____________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting:
Disposition:
Agenda Item No: 2.c
Meeting Date: February 17, 2026
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: Megan Kelly, Assistant Engineer
April Miller, Public Works Director
City Manager Approval: __________
TOPIC: APPROVAL OF FINAL SUBDIVISION MAP FOR 709 C STREET FOUR-UNIT
CONDOMINIUM PROJECT
SUBJECT: RESOLUTION APPROVING THE FINAL SUBDIVISION MAP FOR THE 709 C STREET
DEVELOPMENT FOR CONDOMINIUM PURPOSES
RECOMMENDATION:
Staff recommends that the City Council adopt a resolution approving the final subdivision map for the 709 C Street Development for Condominium Purposes.
BACKGROUND:
The City’s Zoning Administrator approved an Environmental and Design Review Permit (PLAN21-021, ED21-45) to allow the construction of four new townhomes and associated site and landscaping improvements on an existing parking lot located at 709 C Street at a public hearing on May 23, 2022.
The Zoning Administrator granted a Time Extension (PLAN24-025) for the prior Environmental and Design review, with a revised condition of approval requiring the applicant to obtain a Tentative Subdivision Map prior to issuance of the first building permit at a public hearing on April 17, 2024. The Planning Commission approved the tentative subdivision map (TS24-001) to allow a four-lot residential condominium subdivision at 709 C Street by Resolution No. 24-11 on December 10, 2024. The project was determined to be categorically exempt from the provisions of the California Environmental Quality Act (CEQA, Public Resources Code §21000, et seq. and California Code of Regulations, §15000, et seq.) pursuant to Section 15315 of the CEQA Guidelines (Minor Land Divisions).
The property owner has substantially completed frontage improvements and stormwater treatment and has now applied for approval of the final subdivision map.
ANALYSIS:
The Department of Public Works and BKF, the City’s consultant surveyor, have reviewed the final subdivision map (Exhibit A to the Resolution) and the installed frontage improvements and have determined that the final subdivision map and completed improvements are in substantial conformance with the tentative map approval in Resolution No. 24-11 and the requirements of the Subdivision Map Act.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
Resolution No. 24-11 also required the developer to enter into a stormwater facilities maintenance agreement. The stormwater maintenance agreement has been reviewed and approved by the City Engineer and is ready for recording. Section 15.12.050 of the San Rafael Municipal Code (SRMC) also requires recordation of the Declaration of Covenants, Conditions and Restrictions (CC&R’s). These documents have been reviewed and approved by the staff of the Community Development Department and the City Attorney’s Office.
Staff has prepared a resolution approving the final subdivision map and authorizing its recordation by the City Clerk.
FISCAL IMPACT:
There is no fiscal impact associated with this report. Staff costs for processing the application are included in the FY 2025-26 budget and are covered by the developer's application fees.
OPTIONS:
The City Council has the following options to consider in this matter:
1. Adopt the resolution.
2. Adopt the resolution with modifications.
3. Direct staff to return with more information.
4. Take no action.
RECOMMENDED ACTION:
Staff recommends that the City Council adopt a resolution approving the final subdivision map for the 709 C St development for condominium purposes.
ATTACHMENTS:
1. Resolution
a. Exhibit A to the Resolution - Final Map for Condominium Purposes Lands of MODLP, LLC
2. Declaration of Covenants, Conditions and Restrictions (CC&R’s)
3. Stormwater Facilities Maintenance Agreement
RESOLUTION NO.
A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING THE FINAL SUBDIVISION MAP FOR THE 709 C STREET DEVELOPMENT FOR CONDOMINIUM PURPOSES WHEREAS, on May 23, 2022, an Environmental and Design Review Permit (PLAN 21-021, ED21-045) was approved to allow the construction of four new townhomes and associated site and landscaping improvements on an existing parking lot located at 709 C Street; and WHEREAS, on April 15, 2024, the City of San Rafael received an application for a Tentative Subdivision Map (PLAN24-056, TS24-001) for a four-lot subdivision at 709 C Street; and WHEREAS, on April 17, 2024, a Time Extension (PLAN24-025) for the prior Environmental and Design review was granted by the Zoning Administrator with a revised condition of approval to obtain a Tentative Subdivision Map prior to issuance of the first building permit; and WHEREAS, the property owner, MODLP, LLC, has applied for approval of the final subdivision map for the subdivision, entitled “Final Map for Condominium Purposes LANDS of MODLP, LLC” and supporting documents; and
WHEREAS, staff has found that the frontage improvements, stormwater treatment, are substantially complete, and the City Engineer and the City’s consultant surveyor have determined that the subdivision map and completed improvements are in substantial conformance with the approved tentative map and comply with the requirements of the California Subdivision Map Act; and NOW, THEREFORE, BE IT RESOLVED, by the City Council that the final subdivision map for the 709 C St Subdivision is hereby approved and the City Clerk is authorized to record the map in the Official Records of the County of Marin, conditioned upon receipt of the fully signed Stormwater Facilities Maintenance Agreements and all other required documents and fees.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on the 17th day of February 2026, by the following vote, to wit:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
LINDSAY LARA, City Clerk
P:\Shared\Projects\2022\2200280 C Street Townhomes\DWG\Final Map\FM-1_2_CERTIFICATION SHEETs.dwg 01/22/2026 - 01:36 PM tetiana 1:1
O W N E R' S S T A T E M E N T
C O U N T Y T A X C O L L E C T O R' S S T A T E M E N T
C O U N T Y R E C O R D E R' S S T A T E M E N T
C I T Y E N G I N E E R ' S S T A T E M E N T
S U R V E Y O R' S S T A T E M E N T
S O I L R E P O R T
C I T Y C L E R K ' S S T A T E M E N T
VICINITY MAP
TS24-001
A.P.N.012-073-10
FINAL MAP
FOR CONDOMINIUM PURPOSES
LANDS OF MODLP, LLC
Engineering
Landscape Architecture
Surveying
Urban Planning
504 Redwood Boulevard, #310
Novato, CA 94947
415.883.9850
CSWST2.com
PROJECT
SITE
SAN RAFAEL
C I T Y SURVEYOR ' S S T A T E M E N T
P:\Shared\Projects\2022\2200280 C Street Townhomes\DWG\Final Map\FM-1_2_CERTIFICATION SHEETs.dwg 12/10/2025 - 08:11 AM tetiana 1:1 TS24-001
A.P.N.012-073-10
FINAL MAP
FOR CONDOMINIUM PURPOSES
LANDS OF MODLP, LLC
Engineering
Landscape Architecture
Surveying
Urban Planning
504 Redwood Boulevard, #310
Novato, CA 94947
415.883.9850
CSWST2.com
T R U S T E E` S A C K N O W L E D G E M E N T
T R U S T E E' S S T A T E M E N T
O W N E R' S A C K N O W L E D G E M E N T CLERK OF THE BOARD OF SUPERVISORS ' STATEMENT
O W N E R' S A C K N O W L E D G E M E N T
O W N E R' S A C K N O W L E D G E M E N T
FND RR SPIKE[7][10]
HELD
FND 3/4" PIPE, OPEN
AS SHOWN ON [7][10][11]. HELD
FND CROSS ON CURB
AS SHOWN ON[7][11]. HELD
FND NAIL, NO TAG,RNF.
ACCEPTED AS THE WITNESS
CORNER AS SHOWN ON[10]
FND 3/4" PIPE, OPEN,
AS SHOWN ON[7][10]. HELD
FND NAIL PER [10]
HELD
SNF, NAIL
PER [10]
SNF, NAIL PER [10]
SNF, CROSS
PER [7]
SNF, NAIL&TAG LS2535 [7]
FIRST STREET (R/W WIDTH VARIES[7])
C STREET (65' R/W PER[1])D STREET (R/W WIDTH VARIES PER[7]) SECOND STREET (R/W WIDTH VARIES PER[1]) SNF, HUB
PER [10]
SNF, HUB
PER [10]
SNF, NAIL PER [10]
SNF,
CROSS[7]
SNF, "T" CUT [7]
SNF, CROSS PER [7]
FND 5/8" REBAR TAGGED
RCE 11181 PER [7]
HELD
SNF, TAG LS2535
ON 4"x4" POST[7]
FND NAIL AND TAG
PLS 4419 PER [11].
0.24' WESTERLY
FROM R/W.
SNF, SPIKE
PER [11]
SNF, PLUG PER[10]
SNF, NAIL[10]
16 OS 69[10]
230 DEEDS 375[31]
181 DEEDS 90[30]
114 OR 217[37]
233 DEEDS 210[36]
105 OR 85[35]
178 DEEDS
365[34]
181 DEEDS 82[33]
180 DEEDS 391[32]
178 DEEDS 365[34]
Graphic Scale (in feet)
0 1 inch = 30 ft.
30 60 30
FINAL MAP
FOR CONDOMINIUM PURPOSES
LANDS OF MODLP, LLC
LEGEND
BASIS OF BEARINGS
FND 1/2" IP PLS 4419 PER [11],
1.11' SOUTHERLY FROM R/W. MAP REFERENCES
DEED REFERENCES
FND 5/8" REBAR RCE 11181 PER[7]. HELD
FND NAIL AND TAG RE 3230
SHOWN ON[7][11]
SNF, CROSS PER[7]
DETAIL "A"
N.T.S.
N45°24'17"E 384.55'(C)[10]
BASIS OF BEARINGS
C STREET (65' R/W PER[1])
230 DEEDS 375[31]
181 DEEDS 90[30]
233 DEEDS 210[36]
PARCEL ONE
178 DEEDS 365[34]
PARCEL TWO
178 DEEDS 365[34]
BUILDING
Graphic Scale (in feet)
0 1 inch = 10 ft.
10 20
10 FINAL MAP
CONDOMINIUM SUBDIVISION
LANDS OF MODLP, LLC
METHOD AND REASONING STATEMENT (SEE SHEET3)
OWNER`S INFORMATION (SEE SHEET 3)
MAP REFERENCES
DEED REFERENCES
LANDS OF MODLP, LLC
APN 012-073-10
(2024-0026294[23])
A PORTION OF LANDS AS
DESCRIBED IN[30] AND [34]
DETAIL "A" LEGEND
LOT 3
1,284± S.F.
LOT 2
1,252± S.F. LOT 1
910± S.F.
LOT 4
1,091± S.F.
LOT A
COMMON AREA
2,466± S.F.
(PRIVATE ACCESS AND UTILITY EASEMENT FOR THE BENEFIT OF LOTS 1, 2, 3 AND 4 Graphic Scale (in feet)
0 1 inch = 10 ft.
10 20 10
TS24-001
FINAL MAP
FOR CONDOMINIUM PURPOSES
LANDS OF MODLP, LLC
LEGEND
A.P.N.012-073-10
FIRST STREET (R/W WIDTH VARIES[7]) C STREET (65' R/W PER[1])
BASIS OF BEARINGS
Recording Requested By and
When Recorded Return To:
MODLP, LLC
c/o Michael O’Mahony
4280 Redwood Highway, Suite 7
San Rafael, CA 94903
APN:
(formerly APN: 012-073-10)
DECLARATION
OF
CONDITIONS, COVENANTS AND RESTRICTIONS
OF
709 C STREET,
A CONDOMINIUM PROJECT,
AND CONDOMINIUM PLAN
TABLE OF CONTENTS OF
DECLARATION
OF
CONDITIONS, COVENANTS AND RESTRICTIONS
OF
709 C STREET,
A CONDOMINIUM PROJECT
[INSERT TABLE OF CONTENTS HERE]
ATTACHMENT A - LEGAL DESCRIPTION
ATTACHMENT B - CONDOMINIUM PLAN
-i-
DECLARATION
OF
CONDITIONS, COVENANTS AND RESTRICTIONS
OF
709 C STREET,
A CONDOMINIUM PROJECT
THIS DECLARATION is made on the date hereinafter set forth by MODLP, LLC, a California limited liability company, referred to herein as "Declarant".
Declarant is the owner of that certain real property located in the City of San Rafael, County of Marin, State of California, more particularly described in Attachment A annexed hereto and incorporated by reference herein.
Said real property is being improved with four separate structures with one (1) residential Unit each, each on its own Lot, with one (1) Common Area lot. Declarant intends to establish a condominium project under the provisions of the Davis-Stirling Common Interest Development Act, providing for separate title to each Unit within the Project, each Unit to have an undivided interest in all the remaining property.
The development shall be referred to herein as the "Project".
Declarant intends by this document to impose upon the Property mutually beneficial restrictions under a general plan of improvement for the benefit of all the Condominiums of the Project and the Owners thereof.
Declarant hereby establishes by this Declaration a plan for the individual ownership of the real property estates, consisting of the Lots, as well as the co-ownership by the individual owners, as tenants in common and as hereafter set forth, of all the remaining portions of the Project, which is hereinafter defined and referred to as the "Common Area".
NOW, THEREFORE, Declarant hereby establishes that the Property hereinafter described shall be held, conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold and improved, -1-
subject to the following declarations, limitations, covenants, conditions, restrictions and easements, all of which are imposed as equitable servitudes, pursuant to a general plan for the development of the Property, for the purposes of enhancing and protecting the value and attractiveness of the Property and the Project, and every part thereof, in accordance with the plan for the improvement of the Property and the division thereof into condominiums. All of the limitations, covenants, conditions, restrictions and easements shall constitute covenants which shall run with the land and shall be binding upon Declarant and the successors and assigns of Declarant and all parties having or acquiring any right, title or interest in or to any part of the Property or the Project.
ARTICLE I
DEFINITIONS
Section 1.1 "Articles" Shall mean and refer to the Articles of Association of the Association, as amended from time to time.
Section 1.2 "Assessments" Shall mean Regular Assessments and/or Special Assessments which are a portion of the cost of maintaining, repairing, improving, operating and managing the Property, or Individual Special Assessments, which are imposed to bring an Owner and his Unit into compliance with the Condominium Documents, and which are to be paid by Owners as determined by the Association.
Section 1.3 "Association" Shall mean and refer to the 709 C Street Homeowners Association, a nonprofit mutual benefit corporation, the Members of which shall be Owners of Condominiums in the Project.
Section 1.4 "Bylaws" Shall mean or refer to the Bylaws of the Association as amended from time to time.
Section 1.5 "Common Area" Shall mean and refer to those portions of the Property to which title is held by all Owners in common, specifically “Lot A,” and excepting all the Lots other than “Lot A,” which all such Lots being depicted on the Map.
Section 1.6 "Common Expenses" Means and includes the actual and estimated expenses of operating the Property and any reasonable reserve for such purposes, as found and determined by the Association, and all sums designated common expenses by or pursuant to the Condominium Documents.
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Section 1.7 "Common Interest" Means the one-fourth (1/4) undivided interest in the Common Area which is appurtenant to each Lot, as set forth in this Declaration.
Section 1.8 "Condominium" Shall mean an estate in real
property, as defined in California Civil Code Section 4125, consisting of title to a Lot/Unit and an undivided interest in the Common Area.
Section 1.9 "Condominium Documents" Means and includes this Declaration, as it may be amended from time to time, the attachments, if any, annexed hereto, the Articles, the Bylaws, and the rules and regulations for the Members, as established from time to time.
Section 1.10 "Condominium Plan" or “Plan” Shall mean and refer to those certain portions of the Map which define and describe the Lots/Units and Common Area, prepared pursuant to California Civil Code Sections 4120, 4285, 4290 and 4295, and appended hereto as Attachment B.
Section 1.11 "Declarant" Shall mean and refer to MODLP, LLC, a California limited liability company, together with its successors and assigns who have expressly been assigned the rights of Declarant.
Section 1.12 "Declaration" Shall mean and refer to this enabling Declaration.
Section 1.13 "Eligible Insurer or Guarantor" Shall mean and refer to an insurer or governmental guarantor of a first mortgage who has requested notice of certain matters from the Association in accordance with Section 8.6(g).
Section 1.14 "Eligible Mortgagee" Shall mean and refer to a first mortgagee who has requested notice of certain matters from the Association in accordance with Section 8.6(g).
Section 1.15 "Exclusive Use Common Area" Shall mean and refer to those portions of the Common Area, if any, set aside for exclusive use of an Owner, or Owners, pursuant to Article II, Section 2.2(c), and shall constitute "exclusive use common area" within the meaning of California Civil Code Section 4145.
Section 1.16 "Individual Special Assessment" Shall mean an Assessment levied against a particular Owner and such Owner’s Condominium for corrective action performed or for reasonable fines or service charges levied, all in accordance with this Declaration. -3-
Section 1.17 "Institutional Lender" Shall mean any bank, savings and loan association, insurance company, or other financial institution holding a recorded mortgage on any Unit.
Section 1.18 "Map" Shall mean that subdivision map entitled "Final Map Condominium Subdivision Lands of MODLP, LLC", recorded the ____ day of _______ 2025 in Book ____ of Maps, at Pages ___, Serial No. 2025-_______, Official Records of the County of Marin, State of California.
Section 1.19 "Member" Shall mean and refer to a person
entitled to membership in the Association, as provided in this Declaration.
Section 1.20 "Mortgage" Shall include a deed of trust as well as a mortgage.
Section 1.21 "Mortgagee" Shall include a beneficiary or a holder of a deed of trust as well as a mortgage.
Section 1.22 "Mortgagor" Shall include the trustor of a deed of trust as well as a mortgagor.
Section 1.23 "Owner" or "Owners" Shall mean or refer to the record holder or holders of title, if more than one, of a Condominium in the Project. This shall include any person having a fee simple title to any Unit but shall not include contract sellers and those persons or entities having any interest merely as security for the performance of any obligation. If a Unit is sold under a recorded installment land contract to a purchaser, such purchaser, rather than the fee owner, shall be considered the Owner.
Section 1.24 "Person" Means a natural person, a corporation, a partnership, a trust or other legal entity.
Section 1.25 "Project" Shall mean and refer to the entire real property described herein, including all structures and improvements erected thereon.
Section 1.26 "Property" Means and includes the real property described herein and all improvements erected thereon and all property, real, personal or mixed, intended for or used in connection with the Project.
Section 1.27 "Regular Assessment" Shall mean an Assessment which is a portion of the cost of maintaining, improving, operating and managing the Property which is to be paid by each Owner, as determined by the Association.
-4-
Section 1.28 "Share" Means the percentage interest in and to the Common Area attributed to and appurtenant to each Unit, as set forth in Article II, Section 2.2(b) hereof.
Section 1.29 "Special Assessment" Shall mean a supplemental Assessment to meet expenses which is to be paid by each Owner when the total amount of funds necessary to defray common expenses is determined to be inadequate by the Association.
Section 1.30 "Unit" or "Lot" Shall mean and refer to the elements of the Condominium, as defined in Article II, Section
2.2(a), which are not owned in common with the Owners of other Condominiums in the Project, specifically, each respective Lot, “Lot 1,” “Lot 2,” “Lot 3,” and “Lot 4,” excepting therefrom “Lot A,” all as depicted on the Map.
Section 1.31 "Unit Designation" Means the number, letter or combination thereof or other official designations shown on the Condominium Plan.
Section 1.32 "Number and Gender" The singular and plural number and masculine, feminine and neuter gender shall each include the other where the context requires.
Section 1.33 "Mandatory and Permissive" "Shall", "will", and "agree" as used herein are mandatory and "may" as used herein is permissive.
-5-
ARTICLE II
DESCRIPTION OF PROJECT, DIVISION OF PROPERTY
AND CREATION OF PROPERTY RIGHTS
Section 2.1 Description of Project.
(a) Project Description. The Project consists of four(4) Lots upon each of which there is being built a structure containing one (1) residential Unit and a Common Area lot, “Lot A,” and all other improvements located on all those lots. Reference is made to the Condominium Plan to supply further details concerning the Project.
(b) Easements.
i. Easements to Accompany Conveyance of a
Condominium. Easements that benefit or burden any Condominium, including the right of access for each Owner to the Owner's Unit, shall be appurtenant to that Condominium and shall automatically accompany the conveyance of the Condominium, even though the description in the instrument of conveyance may refer only to the fee title to the Condominium.
ii. Easements, Generally. The ownership interest
in the Common Area and Units, and each Owner's right of ingress and egress over the Common Area described in this Article II, are subject to the easements and the rights of the Association granted and reserved in this Declaration and the other Condominium Documents. Each of the easements reserved and granted pursuant to this Declaration shall be deemed to be established upon the recordation of this Declaration and shall henceforth be deemed to be covenants running with the land for the use and benefit of the Owners, the Condominiums, the Association, and the Common Area, superior to all other encumbrances applied against or in favor of any portion of the Project. Individual grant deeds to Condominiums may, but shall not be required to, set forth the easements specified in this Article.
iii. Specific Easements.
a. Upon conveyance of any Unit in the Project,
there shall be granted a bike parking easement over and across those portions of Lot 2 and Lot 3 depicted and labeled on the Map as “Bike Parking Easement” and “Private Bike Parking Easement” for the benefit of all the Owners and for the purpose of the Owners of all the Units in the Project parking bicycles.
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b. Upon the conveyance of Lot 3 or Lot 4, there
shall be granted a storm drain easement over, across and under that portion of Lot 3 depicted and labeled on the Map as “4.08' Storm Drain Easement in Favor of Lot 4" and “Private Storm Drain Easement as Noted” for the benefit of the Lot 4 Owner and for the purpose of the Lot 4 Owner maintaining and the private storm drain; c. Upon the conveyance of Lot 2 or Lot 3, there
shall be granted a private parking easement over and across that portion of Lot 3 depicted and labeled on the Map as “5.23' Parking Easement in Favor of Lot 2" and “Private Parking Easement As Noted” for the benefit of the Lot 2 Owner and for the purpose of the Lot 2 Owner parking non-commercial passenger automobiles; and d. Upon the conveyance of any Unit in the
Project, there shall be granted a private access and utility easement over, across and under Lot A, for the benefit of all Owners and for the purpose of all Owners having unobstructed vehicular and pedestrian ingress and egress to their respective Lots in the Project, and the for the purpose of installation and maintenance of utility lines serving the Common Area and the individual Lots.
iv. Notwithstanding anything herein expressly or
impliedly to the contrary, this Declaration and the Project shall be subject to all easements and rights-of-way shown on the Condominium Plan, Map and all other easements of record. v. The Association shall have the power, without
the consent of the Owners, to dedicate and/or grant easements over all or any portion of the Common Area in the name of all of the Owners as their attorney-in-fact, for the purpose of constructing, erecting, operating or maintaining lines, cables, wires, conduits, or other devices for electricity, cable television, computer, internet, power, telephone, and other purposes, public sewers, storm water drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes, and any similar public or quasi-public improvements or facilities, for the benefit of the Association or Owners, as the Association may decide, including the right to grant easements to public agencies and utilities that are reasonably necessary for the operation of the Project and the Units. The Association shall have the right to dedicate or transfer all or any part of the Common Area to any public agency, authority or utility for such purpose and subject to such conditions as may be agreed to by the Members. No such dedication or transfer shall be effective unless an instrument signed by at least two-thirds (3/4ths) of the Owners, agreeing to such dedication or transfer, has been recorded.
vi. Each Unit shall have an easement for drainage
through the established drainage pipes and facilities. Such -7-
easements shall be subject to the restrictions set forth in Article VI hereof.
Section 2.2 Division of Property. The Property is hereby divided into the following separate freehold estates:
(a) Lots/Units. Each of the Lots, as separately shown,
numbered and designated in the Condominium Plan, are defined horizontally to their respective lot boundary lines and defined vertically to the land and airspace within those boundary lines.
The individual Lots do not include those areas and those things which are defined as "Common Area" in Article I, Section
1.7. Each Lot is subject to such encroachments as are contained in the Project, whether the same now exist or may be later caused or created in any manner referred to in Article VIII, Section 8.5. (b) Common Areas. The remaining portion of the Property referred to herein as "Common Area" or "Common Areas" shall include, without limitation, all of the elements set forth in Article I, Section 1.7. Each Owner shall have appurtenant to his Unit an undivided twenty-five percent (25%) interest in the Common Area.
The ownership of each Condominium shall include a Unit and such undivided interest in the Common Area. The common interest appurtenant to each Unit is declared to be permanent in character and cannot be altered without the consent of all Owners affected and the first mortgagees of such Owners, as expressed in an amended declaration. Such common interest cannot be separated from the Unit to which it is appurtenant. Each Owner may use the Common Area in accordance with the purposes for which it is intended without hindering the exercise of or encroaching upon the rights of any other Owners.
(c) Exclusive Use Common Areas. Portions of the Common
Area shown and delineated on the Condominium Plan may be "Exclusive Use Common Areas" and may be hereby reserved by Declarant as exclusive use common areas, as defined in California Civil Code Section 4145, to be granted as exclusive easements appurtenant to a particular Unit.
The assignment, transfer or exchange, either reciprocal or unilateral, of the right to the exclusive use of an Exclusive Use Common Area from one Owner to another or between two or more Owners is authorized provided that the assignment, transfer or exchange of such Exclusive Use Common Area is evidenced by a recorded document.
In the event the Association acquires fee title to or any easement right over the Common Area, the affirmative vote of Members owning at least three of the Units shall be required before -8-
the Association may grant exclusive use of any portion of such Common Area to any Member, except as provided in California Civil Code Section 4600. Measures placed before the Members requesting the Association grant exclusive use of any portion of the Common Area shall specify whether the Association will receive any monetary consideration for the grant and whether the Association or the transferee will be responsible for providing any insurance coverage for exclusive use of such Common Area.
(d) No Separate Conveyance of Undivided Interest. The
foregoing undivided interests are hereby established and are to be conveyed with the respective Units, as set forth above. Such undivided interests cannot be changed, except as set forth in this Declaration. Declarant, and the successors, assigns and grantees of Declarant, covenant and agree that the undivided interests in the Common Area referred to in Section 2.2(b) and the fee title to the respective Units conveyed therewith, shall not be separated or separately conveyed, and each such undivided interest shall be deemed to be conveyed or encumbered with its respective Unit, even though the description in the instrument of conveyance or encumbrance may refer only to the fee title to the Unit. (e) Annexation. Any annexation of real property to the
Project shall require the affirmative vote of Members owning at least three (3) of the Lots.
Section 2.3 Partition Prohibited. The Common Area shall remain undivided, as set forth herein. Except as provided by California Civil Code Section 4610, no Owner shall bring any action for partition of the Project or any part thereof, it being agreed that this restriction is necessary in order to preserve the rights of the Owners with respect to the operation and management of the Project. Judicial partition by sale of a single Lot owned by two or more persons and division of the sale proceeds is not prohibited hereby. However, partition of title to a single Lot is prohibited.
ARTICLE III
ASSOCIATION-ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS Section 3.1 Association to Manage Common Areas. The
management of the Common Area shall be vested in the Association, in accordance with its Bylaws. The Owners of all of the Condominiums covenant and agree that the administration of the Project shall be in accordance with the provisions of this Declaration, the Articles and the Bylaws of the Association.
Section 3.2 Membership. The Owner of a Condominium
automatically, upon becoming an Owner, shall be a Member of the Association, and shall remain a Member thereof until such time as -9-
his ownership ceases for any reason, at which time his membership in the Association shall automatically cease. Membership shall be held in accordance with this Declaration, the Articles and the Bylaws of the Association.
Section 3.3 Transferred Membership. Membership in the
Association shall not be transferred, pledged or alienated in any way, except upon the sale of the Condominium to which it is appurtenant, and then only to the purchaser of such Condominium.
A mortgagee does not have membership rights until he becomes an Owner by foreclosure or deed in lieu thereof. Any attempt to make a prohibited transfer is void. In the event the Owner of any Condominium should fail or refuse to transfer the membership registered in his name to the purchaser of his Condominium, the Association shall have the right to record the transfer upon its books and thereupon any old membership outstanding in the name of the seller shall be null and void.
Section 3.4 Membership Class and Voting Rights. The
Association shall have two classes of voting membership:
(a) Class A. Class A Members shall be all Owners with
the exception of Declarant, until such time as Class B merges into Class A. Each Condominium shall be allocated one vote in the Association. When more than one Owner holds an interest in any Condominium, all such co-Owners shall be Members of the Association; however, the vote for each Condominium must be cast as a whole. No fractional votes shall be allowed with respect to any Condominium, nor shall more than one vote be cast with respect to any Condominium. When more than one person owns a Condominium, there shall be one "Voting Owner" for such Condominium. The Voting Owner shall be designated by the record Owners of each Condominium by written notice to the Association. The designation shall be revocable at any time by actual notice to the Association given by any Owner of record of such Condominium or by the death or judicially declared incompetency of any record Owner. The power herein conferred to designate a Voting Owner, and to revoke said designation, may be exercised by the Owner's conservator or by the guardian of his estate, or in the case of a minor having no guardian, the parent or parents entitled to custody of said minor, or during the administration of his estate, the executor or the administrator of a deceased Owner, where the latter's interest in the Condominium is subject to administration in his estate. Where no Voting Owner of a Condominium has been designated, or the designation has been revoked as provided herein, the vote for such Condominium shall be exercised as the majority of the co-Owners of the Condominium mutually agree. No vote shall be cast for any Condominium where there is no designated Voting Owner or the majority of co-Owners present in representing the Condominium cannot agree in their vote as provided herein.
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(b) Class B. The Class B Member shall be Declarant who
shall be entitled to vote as follows: Voting shall be the same as for Class A memberships, except that the Class B Member may triple its vote for each Condominium owned. Class B membership shall cease and be converted to Class A membership on the happening of either of the following events, whichever first occurs:
i. When the total votes outstanding in the Class
A membership equals the total vote (tripled as stated) outstanding in the Class B membership; or
ii. On the second anniversary date of the first
conveyance of a Condominium in the Project.
Upon the merger of Class B into Class A, all Units shall be entitled to one (1) vote. Except as otherwise provided in the Condominium Documents, any action by the Association which must have the approval of the Members before being undertaken shall require the vote or written assent of fifty-one percent (51%) of each class of membership during the time that there are two outstanding classes of membership. Any provision in this Declaration which requires that the vote of Declarant be excluded during any such vote shall be applicable only if there has been a conversion of Class B to Class A shares, and shall be understood to require the vote or written assent of fifty-one percent (51%) of the total voting power of the Association and the vote or written assent of fifty-one percent (51%) of the total voting power of Members other than Declarant. The immediately foregoing sentence shall not apply to those situations governed by Title 10, California Code of Regulations, Section 2792.4, governing the enforcement of bonded obligations.
Section 3.5 Votes Required for the Association to Assert a Claim Under Title 7 of Part 2 of Division 2 of the California Civil Code. The Association shall have the power to initiate claims against Declarant (and/or any contractor, subcontractor, design professional, engineer, or supplier who provided labor, services, or materials to the Project) for violations of Title 7 of Part 2 of Division 2 of the California Civil Code ("Title 7"), as soon as the Association has one (1) Member other than Declarant. Upon the written request of any Member to the Association, the Association shall establish a committee consisting exclusively of Member(s) to investigate claimed violations of the functionality standards of Chapter 2 of Title 7. Upon the committee’s determination that cause exists to initiate a claim, the decision of whether to initiate a claim shall be made by a vote solely of the Members other than Declarant. A majority of the votes cast shall be deemed to be the decision of the Association, which the Association shall carry out by submitting the necessary claim to Declarant and/or to the appropriate party; provided, however, that the vote is either conducted at a properly convened meeting with the requisite quorum -11-
in accordance with the provisions of the Bylaws related to meetings and voting, or the vote was conducted without a meeting in accordance with California Corporations Code Section 7513, as authorized by the Bylaws.
ARTICLE IV
MAINTENANCE AND ASSESSMENT
Section 4.1 Creation of the Lien and Personal Obligation of Assessment. Declarant, for each Condominium owned within the Project, hereby covenants, and each Owner of any Condominium by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agrees to pay to the Association Regular Assessments, Special Assessments and Individual Special Assessments, such Assessments to be established, made and collected as provided in this Declaration.
Each Assessment or installment thereof, together with any late charge, interest, collection costs and reasonable attorneys' fees, shall be the personal obligation of the Owner at the time such Assessment, or installment, became due and payable. If more than one person is the Owner of a Condominium, the personal obligation to pay such Assessment, or installment, respecting such Condominium shall be both joint and several. The annual Regular Assessments, the Special Assessments and Individual Special Assessments provided for in this Article IV, together with interest, late charges, collection costs and reasonable attorneys' fees, shall be a continuing lien upon the Condominium against which the Assessment is made, as provided in Section 4.13 hereof. No Owner of a Condominium may exempt himself from payment of Assessments, or installments, by waiver of the use or enjoyment of all or any portion of the Common Area or by waiver of the use or enjoyment of, or by abandonment of, his Condominium.
Section 4.2 Purpose of Assessment. The Assessments levied by the Association shall be used exclusively to promote the recreation, health, safety and welfare of the Members of the Association; the improvement, replacement, repair, operation and maintenance of the Common Area; and the performance of the duties of the Association, as set forth in this Declaration.
Section 4.3 Regular Assessment and Reserve Fund.
(a) The Association shall establish and levy annual
Regular Assessments in an amount the Association estimates will be sufficient to raise the funds needed to perform the duties of the Association during each fiscal year, subject to the limitations contained in Section 4.5 hereof. Such annual Regular Assessments shall include an adequate reserve fund for maintenance, repairs and -12-
replacement of those major components of the Common Area and facilities which the Association is obligated to maintain and that must be replaced on a periodic basis, and shall be payable in regular installments rather than by Special Assessments. (b) Unless the Association is exempt from Federal or
State taxes, all reserves shall be accounted for as contributions to the capital of the Association and as trust funds segregated from the regular income of the Association or in any other manner authorized by law or regulation of the Internal Revenue Service and the California Franchise Tax Board that will prevent such funds from being taxed as income to the Association.
(c) Failure of the Association to set Regular
Assessments shall not be deemed a waiver of Regular Assessments but, rather, the prior fiscal year's Regular Assessment shall remain in full force and effect.
(d) The Association shall not expend funds designated as reserve funds for any purpose other than the repair, restoration, replacement, or maintenance of, or litigation involving the repair, restoration, replacement, or maintenance of, major components of the Common Area and facilities which the Association is obligated to repair, restore, replace, or maintain, and for which such reserve fund was established. However, the Association may authorize the temporary transfer of money from a reserve fund to the Association's general operating fund to meet short-term cashflow requirements or other expenses, provided the Association has made a written finding, recorded in the Association's minutes, setting forth the reasons that the transfer is needed, and describing when and how the money will be repaid. The transferred funds shall be restored to the reserve fund within one (1) year of the date of the initial transfer, except that the Association may, upon making a finding supported by documentation that a temporary delay would be in the best interests of the Project, temporarily delay the restoration. The Association shall exercise prudent fiscal management in maintaining the integrity of the reserve account, and shall, if necessary, levy a Special Assessment to recover the full amount of the expended funds within the time limits required by this Section. Such Special Assessment is subject to the limitation imposed by Section 4.5 of this Declaration. The Association may, at its discretion, extend the date on which the payment of the Special Assessment is due. Any extension shall not prevent the Association from pursuing any legal remedy to enforce the collection of an unpaid Special Assessment. (e) When the decision is made to use reserve funds or to temporarily transfer money from the reserve fund to pay for litigation, the Association shall notify the Members of that decision in the next available mailing of any nature to all Members (with the Association newsletter, magazine, etc., if there is one) -13-
and of the availability of an accounting of those expenses. The Association shall make an accounting of expenses related to such litigation on at least a quarterly basis. The accounting shall be made available for inspection by Members at the Association's office.
Section 4.4 Special Assessments. If the Association
determines that the estimated total amount of funds necessary to defray the common expenses of the Association for a given fiscal year is, or will become, inadequate to meet expenses for any reason (including, but not limited to, unanticipated delinquencies, costs of construction, unexpected repairs or replacements of capital improvements on the Common Area), the Association shall determine the approximate amount necessary to defray such expenses, and if the amount is approved by a majority vote of the Association, it shall become a Special Assessment. The Association may, in its discretion, prorate such Special Assessment over the remaining months of the fiscal year or levy the Special Assessment immediately against each Unit. Unless exempt from Federal or State income taxation, all proceeds from any Special Assessment shall be segregated and deposited into a special account and shall be used solely for the purpose or purposes for which they were levied, or they otherwise shall be handled and used in a manner authorized by law or regulations of the Internal Revenue Service and the California Franchise Tax Board in order to avoid, if possible, their taxation as income to the Association.
Section 4.5 Individual Special Assessment. The Association may levy an Individual Special Assessment against a particular Owner and such Owner's Unit, directly attributable to or reimbursable by such Owner, if the Association: (a) performs corrective action pursuant to the provisions of Section 5.1 of this Declaration; (b) assesses a reasonable fine or penalty to bring such Owner and such Owner's Unit into compliance with the Condominium Documents, including Rules and Regulations adopted by the Association; or (c) imposes a charge for services rendered by the Association. Interest and other charges may accrue on such Individual Special Assessments as provided in Section 4.10 hereof.
Section 4.6 Limitation on Association's Authority to Increase and Decrease Assessments.
(a) Any increases in Regular Assessments shall not be
imposed unless the Association has complied with Section 9.2(b) of the Bylaws with respect to that fiscal year, or has obtained, in accordance with Section 4.6 hereof, the approval of a majority of the Owners at a meeting or election at which a quorum was present. (b) Notwithstanding subsection (a) above, the
Association may not, without the approval of a majority of the Owners at a meeting or election at which a quorum was present:
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i. Increase Regular Assessments more than twenty
percent (20%) greater than the Regular Assessments for the Association's preceding fiscal year, or
ii. Impose Special Assessments which in the
aggregate exceed five percent (5%) of the budgeted gross expenses for the current fiscal year.
(c) Assessment increases are not limited in the case of emergency situations, which are any of the following:
i. An extraordinary expense required by court
order.
ii. An extraordinary expense necessary to repair or
maintain the Project, or any part of it for which the Association is responsible, where a threat to safety of persons is discovered. iii. Repairs to or maintenance of the Project that
could not have been reasonably foreseen in preparing the budget.
Prior to imposition of the Assessment, the Association shall make written findings, distributed to the Members, as to the necessity of the expense and why it could not have been foreseen. (d) The Association may not charge or collect fees or
Assessments in connection with a transfer of a Condominium in excess of the actual cost to change its records.
(e) The annual Regular Assessment may not be decreased
by the Association or by the Members by more than ten percent (10%) in any one (1) year without the approval of a majority of the voting power of the Association residing in Members other than Declarant.
(f) The Association shall provide notice by first-class mail to the Members of any increase of Regular or Special Assessments not less than thirty (30) days nor more than sixty (60) days prior to the increased Assessment becoming due.
Section 4.7 Notice and Quorum for Any Action Authorized Under Section 4.5. Any action authorized under Section 4.5, which requires a vote of the membership, shall be taken at a meeting called for that purpose at which a quorum equal to more than fifty percent (50%) of the total voting power of the Association is present. Written notice of said meeting shall be sent to all Members not less than ten (10) nor more than ninety (90) days in advance of the meeting, specifying the place, day and hour of the meeting and, notwithstanding any other provision of law, shall specify those matters the Association intends to present for action by the Members; but, except as otherwise provided by law, any proper matter may be presented at such meeting for action. The -15-
action may also be taken without a meeting, pursuant to the provisions of California Corporations Code Section 7513.
Section 4.8 Levying of Regular and Special Assessments.
Regular and Special Assessments shall be assessed equally to the Owners.
Section 4.9 Assessment Period. The Regular Assessment period shall commence on January 1 of each year and shall terminate on December 31 of each year, or such other dates as may be approved by the Association, and Regular Assessments shall be payable in equal monthly installments, unless the Association adopts some other basis for collection. However, the initial Regular Assessment period shall commence on the first day of the calendar month following the date on which the sale of the first Condominium to a purchaser is closed and shall terminate on December 31 of the year in which the initial sale is closed. The first Regular Assessment and all Special Assessments shall be adjusted according to the number of months remaining in the fiscal year and shall be payable in equal monthly installments, unless the Association adopts some other basis for collection. The Association shall not change the pro rata interest in the Common Area or obligation of any Condominium for purposes of levying Assessments, unless all Owners affected and all the mortgagees of such Owners have given their prior written consent.
Section 4.10 Notice and Assessment Installment Due Dates; Delinquent Assessment.
(a) A single ten (10) day prior written notice of each
annual Regular Assessment and Special Assessment, specifying the due dates for the payment of installments, shall be given to each Owner of every Condominium subject to Assessment; provided, however, in the event of an increase in any Regular or Special Assessment, such notice shall be given not less than thirty (30) nor more than sixty (60) days prior to the increased Assessment becoming due. The due dates for the payment of installments normally shall be the first day of each month, unless some other due date is established by the Association. Each installment of Regular Assessments and Special Assessments shall become delinquent if not paid within fifteen (15) days after its due date. (b) If an Assessment is delinquent, the Association may recover the following:
i. Reasonable costs incurred in collecting the
delinquent Assessment, including reasonable attorneys' fees; ii. A late charge of ten percent (10%) of the
delinquent Assessment, or ten dollars ($10.00), whichever is greater;
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iii. Interest on all sums imposed in accordance with
this Section, including the delinquent Assessment, reasonable fees and costs of collection, and reasonable attorney's fees, at an annual percentage rate of twelve percent (12%) interest, commencing thirty (30) days after the Assessment becomes due.
Section 4.11 Payment of Delinquent Assessments; Dispute Resolution. In accordance with California Civil Code Section 5658, an Owner may dispute a delinquent by paying to the Association in full the amount of Assessment in dispute, late charges, interest, and all reasonable fees and costs associated with the preparation and filing of a notice of delinquent assessment, including reasonable attorney's fees as may be prescribed by statute, and giving written notice to the Association that the amount is being paid under protest. Such notice shall be given by certified mail not more than thirty (30) days from the recording of a notice of delinquent assessment. Following receipt of such notice, the Association shall inform the Owner that the dispute may be resolved by alternative dispute resolution as set forth in California Civil Code Section 5900 et seq. The Owner may commence an action in small claims court.
Section 4.12 Estoppel Certificate. The Association, on not less than twenty (20) days prior written request, shall execute, acknowledge and deliver to the party making such request a statement in writing stating whether or not, to the knowledge of the Association, a particular Owner is in default as to his Condominium under the provisions of this Declaration and further stating the dates to which installments of Assessments, Regular or Special, have been paid as to such Owner's Condominium. Any certificate delivered pursuant to this Section may be relied upon by any prospective purchaser or mortgagee of such Condominium, but reliance on such certificate may not extend to any default not involving the payment of Assessments of which the signer had no actual knowledge. The actual costs (rounded) to the Association for providing such estoppel certificate may be charged to the Owner of the Unit.
Section 4.13 Right to Enforce. The right to collect and enforce Assessments is vested in the Association. The Association, or its authorized representative, can enforce the obligations of the Owners to pay Assessments provided for in this Declaration by commencement and maintenance of a suit at law or in equity, or the Association may foreclose by judicial proceedings or through the exercise of the power of sale, pursuant to Section 4.14, to enforce the lien rights created. Suit to recover a money judgment for unpaid Assessments, together with all amounts described in Section
4.1 shall be maintainable without foreclosing or waiving the lien rights.
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Section 4.14 Creation of Lien. If there is a delinquency in the payment of any Assessment or installment thereof on a Condominium, as described in Section 4.9 hereof, any amounts that are delinquent, together with any late charges, interest and all costs that are incurred by the Association or its authorized representative in the collection of the amounts, including reasonable attorneys' fees, shall be a lien against such Condominium upon the recordation in the Office of the County Recorder of the County of Marin of a notice of delinquent assessment, as provided in California Civil Code Section 5660.
Before the Association may place a lien upon a Condominium to collect a debt which is delinquent under Section 4.9 hereof, the Association shall, at least thirty (30) days prior to recording a lien, notify the Owner in writing by certified mail of:
(a) The general collection and lien enforcement
procedures of the Association and the method of calculation, a statement that the Member has the right to inspect Association records, and the following statement in 14-point boldface type, if printed, or in capital letters, if typed: "IMPORTANT NOTICE: IF
YOUR SEPARATE INTEREST IS PLACED IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT ACTION". (b) An itemized statement of the charges owed by the
Member, including the delinquent assessments, the fees and reasonable costs of collection, reasonable attorney's fees, any late charges, and interest, if any.
(c) A statement that the Member shall not be liable to
pay the charges, interest, and costs of collection if it is determined the Assessment was paid on time to the Association. (d) The right to request a meeting with the Association as provided hereinbelow.
A Member may provide the Association with a written notice of secondary address by facsimile transmission or United States mail, and the Association shall send any and all correspondence and legal notices required pursuant to this Section to both the Member's primary and secondary addresses.
Any payments towards such debt shall be first applied to principal owed, and only after the principal owed is paid in full shall such payments be applied to fees and costs of collection expenses, attorney's fees, late charges or interest. When a Member makes a payment, he may request a receipt and the Association shall provide it, such receipt to indicate the date of payment and the person receiving it. The Association shall provide a mailing address for overnight payment of Assessments.
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The notice of delinquent assessment shall state the amount of the Assessment, collection costs, attorneys' fees, late charges, and interest, a legal description of the Condominium against which the Assessment and other sums are levied, the name of the record Owner, and the name and address of the trustee authorized by the Association to enforce the lien by sale. The notice shall be signed by the President of the Association or such other person designated by the Association for that purpose, and mailed in the manner set forth in California Civil Code Section 2924(b), to all record Owners of the Condominium no later than ten (10) calendar days after recordation.
A Member may request to meet with the Association to discuss a payment plan for the debt, as provided in California Civil Code Section 5660.
A Member may dispute the debt noticed by submitting to the Association a written explanation of the reasons for such dispute and requesting dispute resolution. The Association shall respond in writing to the Member within fifteen (15) days of the postmark date of the explanation and resolution request, if the explanation is mailed within fifteen (15) days of the postmark of the notice of delinquent assessment. In addition, the Association may not commence a foreclosure without participating in alternative dispute resolution with a neutral third party, if so requested by the Member. Binding arbitration shall not be available if the Association intends to initiate judicial foreclosure.
Monetary penalties levied by the Association (1) as a
disciplinary measure for failure of an Owner to comply with the Condominium Documents, or (2) as a means of reimbursing the Association for costs incurred by the Association in the repair of damage to the Common Area and facilities for which the Owner was allegedly responsible, or (3) in bringing the Owner and his subdivision interest into compliance with the Condominium Documents, shall not be Assessments which may become a lien against the Unit Owner’s subdivision interest enforceable by a sale of the interest in accordance with the provisions of Sections 2924, 2924(b) and 2924(c) of the California Civil Code.
The Assessment lien created by this Section shall be prior to all other liens recorded subsequent to the notice of delinquent assessment, except for taxes, bonds, assessments and other levies, which by law would be superior thereto, and except for the lien of any first mortgage made in good faith and for value.
If a lien previously recorded against a Condominium was recorded in error, the Association shall, within twenty-one (21) calendar days, record a release of lien and provide the Member with a declaration that the notice recording was in error and a copy of the lien release.
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If the Association fails to comply with the procedures set forth in this Section, it shall recommence the required notice process prior to recording a lien, and any costs associated therewith shall be borne by the Association and not by the Member.
Section 4.15 Enforcement of Assessment Lien.
(a) After the expiration of thirty (30) days following
recording of the lien created pursuant to Section 4.13 above, the lien may be enforced in any manner permitted by law, including sale by the court, sale by the trustee designated in the notice of delinquent assessment, or sale by a trustee substituted pursuant to California Civil Code Section 2934(a).
(b) Notwithstanding the foregoing, the Association may
not use judicial or nonjudicial foreclosure to enforce such lien if the amount of the delinquent assessment, excluding accelerated assessments, late charges, fees, attorneys' fees, interest and cost of collection, is less than one thousand eight hundred ($1,800.00) dollars, or such other amount as prescribed by the California Civil Code Section 5720. For delinquent assessments in excess of one thousand eight hundred ($1,800.00) dollars or more than twelve (12) months delinquent, the Association may use judicial or nonjudicial foreclosure, subject to California Civil Code Section 5720. (c) The Association only shall approve initiation of
foreclosure proceedings by a majority vote of the Association in executive session, such vote shall take place at lease thirty (30) days prior to any public sale. Such vote shall be recorded in the minutes of the next open Association meeting. The Association shall provide written notice of intention to foreclose to the Condominium Owner in occupancy, or his legal representative, by personal service. If the Owner does not occupy the Condominium, such notice shall be provided by first-class mail, postage prepaid, at the current address shown on the Association's books, or in the absence of Owner's written notification to the Association, the Condominium address may be treated as the Owner's mailing address. (d) A nonjudicial foreclosure by the Association for
delinquent assessments shall be subject to the right of redemption.
The redemption period within which the Condominium can be redeemed ends ninety (90) days after the foreclosure sale.
(e) Any sale by a trustee shall be conducted in
accordance with the provisions of California Civil Code Sections 2924, 2924(b), 2924(c), 2924(f), 2924(g) and 2924(h), applicable to the exercise of powers of sale in mortgages and deeds of trust.
Trustees fees may not exceed the amounts prescribed in California Civil Code Sections 2924(c) and 2924(d).
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Section 4.16 Waiver of Exemptions. Each Owner, to the extent permitted by law, waives, to the extent of any liens created pursuant to this Article IV, the benefit of any homestead or exemption laws of the State of California in effect at the time any Assessment or installment becomes delinquent or any lien is imposed.
Section 4.17 Unallocated Taxes. In the event that any taxes are assessed against the Common Area, including, but not limited to, Lot A on the Map, or the personal property of the Association, rather than against the Condominiums, such taxes shall be included in the Assessments made under the provisions of Section 4.1, and, if necessary, a Special Assessment may be levied against the Condominiums in an amount equal to such taxes, to be paid in two (2) installments, not less than thirty (30) days prior to the due date of each installment.
Section 4.18 Estoppel Certificate. The Association, on not less than twenty (20) days prior written request, shall execute, acknowledge and deliver to the party making such request a statement in writing stating whether or not, to the knowledge of the Association, a particular Owner is in default as to the Owner's Condominium under the provisions of this Declaration and further stating the dates to which installments of Assessments, Regular or Special, have been paid as to such Owner's Condominium. Any certificate delivered pursuant to this Section may be relied upon by any prospective purchaser or mortgagee of such Condominium, but reliance on such certificate may not extend to any default not involving the payment of Assessments of which the signer had not actual knowledge.
ARTICLE V
DUTIES AND POWERS OF THE ASSOCIATION
Section 5.1 Duties. In addition to the duties enumerated in its bylaws, or elsewhere provided in this Declaration, and without limiting the generality thereof, the Association shall perform the following duties:
(a) Maintenance; Initial Declarant Maintenance. The
Association shall maintain, repair, replace, restore, operate and manage all of the Common Area and the “Bike Parking Easement,” as depicted on the Map, and all facilities, improvements, furnishings, equipment and landscaping thereon, and all property that may be acquired by the Association. Maintenance shall include, without limitation, painting, maintaining, repairing and replacing all Common Areas and landscaping; and periodic maintenance and testing of all built-in fire detection and protection devices and equipment, if any. The Association shall bear the costs for any -21-
portion of the Common Area damaged by the presence of
wood-destroying pests or organisms.
The responsibility of the Association for maintenance, repair and replacement shall not extend to repairs or replacements arising out of or caused by the willful or negligent act of an Owner or his guests, tenants or invitees, the cost of which is not covered by insurance. Repairs or replacements resulting from such excluded items shall be the responsibility of each Owner; provided, however, that if an Owner shall fail to make the repairs or replacements which are his responsibility as provided herein, then, upon a vote of a majority of the Association, and after not less than thirty (30) days notice to the Owner, and hearing (except in an emergency situation), the Association shall have the right (but not the obligation) to make such repairs or replacements, and the cost thereof shall be added to the Assessments chargeable to such Condominium and shall be payable to the Association by the Owner of such Condominium.
The Association shall perform all reasonable maintenance obligations and follow all reasonable maintenance schedules provided to the Association by Declarant.
(b) Insurance. The Association shall obtain and
maintain the following policy or policies of insurance:
i. A policy or policies of fire and casualty
insurance (Special Form), for the full replacement value, covering:
A. Common Area: All Common Area improvements;
all fixtures, machinery and equipment located in the Common Area; fences; monuments; lighting fixtures; exterior signs; recreational facilities, if any; and personal property owned by the Association (but excluding land, foundations, excavations and other items typically excluded from property insurance coverage);
B. Landscaping: Lawn, trees, shrubs and
plants located in the Common Area.
The policy or policies shall be primary and noncontributing with any other insurance policy or policies covering the same loss.
Each policy shall provide that it shall not be canceled without at least thirty (30) days prior written notice to the Association and to each of the Owners and their mortgagees of record. The Association shall review the limits of such insurance at least every year and shall increase or adjust the same, if necessary, to provide the coverage and protection required by this Declaration. Such policy or policies shall provide for a separate loss payable endorsement in favor of the mortgagee or mortgagees of each Condominium, if any.
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ii. A policy or policies of commercial liability
insurance, including, but not limited to, commercial liability insurance, including coverage for bodily injury, emotional distress, wrongful death, and/or property damage. Such insurance shall insure the Association, the Declarant, the officers, the Owners and any appointed manager, against any liability to the public or to any Owner incident to the ownership and/or use of the Project or incident to the use of, or resulting from, any accident or intentional act occurring in or about any Unit or the Common Area. The commercial liability insurance required by this Section shall each be in an amount of not less than two million dollars ($2,000,000) per occurrence, or such other minimum amount as may be required by California Civil Code Section 5805. The Association shall review the limits and coverage of such insurance at least every year and shall increase or adjust the same, if necessary, to provide the coverage and protection required by this Declaration. iii. Worker's Compensation Insurance to the extent
necessary to comply with all applicable laws of the State of California or the regulations of any governmental body or authority having jurisdiction over the Project.
iv. Fidelity insurance, in a commercial blanket
fidelity insurance form, naming such persons as may be designated by the Association as principals, and the Owners as obligees, in an amount to be determined by the Association in its absolute discretion.
v. Flood insurance if the Project is located in an
area designated by an appropriate governmental agency as a special flood hazard area.
vi. Earthquake insurance only if a majority of the
Members vote to purchase such insurance. If the Members elect to purchase such earthquake insurance, the insurance may be subsequently cancelled on a vote of the majority of the Members.
If cancelled, the Association shall make reasonable efforts to notify the Members of the cancellation.
vii. Officers errors and omissions insurance, in a
commercial blanket errors and omissions insurance form, naming the officers as principals, and the Owners as obligees, in an amount to be determined by the Association in its absolute discretion, subject to the requirements set forth in California Civil Code section 5800.
Nothing in this subsection (b) [except as provided in
subsection (b)(vi)] shall restrict or prohibit the Association from maintaining such additional policies of insurance or endorsements as it, in its absolute discretion, shall deem reasonable and necessary. Any insurance acquired by the Association may be taken -23-
in the name of the Association as trustee, for the use and benefit of the Association and all Owners.
The Association periodically (and not less than once each year) shall review the Association's insurance policies and make such adjustments to the policies terms and conditions as the Association considers to be in the best interests of the Association. The review shall include an appraisal by a qualified appraiser of the current replacement costs of all covered property under the Association's fire and casualty policy unless the Association is satisfied that the current dollar limit of such policy, coupled with the amount of actual reserves on hand, is equal to or greater than the current replacement costs.
The amount, term, and coverage of any policy required
hereunder (including the type of endorsements, the amount of the deductible, the named insureds, the loss payees, standard mortgage clauses, and notices of changes or cancellations) shall satisfy the minimum requirements imposed for this type of project by the Federal National Mortgage Association ("FNMA") or any successor thereto. If FNMA does not impose requirements on any policy required hereunder, the term, amount, and coverage of such policy shall be no less than that which is customarily carried by prudent owners of similar property in Marin County.
Each Owner appoints the Association or any insurance trustee (as defined in Section 8.9(b)(ii) below) designated by the Association to act on behalf of the Owners in connection with all insurance matters arising from any insurance policy maintained by the Association, including, without limitation, representing the Owners in any proceeding, negotiation, settlement or agreement.
Any insurance maintained by the Association shall contain "waiver of subrogation" as to the Association and its officers, directors, and Members, the Owners and occupants of the Condominiums (including Declarant) and mortgagees, and, if obtainable, cross liability endorsements or severability of interest endorsements insuring each insured against the liability of each other insured.
Except in the case of earthquake insurance and subject to any restrictions imposed by any Mortgagees, the Association shall have the power and right to deviate from the insurance requirements contained in this Section 5.1(b) in any manner that the Association, in its discretion, considers to be in the best interests of the Association. If the Association elects to materially reduce the coverage from the coverage required in this Section 5.1(b), the Association shall make all reasonable efforts to notify the Members of the reduction in coverage and the reasons therefor at least thirty (30) days before the effective date of the reduction.
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The Association and its directors and officers shall have no liability to any Owner or Mortgagee if, after a good faith effort, (1) the Association is unable to obtain any insurance required hereunder because the insurance is no longer available; (2) if available, the insurance (except for earthquake insurance) can be obtained only at a cost that the Association, in its sole discretion, determines is unreasonable under the circumstances; or (3) the Members fail to approve any assessment increase needed to fund the insurance premiums.
(c) Discharge of Liens. The Association shall discharge by payment, if necessary, any lien against the Common Area, and assess the cost thereof to the Member or Members responsible for the existence of such lien; provided that such Member(s) is given notice and the opportunity to be heard before the Association before discharge of the lien.
(d) Assessments. The Association shall fix, levy,
collect and enforce Assessments, as provided in Article IV hereof. (e) Payment of Expenses. The Association shall pay all
expenses and obligations incurred by the Association in the conduct of its business including, without limitation, all licenses, taxes or governmental charges levied or imposed against the Property of the Association.
(f) Enforcement. The Association shall enforce this
Declaration.
(g) Account Review. The Association shall review its
operating and reserve accounts, their reconciliations and account statements, as set forth in the Bylaws. For purposes herein, "reserve accounts" shall mean monies that the Association has identified from its annual budget to defray the future repair or replacement of, or additions to, those major components of the Common Area and facilities which the Association is obligated to maintain.
(h) Notice of Civil Action. The Association shall
notify the Members of filing of any civil action by the Association against the Declarant or other developer for alleged damage, as specified in Section 9.7 of the Bylaws.
(i) Condominium Documents and Statement of Unpaid
Assessments. Within ten (10) days of receipt of a written request from a Member, the Association shall provide copies of the Condominium Documents, copies of the documents required by Article IX of the Bylaws and a statement of any unpaid Regular or Special Assessments, late charges, interest and collection costs which are or may become a lien against such Owner's Unit, for delivery to a prospective purchaser of the Unit, pursuant to Civil Code Section -25-
4530. The Association may charge a reasonable fee for such service, which shall not exceed the reasonable cost to prepare and reproduce the requested items.
(j) Notice of Assessments and Foreclosure. The
Association shall distribute to the Members the written Notice of Assessments and Foreclosure required by California Civil Code Section 5730, during the sixty (60) day period immediately preceding the Association's fiscal year.
(k) Informational Notice to Secretary of State. The
Association shall submit to the California Secretary of State, at such time as required thereby, a form containing all the information and the fee prescribed by California Civil Code section 5405, as may be amended.
(l) Assessment and Reserve Funding Disclosure Summary.
The Association shall distribute to the Members at the time of distribution of the annual pro forma operating budget the Assessment and Reserve Funding Disclosure Summary as prescribed by California Civil Code Section 5570, as amended.
(m) Repair and Maintenance Requirements. The Association shall comply with all applicable provisions of Title 7 of Division 2, Part 2 of the California Civil Code, but shall only enforce such statute with respect to repair of Common Areas. The Association shall follow all reasonable maintenance obligations and schedules communicated in writing to the Association by the builder and product manufacturers, as well as commonly accepted maintenance practices. The Association shall make any such maintenance manuals and/or schedules available to the Owners.
Section 5.2 Powers. In addition to the powers enumerated in its Bylaws, or elsewhere provided herein, and without limiting the generality thereof, the Association shall have the following powers:
(a) Utility Service. The Association shall have the
authority to obtain, for the benefit of all of the Condominiums, all water, gas and electric service, and refuse collection; janitorial or window cleaning service; and fireplace cleaning and chimney cleaning service.
(b) Easements. The Association shall have the authority to grant easements, where necessary, for utilities and sewer facilities over the Common Area to serve the Common Areas and the Condominiums.
(c) Manager. The Association shall have the authority
to employ a manager or managing agent and to contract with independent contractors to perform all or any part of the day to -26-
day management duties and responsibilities of the Association, each of whom shall be subject to the direction and control of the Association, provided that any contract with a firm or person appointed as manager or managing agent shall not exceed a one (1) year term and shall provide for the right to terminate by either party without cause and without payment of a termination fee on thirty (30) days written notice. Any delegation of authority to a manager or managing agent shall be subject to Section 5.1.0.0.1(k) hereof.
Notwithstanding the above, no manager or officer may be delegated the power or authority to levy fines, hold hearings or impose discipline, make capital expenditures, file suit, record a claim of lien, or foreclose for failure to pay Assessments.
A professional management company shall manage the Project for the one (1) year period beginning with the date of the close of escrow of the first Condominium in the Project.
(d) Adoption of Rules. The Association may adopt
reasonable rules not inconsistent with this Declaration relating to the use of the Common Area and the Exclusive Use Common Area and the conduct and use thereof and the conduct of Owners and their tenants and guests with respect to the Property and other Owners.
All rule making shall be in compliance with the provisions of California Civil Code Sections 4340 through 4370, as amended. (e) Access. For the purpose of performing the
maintenance authorized herein, or for any other purpose reasonably related to the performance by the Association of their respective responsibilities, the Association's agents or employees shall have the right, after reasonable notice to the Owner thereof, to enter any Unit or to enter any portion of the Common Area at reasonable hours. Except in the case of any emergency, forty-eight (48) hours advance notice shall be given to the Owner or occupant prior to any entry of a Unit.
(f) Assessments, Liens and Fines. The Association shall have the power to levy and collect Assessments, in accordance with the provisions of Article IV hereof. The Association may impose fines or take disciplinary action against any Owner for failure to pay Assessments or for violation of any provision of the Condominium Documents. Penalties may include but are not limited to: fines, temporary suspension of voting rights or other appropriate discipline, provided that the accused Member is given at least fifteen (15) days notice and the opportunity to be heard orally or in writing before the Association with respect to the alleged violations at least five (5) days before a decision to impose discipline is made. All notices required under this Section shall be made pursuant to Section 9.12 of this Declaration. -27-
(g) Enforcement. The Association shall have the
authority to enforce this Declaration, as provided in Section 8.1 hereof.
(h) Acquisition of Property. The Association shall have the power to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use, or otherwise dispose of, real or personal property in connection with the affairs of the Association.
(i) Loans. The Association shall have the power to
borrow money, and only with the consent (by vote or written consent) of three-fourths (3/4) of the Members, to mortgage, to pledge, to encumber or to hypothecate any or all of its real or personal property as security for monies borrowed or debts incurred.
(j) Contract. The Association shall have the power to
contract for goods and/or services for the Common Area facilities and interests or for the Association, subject to any limitations set forth in the Condominium Documents.
(k) Delegation. The Association shall have the power to delegate its authority and powers to committees, officers or employees of the Association. The Association may not, however, delegate the following powers:
i. To levy fines, hold hearings, or impose
discipline;
ii. To make capital expenditures;
iii. To file suit, to cause a claim of lien to be
recorded, or to foreclose for failure to pay Assessments; or iv. To levy Regular Assessments or Special
Assessments.
(l) Temporary Removal of Occupants. The Association may cause the temporary removal of any occupant for such periods and at such times as necessary for prompt, effective treatment of wood-destroying pests or organisms. The cost of the temporary relocation is to be borne by the Owner of the Unit affected. Not less than fifteen (15) days nor more than thirty (30) days notice of the need to temporarily vacate shall be given to occupants and to the Owner of the Unit affected. The notice shall state:
i. The reason for the temporary relocation;
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ii. The date and time of the beginning of the
treatment;
iii. The anticipated date and time of termination of
treatment; and
iv. That the occupants will be responsible for
their own accommodations during the temporary relocation.
Notice is deemed complete if a copy is personally delivered or mailed first class to the occupants and a copy is sent to the non-occupying Owners via first class mail.
(m) Appointment of Trustee. The Association shall have
the power to appoint a trustee to enforce Assessment liens as provided in Section 4.13 hereof.
(n) Litigation, Arbitration, Mediation or Administrative Proceedings. The Association shall have the authority to institute, defend, settle or intervene in litigation, arbitration, mediation, or administrative proceedings in matters pertaining to (1) enforcement of the Condominium Documents, (2) damage to the Common Areas, (3) damage to the separate interests which the Association is obligated to maintain or repair, or (4) damage to the separate interests which arises out of, or is integrally related to, damage to the Common Areas or separate interests that the Association is obligated to maintain or repair, subject to compliance with California Code Section 6150.
(o) Other Powers. In addition to the powers enumerated
in this Declaration and in the Bylaws, the Association may exercise the powers granted to a nonprofit mutual benefit corporation, as such exist from time to time, under the California Corporations Code.
ARTICLE VI
UTILITIES
Section 6.1 Owners' Rights and Duties. The rights and duties of the Owners of Condominiums within the Project with respect to electric, telephone, water, gas and sanitary sewer lines, facilities and connections; cable or master television antenna lines, facilities and connections; and security system lines, facilities and connections (collectively referred to as "utility facilities") shall be as follows:
(a) Whenever utility facilities are installed within the Property, which utility facilities, or any portion thereof, lie within or upon Condominiums owned by other than the Owner of a Condominium served thereby, the Association or its authorized representative shall have the right to enter (or to have the -29-
utility company enter) upon the Condominiums within or upon which such utility facilities, or any portion thereof, lie, in connection with construction, maintenance or emergency repair for the benefit of the Common Area or the Owners in common.
(b) Whenever utility facilities are installed within the Property, which utility facilities serve more than one Condominium, the Owner of each Condominium served thereby shall be entitled to the full use and enjoyment of the portions of such utility facilities as service his Condominium.
(c) In the event of a dispute between Owners with
respect to the maintenance, repair or rebuilding of such utility facilities, or with respect to the sharing of the cost thereof, then, upon written request of one of such Owners addressed to the Association, the matter shall be submitted to the Association who shall decide the dispute, and the decision of the Association shall be final and conclusive on the parties.
Section 6.2 Easements for Utilities and Maintenance.
Easements over and under the Property for the installation, repair and maintenance of utility facilities, drainage facilities, walkways, and landscaping, as shown on the Map, and as may be hereafter required or needed to service the Property are hereby reserved by Declarant and the successors and assigns of Declarant, including the Association, together with the right to grant and transfer the same.
Section 6.3 Association's Duties. The Association shall maintain all utility installations located in the Common Area, including wiring in the Common Area to the Lot line, except those installations maintained by utility companies, public, private or municipal. The Association shall maintain and pay for those utility services which service the Common Area, specifically electrical service for Common Area lighting and irrigation and sprinkler and water service for irrigation. It is not the responsibility of the Association to pay for utilities which are separately metered to the Units.
ARTICLE VII
UNIT USE RESTRICTIONS
Section 7.1 Unit Use.
(a) Unit Use. No Unit shall be occupied and used except for residential purposes by the Owners, their tenants, and guests, except that an Owner may maintain an office to conduct a trade or business provided such office complies with the requirements of -30-
local laws and regulations governing the maintenance of offices in residential dwelling units.
(b) Model Homes. Declarant, and the successors or
assigns of Declarant, may use any Condominium or Condominiums in the Project owned by Declarant for a model home site or sites and display and sales office until the last Condominium is sold by Declarant.
Section 7.2 Nuisances. No illegal or seriously offensive activity shall be transacted or conducted in any Unit or in any part of the Property, nor shall anything be done thereon which is a serious annoyance or a nuisance to or which may in any way interfere with the quiet enjoyment of each of the Owners of his respective Unit, or which shall in any way increase the rate of insurance for the Project, or cause any insurance policy to be canceled or to cause a refusal to renew the same, or which will impair the structural integrity of any building in the Project.
Section 7.3 Signs. No commercial sign shall be displayed to the public view on any Residential Unit or any portion of the Property, except as set forth in this Section 7.3 hereof. In accordance with California Civil Code Section 712, one (1) "For Sale" or "For Rent" sign for each Condominium shall be allowed, provided that it is reasonable in size and posted at appropriate locations on the Property. The Association may adopt rules and regulations concerning the size and location of "For Sale" or "For Rent" signs. Noncommercial signs or posters that are nine (9) square feet, or less, and flags or banners that are fifteen square feet, or less, made of paper, cardboard, cloth, plastic or fabric may be posted or displayed from the yard, window, door, balcony or outside wall of a Unit, unless prohibited by the Association for reasons of public health or safety or if such posting or display would violate any law.
Section 7.4 Pets. An Owner shall be allowed to keep no more than a total of two (2) pets, such as domesticated birds, cats, dogs, or other pet as agreed upon between the Association and the Owner; provided that no animal is kept, bred or maintained for any commercial purposes, and is kept under reasonable control at all times. The restrictions contained herein regarding number and type of any such pet may only be changed with the express approval of the Association.
In no event shall any Owner authorize, bring or keep within the Project any pit bull, rottweiler, Doberman pinscher, mastiff, presa canaria, or any other breed known as a "fighting breed" or any dog being a mix thereof.
No pet may be kept on the Property which is a serious
annoyance or is obnoxious to the Owners. No pet shall be allowed -31-
in the Common Area unless it is both leased and under control.
Declarant or any Owner may cause any unauthorized pet found in the Common Area to be removed to a pound or animal shelter under the jurisdiction of the County of Marin, by calling the appropriate authorities, whereupon the Owner (upon payment of all expenses connected therewith) may repossess the pet. No dog whose barking seriously disturbs other Owners shall be permitted to remain on the Property. Any decision regarding the conduct of a pet shall be made only after notice to the Owner and the opportunity to be heard before the Association. Owners shall prevent their pet from soiling any portion of the Common Area and shall promptly clean up any fouling by their pet.
Nothing in this Section 7.4 regarding pets shall be construed to abridge the rights of individuals under Federal or State disability law, i.e. the Americans with Disability Act or the California Disabled Persons Act, etc.
Section 7.5 Garbage and Refuse Disposal. All rubbish, trash and garbage shall be regularly removed from the Property and shall not be allowed to accumulate thereon. Trash, garbage and other waste shall not be kept except in sanitary containers. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition. All equipment, garbage cans, wood piles or storage piles shall be kept screened and sealed from view of other Units, streets and Common Areas.
Section 7.6 Radio and Television Antennas; Data
Communication. No Owner shall alter or modify a central radio antenna, television antenna system, cable television system, data communication system or satellite dish, if any, as developed by Declarant and as maintained by the Association, without the permission of the Association. All Units have been pre-wired for satellite reception. This area is the only location on the Property where satellite dishes may be installed and this arrangement is designed to meet the standard of 'reasonable restrictions' as set forth in California Civil Code Section 4725.
Section 7.7 Right to Lease. Owners shall be entitled to rent or lease their Residential Unit provided that:
(a) Entire Unit. Not less than the entire Unit is
rented or leased. Nothing contained in this Section 7.7, 7.8(a) shall be deemed to prohibit roommates.
(b) Compliance with Condominium Documents. Any
residential lease or occupancy agreement for a Unit shall be in writing and shall specifically provide that it is subject to the Condominium Documents, and that violation or infraction of the Condominium Documents shall constitute a default thereunder. The -32-
Owner shall remain liable for any violation or infraction of the Condominium Documents by the tenant.
Section 7.8 Window Covering. Window coverings on windows which are visible from Lot A shall be restricted to drapes, curtains, shutters or blinds which are white or off-white in color, unless expressly approved by the Association.
Section 7.9 Architectural Control. No building, fence, wall obstruction, balcony, deck, screen, patio, patio cover, tent, awning, improvement or structure of any kind shall be commenced, erected, painted or maintained upon the Property, nor shall any alteration, or improvement of any kind be made thereto, until the same has been approved or disapproved in writing by the Association, within thirty (30) days of application to the Association. Such decision shall not be unreasonable, arbitrary or capricious and shall not violate any governing provision of law.
If such written decision disapproves the proposed change or changes, it shall include both an explanation of the reason for disapproval and a description of the reconsideration procedures of the Association. Reconsideration of any such disapproval shall occur at an open meeting of the Association conducted in accordance with Section 6.5 of the Bylaws, and the Association's written decision thereon shall be issued within thirty (30) days thereafter.
Plans and specifications showing the nature, kind, shape, color, size, materials and location of such improvements, alterations, etc., shall be submitted to the Association for approval as to quality of workmanship and design and harmony of external design with existing structures and as to location in relation to surrounding structures. In the event the Association fails to approve or disapprove plans and specifications within thirty (30) days after the same have been submitted to it, approval shall not be required and the related covenant shall be deemed to have been satisfied.
Notwithstanding the foregoing, an Owner may improve or alter any improvements located within the interior boundaries of the Owner's Lot, provided the improvement or alteration does not alter the portion of the building on the Lot visible from Lot A or C Street, impair the structural or acoustical integrity of any building in the Project or any Common Area, the utilities, or other systems servicing the Common Area or other Condominiums, and does not involve altering any Common Area.
The Association shall annually provide the Members with a notice of requirements for Association approval of physical changes to the Property. Such notice shall describe the types of changes requiring Association approval and the procedures used to review and approve or disapprove a proposed change.
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Section 7.10 Liability of Owners for Damage to Common Area.
The Owner of each Condominium shall be liable to the Association for all damages to the Common Area, or improvements thereon, caused by such Owner or Owner's agent, any occupant, invitee, guest or pet, except for that portion, if any, covered by insurance.
Liability of an Owner shall be established only after notice to the Owner and hearing before the Association. Any deductible required under the insurance policy for such loss shall be the
responsibility of and be paid by such Owner.
Section 7.11 Hazardous Materials. Owners shall not use or keep in a Unit or the Common Area any kerosene, gasoline or inflammable or combustible fluid or material or other hazardous materials, other than those required, in limited quantities, for normal cleaning or landscaping work.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.1 Enforcement; Mandatory Alternative Dispute
Resolution; Mandatory Arbitration; Optional Dispute Resolution; Judicial Reference; Civil Code Section 896 Compliance.
(a) Right to Enforce. The Association, or any Owner
shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration, or decisions made by the Association pursuant to the provisions of this Declaration, and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by the Court. Failure by the Association or by any Owner to enforce any covenant or restriction contained herein shall in no event be deemed a waiver of the rights to so do thereafter.
(b) Mandatory Alternative Dispute Resolution. Prior to
the filing by either the Association or an Owner of a civil action related to the enforcement of the Condominium Documents (i) solely for declaratory relief, or (ii) solely for injunctive relief, or (iii) for declaratory relief or injunctive relief in conjunction with a claim for monetary damages not in excess of the
jurisdictional limits set forth in California Code of Civil Procedure, Sections 116.220 and 116.221, the parties shall endeavor to submit their dispute to a form of alternative dispute resolution such as mediation or arbitration (collectively, "alternative dispute resolution proceedings"), as required by Sections 5925 through 5965 of the California Civil Code. As provided therein:
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i. The form of alternative dispute resolution
chosen may be binding or nonbinding at the option of the parties. ii. Any party to such a dispute may initiate the
process by serving on another party to the dispute a Request for Resolution. The Request for Resolution shall include (1) a brief description of the dispute, (2) a request for alternative dispute resolution, and (3) a notice that the party receiving the Request for Resolution is required to respond within thirty (30) days of receipt or it will be deemed rejected. Service of the Request for Resolution shall be as required by California Civil Code Section 5935.
iii. Parties receiving a Request for Resolution
shall have thirty (30) days following service of the Request for Resolution to accept or reject alternative dispute resolution and, if the Request is not accepted within said thirty (30) day period by a party, it shall be deemed rejected by that party.
iv. If alternative dispute resolution is accepted
by a party, it shall be completed within ninety (90) days of receipt of the acceptance by the party initiating the Request, unless extended by written stipulation signed by both parties. v. The costs of the alternative dispute resolution
shall be borne by the parties.
Any such action filed by the Association or an Owner shall be subject to the provisions of Civil Code Sections 5925 through 5965, and failure by any Owner or the Association to comply with the prefiling requirements therein may result in the loss by the Association or any such Owner of the right to sue to enforce the Condominium Documents.
The Association shall annually provide the Owners a summary of the provisions of this procedure, including the statement contained in Civil Code Section 5965. The summary shall be provided either at the time the pro forma budget is distributed, or in the manner prescribed in Section 5016 of the California Corporations Code.
The summary shall include a description of the Association's internal dispute resolution process required under Civil Code Section 5920.
(c) Mandatory Arbitration of Claims Against Declarant.
Notwithstanding California Code of Civil Procedure Section 1298.7, any controversy or claim between or among Declarant, as the builder of the Project, on the one hand, and either the Association or any Owner, on the other hand, relating to the design or construction of Project, shall be submitted to binding arbitration before the American Arbitration Association ("AAA") or Judicial Arbitration and Mediation Service/Endispute ("JAMS"), as provided in this -35-
subsection (c). The entity selected by the parties is hereinafter referred to as the "Arbitrating Entity", and if the parties are unable to agree on the Arbitrating Entity, the dispute shall be arbitrated before AAA.
i. The parties shall comply with the requirements
of California Civil Code Division 2, Part 2, Title 7, Chapter 4, (Sections 910 through 938, inclusive), which are hereinafter referred to as the "Non-Adversarial Procedures", prior to initiating arbitration proceedings under this subsection (c) or reference proceedings under subsection (e) below.
ii. The arbitration shall be conducted in
accordance with the commercial arbitration rules of AAA or the Streamlined or Comprehensive Rules and Regulations of JAMS, as the case may be, modified, in the case of AAA by a written agreement to vary procedures and in the case of JAMS by party-agreed procedures, as follows:
A. Declarant shall advance the fees necessary
to initiate the arbitration, with ongoing costs and fees to be paid as agreed by the parties and, if they cannot agree, as determined by the arbitrator; provided, however, that the costs and fees of the arbitration shall be ultimately borne as determined by the arbitrator.
B. There shall be only one arbitrator who
shall be selected by mutual agreement of the parties within thirty (30) days of the administrator of the Arbitrating Entity receiving a written request from a party to arbitrate the controversy or claim. The arbitrator shall be a neutral and impartial individual, and the provisions of California Code of Civil Procedure Section 1297.121 shall apply to the selection of the arbitrator. An arbitrator may be challenged on any of the grounds listed in California Code of Civil Procedure Sections 1297.121 or 1297.124.
If the parties are unable to agree on an arbitrator, the Arbitrating Entity shall select the arbitrator.
C. The venue of the arbitration shall be the
county in which the Project is located unless the parties agree to some other location.
D. The arbitrator shall apply California
substantive law in rendering a final decision. The arbitrator shall have the power to grant all legal and equitable remedies and award compensatory damages, but shall not have the power to award punitive damages.
E. Discovery shall be allowed pursuant to
California Code of Civil Procedure Section 1283.05, and arbitration of any matter pursuant to this Section shall not be deemed a waiver -36-
of the attorney-client or attorney-work product privilege in any way.
iii. The parties agree to be bound by the decision
of the arbitrator, which shall be final and non-appealable, except as may be required by applicable law, i.e. Code of Civil Procedure Sections 473 or 1286(a). Judgment upon the decision rendered by the arbitrator may be entered in any court having proper jurisdiction or application may be made to such court for judicial acceptance of the award and an order of enforcement. If a party refuses to arbitrate, the other party may seek a court order compelling arbitration.
iv. Any action by the Association pursuant to this
subsection (c) shall require the prior approval of at least seventy-five (75) percent of the Owners, with each Condominium allocated one (1) vote.
(d) Optional Alternative Dispute Resolution. In
addition to the requirements of Sections 9.1(b) and (c) above, the Association may perform any act reasonably necessary to resolve any civil claim or action through alternative dispute resolution proceedings, including, without limitation, the following:
i. Provide advance notice of the Association's
intent to initiate the prosecution of any civil action. ii. After initiating the prosecution or defense of
any civil action, meet and confer with every person who is a party. iii. Consider diversion of the prosecution or
defense of any civil action to alternative dispute resolution proceedings.
iv. Agree to both participate in alternative
dispute resolution proceedings and pay costs therefor incurred by the Association.
(e) Judicial Reference of Claims Against Declarant. In
the event that the mandatory arbitration provision of subsection (c) hereinabove is unenforceable for whatever reason, then, after the Association obtains the affirmative vote of seventy-five (75) percent of the Owners as provided in said subsection (c), and after compliance by the parties with the Non-Adversarial Procedures, any controversy or claim referenced therein shall be adjudicated by using voluntary judicial reference in accordance with the provisions of Code of Civil Procedure sections 638-645 or any successor statutes. The parties shall use a general referee acceptable to both parties, or, if the parties cannot agree, any party may petition the Superior Court of the County of Marin for appointment of a general referee by the presiding judge. The -37-
parties shall cooperate in good faith to ensure that all necessary and appropriate parties are included in the judicial reference proceeding. Declarant shall not be required to participate in the judicial reference proceeding unless Declarant is satisfied that all necessary and appropriate parties will participate.
The judicial reference shall be a general reference. The general referee shall have the authority to try any or all of the issues in the proceeding whether of fact or of law, and to report a statement of decision thereon. Neither the referee nor any party shall have the right to impanel a jury. Each party retains the same appeal rights of the referee’s decision as if the decision were rendered by a trial court judge.
(f) Civil Code Section 896 Compliance. For any claim
for defective construction filed by the Association or any Owner under subsection (c) above (or subsection (e) where the provisions of subsection (c)are unenforceable), where the claim should seek to enforce compliance by the builder, developer or subdivider with the functionality standards of California Civil Code Section 896 (including any successor statute), the Association shall only have the authority to enforce such compliance with respect to the Common Areas only. The Association or any Owner hereby waives any and all implied warranties with respect to all functions and/or components which are specified in California Civil Code Section 896 (including any successor statute).
Section 8.2 Invalidity of any Provision. Should any
provision or portion of any Condominium Document be declared invalid or in conflict with any law of the jurisdiction in which this Project is situated, the validity of all the remaining provisions and portions thereof shall remain unaffected and in full force and effect.
Section 8.3 Term. The covenants, conditions and restrictions of this Declaration shall run with and bind the Property and shall inure to the benefit of and shall be enforceable by the Association or the Owner of any property subject to this Declaration, their respective legal representatives, heirs, successors and assigns for a term of thirty (30) years from the date that this Declaration is recorded, after which time, these covenants, conditions and restrictions shall be automatically extended for successive periods of ten (10) years, unless an instrument in writing, signed by seventy-five percent (75%) of the then Owners of the Condominiums (and approved by first mortgagees in accordance with Section 9.6) has been recorded within the year preceding the year of each successive period of ten (10) years, agreeing to change such covenants and restrictions, in whole or in part, or to terminate them.
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Section 8.4 Amendments. This Declaration may be amended only by the affirmative vote of seventy-five percent (75%) of the Owners, with each Unit having one (1) vote. All such amendments must be recorded and shall become effective upon being recorded in the Recorder's Office of the County of Marin.
Section 8.5 Encroachment Easements. Each Condominium within the Property is hereby declared to have an easement over all adjoining Condominiums and the Common Area for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settling or shifting of any building in the Project, or any other cause. There shall be valid easements for the maintenance of such encroachments as long as they shall exist, and the rights and obligations of the Owners shall not be altered in any way by such encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of an Owner or Owners if such encroachment occurred due to willful misconduct of such Owner or Owners. In the event that a structure is partially or totally destroyed, and subsequently repaired or rebuilt, the Owners of each Condominium agree that minor encroachments over adjoining Condominiums or Common Area shall be permitted and that there shall be valid easements for the maintenance of such encroachments, so long as they shall exist.
Section 8.6 Mortgage Protection Provision.
(a) Mortgage Permitted. Any Owner may encumber his
Condominium with a mortgage. The Exclusive Use Common Areas, if any, are a part of the Project and are covered by the mortgage at least to the same extent as are the Common Areas. All such areas are fully installed, completed, and in operation for use by the Owners.
(b) Subordination. Any lien created or claimed under
the provisions of this Declaration is expressly made subject and subordinate to the rights of any first mortgage that encumbers any Condominium, made in good faith and for value, and no such lien shall in any way defeat, invalidate or impair the obligation or priority of such mortgage, unless the mortgagee expressly subordinates his interest in writing to such lien. The transfer of ownership of a Unit and its appurtenant percentage interest in the Common Area, as the result of the exercise of a power of sale or a judicial foreclosure involving a default under the first mortgage, shall extinguish the lien of Assessments which were due and payable prior to the transfer of the ownership interest. No transfer of an ownership interest, as the result of a foreclosure or exercise of a power of sale, shall relieve the new Owner, whether it be the former mortgagee or beneficiary of the first mortgage or another person, from liability for any Assessments thereafter becoming due or from the lien thereof. All taxes, assessments and charges which -39-
may become liens prior to the first mortgage under local law shall relate only to the individual Condominiums and not to the Project as a whole.
(c) Amendment. No amendment to the Condominium
Documents shall affect the rights of any mortgagee under any mortgage made in good faith and for value and recorded before the recordation of any such amendment, unless a mortgagee either joins in the execution of the amendment or approves it in writing as a part of such amendment.
(d) Restrictions on Certain Changes.
i. Unless sixty-seven percent (67%) of all first
mortgagees of Condominiums (based on one vote for each first Mortgage owned) and sixty-seven percent (67%) of Owners (other than Declarant or sponsors, developers, or builders) have given their prior written approval (unless a higher percentage is required by a specific provision of this Declaration), neither the Association nor the Owners shall be entitled:
A. By act or omission to seek to abandon or
terminate the Project, except for abandonment provided by statute in case of substantial loss to the Units and the Common Area.
B. To change the pro rata interest or
obligations of any Condominium for purposes of levying Assessments or charges or allocating distributions of hazard insurance proceeds or condemnation awards or for determining the pro rata share of ownership of each Condominium in the Common Area.
C. To partition or subdivide any Condominium.
D. By act or omission to seek to abandon,
partition, subdivide, encumber, sell or transfer the Common Area.
The granting of easements for public utilities or for other public purposes consistent with the intended use of the Common Area by the Association or the Owners shall not be deemed a transfer within the meaning of this subparagraph.
E. To use hazard insurance proceeds for
losses to Units or Common Area for other than the repair, replacement or reconstruction of improvements, except as provided by statute in case of substantial loss to the Units or Common Area of the Project.
ii. A. Unless a higher percentage is required by
a specific provision of this Declaration, the consent of sixtyseven percent (67%) of Owners and the approval of Eligible Mortgagees holding mortgages on Condominiums which have at least fifty-one percent (51%) of the votes of Condominiums subject to -40-
mortgages held by Eligible Mortgagees shall be required to add or amend any material provisions of the Condominium Documents which establish, provide for, govern, or regulate any of the following:
(1) voting; (2) increases in Assessments that raise the previously assessed amount by more than twenty-five percent (25%), Assessment liens or the priority of such liens; (3) reductions in reserves for maintenance, repair and replacement of the Common Area; (4) insurance requirements; (5) reallocation of the interests in the Common Area or the Exclusive Use Common Areas or rights to their use; (6) responsibility for maintenance and repair; (7) expansion or contraction of the Project or the addition, annexation, or withdrawal of property to or from the Project; (8) the redefinition of boundaries of any Condominium; (9) restoration or repair of the Project (after damage or partial condemnation) in a manner other than that specified herein; (10) convertibility of Units into Common Area or of Common Area into Units; (11) imposition of any restriction on the leasing of Condominiums; (12) imposition of any right of first refusal or similar restriction on the right of a Condominium Owner to sell, transfer, or otherwise convey his Condominium; and (13) any provisions which are for the express benefit of Eligible Mortgagees or Eligible Insurers or Guarantors).
B. An addition or amendment to such document
shall not be considered material if it is for the purpose of correcting technical errors, or for clarification only. Any Eligible Mortgagee (1) who receives a written request to approve additions or amendments, delivered by certified or registered mail, with a "return receipt requested", and (2) who fails to submit a written response to the requesting party within sixty (60) days, shall be deemed to have approved such request.
iii. Unless the prior consent of sixty-seven percent
(67%) of Owners and approval of Eligible Mortgagees holding mortgages on Condominiums which have at least sixty-seven percent (67%) of the votes of Condominiums subject to mortgages held by Eligible Mortgagees has been obtained, neither the Association nor the Owners shall be entitled to terminate the legal status of the Project as a condominium project; except that the approval of only fifty-one percent (51%) of Eligible Mortgagees shall be required to terminate the legal status of the Project after substantial destruction or a substantial taking in condemnation.
(e) Right to Examine Books and Records. The Association shall make available to Owners and first mortgagees (and insurers or guarantors of any first mortgage), current copies of the Condominium Documents and the books, records, and financial statements of the Association. "Available" means available for inspection and copying, upon request, during normal business hours or under other reasonable circumstances. The Association may impose a fee for providing the foregoing which may not exceed the reasonable cost to prepare and reproduce the requested documents. -41-
Any first mortgagee shall be entitled, on written request, to have an audited financial statement for the immediately preceding fiscal year, prepared at its expense if one is not otherwise available.
Such statement shall be furnished within a reasonable time following such request.
(f) Distribution of Insurance and Condemnation Proceeds.
No Owner, or any other party, shall have priority over any right of first mortgagees of Condominiums pursuant to their mortgages in case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or taking of Units or Common Area. Any provision to the contrary in this Declaration or in the Bylaws or other documents relating to the Project is to such extent void. All applicable fire and all physical loss or extended coverage insurance policies shall contain loss payable clauses acceptable to the affected mortgagees, naming the mortgagees, as their interests may appear.
(g) Notice to Mortgagees of Record. On receipt of
written request to the Association from any Eligible Mortgagee or Eligible Insurer or Guarantor, identifying both its name and address and the Unit number or address of the Unit on which it has the mortgage, the Association shall give written notice to each Eligible Mortgagee or Eligible Insurer or Guarantor of the following:
i. Any loss to any Unit covered by such mortgage,
if such loss exceeds one thousand dollars ($1,000), or any taking of such Unit;
ii. Any loss to the Common Area, if such loss
exceeds five thousand dollars ($5,000), or any taking of the Common Area;
iii. Any default by the Owner of any Unit covered by
such mortgage under any provision of this Declaration or any other provision of the Bylaws or rules and regulations adopted by the Association, which default is not cured within sixty (60) days after written notice to such Owner (such notice to include the fact that said sixty (60) day period has expired);
iv. Any lapse, cancellation, or material
modification of any insurance policy or fidelity insurance maintained by the Association; and
v. Any proposed action which would require the
consent of a specified percentage of Eligible Mortgagees as specified in Section 9.6(d)(ii).
(h) Effect of Breach. No breach of any provision of
this Declaration shall invalidate the lien of any mortgage made in -42-
good faith and for value, but all covenants, conditions and restrictions shall be binding on any Owner whose title is derived through foreclosure sale, trustee's sale, or otherwise. (i) Foreclosure. If any Condominium is encumbered by a
first mortgage made in good faith and for value, the foreclosure of any lien created by any provision set forth in this Declaration for Assessments, or installments of Assessments, shall not operate to affect or impair the lien of the first mortgage. On foreclosure of the first mortgage, the lien of Assessments, or installments, that have accrued up to the time of foreclosure shall be subordinate to the lien of the first mortgage, with the foreclosure-purchaser taking title to the Condominium free of the lien for Assessments, or installments, that have accrued up to the time of the foreclosure sale. On taking title to the Condominium, the foreclosure-purchaser shall only be obligated to pay Assessments or other charges levied or assessed by the Association after the foreclosure-purchaser acquired title to the Condominium. The subsequently levied Assessments or other charges may include previously unpaid Assessments, provided all Owners, including the foreclosure-purchaser, and his successors and assigns, are required to pay their proportionate share, as provided in this Section. (j) Appearance at Meetings. Because of its financial
interest in the Project, any mortgagee may appear at meetings of the Members and the Association to draw attention to violations of this Declaration that have not been corrected or made subject to remedial proceedings or Assessments.
(k) Right to Furnish Any Information. Any mortgagee may furnish information to the Association concerning the status of any mortgage.
(l) Inapplicability of Right of First Refusal to
Mortgagee. The Condominium Documents contain no right of first refusal or similar restriction on the right of an Owner to sell, transfer or otherwise convey the Owner's Condominium. No such right of first refusal or similar right shall be granted to the Association in the future without the consent of any mortgagee of the Condominium. Any right of first refusal or similar right that may be granted to the Association (or other person or entity) shall not apply to any conveyance or transfer of title to such Condominium, whether voluntary or involuntary, to a mortgagee who acquires title to or ownership of the Condominium, pursuant to the remedies provided in its mortgage or by reason of foreclosure of the mortgage or deed (or assignment) in lieu of foreclosure. In addition, said right of first refusal or similar right shall not impair the rights of a mortgagee to sell or lease a Condominium acquired by the Mortgagee.
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Section 8.7 Owner's Right and Obligations to Maintain and Repair. Except for those portions of the Project that the Association is required to maintain and repair, each Owner shall, at his sole cost and expense, maintain and repair his/her Lot and the structure thereon, keeping the same in good condition. Each Owner is solely responsible for maintenance and upkeep of any and all yard areas on their respective Lot and the maintenance and repair of all utilities servicing their Lot starting at the Lot line and to and inside the structure on their Lot. Each Owner shall keep those portions of Exclusive Use Common Areas, if any, to which he has an exclusive easement or license, clean and neat.
In the event interior that an Owner fails to maintain and repair the Lot and yard in a manner which the Association deems necessary to preserve the appearance and value of the Property, the Association may notify the Owner of the work required and request that it be done within sixty (60) days from the giving of such notice. In the event the Owner fails to carry out such maintenance or repair within such sixty (60) day period, the Association may give notice and hold a hearing and cause such work to be done and may specially assess the cost thereof to such Owner and, if necessary, place a lien on his Condominium for the amount thereof.
Section 8.8 Owner’s Obligation to Maintain Insurance. The Owners shall obtain and maintain the following policy or policies of insurance as to their respective Lot:
i. A policy or policies of fire and casualty
insurance (Special Form), for the full replacement value, covering the building on their Lot and the improvements thereon; and ii. A policy or policies of commercial liability
insurance, including, but not limited to, commercial liability insurance, including coverage for bodily injury, emotional distress, wrongful death, and/or property damage. Such insurance shall insure the Association, the Declarant, the officers, the Owners and any appointed manager, against any liability to the public or to any Owner incident to the ownership and/or use of the Project or incident to the use of, or resulting from, any accident or intentional act occurring in or about their respective Lot. The commercial liability insurance required by this Section shall each be in an amount of not less than one million dollars ($1,000,000) per occurrence.
Section 8.9 Entry for Repairs. The Association or its
appointed agents may enter any Unit when necessary in connection with any maintenance, repair or construction for which the Association is responsible. Such entry shall be made with as little inconvenience to the Owner as is practicable, and any damage caused thereby shall be repaired by the Association at the expense of the Association. Except in the case of any emergency, -44-
forty-eight (48) hour advance notice shall be given to the Owner or occupant prior to any such entry.
Section 8.10 Damage or Destruction.
(a) If the Project improvements are damaged by fire or
other casualty, the improvements shall be rebuilt or repaired substantially the same as the improvements existed prior to the fire or other casualty, subject to local building codes and other applicable governmental regulations, unless either of the following occurs:
i. The cost of repair or reconstruction is more
than fifty percent (50%) of the current replacement of all the improvements located in the Project, the available insurance proceeds are not sufficient to pay eighty-five percent (85%) of the cost of such repairs or reconstruction, and seventy-five percent (75%) of the total voting power of the Association residing in Members and their first mortgagees vote against the repair and reconstruction; or
ii. Available insurance proceeds are not sufficient
to repair or reconstruct the improvements substantially to their condition prior to the casualty, a Special Assessment fails to receive the requisite vote, if required, pursuant to Article IV, Section 4.4 hereof, and the Association is unable to supplement the insurance by borrowing in the name of the Association sufficient funds to reconstruct the improvements within a reasonable time. (b) The following procedures shall be employed for
disposition of insurance proceeds and guidance in reconstruction:
i. Minor Casualty. If the cost to repair or
reconstruct does not exceed the sum of thirty thousand dollars ($30,000), the Association shall thereupon contract to repair and rebuild the damaged portions of all Units and the Common Area, in accordance with the conditions existing immediately prior to damage (modified at the discretion of the Association to comply with building codes and construction standards in effect at the time of the rebuilding) and the funds held in the insurance trust fund shall be used for that purpose. If the insurance proceeds are insufficient to pay all of the costs of repairing or rebuilding, the Owners of the Units affected shall pay for the portion of the insufficiency attributed to their Unit by the Association and the Association shall levy a Special Assessment on all Condominiums to make up any deficiency attributed to the Common Area. The Special Assessment shall be subject to the provisions of this Declaration governing membership approval of Special Assessments and shall be levied according to the Owner's Share, as set forth on the Condominium Plan.
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ii. Major Casualty. If subparagraph (b)(i) is
inapplicable, then,
A. All insurance proceeds and funds borrowed
by the Association, if any, shall be paid to a bank, trust company or other entity designated by the Association ("the insurance trustee") to be held for the benefit of the Owners and their mortgagees, as their respective interests may appear. Said funds shall be disbursed according to standard construction loan procedures. The Association, on behalf of the Owners, hereby is authorized to enter into an insurance trust agreement, consistent with this Declaration, with such insurance trustee, relating to its powers, duties and compensation.
B. The Association shall obtain firm bids
from two (2) or more responsible contractors to rebuild the Project in accordance with the conditions existing immediately prior to damage and destruction (modified at the direction of the Association to comply with building codes and construction standards in effect at the time of the rebuilding). The Association may also obtain an estimate from the insurance carrier of the scope of work included within the amount of the insurance coverage. To be considered, any contractors' bid shall include the premium payable for performance, labor and material payment bonds from a reputable bonding company.
C. The Association shall, as soon as
reasonably possible after receipt of such contractors' bids or insurance estimate, call a special meeting of the Owners to consider such bids or insurance estimate. If the Association fails to do so within sixty (60) days after the casualty occurs, any Owner may obtain such contractors' bids or insurance estimate and call and conduct such meeting, as provided herein. Failure to call such a meeting, or to repair such casualty damage within twelve (12) months from the date such damage occurred, shall be deemed, for all purposes, a decision not to rebuild the damaged or destroyed improvements.
D. At such meeting, the Owners may elect to
reject all such bids or estimates and thus not to rebuild. A vote of at least seventy-five percent (75%) of the Association Members shall be required to reject all bids or estimates; provided, however, that a vote of at least fifty percent (50%) shall be sufficient to reject any bid or estimate requiring more than fifteen thousand dollars ($15,000) over and above insurance proceeds for such reconstruction, repair or rebuilding. Failure of the Owners to reject all bids and estimates shall authorize the Association to accept the unrejected bid it considers most favorable; provided, however, that if acceptance of any such bid would require the levy of a Special Assessment, such acceptance shall only be granted following membership approval of such Special -46-
Assessment, as required by this Declaration. If such membership approval is not obtained, the bid shall be deemed to have been rejected.
E. In the event the Owners elect not to
rebuild, insurance proceeds received by the Association shall be distributed by the Association among Owners and their respective mortgagees, according to the respective fair market values of the Condominiums at the time of destruction, as determined by the following procedure: The Association shall appoint two (2) independent appraisers to determine the relative value of the Condominiums affected. The two appraisers shall appoint a third independent appraiser. If the two appraisers are unable to agree on a third, then the third shall be appointed by the presiding Judge of the Superior Court of the State of California for the County of Marin. The market value of the respective Condominiums shall then be the average of the three values submitted by each of the appraisers.
F. If a bid or estimate is accepted, the
Association shall levy a Special Assessment to make up any deficiency between the total insurance proceeds or insurance work and the cost for such repairs or rebuilding, and such Assessment and all insurance proceeds, whether or not subject to liens of mortgages, shall be paid to the insurance trustee to be used for such rebuilding. The Special Assessment shall be levied according to the Owner's Share, as set forth on the Condominium Plan. (c) Notwithstanding any provision in this Section to the contrary, if the insurance carrier offers the full amount required to repair and restore all of the damage, then the Association shall contract to repair and rebuild the damaged portions of all Units and the Common Area in the manner provided in subparagraph (b)(i) for a minor casualty.
(d) Without waiting to obtain insurance settlements or
bids, the Association may undertake such emergency repair work after a casualty as it may deem necessary or desirable under the circumstances.
Section 8.11 Condemnation. In the event of an award for the taking of any Condominium in the Project by eminent domain, the Owner of such Condominium shall be entitled to receive the award for such taking and, after acceptance thereof, he and his mortgagee shall be divested of all interest in the Project, if such Owner shall vacate his Unit as a result of such taking. The remaining Owners shall decide by majority vote whether to rebuild or repair the Project or take other action. The remaining portion of the Project shall be resurveyed, if necessary, and the Declaration shall be amended to reflect such taking and to adjust
proportionately the percentages of the undivided interests of the -47-
remaining Owners in the Project. The Association shall represent the Owners in any condemnation proceedings or in negotiations, settlements and agreements with the condemning authority for the acquisition of the Common Area or any part thereof, and the award or proceeds of settlement shall be payable to the Association, or any trustee appointed by the Association, for the use and benefit of the Condominium Owners and their mortgagees, as their interests may appear. If Condominiums are not valued separately by Court judgment or by agreement between the condemning authority and each of the affected Owners in the Project, the condemnation award shall be distributed as follows: The Association shall appoint two (2) independent appraisers to determine the relative values of the Condominiums affected by the condemnation. The two appraisers shall appoint a third independent appraiser. If the two appraisers are unable to agree on a third, then the third shall be appointed by the presiding Judge of the Superior Court of the State of California for the County of Marin. The value of the respective interests shall be the average of the three values submitted by each of the appraisers. In the event any Owner disagrees with the proposed allocation, he may have the matter submitted to arbitration under rules of the American Arbitration Association.
In the event of eminent domain proceedings against the Project or any portion thereof, institutional lenders shall be given timely written notice thereof.
Section 8.12 Owners' Compliance. Each Owner, tenant or
occupant of a Condominium shall comply with the provisions of this Declaration, the Bylaws, and the decisions and resolutions of the Association or its duly authorized representative, as lawfully amended from time to time, and failure to comply with any such provisions, decisions or resolutions shall be grounds for an action to recover sums due for damages or for injunctive relief.
All agreements and determinations lawfully made by the
Association, in accordance with the voting percentages established in this Declaration or in the Bylaws, shall be deemed to be binding on all Owners of Condominiums, their successors and assigns.
Section 8.13 Notices. Any notice permitted or required by this Declaration or the Bylaws may be delivered by personal delivery, first-class mail (including but not limited to, certified mail), and/or email, by such manner as complies with the terms of the applicable Civil Code Sections 4035 (Notices to the Association), 4040 (Notice to Individuals), 4041 (Member Contact Information), 4045 (General Delivery or Notice), 4050 (Document Deemed Delivered) and 4055 (Electronic Delivery Requirements), and such other requires of the Davis-Stirling Act and applicable law, in each circumstance. In the event this Declaration specifically requires notice by a particular manner of notice, such manner of notice shall be used, unless it is inconsistent with applicable law.
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Section 8.14 Required Documentation. Members shall furnish subsequent purchasers with all documentation required by California Civil Code Sections 4525 and 6000, as well as purchase documents and any maintenance manuals, schedules and procedures as referred to in Title 7, Part 2, Division 2 of the California Civil Code.
IN WITNESS WHEREOF, the undersigned, being Declarant herein, has executed this Declaration this day of ,
2025.
Declarant:
MODLP, LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY
BY:
NAME: Michael F. O’Mahony
TITLE: Managing Member
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 202 , before me, ,
Notary Public, personally appeared
,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Name Typed
(This area for official notarial seal)
ATTACHMENT A
TO
DECLARATION OF
CONDITIONS, COVENANTS AND RESTRICTIONS
OF
709 C STREET,
A CONDOMINIUM PROJECT
DESCRIPTION:
All that certain real property situated in the City of San Rafael, County of Marin, State of California, and more particularly described as follows:
"All that certain real property described on that certain map entitled ‘Final Map Condominium Subdivision Lands of MODLP, LLC’, recorded the ___ day of ______ in Book ____ of Maps, at Pages ____, Serial No. 2025-______, Official Records of the County of Marin, State of California."
- ATTACHMENT A -
ATTACHMENT B
TO
DECLARATION OF
CONDITIONS, COVENANTS AND RESTRICTIONS
OF
709 C STREET,
A CONDOMINIUM PROJECT
[ ATTACH CONDOMINIUM PLAN HERE ]
- ATTACHMENT B -
- 1 -
RECORD WITHOUT
FEE PER G.C. 27383
RECORDING REQUESTED, AND
WHEN RECORDED RETURN TO:
Stormwater Coordinator/Administrator
Public Works Department
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
_________________________________________ _____________
SPACE ABOVE THIS LINE FOR RECORDERS USE
STORMWATER MANAGEMENT FACILITIES AGREEMENT
CITY OF SAN RAFAEL
STORMWATER MANAGEMENT FACILITIES OPERATIONS AND
MAINTENANCE AGREEMENT
PROJECT: C STREET TOWNHOMES
OWNER’S NAME: MODLP, LLC
ASSESSOR'S PARCEL NUMBER: 012-073-10
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STORMWATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
THIS STORMWATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE AGREEMENT ("Agreement") is made and entered into this ____day of __ , 20___, by and between MODLP, LLC (hereinafter referred to as "Property Owner") and the City of San Rafael (“CITY”).
RECITALS:
This Agreement is made and entered into with reference to the following facts:
WHEREAS, stormwater management facilities (hereinafter referred to as "Facilities") have been installed in and must be maintained for the development called C STREET TOWNHOMES , located at 709 C STREET, SAN RAFAEL, Marin County, State of California and more particularly described on Exhibit “A” attached hereto and incorporated herein by reference (the "Property"); and WHEREAS, the Property Owner is the owner of the Property; and WHEREAS, the Property Owner remains fully responsible for assuring that the Facilities were designed, constructed and installed in full compliance with all applicable laws, regulations and ordinances, all requirements applicable to the development of the Property, and all Best Management Practices, in accordance with the Erosion and Sediment Control Plan; and WHEREAS, the CITY Urban Runoff Pollution Prevention Ordinance, City of San Rafael Municipal Code chapter 9.30 ("CITY Ordinance") requires proper operation and maintenance of the Facilities constructed on this Property; and
WHEREAS, the CITY has approved the Stormwater Control Plan prepared by CSWST2 dated December 19, 2025, as this Plan is on file at 111 Morphew Street, San Rafael, CA 94901 and may be subsequently modified from time to time with CITY approval; and WHEREAS, the development conditions of approval require that Facilities, as shown on the approved Stormwater Control Plan, be constructed and properly operated and maintained by the Property Owner; and
WHEREAS, the Stormwater Control Operation and Maintenance Plan, dated December 19, 2025, as this Plan is on file at 111 Morphew Street, San Rafael, CA 94901 (together with the Stormwater Control Plan, hereinafter the “Plans”) includes an annual inspection form for the Facilities constructed on this Property, and
WHEREAS, this Agreement memorializes the Property Owner’s maintenance, operations, and inspection obligations under the CITY Ordinance and the approved Plans. - 3 -
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein, and the following terms and conditions, the parties hereto agree as follows:
SECTION 1
Responsibility for Operation and Maintenance: The Property Owner will maintain printed copies of the approved Plans at the Property. The Property Owner must maintain the Facilities in good working condition acceptable to the CITY for the life of the project, and in compliance with the CITY Ordinance and the approved Plans. If significant changes to the operation and maintenance of the Facilities are proposed, the Property Owner is responsible for submitting a revised Stormwater Control Operation and Maintenance Plan to the CITY for approval. Upon transfer of the Property, the Property Owner shall provide the new owner with the current Plans and shall set forth in any transfer agreement a requirement that the new owner assume responsibilities set forth in the Plans and this Agreement.
SECTION 2
Inspection by Property Owner: The Property Owner, at its own expense, shall conduct annual inspections to ensure the Facilities are in good working order. The Property Owner may elect to use a qualified independent inspector to inspect the Facilities. The Property Owner shall send a report of the annual inspection to the Department of Public Works Stormwater Division at the addresses shown in Section 8 below. The annual inspection report shall include completion and certification of the form described in the approved Stormwater Control Operation and Maintenance Plan. If the Property Owner fails to submit the annual inspection report by December 31st, the CITY or its agents may (but without any obligation to do so) perform the inspection and invoice the Property Owner for the cost in accordance with Sections 3 and 4 below. If the inspection reveals that Facilities are not in good working order, Property Owner, at its own expense, shall undertake necessary action to restore Facilities to good working order.
SECTION 3
Right of Entry and Facility Inspection: The Property Owner hereby grants permission to the CITY, its employees and authorized agents to enter the Property, and to inspect the Facilities whenever the CITY, its employees or its agents deem it necessary in order to enforce provisions of the CITY Ordinance. The CITY, its employees or authorized agents may enter the Property at any reasonable time to inspect the premises and Facilities operation, to inspect and copy records related to stormwater compliance, and to collect samples and take measurements. Whenever possible, these entities will provide notice prior to entry. The CITY may charge a fee to cover the costs of the inspection.
SECTION 4
Failure to Perform Required Facility Inspections, Repairs or Maintenance by the Property Owner: If the Property Owner fails to inspect and maintain the Facilities in good working order and in accordance with the approved Plans and the CITY Ordinance, the CITY, with prior notice and pursuant to the abatement procedures of San Rafael Municipal Code Chapters 1.40, 1.42, 1.44, and/or 1.46, may enter the Property to inspect or to return the Facilities to good working order and thereafter recover its costs in accordance with the abatement procedures of San Rafael Municipal Code Chapters 1.40, 1.42, - 4 -
1.44, and/or 1.46. The CITY is under no obligation to maintain or repair the Facilities, and this Agreement shall not be construed to impose any such obligation on the CITY. If the CITY under this section takes any action to inspect the Facilities or to return the Facilities to good working order, the Property Owner shall reimburse the CITY for all the costs incurred by the CITY. The CITY will provide the Property Owner with an itemized invoice of the costs and the Property Owner will have 30 days to pay the invoice. If the Property Owner fails to pay the invoice within 30 days, the CITY may secure a lien against the Property in the amount of such costs. In addition, the CITY may make the cost of abatement of the nuisance caused by the failure to maintain the Facilities a special assessment against the Property that may be collected at the same time and in the same manner as ordinary taxes are collected as provided in the abatement procedures of San Rafael Municipal Code Chapters 1.40, 1.42,
1.44, and/or 1.46. This Section 4 does not prohibit the CITY from pursuing other legal recourse against the Property Owner.
SECTION 5
Indemnity: The Property Owner shall defend, indemnify and hold harmless the CITY, its officials, employees and its authorized agents from any and all costs, losses, damages, accidents, casualties, occurrences or claims which may arise or be asserted against the CITY and which are in any way connected with the construction, operation, presence, existence or maintenance of the Facilities, or from any personal injury or property damage that may result from the CITY or other public entities entering the Property under Section 3 or 4 herein above.
SECTION 6
Successors and Assigns: This Agreement shall be recorded in the Office of the Recorder, Marin County, California, at the expense of the Property Owner. This Agreement and the covenants of the Property Owner set forth in numbered Sections 1 through 5 above shall run with the land, and the burdens thereof shall be binding upon each and every part of the Property and upon the Property Owner, its successors and assigns in ownership (or any interest therein), and said covenants shall inure to the benefit of and be enforceable by the CITY, its successors and assigns in ownership of each and every part of the street and storm drains.
SECTION 7
Severability: The provisions of this Agreement shall be severable and if any one of the provisions of this Agreement is adjudicated invalid by a court of competent jurisdiction it shall in no way effect any other provisions and all other provisions shall remain in full force and effect.
SECTION 8
Notices: All notices and other communications required or permitted to be given under this Agreement, including any notice of change of ownership, address or significant changes to the Facilities or Stormwater Control Operations and Maintenance Plan, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified.
Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice must be given to the Property Owner, its successors and - 5 -
assigns, at the address(es) shown on the records for the Property maintained by the Assessor. Notice to the CITY must be given by personal delivery or mail to both of the following addresses:
TO CITY: Public Works Director
Department of Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
and,
Stormwater Coordinator or Administrator
Department of Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
SECTION 9
Recordation: This Agreement shall be recorded by the Property Owner with the County Recorder within 30 days of the date of execution. Recordation shall be at the expense of the Property Owner.
SECTION 10
Effective Date and Modification: This Agreement is effective upon the date that the final signatory executes the Agreement. This Agreement shall not be modified except by written consent of both parties. Such modifications shall also be recorded in accordance with Section 9. [Signatures are on the following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written.
CITY OF SAN RAFAEL
______________________________
CRISTINE ALILOVICH, City Manager
APPROVED AS TO CONTENT:
______________________________
APRIL MILLER, Director of Public Works
APPROVED AS TO FORM:
______________________________
ROBERT F. EPSTEIN, City Attorney
PROPERTY OWNER
______________________________
MICHAEL F. O’MAHONY
MANAGING MEMBER
MODLP, LLC
___________________________
If Property Owner is an entity, Property Owner hereby
represents and warrants that the persons executing this Agreement on behalf of Property Owner have full authority to do so and to bind Property Owner to each and every term of this Agreement.
Attachments: Acknowledgements
Exhibit A
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Fill out up-to-date California All-Purpose Acknowledgment Form:
http://notary.cdn.sos.ca.gov/forms/notary-ack.pdf in accordance with California Civil Code section 1189. See this template that is consistent with California Civil Code section 1189 but includes an optional section that can deter alteration of the document or fraudulent reattachment of the form to an unintended document:
https://www.nationalnotary.org/file%20library/nna/referencelibrary/certificates/05907_ca_ack_all_purpose.pdf. - 8 -
EXHIBIT “A”
Property Description
BEING A PORTION OF BLOCK 16 OF THE TOWNSITE OF SAN RAFAEL AND AS DESCRIBED IN DOCUMENT NUMBER 2024-0026294, RECORDED SEPTEMBER 27, 2024, MARIN COUNTY
RECORDS, STATE OF CALIFORNIA