minimum requirements, and otherwise shall be in a form provided by City or otherwise approved by City Attorney:
(d) Bonds. For Security Instruments provided in the form of bonds, any such bond must be issued and executed by an insurance or bonding company authorized to transact surety business in the State of California. Any company acting as surety shall have a minimum rating of A-IX, as rated by the current edition of Best’s Key Rating Guide published by A.M. Best’s Company, Oldwick, New Jersey, 08858. The form of the bond must be acceptable to City. (e) Letters of Credit. For Security Instruments which are letters of credit, any letter of credit shall be an original separate unconditional, standby, irrevocable and transferable commercial letter of credit issued by a financial institution with offices in the State of California and reasonably acceptable to City. Any such letter of credit shall specifically permit City to draw on same (i) by unilateral certification of City Engineer of City that Subdivider is in default under its payment or performance obligations hereunder; or (ii) in the event Subdivider fails to deliver a replacement letter of credit not less than thirty (30) days prior to the date of expiration of any such letter of credit. Any letter of credit shall also be subject to the provisions of Section 4.4.
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(f) Instrument of Credit. If a Security Instrument involves an assignment of a deposit account as security to City involving funds on deposit (in the amount of the Estimated Construction Costs) in one or more bank accounts with financial institutions acceptable to City (“Instrument of Credit”), Subdivider shall execute a security agreement in the form required by City Attorney and the financial institution shall execute and deliver to City a holder agreement in a form acceptable to City Attorney.
(g) General Requirements for all Security Instruments.
(i) Payments under any Security Instruments shall be required to be made (and, with respect to bonds, litigation shall be required to be instituted and maintained) in the County of San Luis Obispo, State of California (and the Security Instrument shall so provide).
(ii) Each Security Instrument shall have a minimum term of one (1) year after the deadline for Subdivider’s completing the Works of Improvement in accordance with Section 2.1 (other than
Instruments of Credit, which shall have no defined term or expiration date).
(iii) Each Security Instrument shall provide that changes may be made in the Works of Improvement pursuant to the terms of this Agreement without notice to any issuer or surety and without affecting the obligations under such Security Instrument. (iv) If the Subdivider seeks to replace any Security Instrument another Security Instrument, the replacement shall: (1) comply with all the requirements for security in this Agreement; (2) be provided by the Subdivider to City Engineer; and (3) upon its written acceptance by City Engineer, be deemed a part of this Agreement. Upon City Engineer’s acceptance of a replacement security, the former security shall be released by City upon Subdivider’s written request.
(v) Bonds shall be released upon the recording of the Notice(s) of Approval, if not required prior under this Agreement. Upon such release no Bonds shall be carried forward.
4.2. Subdivider’s Liability. While no action of Subdivider shall be required in order for City to realize on its security under any Security Instrument, Subdivider agrees to cooperate with City to facilitate City’s realization under any Security Instrument, and to take no action to prevent City from such realization of any Security Instrument. Notwithstanding the giving of any Security Instrument or the subsequent expiration of any Security Instrument or any failure by any surety or financial institution to perform its obligations with respect thereto, Subdivider shall be liable for performance under this Agreement and for payment of the cost of the labor and materials for the improvements required to be constructed or
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installed hereby and shall, within ten (10) days after written demand therefor, deliver to City such substitute security as City shall require in accordance with the requirements in this Section 4.
4.3. Letters of Credit.
(a) In the event a letter of credit is given pursuant to Section 4.1(e), City shall be entitled to draw on any such letter of credit if a replacement letter of credit (expiring in not less than one (1) year, unless City agrees to a lesser term in City’s sole and absolute discretion) is not delivered not less than thirty (30) days prior to the expiration of the original letter of credit, such substitute letter of credit being in the same amount and having the terms and conditions as the initial letter of credit delivered hereunder, issued by a financial institution reasonably acceptable to City as of the date of delivery of the replacement letter of credit.
(b) In the event of draw by City on a letter of credit, City may elect, in its reasonable discretion, to apply any such funds drawn to the obligations secured by such letter of credit or to hold such funds in an account under the control of City and in City’s name, with no interest accruing thereon for the benefit of the Subdivider. If City elects to hold the funds in an account pursuant to the foregoing, City may thereafter at any time elect instead to apply such funds as provided in the foregoing. If City allows the account to be in Subdivider’s name, then Subdivider agrees and hereby grants City a security interest in such account to the extent required for City to realize on its interests therein, and agrees to execute and deliver to City any other documents requested by City in order to evidence the creation and perfection of City’s security interest in such account including a holder agreement executed by the financial institution. At such time as no default of Subdivider exists under this Agreement and upon delivery to City of a replacement letter of credit in accordance with the requirements in this Agreement, City shall promptly release any held and unapplied funds held by City to Subdivider.
4.4 Release of Security Instruments. City shall release all Security Instruments consistent with Government Code Sections 66499.7 and 66499.8 and as follows:
(a) City shall release the Letter of Credit Faithful Performance Security Instrument and Labor and Materials Security Instrument when all of the following have occurred:
(i) Subdivider has made written request for release and provided evidence of satisfaction of all other requirements in this Section
4.5;
(ii) The Works of Improvement have been accepted by recordation of Notice(s) of Acceptance;
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(iii) Subdivider has delivered the Maintenance and Warranty Security Instrument; and
(iv) After passage of the time within which lien claims are required to be made pursuant to Title 3 (commencing with Section 9000) of Part 6 of Division 4 of the Civil Code of the State of California. If lien claims have been timely filed, City shall hold the Labor and Materials Security Instrument until such claims have been resolved, Subdivider has provided a statutory bond, or otherwise as required by applicable law.
(c) City shall release the Maintenance and Warranty Security Instrument upon Subdivider’s written request upon the expiration of the warranty period as specified in this Agreement and settlement of any claims filed during the warranty period. (d) City shall release any Letter of Credit at the time of recordation of the Notice(s) of Acceptance.
(e) City shall release the Security Instrument guaranteeing payment of the cost of setting monuments required pursuant to Section 4.2(a)(ii) immediately upon completion of such work, but not later than the recordation of the Notice(s) of Acceptance.
(f) Upon release of any Security Instrument, no such Security Instrument shall be carried forward
5. Cost of Construction and Provision of Inspection Service.
5.1. Subdivider Responsible for All Costs of Construction. Subdivider shall be responsible for payment of all costs incurred for construction and installation of the Works of Improvement. In the event Subdivider is entitled to reimbursement from City for any of the Works of Improvement, such reimbursement shall be subject to a separate Reimbursement Agreement to be entered into between Subdivider and City prior to construction of the Works of Improvement.
5.2. Payment to City for Cost of Related Inspection and Engineering Services.
Subdivider shall reimburse City promptly upon demand for all of City’s costs reasonably incurred in having its authorized representative make the usual and customary inspections of the Works of Improvement. In no event shall Subdivider be entitled to additional inspections or a final inspection and acceptance of any of the Works of Improvement until all City reasonable fees and charges have been fully paid, including without limitation, charges for applicable penalties and additional required inspections.
6. Acceptance of Offers of Dedication. City Council shall pass as appropriate resolution or resolutions accepting all offers of dedication shown on the Map for the Property, with acceptance to become effective upon completion and acceptance by City of the Works of Improvement (“Notice of Acceptance”), which shall not be unreasonably withheld. Such resolution(s) shall authorize City Clerk to execute the Certificate made a part of the Map regarding said acceptance of the offer of dedication.
7. Warranty of Work. Subdivider warranty all Works of Improvement against defective materials and workmanship for a period of one (1) year from the date of final acceptance of
01181.0005/902657.3 12
such Works of Improvement. If any of the Works of Improvement should fail or prove defective within said one (1) year period due to any reason other than improper maintenance, or if any settlement of fill or backfill occurs, or should any portion of the Works of Improvement fail to fulfill any requirements of the Plans, Subdivider, within fifteen (15) days after written notice of such defects, or within such shorter time as may reasonably be determined by City in the event of emergency, shall, or shall cause its contractor to, commence to repair or replace the same together with any other work which may be damaged or displaced in so doing. Should Subdivider fail to commence such remedy of defective material and/or workmanship or commence to make replacements or repairs within the period of time set forth above, City may make such repairs and replacements and the actual cost of the required labor and materials shall be chargeable to and payable by Subdivider. The warranty provided herein shall be not in lieu of, but in addition to any warranties or other obligations imposed by applicable law.
8. Default.
8.1. Default by Subdivider. Default by Subdivider (“Default”) shall include, but not be limited to:
(a) Subdivider’s failure to timely commence construction of Works of Improvement in accordance with Section 2.1;
(b) Subdivider’s failure to timely complete construction of the Works of Improvement in accordance with Section 2.1;
(c) Subdivider’s failure to continuously perform construction of the Works of Improvements once commenced in accordance with Section 2.4; (d) Subdivider’s insolvency, appointment of a receiver, or the filing of any petition in bankruptcy, either voluntary or involuntary, which Subdivider fails to discharge within ninety (90) days;
(e) Prior to final acceptance of the Works of Improvement, the commencement of a foreclosure action against the subdivision or a portion thereof, or any conveyance in lieu or in avoidance of foreclosure; or (f) Subdivider’s failure to perform any other obligation under this Agreement within ten (10) days after receipt of written notice from City of such failure, subject to Force Majeure events.
8.2. Remedies. City reserves all remedies available to it at law (excluding rights relating to reversions to acreage) or in equity upon a Default by Subdivider. City shall have the right, subject to this Section, to draw upon or use the appropriate security to mitigate City’s damages for a Default. City’s right to draw upon or use the security is in addition to any other remedy available to City. The parties acknowledge that the estimated costs and security amounts may not reflect the actual cost of construction of the improvements and, therefore, City’s damages for Subdivider’s Default shall be measured by the cost of completing the required Improvements. City may use the sums provided by the Security Instrument(s) for completion of the Works of Improvement in accordance with the Plans.
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Upon a Default, City may, in its sole discretion and without liability, take over the work and complete the Works of Improvement, by contract or by any other method City deems appropriate, in accordance with the Plans at the reasonable expense of the SubdividerNotice of Violation. The Subdivider’s failure to comply with the terms of this Agreement constitutes Subdivider’s consent for City to file a notice of violation against all the lots in the Subdivision.
8.3. Remedies Not Exclusive. In any case where this Agreement provides a specific remedy to City for a Default, the Subdivider agrees that the choice of remedy or remedies for Subdivider’s Default shall be in the discretion of City. Additionally, any remedy specifically provided in this Agreement shall be in addition to, and not exclusive of, City’s right to pursue any other administrative, legal, or equitable remedy to which it may by entitled.
8.4. Attorney’s Fees and Costs. In the event of any Default of Subdivider, Subdivider agrees to pay all costs and expenses incurred by City in securing performance of such obligations, including costs of suit and reasonable attorney’s fees. In the event of any dispute arising out of Subdivider’s performance of its obligations under this Agreement or under any of the Security Instruments referenced herein, the prevailing party in such action, in addition to any other relief which may be granted, shall be entitled to recover its reasonable attorney’s fees and costs. Such attorney’s fees and cost shall include fees and costs on any appeal, and in addition a party entitled to attorney’s fees and costs shall be entitled to all other reasonable costs incurred in investigating such action, taking depositions and discovery, retaining expert witnesses, and all other necessary and related costs with respect to the litigation. All such fees and costs shall be deemed to have accrued on commencement of the action and shall be enforceable whether or not the action is prosecuted to judgment.
8.5. Waiver. No waiver by City of any breach or default by the Subdivider shall be considered valid unless in writing, and no such waiver by City shall be deemed a waiver of any subsequent breach or default by the Subdivider.
9. Indemnity/Hold Harmless. City or any officer, employee or agent thereof shall not be liable for any injury to persons or property occasioned by reason of the acts or omissions of Subdivider, its agents, employees, contractors and subcontractors in the performance of this Agreement. Subdivider further agrees to protect, defend, indemnify and hold harmless City, its officials, boards and commissions, and members thereof, agents, and employees from any and all claims, demands, causes of action, liability or loss of any sort, because of, or arising out of, acts or omissions of Subdivider, its agents, employees, contractors and subcontractors in the performance of this Agreement, including all claims, demands, causes of action, liability or loss because of or arising out of, in whole or in part, the design or initial construction of the Works of Improvement (but not the failure to maintain or repair such Works of Improvement); excepting such claims, demands, causes of action, liability or loss arising out of the gross negligence or wilful misconduct of City, its officials, boards, commissions, the members thereof, agents and employees. This indemnification and agreement to hold harmless shall extend to injuries to persons and damages or taking of property resulting from the design or construction of said Works of Improvement, and in addition, to adjacent property owners as a consequence of the diversion of waters from the
01181.0005/902657.3 14
design and construction of public drainage systems, streets and other improvements included in the Works of Improvement, if any. Recordation of the Notice of Acceptance by City for the Improvements shall not constitute an assumption by City of any responsibility for any damage or taking covered by this Section. City shall not be responsible for the design or construction of the Dedication Property or the improvements pursuant to the approved improvement plans or map, regardless of any negligent action or inaction taken by City in approving the plans or map, unless the particular improvement design was specifically required by City over written objection by Subdivider submitted to City Engineer before approval of the particular improvement design, which objection indicated that the particular improvement design was dangerous or defective and suggested an alternative safe and feasible design.
After recordation of the Notice of Acceptance, the Subdivider shall remain obligated to eliminate any latent defect in design or dangerous condition caused by the design or construction defect; however, Subdivider shall not be responsible for routine maintenance or repairs (except to the extent specified in Section 4.1(b)). The provisions of this Section shall remain in full force and effect for ten (10) years following the recordation of the Notice of Acceptance by City of the Works of Improvements. It is the intent of this section that Subdivider shall be responsible for all liability for design and construction of the improvements installed pursuant to this Agreement. The improvement security shall not be required to cover the provisions of this Section.
Subdivider shall reimburse City for all costs and expenses, including but not limited to fees and charges of architects, engineers, attorneys, and other professionals, and court costs, incurred by City in enforcing this Section.
10. Subdivider’s Indemnity of Project Approval. Subdivider shall defend, indemnify, and hold harmless City and its agents, officers, and employees from any claim, action, or proceeding against City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of City, advisory agency, appeal board, or legislative body concerning Subdividers acts or omissions regarding the Subdivision. City shall promptly notify the Subdivider of any claim, action, or proceeding and cooperate fully in the defense of any such claim, action, or proceeding. In the event City fails to promptly notify the Subdivider of any claim, action, or proceeding, or if City fails to cooperate in the defense, the Subdivider shall not thereafter be responsible to defend, indemnify, or hold harmless City. Nothing in this Section prohibits City from participating in the defense of any claim, action, or proceeding if City bears its own attorney’s fees and costs and defends the action in good faith. Subdivider shall not be required to pay or perform any settlement unless the settlement is approved by the Subdivider.
11. Insurance Requirements. Subdivider, at Subdivider’s sole cost and expense and for the full term of this Agreement and any extensions thereto, shall obtain and maintain all of the following minimum insurance requirements in a form approved by City’s authorized designee for Risk Management prior to commencing any work:
(a) Commercial Liability. Commercial General Liability policy with a minimum $1 million combined single limit for bodily injury and property damage providing all of the following minimum coverage without deductibles:
01181.0005/902657.3 15
(i) Premises operations; including X, C, and U coverage; (ii) Owners’ and contractors’ protection;
(iii) Blanket contractual;
(iv) Completed operations; and
(v) Products.
(b) Automobile Coverage. Commercial Business Auto policy with a minimum $1 million combined single limit for bodily injury and property damage, providing all of the following minimum coverage without deductibles:
(i) Coverage shall apply to any and all leased, owned, hired, or nonowned vehicles used in pursuit of any of the activities associated with this Agreement; and
(ii) Any and all mobile equipment including cranes which are not covered under the above Commercial Business Auto policy shall have said coverage provided under the Commercial General Liability policy.
(c) Employer Requirements. Workers Compensation policy in accordance with the laws of the State of California and providing coverage for any and all employees of the Subdivider:
(i) This policy shall provide coverage for Workers’ Compensation (Coverage A); Pursuant to Labor Code section 1861, Subdivider by executing this Agreement certifies: “I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers’ Compensation or to undertake self-insurance in accordance with the provisions of that Code, and I will comply with such provisions before commencing the performance of the work of this contract.”
(ii) Prior to commencement of work, the Subdivider shall file with City’s Risk Manager a Certificate of Insurance or certification of permission to self-insure workers’ compensation conforming to the requirements of the Labor Code.
(d) Endorsements. All of the following endorsements are required to be made a part of each of the above-required policies as stipulated below:
(i) “City of Morro Bay, its officers, employees and agents are hereby added as additional insureds.”
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(ii) “This policy shall be considered primary insurance with respect to any other valid and collectible insurance City may possess, including any self- insured retention City may have and any other insurance City does possess shall be considered excess
insurance only.”
(iii) “This insurance shall act for each insured and additional insured as though a separate policy has been written for each. This, however, will not act to increase the limit of the insuring company.”
(iv) “Thirty (30) days prior written notice of cancellation shall be given to City of Morro Bay in the event of cancellation and/or reduction in coverage, except that ten (10) days prior written notice shall apply in the event of cancellation for non-payment of premium.” Such notice shall be sent to the Risk Manager at the address indicated in Subsection f below.
(v) Subsection d(iv) hereinabove “Cancellation Notice” is the only endorsement required of the Workers’ Compensation and
Employers’ Liability policy.
(e) Admitted Insurers. All insurance companies providing insurance to the Subdivider under this Agreement shall be admitted to transact the business of insurance by the California Insurance Commissioner.
(f) Proof of Coverage. Copies of all required endorsements shall be attached to the Certificate of Insurance which shall be provided by the Subdivider’s insurance company as evidence of the coverage required herein and shall be mailed to:
City of Morro Bay
Risk Management
595 Harbor Ave
Morro Bay CA 93442
12. Environmental Warranty.
12.1. Prior to the acceptance of any dedications or Works of Improvement by City, Subdivider shall provide City with a written warranty in a form substantially similar to Exhibit B attached hereto (“Warranty Agreement”). If for any reason, the Warranty Agreement is not delivered to City for any reason prior to the recordation of the Notice of Acceptance, Subdivider shall promptly execute same upon City’s request.
12.2. Subdivider shall give written notice to City promptly following:
(a) Subdivider obtaining knowledge of any proceeding or investigation by any federal, state or local governmental authority with respect to the presence of any hazardous substance on the portion of the Property to be dedicated
01181.0005/902657.3 17
(“Dedication Property”) or the migration thereof from or to any other property adjacent to the Property;
(b) Any claims made or threatened in writing by any third party against City or the Dedication Property relating to any loss or injury resulting from any hazardous substance; and
(c) Subdivider’s discovery of any occurrence or condition on any property Subdivider owns and adjoining the Dedication Property that Subdivider knows or should have known causes the Dedication Property or any part thereof to be subject to any restrictions on its ownership, occupancy, use for the purpose for which it is intended, transferability or suit under any environmental law.
13. General Provisions.
13.1. Successors and Assigns. This Agreement shall be binding upon all successors and assigns to Subdivider’s right, title, and interest in and to the Property and any portion thereof. Subdivider hereby consents to City recording the Agreement as official records of San Luis Obispo County, affecting fee title interest to the Property to provide constructive notice of the rights and obligations incurred by Subdivider in City’s approval of this Agreement. In the event the Property is subsequently conveyed by Subdivider to a third party prior to completion of the Works of Improvement, whereby the third party is intended to assume Subdivider’s responsibilities with regard to this Agreement, (“Replacement Subdivider”), the rights and obligations of this Agreement shall transfer to the Replacement Subdivider; however, the Security Instruments required pursuant to Section 4 of this Agreement, and furnished by Subdivider as a condition of City’s approval of this Agreement, shall remain Subdivider’s responsibility to maintain until such time as Subdivider and its Replacement Subdivider enter into a Transfer and Assignment of Subdivision Agreement, (“Transfer Agreement”), to acknowledge the transfer of fee title to the Property from the Subdivider to its Replacement Subdivider, and to acknowledge the rights and obligations associated with this Agreement upon the Replacement Subdivider, including Replacement Subdivider’s responsibility to furnish replacement Security Instruments meeting City’s approval pursuant to Section 4 of this Agreement. Until such time as a Transfer Agreement, meeting City’s approval, is executed by Subdivider and its Replacement Subdivider, and replacement Security Instruments meeting City’s approval are furnished by the Replacement Subdivider, Subdivider retains sole responsibility for maintaining all Security Instruments required pursuant to Section 4 of this Agreement.
13.2. No Third Party Beneficiaries. This Agreement is intended to benefit only the parties hereto and their respective successors and assigns. Neither City nor Subdivider intend to create any third-party beneficiary rights in this Agreement in any contractor, subcontractor, member of the general public, or other person or entity.
13.3. No Vesting Rights. Performance by the Subdivider of this Agreement shall not be construed to vest Subdivider’s rights with respect to any change in any zoning or building law or ordinance.
01181.0005/902657.3 18
13.4. No Agency Neither Subdivider nor Subdivider’s agents, contractors, or subcontractors are agents or contractors of City in connection with the performance of Subdivider’s obligations under this Agreement. Additionally, City is not an agent of Subdivider and has no authority to act on behalf of Subdivider.
13.5. Time of the Essence. Time is of the essence of Subdivider’s performance of all of its obligations under this Agreement.
13.6. Notices. Unless otherwise specified in this Agreement, all notices required or provided for under this Agreement shall be in writing and delivered in person or sent by mail, postage prepaid and addressed as provided in this Section. Notice shall be effective on the date it is delivered in person, or, if mailed, then two (2) days after deposit in the United States Mail. Notice shall be provided to the persons listed on the Summary (pages a and b) of this Agreement by the parties for this purpose. Either party may provide a new designated representative and/or address by written notice as provided in this Section.
13.7. No Apportionment. Nothing contained in this Agreement shall preclude City from expending monies pursuant to agreements concurrently or previously executed between the parties, or from entering into agreements with other subdividers for the apportionment of costs of water and sewer mains, or other improvements pursuant to the provisions of City ordinances providing therefore. Nor shall anything in the Agreement commit City to any such apportionment.
13.8. Severability. If any portion of this Agreement is held invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect unless amended or modified by mutual written consent of the parties.
13.9. Captions. The captions of this Agreement are for convenience and reference only and shall not be used in the interpretation of any provision of this Agreement.
13.10. Incorporation of Recitals. The recitals to this Agreement are hereby incorporated into the terms of this Agreement.
13.11. Applicable Law. This Agreement shall be subject to the laws of the State of California.
13.12. Construction. This Agreement shall be construed according to its fair meaning as if prepared by all parties to this Agreement. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
13.13. Entire Agreement. This Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof, except as may be expressly provided herein.
13.14. Waivers. All waivers of the provisions of this Agreement must be in writing and signed by an authorized representative of the party to be charged.
01181.0005/902657.3 19
13.15. Amendments and Modifications. Any amendment or modification of this Agreement must be in writing and signed by the parties.
13.16. Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall be deemed one original.
13.17. Authority. The parties executing this Agreement on behalf of Subdivider warrant that (i) the party is duly organized and existing, (ii) the person(s) executing this Agreement on Subdivider’s behalf are duly authorized to execute and deliver this Agreement; (iii) by so executing this Agreement, Subdivider is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which Subdivider is bound.
The parties executing this Agreement on behalf of City warrant that (i) the party is duly organized and existing, (ii) the person(s) executing this Agreement on City’s behalf are duly authorized to execute and deliver this Agreement; (iii) by so executing this Agreement, City is formally bound to the provisions of this Agreement, and (iv) the entering into of this Agreement does not violate any provisions of any other Agreement to which City is bound.
13.18. Exhibits. Exhibits A, and B attached hereto are incorporated herein by reference.
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01181.0005/902657.3
EXHIBIT A
LEGAL DESCRIPTION FOR PROPERTY
That certain real property in the City of Morro Bay, County of San Luis Obispo, State of California legally described as follows:
Lot 124 of Tract No. 1996, in the City of Morro Bay, County of San Luis Obispo, State of California, according to map recorded October 8, 1996 in Book 17, Page 83 of Maps; and as per Certificate of Correction recorded December 26, 1997 as Instrument No. 1997- 072954 of Official Records.
01181.0005/902657.3
EXHIBIT B
CONDITIONS
The Conditions applicable to Subdivider for development of the Property pursuant to CDP21- 036 and MAJ21-005 (which modified Conditional Use Permit UP0- 470 and S00-127) for Vesting Tentative Map #2859 are set forth requirements as listed on Resolution No. PC 20- 18 and the approved Public Improvement Plans.
01181.0005/902657.3 1
EXHIBIT B
WARRANTIES TO CITY
TRACT NO. 2859
(“Subdivision”)
Morro Bay Ventures, LLC.
(“Subdivider”)
ENVIRONMENTAL WARRANTY
Defined terms not specifically defined herein shall have the meaning set forth in the Subdivision Improvement Agreement between City and Subdivider for the Subdivision.
As a condition precedent to acceptance of the dedications and public improvements to be conveyed by the Subdivider to City of Morro Bay for the Subdivision, Subdivider hereby warrants to City of Morro Bay that to the best of Subdivider’s knowledge:
1. Neither the Dedication Property nor Subdivider are in violation of any environmental law, and neither the Dedication Property nor the Subdivider are subject to any existing, pending or threatened investigation by any federal, state or local governmental authority under or in connection with the environmental laws relating to the Dedication Property.
2. Neither Subdivider nor any other person with Subdivider’s permission to be upon the Dedication Property has used, generated, manufactured, produced, or released, on, under, or about the Dedication Property, any Hazardous Substance except in compliance with all applicable environmental laws. For the purposes of this warranty, the term “Hazardous Substances” shall mean any substance or material which is capable of posing a risk of injury to health, safety or property, including all those materials and substances designated as hazardous or toxic by any federal, state or local law, ordinance, rule, regulation or policy, including but not limited to, all of those materials and substances defined as “Toxic Materials” in Sections 66680 through 66685 of Title 22 of the California Code of Regulations, Division 4, Chapter 30, as the same shall be amended from time to time, or any other materials requiring remediation under federal, state or local laws, ordinances, rules, regulations or policies.
3. Subdivider has not caused or permitted the release of and has no knowledge of the release or presence of, any Hazardous Substance on the Dedication Property or the migration of any hazardous substance from or to any other property adjacent to the Dedication Property.
4. Subdivider’s prior and present use of the Dedication Property has not resulted in the release of any Hazardous Substance on the Dedication Property in violation of any environmental laws.
RECORDING REQUESTED BY, AND
WHEN RECORDED, MAIL TO:
INMAN LAW GROUP, LLP
Bruce R. Inman, Esq.
3053 Freeport Blvd. #309
Sacramento, California 95818
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
THE VIEW AT MORRO BAY
If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status,disability, veteran or military status, genetic information,national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code.
Lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older personsshall not be construed as restrictions based on familial status.
TABLE OF CONTENTS
TO
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
THE VIEW AT MORRO BAY
Page Number
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Definitions, Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Accessory Dwelling Unit; ADU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Additional Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Architectural Review Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 Architectural Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.7 Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.8 Association Maintenance Area . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 Bylaws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 Conditions of Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.13 County. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.14 Declarant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.15 Declaration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.16 Development. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.17 Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.18 Governing Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.19 Improvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.20 Junior Accessory Dwelling Units; JADU. . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.21 Lot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.22 Member. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.23 Member in Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.24 Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.25 Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.26 Record; Recorded; Recordation; Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.27 Residence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.28 Resident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.30 Subdivision Map . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 ARTICLE 2 HOMEOWNERS ASSOCIATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Management and Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Association Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Classes of Membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The View at Morro Bay
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2.4 Voting Rights of Classes of Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.6 Association Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.7 Manager and Other Personnel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.8 Capital Improvements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.9 Transfer or Dedication of Association Maintenance Area to Public Agency or Utility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.10 Borrow Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.11 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.12 Limitation of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ARTICLE 3 ASSOCIATION MAINTENANCE AREA. . . . . . . . . . . . . . . . . . . . . . 10
3.1 Purpose of Association Maintenance Area . . . . . . . . . . . . . . . . . . . . . . . . 10
3.2 Acceptance of Association Maintenance Area . . . . . . . . . . . . . . . . . . . . . 10
3.3 Owners Non-Exclusive Easements of Enjoyment . . . . . . . . . . . . . . . . . . 10
3.4 Association Maintenance Area Construction . . . . . . . . . . . . . . . . . . . . . . 11 ARTICLE 4 USE RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Offensive Conduct, Nuisances, Noise. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.2 Residential Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3 Restriction on Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.4 Use of the Association Maintenance Area . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Requirement of Architectural Approval . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.6 Sports Apparatus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.7 Window Coverings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.8 Signs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 Antennas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.10 Trash Disposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.11 Vehicles and Parking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.12 Garages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.13 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.14 Animals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.15 Rental of Residences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.16 Clotheslines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.17 Activities Affecting Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.18 No Partition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.19 Family Day Care Centers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.20 Community Care Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.21 Variances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.22 Exterior Fires and Burning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.23 Flammable Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.24 Storage and Other Restrictions for Side Yards, Porches and Front Yards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 ARTICLE 5 CONSTRUCTION STANDARDS AND DISCLOSURES . . . . . . . . . 20
5.1 Approval by Architectural Review Committee. . . . . . . . . . . . . . . . . . . . . 20
5.2 Accessory Dwelling Units; ADU;
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Junior Accessory Dwelling Units; JADU. . . . . . . . . . . . . . . . . . . . . . . . . 20
5.3 Drainage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.4 Photovoltaic Reception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.5 Exterior Lighting and Fixtures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.6 Adjacent Land Uses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.7 Assessment District. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.7 Application of Certain Provisions of Cloister CC&Rs. . . . . . . . . . . . . . . 22 ARTICLE 6 ASSESSMENTS AND LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1 Covenant of Owner. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.2 Creation of Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.3 Purpose of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.4 Authority of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.5 Regular Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.6 Special Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.7 Reimbursement Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.8 Enforcement Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.9 Failure to Fix Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.10 Offsets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.11 Delinquent Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.12 Collection of Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.13 Certificate of Satisfaction and Release of Lien. . . . . . . . . . . . . . . . . . . . . 27
6.14 Priority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.15 Association Funds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.16 Waiver of Exemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ARTICLE 7 MAINTENANCE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1 Association Maintenance Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . 27
7.2 Owners’ Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.3 Owner Maintenance of Fencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.4 Owner Failure to Maintain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.5 Owner Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.6 Authority for Entry of Lot. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.7 Cooperative Maintenance Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7.8 Association Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.9 Board Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
7.10 Inspection of Property Maintained by Association . . . . . . . . . . . . . . . . . . 31 ARTICLE 8 ARCHITECTURAL CONTROL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.1 Submission of Plans and Specifications . . . . . . . . . . . . . . . . . . . . . . . . . . 31
8.2 Establishment of Architectural Review Committee . . . . . . . . . . . . . . . . . 32
8.3 Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.4 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.5 Architectural Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
8.6 Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.7 Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.8 Grant of Approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 The View at Morro Bay
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8.9 Form of Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8.10 Appeal of Denial to Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.11 Time for Architectural Review Committee Action. . . . . . . . . . . . . . . . . . 34
8.12 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.13 Completion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.14 Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
8.15 Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
8.16 Estoppel Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.17 Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.18 Variances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
8.19 Compliance with Governmental Requirements . . . . . . . . . . . . . . . . . . . . 37 ARTICLE 9 EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.1 Easements in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.2 Easements Granted by Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.3 General Association Easements for Maintenance, Repair and Replacement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
9.4 Utility Maintenance and Repair Easements . . . . . . . . . . . . . . . . . . . . . . . 38
9.5 Encroachment Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.6 Private Access and Utility Easement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.7 Private Reciprocal Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.8 Fire Department Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.9 Easements Reserved and Granted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
9.10 Water Meter Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ARTICLE 10 ENFORCEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.1 Violations as Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
10.2 Legal Principles Applicable to Enforcement . . . . . . . . . . . . . . . . . . . . . . 39
10.3 Owners’ Responsibility for Conduct and Damages . . . . . . . . . . . . . . . . . 39
10.4 No Avoidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.5 Rights and Remedies of the Association . . . . . . . . . . . . . . . . . . . . . . . . . 40
10.6 Disciplinary Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.7 Emergency Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.8 Alternative Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.9 Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.10 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
10.11 Costs and Attorneys’ Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.12 Owner Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.13 No Obligation to Enforce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
10.14 Enforcement by City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 ARTICLE 11 INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.1 Types of Insurance Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
11.2 Coverage Not Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.3 Copies of Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.4 Individual Owner’s Property Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 43
11.5 Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 The View at Morro Bay
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11.6 Adjustment of Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.7 Governmental Lender Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.8 Indemnification by Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
11.9 Indemnification of Owners by Association for Association Maintenance Area. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ARTICLE 12 DAMAGE OR DESTRUCTION; CONDEMNATION . . . . . . . . . . . 44
12.1 Damage to or Destruction of Association Maintained Improvements . . . 44
12.2 Damage to or Destruction of Owner Maintained Improvements . . . . . . . 45
12.3 Condemnation of Association Maintenance Area . . . . . . . . . . . . . . . . . . 45
12.4 Condemnation of Lots. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
12.5 Appraisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 ARTICLE 13 PROTECTION OF MORTGAGEES . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.1 Amendments Affecting Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.2 Default by Owner; Mortgagee’s Right to Vote. . . . . . . . . . . . . . . . . . . . . 46
13.3 Breach; Obligation After Foreclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
13.4 Right to Examine Books and Records of the Association . . . . . . . . . . . . 46
13.5 Declaration to Conform With Mortgagee Requirements . . . . . . . . . . . . . 46 ARTICLE 14 DECLARANT’S DEVELOPMENT RIGHT. . . . . . . . . . . . . . . . . . . . 46
14.1 Declarant’s Right to Develop the Development . . . . . . . . . . . . . . . . . . . . 46
14.2 Amendment of Development Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
14.3 Disclaimer of Declarant’s Representations. . . . . . . . . . . . . . . . . . . . . . . . 47
14.4 No Amendment or Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ARTICLE 15 AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.1 Amendment Before First Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.2 Amendment After First Conveyance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
15.3 Effective Date of Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
15.4 Reliance on Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 ARTICLE 16 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
16.1 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
16.2 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
16.3 Liberal Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
16.4 Statutory References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 EXHIBIT “A” ASSOCIATION MAINTENANCE AREA LANDSCAPE DIAGRAM EXHIBIT “B” SETTLEMENT AGREEMENT ACKNOWLEDGING
DEVELOPMENT IS NOT SUBJECT TO THE CLOISTERS
ARCHITECTURAL REVIEW COMMITTEE
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DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
THE VIEW AT MORRO BAY
This Declaration of Covenants, Conditions and Restrictions for The View at Morro Bay (the “Declaration”) is made by Morro Bay Ventures, LLC, a California limited liability company (“Declarant”).
RECITALS
A. Declarant is the owner of certain real property located in the City of Morro Bay, California, which is more particularly described as follows (the “Development”):
Lots 1 through 5, inclusive, as shown on that certain Subdivision Map entitled “Final Map Tract No. 2859”, Recorded on ________________________, in Book _____ of Maps, at Page _______, Official Records of San Luis Obispo County.
B. Declarant hereby declares that all of the Development shall be held, sold, conveyed, encumbered, hypothecated, leased, used, occupied, and improved subject to the following easements, restrictions, covenants, conditions, and equitable servitudes, all of which are imposed for the attractiveness and desirability of the Development in furtherance of a general plan for the protection, maintenance, subdivision, improvement, and sale of the Development, or any portion thereof.
C. The covenants, conditions, restrictions, reservations, easements, and equitable servitudes set forth herein are covenants running with the land pursuant to California Civil Code Section 1468 and shall be binding upon all persons having any right, title, or interest in any portion of the Development, and may be enforced by Declarant, the Association, or by any Owner. The Development is not a common interest development as defined by California Civil Code Section 4100, and is not subject to the provisions of the Davis-Stirling Common Interest Development Act (California Civil Code Section 4000 et seq.).
D. The Development consists of five (5) Lots with Residences to be constructed thereon.
This Declaration establishes a propertyowners association (the “Association”), of which the Owners of each Lot is a Member of the Association, and the Association will maintain the Association Maintenance Area within the Development for the benefit of the Owners and Residents. Association Maintenance Area shall include, but is not limited to, access road and paving, signage, lighting, centralized mailboxes, landscaping and irrigation of front yards, and perimeter landscaping and irrigation all of which are located within easements. All of the Residences shall be maintained in all respects by the Owner thereof.
E. The Development is subject to certain provisions of the Declaration of Covenants, Conditions, and Restrictions of The Cloisters, Morro Bay, California, Recorded October 8, 1996, as Document No. 1996-050337, Official Records of San Luis Obispo County (the “Cloisters CC&Rs”). As more particularly described in this Declaration, certain provisions in the Cloisters The View at Morro Bay
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CC&Rs are required by the City of Morro Bay in order to cause the Development to be consistent with all historic City subdivision map conditions of approval associated with the overall Cloisters development, and to ensure conformance with the Conditions of Approval for the Subdivision Map referenced in Recital A, above.
F. Declarant and current and former members of the design review committee established by the Cloisters CC&Rs entered into a settlement agreement and release of claims, a copy of which is attached as Exhibit “B”, wherein the Cloisters CC&Rs design review committee acknowledge and agree that the Development is not subject to the jurisdiction of the Cloisters CC&Rs design review committee. The Development is subject to the Architectural Review Committee as more particularly described in Article 8, below, and Article 5 of the Cloisters CC&Rs as more particularly described in Section 5.8, below.
ARTICLE 1 DEFINITIONS
1.1 Definitions, Generally. When the words and phrases described in thisArticle are used in the Declaration, they will have the meanings set forth in this Article. The singular shall include the plural and the plural the singular unless the context requires the contrary, and the masculine, feminine, and neuter shall each include the masculine, feminine, or neuter, as the context requires.
The use of the term “may” in this Declaration indicates discretion or choice, and the use of the term “shall” in this Declaration means imperative, mandatory or imposing an absolute duty. Except as otherwise provided herein, all capitalized terms used in this Declaration shall have the same meanings as set forth in this Article 1.
1.2 Accessory Dwelling Unit; ADU. “Accessory Dwelling Unit”, or “ADU” as defined in 65852.2 and 65852.22 of the California Government Code, respectively, shall mean an attached or a detached Residential dwelling unit that provides complete independent living facilities for one or more persons and is located on a Lot with a proposed or existing primary Residence.
1.3 Additional Charges. “Additional Charges” shall mean all costs, fees, charges, and expenditures, including without limitation, interest, late charges, attorneys’ fees, Recording and filing fees, and all other costs actually incurred by the Association in collecting and/or enforcing payment of Assessments, fines, and/or penalties.
1.4 Architectural Review Committee. “Architectural Review Committee” shallmean the committee created pursuant to Article 8 of this Declaration.
1.5 Architectural Rules. “Architectural Rules” shall mean the rules and regulations adopted by the Board pursuant to Section 8.5 of this Declaration.
1.6 Assessment. “Assessment” shall mean a charge levied by the Association against an Owner and their Lot as provided in Article 6 of this Declaration. “Assessment” shall include any or all of the following:
(a) Regular Assessments. Regular Assessments, which shall have the meaning set forth in Section 6.5 of this Declaration.
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(b) Enforcement Assessments. Enforcement Assessments, which shall have the meaning set forth in Section 6.8 of this Declaration.
(c) ReimbursementAssessments. ReimbursementAssessments,which shall have the meaning set forth in Section 6.7 of this Declaration. (d) Special Assessments. SpecialAssessments, which shall have the meaning set forth in Section 6.6 of this Declaration.
1.7 Association. “Association” shall mean The View at Morro Bay Homeowners Association, a California nonprofit mutual benefit corporation, its successors and assigns.
1.8 Association Maintenance Area. “Association Maintenance Area” shall mean access road and paving, signage, lighting, centralized mailboxes, landscaping and irrigation of front yards, and perimeter landscaping and irrigation all of which are located within easements. All Association Maintenance Area shall be subject to a non-exclusive maintenance easement in favor of the Association. The landscaping and landscape areas located within the Association Maintenance Area shall mean the front yard, side yard, and corner yards of each Lot, but does not include any fenced in yard areas, patios, or any other property or Improvements not included within the Association Maintenance Area that the Association is obligated to maintain.
1.9 Board. “Board” shall mean the governing body of the Association.
1.10 Bylaws. “Bylaws” shall mean the Bylaws of the Association as theymay be adopted by the Members and any duly-adopted amendments thereof. Unless the Members adopt a separate set of Bylaws, the provisions of Article 2, below, shall constitute the Association’s Bylaws.
1.11 City. “City” shall mean the City of Morro Bay, California, and its various departments, division, employees and representatives.
1.12 Conditions of Approval. “Conditions of Approval” shall mean those certain documents passed and adopted at regular meetings of the City of Morro Bay Community DevelopmentDepartment,more particularlyknown as Major Modification (MAJ21-005) andCoastal Development Permit (CDP21-036).
1.13 County. “County” shall mean San Luis Obispo County, California, and its various departments, divisions, employees and representatives.
1.14 Declarant. “Declarant” shall mean, Morro Bay Ventures, LLC, a California limited liability company. The term “Declarant” shall also mean any successor or assign of Declarant, provided a certificate, signed by Declarant and Declarant’s successor or assign, is Recorded against the portion of the Development which the successor or assign assumes the rights and duties of Declarant.
1.15 Declaration. “Declaration” shall mean this instrument, as it may be amended from time to time. If any Supplemental Declarations or Declarations of Annexation are approved and Recorded in accordance with Article 14, below, then following such Recordation any reference to The View at Morro Bay
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this Declaration shall mean this Declaration as amended and supplemented by the Supplemental Declaration(s) and any Declarations of Annexation.
1.16 Development. “Development” shall mean the real property described in Recital A, together with all Improvements now located or hereafter constructed or installed thereon, and all appurtenances thereto, together with any real property annexed to this Declaration pursuant to a Declaration of Annexation.
1.17 Director. “Director” shall mean a member of the Board.
1.18 Governing Documents. “Governing Documents” shall mean the articles of incorporation, Bylaws, Declaration, Rules (including the Architectural Rules), and the policies and resolutions duly adopted by the Board.
1.19 Improvement. “Improvement” shall mean all structures and improvements including without limitation grading, buildings, landscaping, paving, fences, walls, lighting, and signs.
1.20 Junior Accessory Dwelling Units; JADU. “Junior Accessory Dwelling Units”, or “JADU” as defined in 65852.2 and 65852.22 of the California Government Code, respectively, and shall mean a unit that is no more than five hundred (500) square feet in size and contained entirely within a single-family Residence.
1.21 Lot. “Lot” shall mean any plot of land shown upon the Subdivision Map.
1.22 Member. “Member” shall mean an Owner, and refer to membership in the Association.
1.23 Member in Good Standing. “Member in Good Standing” shall mean a Member of the Association who is current in the payment of all dues, Assessments, fines, penalties, and other charges imposed in accordance with the Governing Documents, and who is in compliance with all of the provisions of the Governing Documents.
1.24 Mortgage. “Mortgage” shall mean a deed of trust as well as a mortgage in the conventional sense. “First Mortgage” shall mean anyRecorded Mortgage on a Lot with first priority over other Mortgages on such Lot. “Mortgagee” shall refer to a beneficiary under a deed of trust as well as to a mortgagee in the conventional sense.
1.25 Owner. “Owner” shall mean any person, firm, corporation or other entity in which fee title to a Lot is vested as shown by the Official Records of the office of the County Recorder, including the purchaser under an installment land contract, but excluding those having such interest merely as security for the performance of an obligation. If a Lot is transferred or conveyed to a trust, the Owner is the trustee or the co-trustees of such trust. A person or entity is not an Owner due to:
(i) community property or other equitable rights not shown of Record; or (ii) rights of adverse possession not shown of Record. Where the context requires, the term “Owner” shall include the members of the Owner’s household and the Owner’s guests, tenants, lessees and invitees; provided, however, that such persons are not “Owners” for purposes of exercising voting rights in the Association.
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1.26 Record; Recorded; Recordation; Filed. “Record”, “Recorded”, “Recordation”, and “Filed” shall mean, with respect to any document, the recordation or filing of such document in the official records of the County Recorder’s office.
1.27 Residence. “Residence” shall mean a residential structure located upon a Lot which is designed for human residential use and occupancy.
1.28 Resident. “Resident” shall mean any person who resides in a Residence on a Lot within the Development whether or not such person is an Owner as defined in this Declaration.
1.29 Rules. “Rules” shall mean the rules and regulations governing the use, occupancy, management, administration, and operation of the Development or any part thereof as adopted and published by the Board from time to time, and the Architectural Rules as adopted and published by the Board from time to time.
1.30 SubdivisionMap. “SubdivisionMap” shallmean the final subdivision map Filed with the County Recorder for any portion of the Development.
ARTICLE 2 HOMEOWNERS ASSOCIATION
2.1 Management and Operation. The Association, through the Board, shall manage and operate the Development in accordance with the applicable provisions of the Governing Documents and the applicable provisions of California law. The Association shall have all of the powers set forth in the Governing Documents together with general power to do any and all things that a nonprofit mutual benefit corporation may lawfully do under the laws of the State of California, subject only to the limitations upon the exercise of such powers as are expressly set forth in the Governing Documents. The Association is not subject to the Davis-Stirling Common Interest Development Act (California Civil Code Section 4000 et seq.), even though numerous Governing Document provisions impose the same obligations as required by the Act.
2.2 Association Membership.
(a) Ownership Includes Membership. Every Owner of a Lot shall be a Member of the Association and shall remain a Member thereof until such time as their Lot ownership ceases for any reason. Membership shall be appurtenant to and may not be separated from ownership of aLot and shall not be transferred, encumbered, pledged, alienated, or otherwise hypothecated in any way, except in connection with the sale or encumbrance of the Lot to which it is appurtenant.
(b) Membership Meeting Notice. The annual meeting of the Members shall be held annually at a date and time established by the Board. Special meetings of the Members may be called at any time by the President or by the Board or pursuant to the written request of Members entitled to cast at least five percent (5%) of the total voting power of the membership. Written notice of annual and special membership meetings shall be mailed first class, postage prepaid, or otherwise delivered at least ten (10) but not more than ninety (90) days before such meeting, to each Member entitled to vote at such meeting, except that in the The View at Morro Bay
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case of a special meeting called pursuant to a written request of Members, notice of such special meeting shall be mailed or otherwise delivered within twenty (20) days after receipt of such written request by the Board, and the date of such special meeting shall be set by the Board and shall be not sooner than thirty-five (35) days nor later than ninety (90) days after the date of the Board’s receipt of such written request. Notice of meetings shall be addressed or otherwise delivered to the Member’s address last appearing on the books of the Association or supplied by such Member to the Association for the purpose of notice. Notice of any meeting of Members shall specify the date, hour, and place of the meeting, and the general nature of those matters which the Board intends to present for action by the Members. (c) Membership Meeting Quorum. The presence at any meeting, in person or by proxy, of Members entitled to cast at least a majority of the total voting power of the membership shall constitute a quorum for the transaction of any business. If, however, such quorum shall not be present or represented at any meeting, the Members otherwise entitled to vote at that meeting may not transact any business but may adjourn the meeting from time to time, to be reconvened at a subsequent date which is not less than five (5) days and not more than thirty (30) days from the time of the adjourned meeting, without notice other than announcement at the meeting, until a quorum shall be present or represented. At all meetings of the Members, each Member may vote in person or by proxy.
2.3 Classes of Membership. The Association shall have the following classes of membership:
(a) Class A Members. Each Owner, with the exception of Declarant, shall be a Class A Member of the Association. If a Lot is owned by more than one (1) person, there shall be only one (1) vote with respect to such Lot. Declarant shall become a Class A Member upon the occurrence of the events specified in subsection 2.4(c), below. (b) Class B Members. The Class B Member shall be Declarant until the occurrence of the events specified in subsection 2.4(c), below.
2.4 Voting Rights of Classes of Members.
(a) Commencement of VotingRights. Voting rights attributable to the ownership of Lots shall not vest until Assessments against those Lots have been levied by the Association.
(b) Class A Members. Class A Members shall have one (1) vote for each Lot that the Member owns.
(c) Class B Members. The Class B Member shall be entitled to three (3) votes for each Lot owned by Declarant. The Class B membership shall cease and be converted to Class A membership when ninety percent (90%) of the Lots within the Development have been conveyed to Class A Members.
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(d) Members Entitled to Vote. OnlyMembers in Good Standing shall be entitled to vote. The tenants or lessees of any Lot within the Development shall have no voting or membership rights in the Association.
(e) Suspension of Voting Rights. A Member’s voting rights may be temporarily suspended under those circumstances described in Article 10, below. (f) Consent of Membership Classes. As long as there are Class A and Class B memberships within the Association, no action by the Association that must have the prior approval of the Members shall be deemed approved by the Members unless approved by the appropriate percentage of both classes of Members. Whenever any provision of this Declaration or any other Governing Document of the Association requires the approval of a prescribed majority of the voting power of the Members “other than Declarant”, the intent of the quoted phrase is that the action be approved by the vote or written assent of a simple majority of the Class B voting power, as well as the vote or written assent of the prescribed majority of the total voting power of Members other than Declarant. After all the Class B memberships have been converted into Class A memberships, any such provisions shall be deemed to require the vote or written assent of a bare majority of the total voting power of the Association, as well as the vote or written assent of the prescribed majority of the total voting power of Members other than Declarant.
2.5 Board. The affairs of the Association shall be managed by or under the direction of the Board.
(a) Purpose and Function of the Board. The purpose of the Board is to manage and oversee the maintenance obligations prescribed in this Declaration, and establishing, enforcing, and collecting Assessments for such maintenance obligations. (b) Authorized Number of Directors. The initial Board shall be comprised of three (3) persons designated by Declarant, and shall hold office until the first meeting of the membership. Thereafter, the Board shall consist of three (3) Directors. No reduction in the authorized number of Directors shall have the effect of removing any Director before that Director’s term of office expires.
(c) Election of Directors. Except as noted herein, each elected Director shall hold office for a term of two (2) years and until a successor Director has been elected or until the earlier disqualification, death, resignation, or removal of such Director. Any tie in the number of votes cast for candidates shall be decided by random drawing or other method of chance as determined by the Board. There shall be no limitation on the number of consecutive terms to which a Director can be re-elected. The first election of the Board shall be conducted at the first annual meeting of the Members and the terms of office shall be staggered as follows: One (1) Director shall be elected by the votes of Class A Members only, as more particularly described in subsection 2.5(d), below. This initial one (1) elected Director shall serve a term of one (1) year. In addition to the election of the one (1) Director, Declarant shall appoint two (2) Directors pursuant to Declarant’s Class B voting rights. The two (2) Directors initially appointed by Declarant at the first annual meeting shall serve a term of two (2) years. Thereafter, term of office of a Director shall be two (2) years.
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(d) Special Rule for Election of Director by Class A Members . From the first election of the Board and thereafter for so long as the majority of the voting power of the Association resides with Declarant, or so long as there are Class B memberships in the Association, not less than twenty percent (20%) of the Board shall be elected solely by the votes of Owners of Lots other than Declarant (i.e. the Class A Members only). (e) Compensation. No member of the Board shall be compensated for being on the Board. However, upon approval by the Board, any Director may be reimbursed for their expenses actually incurred in the performance of their duties. (f) Board Vacancy. Any vacancy occurring on the Board, except a vacancy created by the removal of a Director by Declarant or by the Members or due to an increase in the authorized number of Directors, may be filled by approval of the Board, or if the number of Directors then in office is less than a quorum, by the vote of a majority of the remaining Directors at a meeting of the Board, or by unanimous written consent of the Directors then in office, or by a sole remaining Director. A Director so chosen shall serve the remainder of the term of office of the Director whom they replace. The Members may elect a Director at any time to fill any vacancy not filled by the Directors. If the Board accepts the resignation of a Director tendered to take effect at a future time, the Board or, if the Board fails to act, the Members may elect a successor to take office when the resignation becomes effective.
(g) Board Meetings. The Board shall meet at least quarterly at a place within the County. Regular and special meetings of the Board shall be open to all Members of the Association, except when the Board meets in executive session meetings as permitted by the California Corporations Code. A reasonable time limit for all Members to speak to the Board shall be established by the Board. Except for emergency meetings affecting the safety of Members and executive sessions for matters which by law are reserved for executive session, Members shall be given notice of the day, time, and place of each meeting of the Board, whether regular or special, at least four (4) days prior to such meeting. Notice shall be given to all Members by posting the notice in a prominent place or places within the Association Maintenance Area, and by mail to any Owner who has requested notification of Board meetings by mail, at the address requested by the Owner. (h) Teleconference Board Meetings. Teleconference Board Meetings, where a sufficient number of Directors to establish a quorum of the Board, in different locations, are connected by electronic means, through audio or video, or both. The teleconference meeting shall be conducted in a manner that protects the rights of Members of the Association.
Except for a meeting that will be held solely in executive session, the notice of the teleconference meeting shall identify at least one physical location so that Members of the Association may attend, and at least one Director or a person designated by the Board shall be present at that location. Participation by Directors in a teleconference meeting constitutes presence at that meeting as long as all Directors participating are able to hear one another, as well as Member of the Association speaking on matters before the Board.
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(i) Election of Officers. The Board shall elect the officers. The election of officers shall take place immediately following the election of the Board, or at the first meeting of the Board following each annual meeting of the Members.
2.6 Association Rules. The Board shall have the power and the authority to establish, promulgate, amend, repeal, and enforce such rules and regulations, which shall be known as “Rules”, as the Board deems necessaryfor the management and operation of the Development and the conduct of business and affairs of the Association. The Rules may concern, but need not be limited to, matters pertaining to use of the Association Maintenance Area, signs, collection and disposal of refuse, minimum standards for maintenance of property, parking and traffic regulations, rental or leasing of Lots, the keeping of pets on Lots, and any other subject matter within the jurisdiction of the Association as provided in the Governing Documents or by law.
2.7 Manager and Other Personnel. The Board shall have the power and authority to employ a manager and such other persons or entities as the Board shall deem appropriate to assist it in managing the Development and conducting the business and affairs of the Association, as more particularly set forth in the this Declaration and in any Bylaws adopted by the Members.
2.8 Capital Improvements. The Board shall have the power and authority to provide for the construction, reconstruction, installation, or acquisition of capital improvements upon the Association Maintenance Area, provided that in any fiscal year expenditures for capital improvements shall not exceed five percent (5%) of the budgeted gross expenses of the Association for that fiscal year except upon the approval of at least a majority of each class of Members. This limitation shall not apply to the expenditure of any funds accumulated in a reserve fund for capital improvements so long as the expenditure is for the purpose for which the fund was established nor shall it apply to any reconstruction governed by Article 12 of this Declaration. For purposes of this Section “capital improvements” is defined as any: (i) substantial discretionary addition to the Association Maintenance Area; (ii) voluntary significant upgrade to Association Maintenance Area materials; or (iii) discretionary material alterations to the appearance of the Development.
2.9 Transfer or Dedication of Association Maintenance Area to Public Agency or Utility.
The Board shall have the power to dedicate or transfer all or any part of the Association Maintenance Area to a public agency, authority or utility or other person or entity for such purposes and subject to such conditions as may be agreed to by the Board, and upon the approval of at least a majority of each class of Members.
2.10 Borrow Money. The Board shall have the power to borrow money in the name of the Association.
2.11 Dissolution. So long as there is any lot, parcel or area for which the Association is obligated to provide management, maintenance, preservation or control, the prior written consent of the City and the consent of all Members must be obtained for the Association to: (i) transfer all or substantially all of its assets; or (ii) file a certificate of dissolution.
2.12 Limitation of Liability. Neither the Association or its Directors, officers, employees, agents or committee members (collectivelyand individually referred to as the “Released Party”) shall be personally liable for damages or in equity to any of the Members, or to any other person, for any The View at Morro Bay
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error or omission in the discharge of their duties and responsibilities or for their failure to provide any service required hereunder or pursuant to the GoverningDocuments, even if such Released Party is negligent, provided that such Released Party has not acted in bad faith. This standard of care and limitation of liability shall extend, without limitation, to matters such as: (i) the establishment of the Association’s annual financial budget; (ii) the funding of Association reserve accounts; (iii) the discharge of the Association’s maintenance, repair and replacement obligations; (iv) the enforcement of the Governing Documents; and (v) to any other fiduciaryduties or responsibilities imposed by law or the Governing Documents.
ARTICLE 3 ASSOCIATION MAINTENANCE AREA
3.1 Purpose of Association Maintenance Area. Subject to the provisions of the Declaration, the Association Maintenance Area shall be held, maintained, and used to meet the common uses of the Owners, the members of the Owners’ households, and the Owners’ tenants, and guests as provided in the Governing Documents.
3.2 Acceptance of Association Maintenance Area. The Association shall be deemed to have accepted the Association Maintenance Area for maintenance when assessments have commenced.
3.3 Owners Non-Exclusive Easements of Enjoyment. Every Owner and the Association shall have a non-exclusive easement for ingress, egress, use of, and enjoyment in, to, and throughout the Association Maintenance Area. No such easements may be granted if they would materially interfere with the use, occupancy, or enjoyment by an Owner or Resident of their Lot without the consent of the affected Owner of the Lot. Each such non-exclusive easement shall be appurtenant to and pass with the title to every Lot, subject to the following rights and restrictions:
(a) Adoption of Rules. The right of the Board to establish and enforce reasonable Rules governing the use of the Association Maintenance Area; (b) Granting of Easements. The right of the Board to grant easements and rights of way in, on, over, or under the Association Maintenance Area; (c) Perform Obligations. The right of the Association or its authorized agents to perform its obligations under this Declaration, including, without limitation, obligations with respect to construction, maintenance, repair, or replacement for the benefit of the Association Maintenance Area;
(d) Establish Signage. The right of the Association to establish, construct, maintain, repair and replace signs, lights, and other similar improvements upon the Association Maintenance Area;
(e) Development and Sales Rights. The right of Declarant and its employees, sales agents, prospective purchasers, customers and representatives, to enter upon and to use the Association Maintenance Area for development and sales activities in accordance with Article 14, below. Such use shall not unreasonably interfere with the rights of use and enjoyment of the other Owners as provided herein.
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3.4 Association Maintenance Area Construction. No person or entityotherthanDeclarant or the Association or their duly-authorized agents: (i) shall construct, reconstruct, refinish, alter, or maintain any Improvement upon the Association Maintenance Area; (ii) shall make or create any excavation or fill upon the Association Maintenance Area; (iii) shall change the natural or existing drainage of the Association Maintenance Area; or (iv) shall plant, remove, or destroy any seed, plant material, tree, shrub, or other vegetation upon the Association Maintenance Area.
ARTICLE 4 USE RESTRICTIONS
4.1 Offensive Conduct, Nuisances, Noise. No noxious, harmful or offensive activities shall be conducted upon or within any part of the Development, nor shall anything be done thereon which may be or become a nuisance, or cause unreasonable embarrassment, disturbance, or annoyance to any Residents of the Development, or which shall in any way interfere with their use of the Association Maintenance Area and facilities thereon or the use and enjoyment of their Lots or Residences. Without limiting any of the foregoing, no Resident shall permit noise, includingwithout limitation the barking of dogs or excessively loud music, to emanate from the Resident’s Lot, vehicles, or the vehicles of guests and invitees, which would unreasonablydisturb another Resident’s enjoyment of their Lot. Nothing in this Section shall be construed to limit the Association’s ability to discharge its duties in accordance with the Governing Documents or otherwise manage the Development.
4.2 Residential Use. Except as specifically provided in Sections 4.3, 4.19 and 4.20, below, no Lot, or any portion thereof, shall be occupied or used for other than residential purposes.
No trailer, basement or loft attic, tents, shack, barn or outbuilding structure shall be utilized at anytime as a Residence temporarily or permanently, nor shall any structure or a temporary or mobile character be used as a Residence.
4.3 Restriction on Businesses. No business of any kind shall be established, maintained, operated, permitted, or conducted within the Development except:
(a) Professional and Administrative. Those professional and administrative occupations as may be permitted by, and which are conducted in conformance with, all applicable governmental ordinances provided that there is no external evidence thereof, and further provided that the Board may, in its complete discretion, prohibit the conduct of any such activities which the Board determines to be incompatible with the nature and character of the Development or which, in the Board’s opinion, may or does otherwise negatively impact the quality of life and property values within the Development. (b) Development and Sales of Residences. As more particularly provided in Article 15, below, Declarant shall be entitled to use Residences as models, sales or rental offices or construction headquarters for the purpose of constructing Residences and marketing of Residenceswithin the Development or for development projects located outside of the Development.
(c) Permitted by Law. Those other businesses which by law must be permitted to be conducted within the Development, including, but not limited to the businesses described in Sections 4.19 and 4.20, below.
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4.4 Use of the Association Maintenance Area. All use of the Association Maintenance Area is subject to the Governing Documents. No alterations or additions to the Association Maintenance Area shall be made except as authorized in writing by the Board pursuant to the Governing Documents. Nothing shall be placed, kept, stored, or parked on the Association Maintenance Area without the prior written consent of the Board, except by the Association.
Without limiting the foregoing, no Owner shall place rubbish, debris, or other unsightlyor unsanitary materials on the Association Maintenance Area. Each Owner shall avoid causing damage to the Association Maintenance Area.
4.5 Requirement of Architectural Approval. As addressed in greater detail in Article 8, construction, installation, modification, or alteration of buildings, outdoor structures, fences, awnings, outdoor lighting and all other exterior Improvements visible from the Association Maintenance Area are subject to approval of the Architectural Review Committee.
4.6 Sports Apparatus. No sports apparatus shall be installed on a Lot or the exterior of a Residence without the prior approval of the Architectural Review Committee in accordance with Article 8, below.
4.7 Window Coverings. To the extent that an Owner wishes to install window coverings on the windows within the Residence, blinds, shutters, window shades or drapes shall be installed in the windows of the Residences and garages and shall complywith anyRules adopted bythe Board.
In no event shall windows be painted, nor shall aluminum foil, newspaper, bed sheets, cardboard or similar materials be placed in windows. All window coverings shall be maintained in good repair and condition at all times.
4.8 Signs. To the extent permitted by law, the Board may adopt limitations on signs including, without limitation, restrictions on the size of the signs, the duration of their posting, and their location.
4.9 Antennas. No outside television antenna, aerial, satellite dish or similar device for the transmission or reception of television, radio, satellite, or other signals of any kind, are permitted within the Development, except as provided in this Section. Antennas or satellite dishes with a diameter or diagonal measurement not greater than one (1) meter which are designed to receive direct broadcast satellite services, video programming services via multi-point distribution services, or television broadcast signals (collectively “Permitted Dishes”) may be erected, placed or installed on a Lot, subject to the following restrictions, provided that the application of these restrictions do not unreasonably delay installation or expense, or preclude reception of an acceptable quality signal:
(a) Not Visible from Streets. All Permitted Dishes shall be placed in locations which are not visible from the public streets within the Development, where possible. (b) Preferred Placement List. All Permitted Dishes shall be installed at locations in accordance with a prioritized list of placement preferences, if such a list is adopted by the Board.
(c) Reasonable Rules. All Permitted Dishes shall be installed in accordance with such reasonable restrictions which may be imposed as part of the Architectural Rules.
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(d) Post Installation Review. The Architectural Review Committee may review the location and installation of Permitted Dishes after installation. After its review, to the extent permitted by law, the Architectural Review Committee may require a Permitted Dish be moved to a preferred location designated by the Architectural Review Committee.
4.10 Trash Disposal. Trash, garbage, accumulated waste plant material and all other waste and refuse shall be deposited only in covered sanitary containers or recycling containers in accordance with the following provisions:
(a) Trash Storage; Screened Containers. No Owner or Resident shall permit or cause any garbage, trash, rubbish, or other waste material to be kept upon any portion of any Lot outside of the Residence or elsewhere in the Development, except in sanitary, covered disposal containers that are located within the garage of the Owner’s Residence. (b) Trash Pickup. The containers may be placed for pickup at a reasonable time prior to trash collection and shall be promptly stored as specified in subsection 4.10(a) after collection. The Board shall adopt Rules regulating the placement of the solid waste containers as necessary to accommodate any parking restrictions, safe and reliable collection service on the collection day, including specific limitations on the period of time during which containers may be placed for collection. All containers shall be placed away from parked vehicles and other obstructions.
4.11 Vehicles and Parking.
(a) Limitations on Types of Vehicles.
(i) Recreational Vehicles. No trailer, motor home, recreational vehicle, camper, trailer or boat (“Recreational Vehicles”) shall be parked, kept or permitted to remain within the Development unless placed or maintained completely within an enclosed garage, and provided that the parking of such RecreationalVehicles does not displace the parking of otherwise permitted vehicles within the garage. The Board, in its complete discretion and upon such basis and terms as its deems prudent, shall have the power to adopt, modify and repeal Rules permitting the temporary use and parking within the Development of vehicles otherwise prohibited by the provisions of this subsection.
(ii) Commercial Vehicles. No truck, van or commercial vehicle shall be parked, kept or permitted within the Development unless placed or maintained completely within an enclosed garage, except for such limited times as are necessary for deliveries, the performance of maintenance, repair and replacement of Improvements within the Development and other similar situations, and then subject to any Rules adopted by the Board which may include, without limitation, a limit on the time of day or days of the week when such vehicles may be present within the Development. The term “truck, van or commercial vehicles” shall not include sedans or standard size cars, pickup trucks and vans which are used for both business and personal uses, provided that any signs or markings of a commercial or governmental nature on such vehicles shall be unobtrusive as determined by the Board.
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(b) Condition of Vehicles. No unreasonably noisy vehicles and no vehicles (including, without limitation, scooters, motorcycles or other motorized devices) emitting foul smelling or offensive exhaust fumes shall be operated within the Development. No dilapidated, unsightly, inoperable, unlicensed, or abandoned vehicle shall be parked, kept or permitted to remain upon anyarea within the Development unless completelyenclosed within a garage. Each vehicle operated or located within the Development shall maintain, and the Board shall have the authority to require written evidence of, current registration which permits the vehicle to be legally operated on public streets. (c) No Vehicle Repairs. No vehicle maintenance, or repairs of any kind may be made to vehicles within the Development except such emergency repairs as are necessary to remove the vehicle from the Development and except within an enclosed garage. (d) Parking of Permitted Vehicles. Vehicles permitted by this Section 4.11 may be parked within the Development only as follows:
(i) Garage Parking. Owners and Residents shall utilize their Residence’s garage and driveway as the primary parking space for vehicle parking, and shall not utilize any other parking space.
(ii) Guest Parking. An Owner’s guest or invitee may park their vehicles in the Owner’s garage or driveway, provided the Owner does not own a vehicle that must be parked in the garage as required in Section 4.11. The Board shall have the power to adopt Rules that allow changes to this or any parking provision. (iii) Association Maintenance Area Parking. Parking within the Association Maintenance Area access road and paving is prohibited. Parking is permitted in designated parking spaces within the Development. Parking along the public streets is allowed and shall be in accordance with City parking ordinances. (e) Parking Rules and Enforcement. In order to prevent or eliminate parking problems within the Development, or to further define and enforce the restrictions contained in this Section, the Board shall have the authority to adopt further reasonable rules and restrictions regarding vehicles and parking within the Development as the Board may deem prudent and appropriate. The Board shall also have the power to impose sanctions for violations of provisions of the Governing Documents relating to vehicles and parking. Such authority and power shall include, without limitation:
(i) Towing of Vehicles. The power and authority to cause the towing, at the vehicle owner’s expense, of vehicles which are parked within the Development in violation of any of the provisions of the Governing Documents, provided that towing of vehicles of guests and other non-Residents of the Development shall be subject to the provisions of applicable law. Costs incurred bythe Association relating to the towing and/or storage of any vehicle parked in violation of any provision of the Governing Documents shall be assessed as a Reimbursement Assessment against the Lot Owner responsible or whose household members, tenants, or guests are The View at Morro Bay
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responsible for the presence of such vehicle. Any vehicle parked within any designated fire lane, posted “No Parking Fire Lane”, red-curbing or other markings/measures as required by the City, shall be subject to immediate towing at the expense of the vehicle owner.
(ii) Parking Fines. The power and authority to fix and impose fines for violations of this Section.
4.12 Garages. To the extent that the garage is not being used as a Junior Accessory Unit, JADU, the following provisions shall apply to all garages:
(a) Garage Usage; Remodel. No garage shall be remodeled or used which would interfere with the ability of the Owner of the Lot to accommodate the number of vehicles the garage was originally designed to contain, including but not limited to, kitchen facilities, cooking equipment, workshop, storage space, hobby facility or for any other use or facility. (b) Garage Parking. Required parking spaces within garages shall remain clear for parking. Enforcement shall be the responsibility of the Association. (c) Garage Conversion. Garage conversions (partial or whole) shall not be permitted unless the garage is converted in compliance with the specifications of a JADU.
Prior to the garage conversion, the Owner shall submit plans and specifications to the Architectural Review Committee for review. To the extent that the City will require a building permit for any Improvement, the Owner shall obtain written approval from the City for any construction or modification of the Improvement, including without limitation, a JADU. Upon request, the Owner shall submit a copy of the building permit to the Architectural Review Committee. Upon written approval by the Architectural Review Committee, the Owner may convert the garage into a JADU.
4.13 Compliance with Laws. Nothing shall be done or kept anywhere within the Development which violates any local, state or Federal law, ordinance, statute, rule or regulation.
4.14 Animals.
(a) Household Pets. No animals,reptiles,rodents, birds, fish, livestock, or poultry shall be raised, bred or kept on any Lot or other portion of the Development. The Board may adopt Rules regulating a reasonable number of domesticated birds, cats, dogs (except for dog breeds described below) or aquatic animals kept within an aquarium, to be kept, provided that they are not kept, bred, or maintained for any commercial purposes and they are maintained under reasonable control at all times, all in conformance with any City ordinances. A Resident shall be permitted to have a total of two (2) dogs or two (2) cats; or one (1) dog and one (1) cat. Except for legally designated service animals, the Board may adopt Rules prohibiting Owners and Residents from bringing or keeping within the Development dogs which are all or part of a specified breed, and may establish specific protocols to identify a dog’s breed. The Board, after notice and hearing, may require the permanent removal of any animal that the Board determines to be a danger to the health and safety of any Resident in the Development or otherwise to be a nuisance within the Development. Each dog must be The View at Morro Bay
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restrained on a leash held by a responsible person capable of controlling it whenever it is outside of its Owner’s Lot.
(b) Owner’s Responsibility for Pets. The owner of each pet or the pet of any tenant, guest or invitee, shall be responsible for immediately removing and disposing of any excrement and/or waste introduced to any portion of the Development by such pet. The Board shall have the power to impose fines and other sanctions for violations of provisions of the Governing Documents relating to pets, including without limitation fines for failure to remove and dispose of pet waste as required by this subsection. Each Owner, Resident, and any person bringing or keeping an animal within the Development shall be absolutely liable to the Association and all other persons for any injury or damage to persons or property caused by the animal brought upon or kept upon the Development by such person or by members of their household, tenants, guests, or invitees. Each Owner and Resident shall indemnify the Association and its officers, Directors, and agents against any and all claims, damages, losses, demands, liabilities, and expenses, including but not limited to attorneys’ fees, arising out of or resulting from the presence or conduct of any animal brought upon or kept within the Development by the Owner or Resident, members of their household, guests, tenants, or invitees. Dog barking audible from within an adjacent Lot’s Residence for more than ten (10) minutes within an hour shall constitute a nuisance pursuant to this Declaration.
In no event shall any animal be maintained within the Development that constitutes a nuisance to any Resident.
(c) Pet Rules. The Board may adopt and enforce pet Rules in addition to the provisions of this Section. Such Rules mayinclude, without limitation, regulations regarding the presence of pets on the Association Maintenance Area and requirements that pets be registered with the Association. The Association shall have the right to prohibit the keeping of any animal which constitutes, in the sole and exclusive opinion of the Board, a nuisance or danger to any other person.
4.15 Rental of Residences. An Owner shall have the right to rent their Residence subject to the provisions of the Governing Documents, including without limitation the following specific requirements:
(a) Notification of the Board. The Owner shall notify the Association of the duration of the lease, a term of which shall not be less than thirty (30) days, and shall provide the Association with: (i) the names of the tenants; (ii) the names of the members of the tenants’ household; (iii) the tenants’ telephone numbers; and (iv) such other information as the Board deems appropriate. The Association may, in its discretion, adopt a form for the provision of the information required by this subsection, together with an acknowledgment by the tenants that they have read, understand and agree to abide by the Governing Documents, which form shall be submitted to the Association for each rental of a Lot. (b) Owner Responsibility. Each Owner renting a Residence shall be strictly responsible and liable to the Association for the actions of such Owner’s tenant in or about all Lots, Residences and Association Maintenance Area and for each tenant’s compliance with the provisions of all Governing Documents. An Owner renting a Residence shall provide the tenant with copies of the Governing Documents and all subsequent amendments.
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Owners renting a Residence shall provide the Board with a forwarding mailing address so that the Owner may be contacted.
(c) Indemnification of Association. EveryOwner of a Residence that is occupied by persons other than the Owner pursuant to a rental agreement or otherwise, agrees to and shall indemnify and defend the Association, its officers, Directors, managers, and agents and shall hold them harmless from any cost, loss, claim, or damages of any kind, including but not limited to attorneys’ fees arising out of the conduct or presence of the occupants of the Residence upon the Development, including any such cost, loss, claim or damages arising or alleged to have arisen out of the enforcement or nonenforcement by the Association of the Governing Documents against such occupants. Without limiting the generality of the foregoing, all costs, including attorneys’ fees incurred by the Association to enforce the Governing Documents against such occupants, shall be reimbursed to the Association by the Owner and may be assessed by the Association as a Reimbursement Assessment. (d) Requirements of Written Rental Agreement. Any rental of any Residence shall be only by written rental agreement which shall expressly provide: (i) that it is subject to all of the provisions of the Governing Documents; (ii) that the tenants of such Residence shall comply with all provisions of the Governing Documents; and (iii) that any violation of any provisions of the GoverningDocuments shall constitute a breach and default of the terms of such rental agreement. The rental agreement shall not attempt to, nor shall any such agreement be effective to, transfer membership in the Association to the lessee. Any lease or rental agreement entered into between an Owner and a tenant or renter shall be for a minimum term of thirty (30) days.
(e) Requirement of Inclusive Rental Agreement. With the exception of an ADU or a JADU, no Owner may rent or hire any garage, accessory building, or similar improvement to anyone who does not have the right of possession of the entirety of the Residence on the Lot.
4.16 Clotheslines. Except as allowed by California Civil Code Section 4753, no exterior clotheslines or other outside clothes drying or airing facility shall be erected or maintained upon any Lot, Residence, balcony, deck or porch of anyResidence. No personal property shall be draped over fences, trees, balcony railings, deck or patio walls, fences or railings except below the fence line.
The Board may adopt Rules regarding the use of clotheslines as allowed by law.
4.17 Activities Affecting Insurance. Nothing shall be done or keptwithin theDevelopment which will increase the rate of insurance maintained by the Association without the prior written consent of the Association. No Owner shall permit anything to be done or kept within the Development which would result in cancellation of any insurance policy maintained by the Association or any other Owner.
4.18 No Partition. There shall be no judicial partition of the Development or any part thereof, nor shall any Owner or any person acquiring any interest in the Development or any part thereof seek any judicial partition thereof. Notwithstanding the preceding, if any Lot is owned by two (2) or more co-tenants as tenants in common or as joint tenants, this Section shall not be deemed to prevent a judicial partition by sale as between such co-tenants.
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4.19 Family Day Care Centers. No family day care center shall be permitted within the Development except as specificallymandated byCalifornia Health and SafetyCode Section 1597.40 and other applicable statutes. The owner/operator of any permitted day care facility shall provide the Association with prior written notice as to the facility’s operation, and shall complywith all local and state laws regarding the licensing and operation of a day care center and, in addition, shall:
(a) Association Additional Insured. Name the Association as an additional insured on the liability insurance policy or bond carried by the owner/operator of the day care center, in accordance with Health & SafetyCode Section 1597.531. This subsection 4.19(a) is intended to be and shall be conclusively deemed to be the written notice to the operator and owner from the Association as specified in Health & Safety Code Section 1597.231; (b) Indemnify. Defend, indemnify and hold the Association harmless from any claim, demand, loss, liability action or cause of action arising out of the existence and operation of the day care center;
(c) Association Rules. Abide by and comply with the Association’s Rules; (d) Responsibility. Supervise and be completely responsible at all times all persons for whom day care services are provided while such persons are within the Development; and
(e) Proof of Insurance. Cooperate with the Association if the Association’s insurance agent or carrier requires proof of insurance, proof of the agreement of the owner or operator of the center to these provisions, or other reasonable requests.
4.20 Community Care Facilities. Except for residential facilities defined as community care facilities under Health & Safety Code Section 1502, no health care facilities operating as a business or charity shall be permitted in the Development. The owner/operator of any permitted community care facility shall provide the Association with prior written notice as to the facility’s operation, and shall comply with all local and state laws regarding the licensing and operation of a community care facility and, in addition, shall:
(a) Association Additional Insured. Name the Association as an additional insured on the liability insurance policy or bond carried by the owner/operator of the community care facility;
(b) Indemnify. Defend, indemnify and hold the Association harmless from any claim, demand, loss, liability action or cause of action arising out of the existence and operation of the community care facility;
(c) Association Rules. Abide by and comply with the Association’s Rules; (d) Responsibility. Supervise and be completely responsible at all times all persons for whom community care services are provided while such persons are within the Development; and
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(e) Proof of Insurance. Cooperate with the Association if the Association’s insurance agent or carrier requires proof of insurance, proof of the agreement of the owner or operator of the community care facility to these provisions, or other reasonable requests.
4.21 Variances. The Board shall be authorized to grant reasonable variances from the provisions of Article 4 of this Declaration upon written application from any Owner provided that the Board determines, in its sole discretion, that the specific application of the restriction to such Owner will: (i) cause substantial undue hardship to the Owner; or (ii) fail to further or accomplish the common plan for the Development as contemplated by this Declaration. The Board shall have the power to limit any variance granted in scope or duration or otherwise impose such specific requirements as the Board may, in its complete discretion, see fit to require. The Board shall follow the following procedures in acting on any request for a variance:
(a) Initial Determination by Board. The Board, in its sole discretion, shall make an initial determination whether or not the variance on its face meets the requirements set forth in this Section. If the Board determines that it does not, the variance request shall be denied and the Board shall so notify the applicant within thirty (30) days of the Board’s decision. If the Board determines that the variance does, the procedures set forth in the remainder of this Section shall be followed.
(b) Board Hearing. The Board shall conduct a hearing on the variance within forty-five (45) days of the receipt of the written request for a variance. Notice shall be given to all Members not less than fifteen (15) days prior to the date of the hearing. Members may submit comments in writing prior to the hearing and/or appear at the hearing. The Board shall establish a reasonable time limit for Member comments during the hearing. No decision regarding the request for variance shall be made until the conclusion of the hearing. (c) Board Decision. After the conclusion of the hearing, the Board shall, in its sole discretion, either grant or deny the request for variance in accordance with the standards set forth in this Section. As more fully discussed above, if the Board grants the variance request, the Board may impose such conditions as the Board deems appropriate and shall so notify the applicant within thirty (30) days of the Board’s decision.
4.22 Exterior Fires and Burning. There shall be no exterior fires except for propane barbecue grills or propane fire pits contained within receptacles designed for such purpose only. All appliances shall meet building code and Association insurance policy requirements and approval.
There shall be no exterior fires whatsoever, except for propane barbecue grills and propane fire pit appliances that meet building code and Association insurance policy requirements and approval. No Owner or resident shall permit any condition to exist on their Lot, including without limitation, trash piles or weeds, which create a fire hazard or is in violation of local fire regulations.
4.23 Flammable Materials. Including, but not limited to, wood burning appliances, explosives, fireworks, highly flammable or highly corrosive materials are prohibited from being stored or used by any Owner, Resident, guest, tenant or invitee on any Lot.
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4.24 Storage and Other Restrictions for Side Yards, Porches and Front Yards. No Owner shall use any porches or front yards for storage purposes, including, without limitation, the storage of bicycles. Patio furniture, propane grills, and propane fire pits may be kept within the fenced rear yard areas, subject to any local building codes, ordinances and Association insurance policy requirements.
ARTICLE 5 CONSTRUCTION STANDARDS AND DISCLOSURES
5.1 Approval byArchitecturalReviewCommittee. Except for Improvements constructed or installed by Declarant, no building, fence, wall, pool or spa equipment, or other structure or Improvement shall be erected, altered or placed on any Lot until building plans, specifications and a plot plan showing the location of structures on the Lots have been submitted to the Architectural Review Committee for review and approval as described in Article 8, below.
5.2 Accessory Dwelling Units; ADU; Junior Accessory Dwelling Units; JADU. In addition to the requirements for ADU’s and JADU’s as set forth in this Declaration, and as defined in 65852.2 and 65852.22 of the California Government Code, respectively, all ADU’s and JADU’s must be constructed in a professional and workman like manner and comply in all respect with all applicable laws and all restrictions contained herein applicable to the Residence on the Lots:
(a) Construction of AccessoryDwellingUnit; ADU. To the extent that an Owner desires to construct an ADU, such construction and related Improvements shall require the written approval of the Architectural Review Committee. In accordancewith Article 8 below, approvals may be withheld or denied for non-compliance based on prior design requirements and Architectural Rules. The Owner shall submit plans and specifications in accordance with Article 8 of this Declaration prior to the commencement of any construction and shall require the written approval of the Architectural Review Committee. To the extent the City will require a building permit for any Improvement, the Owner shall obtain such building permit from the City for any construction or modification of the Improvement, including without limitation, an ADU. Upon request by the Architectural Review Committee, the Owner shall provide a copy of the building permit to the Architectural Review Committee. (b) Modification of Existing ADU. To the extent that an Owner desires to modify an existing ADU on the Lot, the modification of an ADU, shall require the written approval of the Architectural Review Committee. The Owner shall submit plans and specifications in accordance with Article 8 of this Declaration prior to the commencement of any construction and modification and shall require the written approval of the Architectural Review Committee. To the extent the City will require a building permit for any Improvement, the Owner shall obtain such building permit from the City for anyconstruction modification of the Improvement, including without limitation, an existing ADU. Upon request by the Architectural Review Committee, the Owner shall provide a copy of the building permit to the Architectural Review Committee.
(c) Junior Accessory Dwelling Unit; JADU. To the extent that an Owner desires to convert their garage into a JADU, or modify an existing JADU on the Property, the Owner shall submit plans and specifications in accordance with Article 8 of this Declaration prior to the commencement of any construction or modification of the JADU. The construction or The View at Morro Bay
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modification of a JADU, shall require the written approval of the Architectural Review Committee. To the extent that the City will require a building permit for any Improvement, the Owner shall obtain written approval from the City for any construction or modification of the Improvement, including without limitation, a JADU. Upon request, the Owner shall submit a copy of the building permit to the Architectural Review Committee. Upon written approval by the Architectural Review Committee, the Owner may convert the garage into a JADU.
5.3 Drainage. No Owner shall do any work, construct any Improvement, place any landscaping or suffer the existence of any condition whatsoever which shall alter or interfere with the drainage pattern for the Owner’s or any adjacent Lots or parcels or Association Maintenance Area as established in connection with the approval of the final Subdivision Map applicable to the Development, except to the extent such alteration in drainage pattern is approved in writing by the Architectural Review Committee, and all other public authorities having jurisdiction.
5.4 Photovoltaic Reception. By acceptance of a deed, all persons acquiring an ownership interest in a Lot within the Development acknowledge and agree not to allow any landscaping, including trees, but excluding existing trees and trees planted pursuant to the conditions of approval, located within that Owner’s Lot, to interfere with the reception of any photovoltaic systems located within the Development.
5.5 Exterior Lighting and Fixtures. Exterior lighting shall be installed on the exterior of a Residence or on a Lot and shall be adequately and properly shielded from other Residences and the streets, such that direct rays from the light source are directed downward. Exterior lighting shall be white light using LED lamps with full cutoff fixtures to limit glare and light trespass, and shielded and deflected away from neighboring properties and from windows of Residences within the Development. All Residences shall have a minimum of one exterior light fixture above both the front and garage entrances. The fixture shall be of a type that automatically comes on at dusk and goes off at dawn. The Board may establish Architectural Guidelines regarding the placement of holiday lighting and decorations, including, but not limited to, the duration of display prior to and following the celebrated holiday.
5.6 Adjacent Land Uses. The Development is located adjacent to the Pacific Coast Highway (also known as Hwy 1, the Cabrillo Highway or the Coast Highway) and within one mile of property zoned for and subject to on-going commercial uses, including, but not limited to, restaurants, shopping centers, retail, commercial and offices. The Association, its Board, and all Owners and Residents are advised that highway and commercial uses may take place at any time of the day or night, including, and without limitation, increased noise, light, dust, exhaust, and odor due to vehicle traffic. The Association, its Board, and each Owner, acknowledge and agree that the adjacent highway and the commercial area within one mile of the Development shall not constitute a public or private nuisance or otherwise create a legal or equitable claim against Declarant, the City or the adjacent property owner, operators, tenants, or invitees.
5.7 Assessment District. The Development comprises a further subdivision of lot 124 as referenced in the Cloisters CC&Rs. The conditions of approval for the original Cloisters development required the formation of a maintenance assessment district to maintain the public park, bicycle pathway,right ofwaylandscaping, coastal access ways, environmentallysensitive restoration The View at Morro Bay
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areas and other improved common areas. As referenced in Sections 3.3.2 and 3.3.3 of the Cloisters CC&Rs, the Cloisters Landscape and Lighting Maintenance District (the Assessment District) was formed to maintain the public park (the Cloisters Community Park) and other tract improvements.
The Conditions of Approval for the Subdivision Map described in Recital A requires the Lots within the Development to be subject to certain property restrictions related to the original Cloisters development. Declarant, and, each Owner of a Lot within the Development, by acceptance of the deed to their Lot, acknowledges and agrees that prior to the individual sale of any Lot or issuance of any residential building permits in the Development, each Lot within the Development shall be obligated to pay an annual assessment towards the Cloisters Landscaping and Lighting Maintenance Assessment District (or creation of another funding mechanism acceptable to the City). Declarant, the Association, and each Owner of a Lot within the Development agree to support and not protest the extension of the Assessment District and imposition of assessments upon lots within the Development (or creation of another funding mechanism acceptable to the City) in an amount consistent with assessments then currently imposed or proposed for the original Cloisters development (subject only to any adjustment appropriate for the Association’s maintenance of the property described in Exhibit “A”) and shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, instruments, and documents, as any other partymay reasonably request in order to carry out the intent and accomplish the purposes of this Section 5.7 and the objectives contemplated herein.
5.8 Application of Certain Provisions of Cloister CC&Rs. The Conditions of Approval for the Subdivision Map described in Recital A requires the Lots within the Development to be subject to certain property restrictions and property design standards as more particularly described in Article 5 of the Cloister CC&Rs. Although the Development, which is a subdivision of lot 124 as described in the Cloister CC&Rs, was not originally encumbered by Article 5 in the Cloisters CC&Rs, Declarant expressly consents to the imposition of Article 5 of the Cloisters CC&Rs as covenants running with the land against the Development. Therefore, in addition to the provisions of Article 8, below, and any duly adopted Architectural Rules, the Lots within the Development shall be subject to the provisions of Article 5 of the Cloisters CC&Rs as established by this Section 5.8.
ARTICLE 6 ASSESSMENTS AND LIENS
6.1 Covenant of Owner.
(a) Owner’s Assessment Obligation. Each Owner of a Lot within the Development, by acceptance of a deed or other conveyance thereof, whether or not it shall be so expressed in such deed or conveyance, shall be deemed to have covenanted and agreed to pay to the Association: (i) Regular Assessments; (ii) Special Assessments; (iii) Reimbursement Assessments; and (iv) Enforcement Assessments levied by the Association as hereinafter provided, together with all Additional Charges. Such deed or conveyance shall be deemed to vest in the Association the right and power to initiate all actions and procedures as the Board shall deem necessary or appropriate for the collection of such Assessments and Additional Charges and for the enforcement of the liens as hereinafter provided.
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personal debt and obligation of the Owner against whom it is assessed, and shall bind their heirs, devisees, personal representatives, successors, and assigns. Such obligation to pay Assessments and Additional Charges and the right and power of the Association to initiate all actions and procedures for collection shall run with the land, so that each successive Owner or Owners of Record of any Lot shall, in turn, become liable to pay all such Assessments and Additional Charges assessed during the time theyare Record Owner of such Lot. After an Owner transfers of Record any Lot they own, they shall not be liable for any Assessments levied thereafter with respect to such Lot. Such Owner shall remain personally liable, however, for all unpaid amounts due and owing at the time of transfer, together with Additional Charges accruing until time of collection. The seller of any Lot under an installment land contract shall continue to be liable for all Assessments and Additional Charges until a conveyance by deed of such Lot is Recorded.
6.2 Creation of Lien. Each Assessment levied by the Association pursuant to this Declaration, together with all Additional Charges, shall be a charge upon the land and shall be secured by a lien upon the property against which such Assessment is levied, notwithstanding the transfer of Record title to such Lot, and any such transfer shall be subject to the Association’s lien, provided that, prior to such transfer, a Notice of Delinquent Assessment has been Recorded as provided in this Declaration. The priority of all such liens on each Lot shall be in inverse order so that upon the foreclosure of the lien for any particular charge on any Lot, any sale of such Lot pursuant to foreclosure of the lien will be made subject to all liens securing the respective monthly Assessments and Additional Charges on such Lot for succeeding months. Any reference in the Governing Documents to the right of the Association to utilize the power of foreclose with respect to anyAssociation lien, shall only refer to a judicial action and shall specifically not include any form of non-judicial foreclosure rights set forth in California Civil Code 5700 et seq.
6.3 Purpose of Assessments. The Assessments levied by the Board shall be used exclusively for: (i) managing and operating the Development; (ii) conducting the business and affairs of the Association; (iii) maintaining and promoting the property values of the Owners and Residents of the Development; (iv) improving and maintaining the Association Maintenance Area and, to the extent provided for in the Governing Documents or by law, the Lots situated within the Development; (v) enforcing the GoverningDocuments; and/or(vi) otherwise benefitting the Owners.
6.4 Authority of the Board. The Board shall have the power and the duty to levyRegular Assessments and Special Assessments sufficient to meet the Association’s obligations under the Governing Documents and applicable law.
6.5 Regular Assessment.
(a) Calculation of Estimated Requirement. Not less than thirty(30) days normore than ninety (90) days prior to the beginning of each fiscal year, the Board shall complete and distribute to all Owners an estimate of the net funds required by the Association for such fiscal year (including a reasonable amount allocated to contingencies and to a reserve fund for restoration, repair, and/or replacement of those components for which the Association is responsible and which must be repaired or replaced on a periodic basis) to manage, administer, operate, and maintain the Development; to conduct the affairs of the Association; and to perform all of the Association’s duties in accordance with this Declaration. The funds The View at Morro Bay
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required by the Association pursuant to this subsection shall be assessed among the Owners of Lots within the Development as “Regular Assessments” as further provided in this Section 6.5.
(b) Allocation of Regular Assessment. Regular Assessments shall be allocated and assessed equally among the Lots within the Development by dividing the amount by the number of Lots, so that each Lot bears an equal share of the Regular Assessment. (c) Allocation ofADUand JADU Assessment Component. Regular Assessments shall be allocated and assessed equally among the Lots within the Development as stated in subsection 6.5(b) above. If the Lot is improved with an ADU or a JADU, then for so long as such Accessory Dwelling Unit exists within the Lot, such Lot shall be allocated an additional assessment share equal to 1/4 (i.e., .25) of a Lot. Thus, a Lot with an ADU or a JADU shall pay a 1.25 share of the Regular Assessment and a Lot without an Accessory Dwelling Unit shall pay a 1.0 share of the Regular Assessment. (d) Payment of Regular Assessments. UnlesstheBoard shall designate otherwise, Regular Assessments shall be levied on an annual basis. The Board shall determine the frequencyof the installments as to whether the assessments shall be paid in twelve (12) equal monthly installments or in four (4) equal quarterly installments, during the fiscal year. Each installment shall be due and payable on the first day of each month or quarter respectively. (e) Increases in Regular Assessment. The Board shall not increase the Regular Assessment for anyfiscal year above the amount of the Regular Assessment for the preceding fiscal year by more than twenty percent (20%), except upon the affirmative vote or written consent of a majority of Owners. The limitation imposed upon the Board pursuant to this Section 6.5(d) shall not apply to any increase in Regular Assessments required to fund any maintenance, repair, or replacement of any Improvement subject to Sections 7.1(b) through (f), inclusive, below.
(f) Commencement of Regular Assessment. Regular Assessments shall commence as to each Lot within the Development on the first day of the first month following the month in which the first conveyance occurs for the sale of a Lot to a person other than Declarant. Each Lot within the Development shall thereafter be subject to its share of the then established annual Regular Assessment. The first annual Regular Assessment shall be pro rated, if necessary, according to the number of months remaining in the fiscal year established by the Association.
(g) Partial Assessment Exemption for Uncompleted Association Maintenance Area. All Owners, including Declarant, shall be exempt from the payment of that portion of anyRegular Assessment which is for the purpose of defraying expenses and reserves directly attributable to the existence and use of any Association Maintenance Area Improvement that is not completed at the time Assessments commence. The Assessment exemption provided by this subparagraph shall be in effect only until the earliest of the following events: (A) a notice of completion of the Association Maintenance Area has been Recorded; or (B) the Association Maintenance Area Improvement has been placed in use.
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6.6 Special Assessments.
(a) Purpose of Special Assessments. If at any time during any fiscal year the Regular Assessment proves inadequate for anyreason,including nonpayment of anyOwner’s share thereof or the unexpected repair, replacement, or reconstruction of Improvements located in the Development, or if funds are otherwise required for any authorized activity of the Association, the Board may levy a Special Assessment in the amount of such actual or estimated inadequacy or cost.
(b) Allocation of Special Assessments. Special Assessments shall be allocated and assessed among the Lots within the Development in the same manner as Regular Assessments.
(c) Approval of Special Assessments. Except in the case of an emergency situation, in any fiscal year the Board may not levy Special Assessments which, in the aggregate, exceed five percent (5%) of the budgeted gross expenses of the Association for that fiscal year, except upon the affirmative vote or written consent of a majority of the Owners.
6.7 Reimbursement Assessments. The Association shall levy a Reimbursement Assessment against any Owner and their Lot: (i) if a failure by such Owner, or any person or pet for whom the Owner is responsible, to comply with any provision of the Governing Documents has necessitated or resulted in an expenditure of funds by the Association to deal with such lack of compliance or to bring such Owner or his Lot into compliance; or (ii) in the event that the Association has expended funds performing repairs as authorized by Section 7.4 of this Declaration or for any other reasons specifically authorized by the provisions of this Declaration. A Reimbursement Assessment shall include any costs, including attorneys’ fees, incurred by the Association, including costs of collecting from an Owner any amount which the Owner is obligated to pay to the Association. A Reimbursement Assessment shall be due and payable to the Association when levied.
6.8 Enforcement Assessments. The Board may levy an Enforcement Assessment (and any fine imposed by the Board in accordance with the provisions of the Governing Documents shall be deemed to be such an Enforcement Assessment), for violation of any of the provisions of the Governing Documents. Any Enforcement Assessment shall be due and payable to the Association when levied.
6.9 Failure to Fix Assessments. The failure or omission by the Board to fix or levy any Regular Assessment provided for by the terms of this Declaration before the expiration of any fiscal year, for that fiscal year or the next fiscal year, shall not be deemed either a waiver or a modification in any respect of the provisions of this Declaration, or a release of any Owner from the obligation to pay Assessments or any installment thereof for that or any subsequent year, but the amount of the Regular Assessment fixed for the preceding fiscal year shall be the amount of the Regular Assessment for the ensuing fiscal year until a new Regular Assessment is levied.
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6.10 Offsets. Except as permitted by subsection 6.5(f), above, all Assessments levied by the Board shall be payable in the full amount specified, including any Additional Charges imposed as provided by the terms of this Declaration, and, except as provided in this Section, no offsets against any such amounts shall be permitted for any reason whatsoever, including without limitation a claim that the Association has failed to properly exercise its duties of maintenance or enforcement.
Declarant and the Association may enter into a written agreement which permits Declarant to perform Association maintenance obligations or other services in exchange for an offset in Assessments.
6.11 Delinquent Assessments. Any Assessment payment, including any installment payment, shall become delinquent if payment is not received within fifteen (15) days after its due date. There shall be a late charge of ten percent (10%) or ten dollars ($10.00), whichever is greater.
A late charge may not be imposed more than once on any delinquent payment, but it shall not eliminate or supersede any charges imposed on prior delinquent payments. Interest also shall accrue on any delinquent payment at the highest rate allowed by law. Interest shall commence thirty (30) days after the Assessment becomes due.
6.12 Collection of Assessments.
(a) Liquidated Damages. The Association may enforce delinquent Assessments, including delinquent installments, by suing the Owner directly on the debt established by the Assessment. If the Association successfully sues an Owner for the nonpayment of Assessments, the Board shall be entitled to collect delinquent Assessments, accompanying late charges, penalties, or interest, reasonable attorneys’ fees and costs and liquidated damages for the burden and expense of enforcement. Such liquidated damages shall be a sum equal to fifty percent (50%) of the amount of delinquent Assessments owed to the Association by the Owner. Such liquidated damages represent a reasonable sum considering the Association’s small size, limited resources, and the significant burden placed on the Board to prosecute its collection efforts, and represents a fair and reasonable estimate of the costs that will be sustained by the Association due to the undertaking of an enforcement action, including administrative and other overhead costs. Each Owner by acceptance of the deed to a Lot each acknowledge that proof of actual damages would be costly and inconvenient.
(b) Owners’ Consent to Liens. If an Owner is delinquent more than sixty (60) days in the payment of Assessments, the amount of the Assessments, together with any late charges, interest and costs (including reasonable attorneys’ fees) attributable thereto or incurred in the collection thereof, shall become a lien upon the Lot of the Owner so assessed upon the Recordation of a notice of delinquent assessment executed by two (2) Directors.
The notice of delinquent assessments shall set forth: (i) the amount of the delinquent Assessment(s) and other sums duly imposed pursuant to this Article; (ii) the legal description of the Owner’s Lot against which the Assessments and other sums are levied; (iii) the name of the Owner of such Lot; and (iv) the name and address of the Association. Upon payment in full of the sums specified in the notice of delinquent assessment, the Board shall Record a further notice stating the satisfaction and release of the lien thereof and a reasonable charge can be imposed for the preparation and recordation of that release. The lien prescribed by this subsection may only be enforced by judicial action and shall not be enforceable by The View at Morro Bay
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any form of non-judicial foreclosure or by a power of sale under Civil Code Sections 2924, 2924b, and 2924c. Each Owner by acceptance of the deed to a Lot consents to the Association the right to Record a lien pursuant to this subsection 6.12(b).
6.13 Certificate of Satisfaction and Release of Lien. Upon payment in full of a delinquent Assessment, including any Additional Charges, or the satisfaction thereof, the Board shall Record, in the same manner as the notice of delinquent Assessment, a further certificate stating the satisfaction thereof and the release of the lien.
6.14 Priority. The lien of theAssessments provided for under this article, including interest and costs (including attorneys’ fees), shall be prior and superior to: (i) any declaration of homestead Recorded after the Recordation of this Declaration; and (ii) 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 made in good faith and for value and Recorded prior to the date on which a lien against the respective Lot was Recorded. Sale or transfer of any Lot shall not affect the Assessment lien. However, the sale or transfer of any Lot pursuant to judicial or nonjudicial foreclosure of a First Mortgage shall extinguish the lien of such Assessments as to payments which became due prior to such sale or transfer. Such foreclosure sale shall not relieve such property from liability for any Assessments and Additional Charges thereafter becoming due, nor from the lien of any subsequent Assessment.
6.15 Association Funds. All Association accounts shall be maintained in one or more banks or other depositories selected by the Board, which accounts shall be clearly designated as belonging to the Association. The Assessments collected by the Association shall be properly deposited into such accounts. The Assessments collected by the Association shall be used for the purposes set forth in Section 6.3, above.
6.16 Waiver of Exemptions. Each Owner, to the extent permitted by law, does hereby waive, to the extent of any liens created pursuant to this Article, the benefit of any homestead or exemption laws of the State of California in effect at the time any Assessment or installment thereof becomes delinquent or any lien is imposed pursuant to the terms of this Article.
ARTICLE 7 MAINTENANCE OF PROPERTY
7.1 Association Maintenance Responsibilities.
(a) Association Maintenance Area, Generally. The Association shall maintain, repair and replace the Association Maintenance Area and all facilities, and Improvements thereon, and all other real and personal property that may be acquired or controlled by the Association, keeping such property in good condition and repair. The Association shall be responsible for maintaining the access road and paving, signage, lighting, centralized mailboxes, landscaping and irrigation of front yards, and perimeter landscaping and irrigation and shall cause any and all other acts to be done which may be necessary to assure the maintenance of the Association Maintenance Area in good condition and repair. The landscaping and landscape areas located within the Association Maintenance Area shall mean the front yard, side yard, and corner yards of each Lot, but does not include any fenced in yard areas, patios, or any other property or Improvements not included within the Association The View at Morro Bay
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Maintenance Area that the Association is obligated to maintain. The Board shall have the discretion to determine the nature, extent and level of care to be performed by the Association in discharging its obligations under this Article.
(b) Non-Exclusive List of Association Maintenance Components. The Association’s responsibility pursuant to this Section shall include, without limitation, the maintenance, repair and replacement of the following elements within the Development:
(i) On Site Signage. The Association shall establish, construct, maintain, repair and when necessary replace maintain all on-site signage, including but not limited to curb painting, “No Parking-Fire Lane” signage or striping, maps, directories and other similar improvements upon the Association Maintenance Area. (ii) Centralized Mail DeliveryUnits; Cluster Mailboxes. TheAssociation shall maintain, repair and replace the cluster mailboxes. (iii) Landscape Maintenance. The Association shall be solely responsible for all maintenance, repair, upkeep and replacement of the landscaping and irrigation system located within the Association Maintenance Area of each Lot. The Association shall maintain the landscaping as used to screen visible utility equipment such as electrical transformer boxes. The Association shall not be responsible for the maintenance of any landscaping within any fenced in yard areas of the Lots. The Association’s landscape maintenance pursuant to this subsection shall include repairing sprinklers and periodical inspection of the irrigation system to ensure proper water use and to correct any leaks or excessive watering. The Association shall be solely responsible for the operation of the irrigation timers and for all maintenance, repair, upkeep and replacement of the landscaping and irrigation systems located within the Association Maintenance Area. Each Owner shall be responsible for providing the water and electricity for the landscaping irrigation system located on their Lot and for their proportionate share of the Association Maintenance Area perimeter landscaping as shown on Exhibit “A” attached hereto and incorporated herein. The irrigation controllers shall be placed in a location on an exterior wall of the Residence that is completely accessible to the Association. The placement of the irrigation controller shall be placed such that the Association can easily access the controller without disturbing the Owner.
(iv) Lighting Maintenance. The Association shall be shall be responsible for the electricity, maintenance, repair, upkeep and replacement of the exterior lighting within the Association Maintenance Area.
(v) Association Inspections. The Association shall adopt an inspection and maintenance manual for the periodic inspection and maintenance of the Association Maintenance Area. Such maintenance inspection may be undertaken by a qualified reserve study analyst as part of the Association reserve studymandated by Section 7.9, below. The Board may, from time to time, make appropriate revisions to any 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 The View at Morro Bay
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such changes do not reduce the useful life or functionality of the items being maintained.
7.2 Owners’ Responsibilities. Except asspecified in Section 7.1, above, each Owner shall be solely and exclusively responsible for the maintenance, repair and replacement of their Lot and all Improvements thereon, and shall keep the same in good and attractive condition and repair. Each Owner’s obligations shall include, without limitation, the following:
(a) Residence, Roof and Other Improvements. Each Owner shall maintain, in good and attractive condition and repair, including, but not limited to, the Residence, roof, roof structure, exterior building surfaces, foundation, paint, doors, windows enclosing the Residence, the exterior light fixtures both at the front and rear of the Residence and garage entrances, and the fire protection systems, the fences and retaining walls shared between the Lots and other buildings, including ADUs and Improvements located on their Lot. (b) Enclosed Yard Landscape Maintenance. Each Owner shall maintain any and all enclosed yard landscaping on their Lot in a neat and attractive manner. (c) Irrigation Water and Electricity. Each Owner shall be responsible for providing water and electricity to the irrigation systems and timers on their Lot within the Association Maintenance Area.
(d) Garage. Each Owner shall clean, maintain, repair and replace the interior of the garage, including, but not limited to, the light fixture, the garage door and the garage door opener, serving their Lot.
(e) Utility Connections. Utility lines and connections, including without limitation, water, sewer, electrical, fiberoptic lines, cable television, telephone and gas lines, which are located on, under, or over any Lot and which provide service to the Residence or other Improvements located upon such Lot, shall be maintained, repaired and replaced by the Owner of such Lot or by the utility company providing such service.
7.3 Owner Maintenance of Fencing. Each Owner shall maintain, repair and replace all fencing on the Owner’s Lot. To the extent that the fencing is shared between Lot line, the shared fencing shall be maintained in accordance with the following provisions:
(a) General Rules of Law Apply. Each wall and fence which is built as a part of the original construction of the Residences within the Development and placed on the dividing line between the Lots or dividing the Lot from the Association Maintenance Areas shall constitute a party wall. The general rules of law regarding party walls and liability for property damage due to negligence or willful acts or omissions shall apply thereto. (b) Sharing of Repair and Maintenance. The cost of maintenance and repair of a shared fence or party wall shall be equally shared by the Owners who make use of the fence or wall without prejudice, however, to the right of any such Owners to call for a larger contribution from the others under any rule of law regarding liability for negligent or willful acts or omissions.
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(c) Fencing Bordering Association Maintenance Area. The Association shall maintain the fencing between the Lots bordering the Association Maintenance Area, but the cost of such maintenance shall be shared equallybetween the Association and the Lot Owners bordering the Association Maintenance Area and shall be based upon the linear feet of fencing bordering the Association Maintenance Area. The Association shall provide notice to all Lot Owners with fencing abutting Association Maintenance Area prior to undertaking any maintenance, repair, or replacement pursuant to this subsection. Such notice shall include the estimated cost of each Owner’s share of the fence related expenses. The Association may levy a Reimbursement Assessment against an Owner to collect an Owner’s contribution payment required by this subsection.
7.4 Owner Failure to Maintain. The Board shall have the absolute discretion to determine whether anymaintenance, repair, or replacement which is the responsibility of an Owner is necessary to preserve the appearance and value of the property comprising the Development, or any portion thereof, and may notify an Owner of the work the Board deems necessary. Subject to the authority of the Board to authorize immediate emergency repairs as specified in Section 7.5, in the event an Owner fails to perform such work within thirty (30) days after notification by the Board to the Owner, the Board may, after written notice to the Owner and the right of a hearing before the Board, cause such work to be done and charge the cost thereof to the Owner as a Reimbursement Assessment.
7.5 Owner Liability. In the event the need for any maintenance, repair, or replacement by the Association is caused by the willful or negligent act or omission of an Owner, members of any Owner’s household, or an Owner’s tenants, guests, invitees, or household pets, the cost of such maintenance, repair, or replacement, including the cost of materials, labor, supplies, and services shall be charged to, and paid by, such Owner in the form of a Reimbursement Assessment.
7.6 Authorityfor Entry of Lot. The Association or its agents mayenter anyLot, whenever such entry is necessary, in the Board’s sole discretion, in connection with the performance of any maintenance, repair, construction, or replacement for which the Association is responsible or which it is authorized to perform, including without limitation the authorization provided in Section 9.4.
Although under no obligation to do so, the Board, in its complete and sole discretion, may enter or may authorize the Association’s agents to enter any Lot to effect emergency repairs where such repairs are necessary for safety reasons or to prevent or discontinue damage to the entered Lot, any other Lot or the Association Maintenance Area. The cost of performing any such emergency repairs shall be charged to the Owner as a Reimbursement Assessment. Such entry shall be made with as little inconvenience to the Residents as practicable and only upon reasonable advance written notice of not less than twenty-four (24) hours, except in emergency situations.
7.7 Cooperative Maintenance Obligations. To the extent necessary or desirable to accomplish the Association’s maintenance and repair obligations hereunder, individual Owners shall cooperate with the Association and its agents and maintenance personnel in the prosecution of its work.
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7.8 Association Liability. The Association shall not be responsible or liable for any maintenance, repair, or replacement of a Lot or any Improvement thereon, except to the extent that the need for such maintenance, repair, or replacement results from the negligence or fault of the Association, its employees, contractors, or agents.
7.9 Board Discretion. The Board shall have the discretion to determine the manner, method, extent and timing of the performance of any and all maintenance, repair and replacement obligations imposed upon the Association by this Article.
7.10 Inspection of PropertyMaintained byAssociation. For all propertyand Improvements required to be maintained by the Association pursuant to Section 7.1, above, the Board shall cause the inspection of the condition of such property and Improvements as provided in this Section.
Inspections shall be conducted in accordance with any applicable maintenance manuals, and in the absence of inspection frequency recommendations in any applicable maintenance manuals, at least once every three (3) years.
ARTICLE 8 ARCHITECTURAL CONTROL
8.1 Submission of Plans and Specifications. Except as provided in subsection 8.1(c), the construction, installation, placement or alteration of Improvements visible from the exterior of a Residence shall be subject to this Article 8.
(a) Residences and Structures. No Improvements including without limitation Residences, buildings, fences, walls, obstructions, balconies, screens, patio covers, awnings, or other structures of any kind, shall be commenced, located, erected, painted, or maintained within the Development, nor shall any exterior addition to or change or alteration therein be made, until the plans and specifications showing the nature, kind, shape, color, height, size, materials, and location of the same shall have been submitted to and approved in writing by the Architectural Review Committee. Notwithstanding this subsection, and provided that the existing color and finish were approved by the Architectural Review Committee in the first instance, an Owner may repaint and refinish the exterior of the Improvements on their Lot in an identical color and finish without the approval of the Architectural Review Committee.
The Owner shall repaint and refinish the exterior of the Improvements approximately every ten (10) years and/or as necessary to maintain the exterior of their Residence. The Board, in its complete discretion and upon such basis and terms as it deems prudent, shall have the power to adopt, modify and repeal Rules governing the pre-approved exterior colors of the Residences within the Community. These requirements are in addition to any approvals to the extent required by the City. To the extent that the City will require a building permit for any Improvement, the Owner shall obtain written approval from the City for anyconstruction or modification of the Improvement, including without limitation, an ADU or a JADU. Upon request, the Owner shall submit a copy of the building permit to the Architectural Review Committee. Upon written approval by the Architectural Review Committee, the Owner may commence construction on the Improvement.
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(b) Enclosed Yard Area. If the Lot includes an enclosed yard area, all Improvements and proposed landscaping within such area which is or may become visible above the fence line or which alter the Lot’s drainage, and all Improvements which generate noise, including but not limited to motorized equipment, shall be subject to the approval of the Architectural Review Committee in accordance with this Article. (c) Exemption of Declarant from Committee Approval Requirements. Declarant shall not be subject to the provisions of this Article 8 and shall not be required to seek the approval of the Architectural Review Committee with respect to any of its activities within the Development.
8.2 Establishment of Architectural Review Committee.
(a) Initial Declarant Appointments. The Architectural Review Committee shall consist of three (3) members. Declarant may appoint all of the members of the Architectural Review Committee and all replacements until each Lot within the Development is improved with a completed Residence and landscaping.
(b) Board as Committee. Following the completion of all Residences and all initial landscaping within the Development, the Board shall exercise the functions of the Architectural Review Committee in accordance with the terms of this Article.
8.3 Duties. It shall be the duty of the Architectural Review Committee to consider and act upon proposals or plans submitted to it, to perform other duties delegated to it by the Board, and to carry out all other duties imposed upon it by this Declaration. All decisions regarding proposed Improvements shall be made in good faith and shall not be unreasonable, arbitrary, or capricious.
8.4 Meetings. The Architectural Review Committee shall meet as necessary to properly perform its duties hereunder. Every act done or decision made by a majority of the members of the Architectural Review Committee shall be the act or decision of the Architectural Review Committee.
The Architectural Review Committee shall keep and maintain a record of all actions taken by it at such meetings or otherwise. The Architectural Review Committee and its members shall be entitled to reimbursement for reasonable out-of-pocket expenses incurred by them in the performance of any Architectural Review Committee function.
8.5 Architectural Rules. The Board may, from time to time, adopt, amend, and repeal rules and regulations to be known as Architectural Rules. The Architectural Rules shall interpret and implement the provisions of this Article by setting forth the standards and procedures for Architectural Review Committee review and guidelines for architectural design, placement of Residences and other structures, color schemes, exterior finishes and materials, and similar features which are recommended for use in the Development; provided, however, that the Architectural Rules shall not be in derogation of the minimum standards required by this Declaration. The Architectural Rules may also impose limits on the days and hours of construction and impose any other restrictions and regulations which the Board deems appropriate to limit the impact of construction activities on the Residents.
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8.6 Application. AnyOwner proposing to perform anywork of any kind whatever, which requires prior approval pursuant to this Article, shall apply for approval by notifying the Association, in writing, of the nature of the proposed work and furnishing such information and documentation as the Architectural Review Committee or Board may require, including without limitation samples of proposed paints in such sizes and formats as the Committee or the Board may deem appropriate.
In accordance with subsection 10.5(c), and in addition to any other remedies the Association may have, the Board may impose a fine against any Owner who fails to submit an application, and obtain the required approval thereof, prior to proceeding with any Improvement for which approval is required pursuant to this Article. Except as provided in the last sentence of Section 8.1, any Owner who paints their Residence or any other Improvement without first submitting an application and obtaining the approval required by this Article may be required, in the Board’s discretion, to repaint the Residence or Improvement.
8.7 Fees. The Architectural Review Committee may charge a reasonable fee or fees for its review of architectural or landscaping applications, drawings, plans, and specifications which may include the cost of retaining outside consultants including but not limited to architects, engineers, soils experts, or contractors. In addition to review fees, the Architectural Review Committee shall may require an Owner to post a deposit for major or even minor Improvements when submitting plans to the Committee to ensure compliance with the Architectural Rules and this Declaration. The Committee shall establish a schedule or formula for determining a different amount of the deposit, and may require a separate deposit for proposed landscaping improvements. Owners acknowledge that all or a portion of any deposit may be forfeited to the Architectural Review Committee if the Owner fails to properly and timely complete works of Improvement in accordance with approved plans and specifications or if an Owner or an Owner’s agents cause damage to the Association Maintenance Area. Prior to anydeposit forfeiture, the Architectural Review Committee shall provide the Owner with notice and an opportunity to be heard.
8.8 Grant of Approval. The Architectural Review Committee shall grant the requested approval only if:
(a) Application. The Owner has complied with the application submission procedures established by this Declaration and any applicable Architectural Rules; (b) Plans and Specification. The Architectural Review Committee finds that the plans and specifications conform to both: (i) this Declaration; and (ii) the Architectural Rules in effect at the time such plans were submitted to the Committee, unless a variance is granted from such Architectural Rules pursuant to Section 8.18; and (c) Aesthetics and Workmanship. The Architectural Review Committee determines that the proposed Improvements would be consistent with the standards of the Development and the purposes of this Declaration as to workmanship, design and materials, as to harmony of exterior design with the existing structures, and as to location with respect to topography and finished grade elevations.
8.9 Form of Approval. All approvals and denials of requests for approval shall be in writing and no verbal approval of a request for approval is permitted by any member of the Architectural Review Committee or the Association. The Architectural Review Committee may The View at Morro Bay
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approve a request for approval subject to the Owner’s consent to any modifications made by the Architectural Review Committee. If the Owner does not consent to the modifications, the request for approval shall be deemed denied in its entirety.
8.10 Appeal of Denial to Board. Unless the Architectural Review Committee is comprised of the Directors, who make their decision at a Board meeting, if an Owner’s Improvement application is disapproved by the Architectural Review Committee, the applicant shall be entitled to request reconsideration by the Board. The Board shall consider the reconsideration request at a regular or special meeting of the Board.
8.11 Time for Architectural Review Committee Action. Any request for approval which has not been acted upon by the Architectural Review Committee within forty-five (45) days from the date of receipt thereof by the Architectural Review Committee shall be deemed approved. The Owner requesting approval shall have the burden of establishing the date of receipt of the request for approval by the Architectural Review Committee by evidence in the form of either a copy of such request for approval date-stamped by the Association or by a return receipt provided by the U. S.
Postal service acknowledging that such request for approval was delivered to the Association.
8.12 Commencement. Upon receipt of approval pursuant to this Article, the Owner shall, as soon as practicable, satisfy all conditions thereof and diligently proceed with the commencement and completion of all installation, construction, reconstruction, refinishing, alterations, and excavations pursuant to such approval, commencement to occur, in all cases, within ninetydays from the effective date of such approval or upon such later date as the Board may in its discretion designate. If the Owner shall fail to comply with this paragraph, any approval previously given shall be deemed revoked unless the Board, upon written request of the Owner made prior to the expiration of the time for commencement, extends the time for such commencement. No such extension shall be granted except upon a finding by the Board that there has been no change in the circumstances upon which the original approval was granted.
8.13 Completion. The Owner shall, in any event, complete the installation, construction, reconstruction, refinishing, or alteration of any Improvement, within one year after commencing construction thereof, except and for as long as such completion is rendered impossible or would result in great hardship to the Owner due to strikes, fires, national emergencies, natural calamities, or other supervening forces beyond the control of the Owner or his agents. If an Owner fails to comply with this Section, the Board shall proceed as though the failure to complete the Improvements was a non-compliance with approved plans.
8.14 Inspection. Inspection of work and correction of defects therein shall proceed as follows:
(a) Owner’s Notice of Completion. Upon the completion of any installation, construction, reconstruction, alteration, or refinishing of the exterior of any Improvements, or upon the completion of any other work for which approved plans are required under this Article, the Owner shall give written notice thereof to the Architectural Review Committee. (b) Committee Inspection. Within sixty (60) days after the receipt of such written notice, the Architectural Review Committee, or its duly authorized representative, may The View at Morro Bay
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inspect such Improvement to determine whether it was installed, constructed, reconstructed, altered, or refinished to substantial compliance with the approved plans. If the Architectural Review Committee finds that such installation, construction, reconstruction, alteration, or refinishing was not done in substantial compliance with the approved plans, it shall notify the Owner in writing of such non-compliance within such sixty (60) day period, specifying particulars of non-compliance and shall require the Owner to remedy such non-compliance. (c) HearingRegardingNon-compliance. If the Owner shall have failed to remedy such non-compliance upon the expiration of thirty (30) days from the date of such notification, the Architectural Review Committee shall notify the Board in writing of such failure. The Board shall then set a date on which a hearing before the Board shall be held regarding the alleged non-compliance. The hearing date shall be not more than thirty (30) nor less than fifteen (15) days after notice of the non-compliance is given to the Board by the Architectural Review Committee. Notice of the hearing date shall be given at least ten (10) days in advance thereof by the Board to the Owner, to the Architectural Review Committee and, in the discretion of the Board, to any other interested party. (d) Determination of Non-Compliance. At the hearing the Owner, the Architectural Review Committee and, in the Board’s discretion, any other interested person, may present information relevant to the question of the alleged non-compliance. After considering all such information, 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 non-compliance exists, the Board shall require the Owner to remedy or remove the same within a period of not more than forty-five (45) days from the date of the Board’s ruling. If the Owner does not comply with the Board’s ruling within such period or within any extension of such period as the Board, in its discretion, may grant, the Board, at its option, may either, grant a variance for such non-compliant Improvement, remove the noncomplying Improvement, or remedy the non-compliance and all expenses incurred in connection therewith shall be assessed against the Owner as a Reimbursement Assessment. (e) Failure to Notify Owner of Non-compliance. If, for any reason, the Architectural Review Committee fails to notify the Owner of any non-compliance within sixty (60) days after receipt of a notice of completion from the Owner, the Improvement shall be deemed to be in accordance with the approved plans. The Owner shall have the burden of establishing the date of receipt of the notice of completion by the Architectural Review Committee by evidence in the form of either a copy of such notice date-stamped by the Association’s office or by a return receipt provided bythe U. S. Postal service acknowledging that such notice was delivered to the Association.
8.15 Non-Waiver. The approval by the Architectural Review Committee of any plans, drawings, or specifications for any work done or proposed, or for any other matter requiring the approval of the Architectural Review Committee under this Declaration, shall not be deemed to constitute a waiver of any right to withhold approval of any similar plan, drawing, specification, or matter subsequently submitted for approval.
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8.16 Estoppel Certificate. Within thirty (30) days after written demand is delivered to the Association by any Owner, and upon payment to the Association of a reasonable fee (as fixed from time to time by the Board), the Board shall issue an estoppel certificate, certifying (with respect to any Lot of such Owner) that as of the date thereof, either: (i) all Improvements made and other work completed by such Owner comply with this Declaration; or (ii) such Improvements or work do not so comply, in which event the certificate shall also identify the non-complying Improvements or work and set forth with particularity the basis of such non-compliance. Any purchaser from the Owner, or from anyone deriving any interest in a Lot through them, shall be entitled to rely on such certificate with respect to the matters therein set forth, such matters being conclusive as between the Association and all Owners and such persons deriving any interest through them.
8.17 Liability. Neither Declarant, Association,Board,theArchitecturalReviewCommittee nor any member or representative thereof shall be liable to the Association or to any Owner for any damage, loss, or prejudice suffered or claimed on account of: (i) the approval or disapproval of any plans, drawings, and specifications, whether or not defective; (ii) the construction or performance of any work, whether or not pursuant to approved plans, drawings, and specifications; (iii) the development of any portion of the Development; or (iv) the execution and filing of an estoppel certificate pursuant to Section 8.16, whether or not the facts therein are correct; provided, however, that the Architectural Review Committee, the Board or any member or representative thereof has acted in good faith on the basis of such information as may be possessed by it or them. Without in any way limiting the generality of the foregoing, the Architectural Review Committee, the Board or any member or representative thereof, may, but is not required to, consult with or hear the views of the Association or any Owner with respect to any plans, drawings, specifications, or any other proposal submitted to the Architectural Review Committee. EveryOwner, by acquiring title to a Lot or portion thereof agrees not to bring any action or suit against Declarant, Association, Board, the Architectural Review Committee, or their members or representatives seeking to recover any such damages.
8.18 Variances.
(a) Reasonable Variances. The Architectural Review Committee, in its sole discretion, shall be entitled to allow reasonable variances in any procedures specified in this Article and those minimum construction standards in Article 5 in order to overcome practical difficulties, avoid unnecessary expense or prevent unnecessary hardships. (b) Criteria for Variances. The Architectural Review Committee must make a good faith written determination that the variance is consistent with one or more of the following criteria: (i) the requested variance will not constitute a material deviation from any restriction contained herein or that the variance proposal allows the objectives of the violated requirement(s) to be substantially achieved despite noncompliance; or (ii) that the variance relates to a requirement land use restriction or minimum construction standard otherwise applicable hereunder that is unnecessary or burdensome under the circumstances; or (iii) that the variance, if granted, will not result in a material detriment, or create an unreasonable nuisance with respect, to any other Lot or Association Maintenance Area within the Development. At the request of the Architectural Review Committee the Association Board is authorized and empowered to execute and Record a notice of anyvariance granted pursuant to this Section in a form acceptable to the County Recorder’s Office.
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8.19 Compliance With Governmental Requirements. The application to the Architectural Review Committee, and the review and approval of any proposals, plans, or other submittals, shall in no way be deemed to be satisfaction of or compliance with any building permit process or any other governmental requirements, the responsibility for which lies solely with the respective Owner, nor shall it constitute the assumption of any responsibility by or impose any liability on Declarant, Association, Board, the Architectural Review Committee, or their members as to the accuracy, efficacy, or sufficiency of such proposals, plans or other submittals.
ARTICLE 9 EASEMENTS
9.1 Easements in General. In addition to all easements reserved and granted on the Subdivision Map, there are hereby specifically acknowledged, reserved and granted for the benefit of the Lots and the Owners in common and for each Lot and Owner severally, and for the Association, as their respective interests shall exist, the easements and rights of way as particularly identified in this Article.
9.2 Easements Granted by Board.
(a) Non-Exclusive Use Easements. The Board shall have the power to grant and convey to any person or entity non-exclusive easements and rights of way, in, on, over, or under the Association Maintenance Area for the purpose of: (i) constructing, erecting, operating, or maintaining thereon, therein, or thereunder overhead or underground lines, cables, wires, conduits, or other devices for electricity, cable television, power, telephone, public sewers, storm drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes, and any similar public or quasi-public improvements or facilities; and (ii) for any other purposes deemed by the Board to be appropriate and not inconsistent with the purposes and interests of the Association. Each Owner, in accepting a deed to a Lot, expressly consents to such easements and rights of way. No such easements may be granted if they would materially interfere with the use, occupancy, or enjoyment by an Owner or Resident of their Lot without the consent of the affected Owner of the Lot. (b) Exclusive Use Common Maintenance Area Easements. The Board shall have the authority to execute and Record a maintenance agreement designating portions of the Association Maintenance Area as exclusive use and maintenance areas for the benefit of an appurtenant Lot, for the purpose of promoting an efficient division of the use and maintenance responsibilities between the Owners and the Association.
9.3 General Association Easements for Maintenance, Repair and Replacement. The Association shall have a non-exclusive easement in, on, over or under every Lot as reasonably necessary to: (i) maintain and repair the Association Maintenance Area; (ii) perform maintenance pursuant to subsection 7.1; (iii) perform maintenance upon a Lot which is not performed by its Owner as provided by Section 7.3 and Section 7.5 and (iv) otherwise perform its obligations under this Declaration.
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9.4 Utility Maintenance and Repair Easements. Wherever sanitary sewer connections or water connections, electricity, gas, telephone, telecommunications, television lines or drainage facilities are installed within the Development, which connections, lines or facilities, or any portion thereof, lie in or upon Lots owned by other than the Owner of the Lot served by said connections, the Owners of any Lots served by said connections, lines or facilities shall have the right, and are hereby granted an easement to the full extent necessary therefor, to enter such Lots or to have utility companies enter therein, or any portion thereof, to repair, replace and generally maintain said connections as and when the same may be necessary. All utility companies having easements on the property covered by this Declaration shall have easements for cleaning, repairing, replacing, and otherwise maintaining or causing to be maintained service in all underground utility lines, including, when reasonably necessary, the entry into an improvement constructed upon a Lot for uncovering any such lines. Any Owner or utility company exercising the rights granted in this Section shall be obligated to restore the Lot and the Residence entered to substantially its former condition.
9.5 Encroachment Easements. The Association Maintenance Area and each Lot within the Development is hereby declared to have an easement over all adjoining Lots and the Association Maintenance Area for the purpose of accommodating any minor encroachment due to engineering errors, errors in original construction, settlement or shifting of structures, or any other similar cause.
There shall be valid easements for the maintenance of such encroachments as long as they shall exist.
Notwithstanding the preceding, in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if such encroachment occurred due to the wilful misconduct of such Owner or Owners. In the event a structure is partially or totally destroyed, and then repaired or rebuilt, the Owners of each Lot agree that minor encroachments over adjoining Lots or Association Maintenance Area shall be permitted and that there shall be valid easements for the maintenance of such encroachments so long as they shall exist.
9.6 Private Access, Utility and Drainage Easement. Declarant herebyreserves and grants a non-exclusive private access, utility, and drainage easement on, over, under, and across the Association Maintenance Area of each Lot, including anyenclosed front yard, side yard and/or corner yard areas and patios that contain any common drainage within enclosed fence areas, for the benefit of all the Lots within the Development.
9.7 Private Reciprocal Easements. Declarant hereby reserves non-exclusive private reciprocal ingress, egress, maneuvering easements as required by the Conditions of Approval over the street and the ingress/egress easement for the benefit of each Lot within the Development and grants said easements to the Association, Owners, Residents, their guests and invitees.
9.8 Fire Department Access. Declarant hereby grants the Fire Department a nonexclusive easement for ingress and egress and use of the Association Maintenance Area and street within the Development.
9.9 Easements Reserved and Granted. Any and all easements referred to herein shall be deemed reserved or granted, or both reserved and granted, as appropriate, by reference to this Declaration in a deed to any Lot.
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9.10 Water Meter Easements. Declarant herebyreserves and grants a non-exclusive private easement for unrestricted access at all times for City personnel and maintenance vehicles across the Lots for the benefit of all the Lots within the Development.
ARTICLE 10 ENFORCEMENT
10.1 Violations as Nuisance. Every act or omission constituting or resulting in a violation of any of the provisions of the Governing Documents shall be deemed to constitute a nuisance. In addition to any other remedies which may be available, such nuisance may be abated or enjoined by the Association, its officers, the Board or by any Owner. The Board shall not be obligated to take action to abate or enjoin a particular violation if, in the exercise of its discretion, the Board determines that acting to abate or enjoin such violation is not likely to foster or protect the interests of the Association and its Members as a whole.
10.2 Legal Principles Applicable to Enforcement. Although the Development is not subject to the Davis-Stirling Common Interest Development Act, in any action to enforce this Declaration or any other Governing Documents, the community and each Owner acknowledges and agrees to be bound by the legal principles and legal presumptions governing common interest developments. Such legal principles and legal presumptions shall include, for example and without limitation, the holdings and precedents of the following cases:
(a) Nahrstedt v. Lakeside Village Condominium Association, (1994) 8 Cal 4 th
361. (CC&Rs are presumed reasonable; burden is on the party challenging provision to show that provision is unreasonable).
(b) Villa De Las Palmas Homeowners Association v. Terifaj, (2004) 33 Cal 4 th
73. (Amendments are as valid as the original CC&Rs, and duly adopted Rules are enforceable).
(c) Rancho Santa Fe Association v. Dolan-King (2004) 115 Cal. App. 4 th
28. (Architectural rules and review byBoard is subject to requirements of good faith, and if good faith, the courts won’t overrule the Board).
(d) La Jolla Shores Clubdominium Association v. Lamden (1999) 21 Cal 4 th
249.
(Courts won’t overrule Board decisions, so long as decisions were made in good faith, in the best interest of the community, and based upon reasonable inquiry).
10.3 Owners’ Responsibility for Conduct and Damages. Each Owner shall be fully responsible for informing members of their household and their tenants, contractors and guests of the provisions of the Governing Documents, and shall be fully responsible for the conduct, activities, any Governing Document violation of any of them, and for any damage to the Development or the Association resulting from the negligent or intentional conduct of any of them or any household pets.
If a Lot is owned jointly by two (2) or more persons, the liability of each Owner in connection with the obligations imposed by the Governing Documents shall be joint and several.
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10.4 No Avoidance. No Owner may avoid the burdens or obligations imposed by the Governing Documents through non-use of any Association Maintenance Area facilities or by abandonment of their Lot.
10.5 Rights and Remedies of the Association.
(a) RightsCumulative. The Association, its Directors, officers, or agents, and any Owner shall have the right to enforce any and all provisions of the Governing Documents by any proceeding at law or in equity, or through the use of such other remedies as are available and deemed appropriate by the Board. Each remedy provided is cumulative and not exclusive.
(b) Member Not In Good Standing. Upon a determination by the Board, after prior notice to the affected Member and an opportunity for a hearing, that such Member has violated any provision of the Governing Documents including a failure to pay any Assessment when due, the Board shall give notice in writing to such Member that they are deemed not to be a Member in Good Standing. Such Member shall be deemed to remain in that status until such time as the Board shall determine in writing that the violation which resulted in the Board’s determination has been cured or remedied or, on some other basis as in the judgment of the Board is just and proper, that such Member shall again be deemed to be a Member in Good Standing of the Association. Such Member shall be so notified in writing with a copy given to the Secretary.
(c) Imposition of Sanctions. In the event of a breach or infraction of any provision of the Governing Documents by an Owner, members of an Owner’s household, or their tenants, contractors, guests, invitees or pets, the Board shall have the power to impose sanctions against the Owner. Such sanctions may include, without limitation, the imposition of fines and/or the suspension of an Owner’s rights as a Member, including an Owner’s voting rights. Except as provided in Section 10.7, below, imposition of sanctions shall be effective only after the Board has held a duly noticed hearing. The payment of any such fine may be enforced as an Enforcement Assessment as provided in Section 6.8 of this Declaration as well as in any manner permitted by law. Further, each Owner shall be obligated to payReimbursement Assessments levied by the Board for reimbursement of any costs incurred by the Association relating to violation of any provisions of the Governing Documents by such Owner, members of such Owner’s household, or their tenants, contractors, guests, pets or invitees.
(d) Inadequacyof Legal Remedy. Exceptfor the non-payment of anyAssessment levied pursuant to the provisions of Article 6 of this Declaration, it is hereby declared that a remedy at law to recover damages for a default in the performance of any of the terms and provisions of any of the Governing Documents or for the breach or violation of any such provisions is inadequate and that the failure of any Owner or a member of the household of any Owner or an Owner’s tenants, guests, invitees or household pets or any other occupant or user of any of the property within the Development to comply with any provision of the Governing Documents may be enjoined in any judicial proceedings initiated by the Association, its officers or Board, or by any Owner or by their respective successors in interest.
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