HomeMy WebLinkAboutStaff Report 318-06City
14
City of Palo Alto
Manager’s Report
TO:HONORABLE CITY COUNCIL
FROM:
DATE:
SUBJECT:
CITY MANAGER DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
SEPTEMBER 11, 2006 CMR: 318:06
260 HOMER AVENUE [06PLN-00207]: REQUEST BY MARTIN
PARISSENTI/BKF ENGINEERS ON BEHALF OF TALL TREE
PARTNERS I, LLC FOR A FINAL MAP FOR MIXED-USE
DEVELOPMENT WITH COMMERCIAL OFFICE USE ON THE
GROUND AND SECOND FLOORS, AND FOUR RESIDENTIAL
CONDOMINIUM UNITS ON THE THIRD FLOOR.AN
ENVIRONMENTAL IMPACT REPORT (EIR) WAS PREPARED FOR
THE SOFA CAP INCLUDING THIS PROJECT.
RECOMMENDATION
Staff recommends that the City Council approve the proposed Final Map to merge five parcels
(approximately .71 acre) at 260 Homer Avenue and create one parcel for a mixed-use.
development with commercial office use on the ground floor and second floor, and four
residential condominium units on the third floor, based upon the findings and conditions
contained within the Record of Land Use Action (Attachment A).
BACKGROUND
At the public hearing held on Monday, March t3, 2006, the City Council voted to accept staff
and the Planning and Transportation Commission’s recommendation to approve the Vesting
Tentative Map with the staff recommended conditions of approval. Prior to the City Council
meeting, staff received no written comments from the public.
The City Council meeting minutes for this hearing have been provided as Attachment D.
DISCUSSION
The Final Map and Subdivision Agreement have been provided for the Council’s review, and
the Record of Land Use Action on the Vesting Tentative Map is also attached. Planning,
Engineering and the City Attorney have reviewed the Final Map, Subdivision Agreement and
CC&R’s and have determined that all are consistent with the Tentative Map and Record of
CMR: 318:06 Page 1 of 2
Land Use Action. According to the State Subdivision Map Act, the City Council must
therefore approve the Final Map.
PREPARED BY:
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
LORRAINE WEISS
Contract Planner
!STEVE EMSLIE
Director of Planning and Community Environment
Assistant City Manager
ATTACHMENTS
No
B.
C.
D.
E.
Record of Land Use Action
Subdivision Agreement
Declaration of Covenants Conditions and Restrictions (CC&Rs)
City Council Meeting Minutes from March 13, 2006
Final Map plan set (Council Members Only)
COURTESY COPIES:
Martin Parissenti, BKF Engineers, Project Applicant
Jane Vaughan, Tall Tree Partners I, LLC, Property Owner
CMR: 318:06 Page 2 of 2
Attachment
APPROVAL NO. 2006-2
RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO
LAND USE ACTION FOR 260 HOMER AVENUE:
TENTATIVE MAP
05-PLN-00383
(BKF ENGINEERS, APPLICANT/TALL TREE PARTNERS I,
LLC, PROPERTY OWNER)
At its meeting on March 13, 2006, the City Council of the
City of Palo Alto approved the Tentative Map to merge five parcels
into one parcel approximately .71 acres) and create a mixed-used
office and residential development with four condominium units,
making the following findings, determination and declarations:
SECTION I. Background. The City Council of the City of
Palo Alto ("City Council") finds, determines, and declares as
follows:
A. Proposed by Tall Tree Partners i, LLC, this project
involves merging the five existing parcels into one developable
site, the demolition of the existing buildings, and the
construction of one office building and four condominium units.
The density of this residential infill development would be5.71
dwelling per acre, under the maximum limitation set by the AMF/MUO
(Attached Multiple Family Residential with Mixed Use Overlay zone
district.) per the South of Forest Area (SOFA) Coordinated Area Plan
Phase I. Three (3) separate floor plans are proposed within the
four multi-unit condominium building. The buildfng houses .one
floor of residential units and two floors of commercial .office use
above the underground garage. The overall height of the building
proposed is 41’-2" at the top of parapet and 44’-6" at top of
tower, within the maximum height limit of 45 feet, and the non-
residential portion of the building is proposed at 29 feet to the
top of offices where 30 feet is the maximum allowed by the zone
district. The unit sizes, proposed one and two bedrooms, range
from the smallest at 1,390 square feet to the largest at 2,126
square feet.
B. The Tentative Map plan set includes information on the
existing parcels and onsite conditions (Sheet 2); the layout of the
merged parcels into one new parcel (Sheet 3); proposed site and
grading with building footprint, driveway, curb and gutter,
accessible ramp, and sidewalk (Sheet 4); and proposed utilities
(Sheet 5). These drawings are in compliance with the applicable
provisions of the City’s Subdivision Ordinance. These plans
contain all information and notations required to be shown on a
housing, aesthetics, public right-of-way design, stree~ treg{~historic resources, and building design (policies L-2, L-6, L-8, H-
I, H-f1, T-7, T-IT, DC-3, DC-8, DC-19, DC-21, and D-22) .
3. That the site is not physically suitable for the type
of developmen t :
The site is located~ within the South of Forest Area
(SOFA) Coordinated Area Plan, with existing development on
individual parcels. This mixed-use commercial and residential
infill project is a suitable use at this location and permissible
under the existing zone district and supported by land use policies
within the Comprehensive Plan, as indicated above in Finding No. 2.
The design promotes harmonious transitions in scale and character
between different designated land uses in that it would now serve
as a mixed-use development with commercial office and residential
condominiums within the existing neighborhood.
4o That the site is not physically suitable for the
proposed density of development:
The purpose for the Tentative Map is to merge the five
existing parcels and create a mixed-use commercial office building
with four residential condominium units. In doing so, the site
would remain within the permissible density allowed by the current
MUO/AMF zone district: A maximum site density of 4 total units or
5.71 dwelling units per acre. As proposed, this map would enact 4
dwelling units, an amount under the amount permissible. Moreover,
Comprehensive Plan policy L-25 indicates to enhance the character
of the South of Forest Area (SOFA) as a mixed-use area.
5. That the design of the subdivision or the proposed
improvements are likely to cause substantial environmental damage
or subst~antially and avoidably injure fish or wildlife or their
habi tat :
The merger of parcels and creation of commercial office
space and residential condominium units will not cause
environmental damage or injure fish, wildlife, or their habitat, as
no habitat for endangered, rare, threatened, or other sensitive
species is present on site. All new development would occur within
the areas of pre-existing development, which currently~consist of
commercial and church buildings and surface parking areas.
6 o That the design of the subdi vi si on or type of
improvements is likely to cause serious public health problems:
Within two years of the approval date ofthe Tentative M~p7
the subdivider shall cause the subdivision or any part thereof to
be surveyed, and a Final Map, as specified in Chapter 21.08, to be
prepared in ~conformance with the Tentative Map as conditionally
approved, and in compliance with the provisions of the Subdivision
Map Act and PAMC Section 21.16 and submitted to the City Engineer
(PAMC Section 21..16.010[a]) .
SECTION 6.Conditions of Approval°
Department of Planning and Community Environment
Planning Division
i. A Final Map, in conformance with the approved
Tentative Map, all requirements of the Subdivision Ordinance (PAMC
Section 21.16), and to the satisfaction of the City Engineer, shall
be filed with the Planning Division and the Public Works
Engineering Division within two years of the Vesting Tentative Map
approval date (PAMC 21.13.020[c]) .
2. A preliminary copy of restrictive covenants (CC&Rs)
shall be submitted for review at the time of Final Map submittal.
Prior to Submittal of Final Map
Planning Division
30 Prior to approval of the Tentative Map by the City
Council, the applicant shall submit a revised Sheet of 3 of
5/Tentative Map with correction that the two existing buildings,
the French Laundry Building and AME Zion Church shall remain (they
are not proposed for removal).
4. The Final Map shall be crosschecked for compliance with
the ARB/HRB SOFA Design Review Board and the Tentative Map approved
plans and conditions.
Department of.Utilities
50 In consultation with the Departments of Utilities and
Planning and Community Environment, Public Utility Easements for
installation and maintenance of water meters, gas lines, gas
meters, and pad-mounted transformers with associated substructures
shall be designated on the Final Map.
Department of Public Works
5
SECTION 7.Term of Approval.
Tentative Map. All conditions of approval of the Tentative
Map shall be fulfilled prior to approval of a Final Map (PAMC
Section 21o160010[c]) .
Unless a Final Map is filed, and all conditions of approval
are fulfilled within a two-year period from the date of Vesting
Tentative Map approval, or such extension as may be granted, the
Vesting Tentative Map shall expire and all proceedings shall
terminate. Thereafter, no Final Map shall be filed without first
processing a Tentative Map (PAMC Section 21.16.010[d]) .
PASSED: 8-0-1
AYES:Barton, Beecham, Cordell,
Kleinberg, Morton
NOES: None
ABSENT: Mossar
ABSTENTIONS: None
AT.~EST:
tityclerk ~ " -
APPROVED AS TO FORM:
Drekmeier, Kishimoto, Klein,
Community Envi-ronment
Senior Asst, City Attorney
PLANS AND DRAWINGS REFERENCED:
Those plans prepared by BKF Engineers, Surveyors, and Planners
titled "260 Homer Avenue Tentative Map", consisting of 5 pages,
¯ dated October 17, 2005 and received October 24, 2005°
Attachment B
This document is recorded for the
benefit of the City of Palo Alto
and is entitled to be recorded
free of charge in accordance with
Section 6103 of the Government Code
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
250 Hamilton Avenue
Palo Alto, CA 94301
AGREEMENT BETWEEN SUBDIVIDER AND
CITY OF PALO ALTO
UNDER PROVISIONS OF’TITLE 21 OF THE
PALO ALTO MUNICIPAL CODE
260 Homer Avenue, Palo Alto, California
A.P.N. No. 120-28-013, 014, 015, 016, 017& 025
THIS AGREEMENT, made and executed this day of
, 2006, by and between the CITY OF PALO ALTO,
a municipal corporation of the State of California, hereinafter
referred to as "City",. and TALL TREE PARTNERS I LLC, a CA LoL.C.,
hereinafter referred to as "Subdivider";
W I T N E S S E T H:
WHEREAS, Subdivider is the owner of that certain tract of
land situated in the City of Palo Alto, County of Santa Clara, State
of California, generally known and described as 260 Homer Avenue,
Palo Alto, California (the "Property"); and
WHEREAS, Subdivider has presented to City for approval a
final subdivision map prepared by BFK ENGINEERS, hereinafter
referred to as the "Map" and incorporated herein by this reference;
and
WHEREAS, on March 13, 2006, City approved Subdivider’s
application for a tentative subdivision/parcel map to merge five
parcels into one parcel approximately .71 acres ("the Project"),
subject to certain conditions,including those hereinafter described;
and
WHEREAS, such conditions include the demolition and
construction of certain private and public improvements; and
060731 syn 0120111
WHEREAS, Subdivider has requested approval of the Map
prior to the demolition, construction and completion of the required
improvements; and
WHEREAS,. City desires to assure that said proposed
improvements will be done in a good and workmanlike manner and in
accordance with the laws now in force and effect in the City of Palo
Alto, California, particularly, but not exclusively, Titles 16, 18,
and 21 of the Palo Alto Municipal Code;
NOW, THEREFORE, for and in consideration of the approval
of the Map and the acceptance of the dedications offered therein,
and in order to insure satisfactory performance by Subdivider of
Subdivider’s obligations under the Subdivision Map Act and the Palo
Alto Municipal Code, the parties hereto mutually covenant and agree
as follows:
i. Performance of Work. Subdivider shall, at its own
cost and expense, do and perform, or cause to be done or performed,
in a good and workmanlike manner, all of the work and improvements,
within and/or without the subdivision, which are shown on the Map,
or on plans, profiles and specifications which have been submitted
to the City Engineer or may hereafter be so submitted, as finally
approved, or which improvements are required as conditions of
approval of the subdivision by the City, or are required to be done
by any provision of law as a condition of said subdivision. Said
public improvements include, but are not limited to construction of
curbs, gutters, sidewalks, street improvements, storm drain system,
and other utility infrastructure improvements as detailed in the
plan set titled 260 Homer Ave. Offsite Improvements, produced by BKF
Engineers.
2. Standards. Work to be performed hereunder shall be
done to the satisfaction of the City Engineer. All improvements
have been shown in detail upon the plans, profiles and
specifications which have been prepared by engineers acting for
Subdivider. No work on the improvements shall be commenced until
said plans, profiles and specifications have been submitted to and
approved by the City Engineer, and all improvements shall be
constructed in accordance with said plans, profiles and
specifications. Subdivider shall do, or cause to be done, all work
and furnish all materials necessary, in the City Engineer’s opinion
and on his or her order, to complete the improvements in accordance
with said plans, profiles and specifications, or with any changes
required or ordered by the City Engineer, which in his or her
opinion are necessary or required to complete the work. The cost of
checking the plans, profiles and specifications, and of all
inspections of the work, have been or shall be paid by Subdivider.
Improvements and methods of installation shall, at a minimum, meet
the standards set forth in the "Standard Specifications of the City
060731 syn 0120111
2
of Palo Alto," dated December 1992, ("Standard Specifications") as
from time to time amended, which document is incorporated herein-by
this reference, and provisions of the Palo Alto Municipal Code
relating to construction. ¯ .....
3. Soils and Geologic Tests. Subdivider shall cause to
be made, at Subdivider’s cost and expense, soils and geologic tests
by a qualified civil engineer and shall file, or cause to be filed
with the City a report or reports satisfactory to the City Engineer
indicating gradation, bearing and resistance value of soils within
the subdivision and setting forth recommendations for or constraints
on the nature of required improvements and for development of the
Property. All clearing and earthwork shall be accomplished in
accordance with the plans and required recommendations of the soils
report under the supervision of the Soils Engineer. Subdivider
shall also cause to be made, at Subdivider’s cost and expense, all
compaction tests necessary to determine that the utility trenches
have been satisfactorily compacted. Subdivider shall provide a
soils engineer’s certified letter of compliance, verifying that the
earthwork has been completed in accordance with the plans and
recommendations of the soils report.
4. Time of Completion. The construction required under
paragraph 1 hereof, shall be completed to the satisfaction of the
City Engineer within two years (24 months) of approval of the Map bY
the City Council of City. All other improvements and site grading
under this agreement shall be completed prior to the issuance of any
occupancy permit for occupancy of the Project. The time for
completion may be extended only for good cause upon approval by the
City Manager and pursuant to the provisions of the Palo Alto
Municipal Code.
o
agreement.
Time of Essence.Time is of the essence of this
6. Payment of Costs. Without limitation, Subdivider
shall pay, or cause to be paid, all costs and expenses related to or
arising from the performance of any Work hereunder, including, but
not limited to, payment for any materials,~ provisions, and other
supplies used in, upon, for or about said work, and for work or
labor thereon of any kind, and for amounts due under the
Unemployment Insurance Act of the State of California, with respect
to such work or labor.
7.Acceptance of Work. The City Engineer shall have
the right to reject any and all work to be performed under this
agreement if such work does not conform, in his sole judgment, with
the plans, profiles and specifications mentioned herein and with the
ordinances and standards of City.
060731 Syn 0120111
8. Warranty of Plans. Notwithstanding the fact that
Subdivider’s plans, profiles and specifications, completion of work,
and other acts to be performed hereunder are subject to approval by
City, it is understood and agreed that any approval by City-shall-i-n
no way relieve Subdivider of satisfactorily performing said work or
its obligations hereunder. Subdivider warrants that the plans,
profiles and specifications submitted shall conform at a minimum to
the Standard Specifications and the Palo Alto Municipal Code, and
that they are adequate to accomplish the work in a good and
workmanlike manner, and in accordance with sound construction
practices.
9. Repairs and Replacement. Subdivider shall replace,
or have replaced, or repair, or have repaired, all improvements and
monuments shown on the Map which have been destroyed or damaged
prior to final acceptance of the completed work by the City
Engineer, and Subdivider shall repair, or have repaired, replace, or
have replaced, or pay to the owner, the entire cost of replacement
or repairs,~ of any and all property damaged or destroyed, by reason
of any work done hereunder, prior to final acceptance of the
completed work by the City Engineer, whether such property be owned
by the United States or any agency or political subdivision thereof,
or by the City or by any public or private corporation, or by any
person whomsoever, or by any combination of such owners. Any such
repair or replacement shall be to the satisfaction, and subject to
the approval, of the City Engineer.
Subdivider shall repair, or cause to be repaired, any
damage to the improvements constructed pursuant to this agreement
which may occur after installation to the satisfaction of the City
Engineer and prior to release of the certificate of deposit posted
by Subdivider and/or final acceptance of the completed work.
i0. Warranty. Without limiting the foregoing, Subdivider
expressly warrants and guarantees all work performed hereunder and
all materials used therein for a period of three (3) years after
completion and final acceptance thereof by the City Engineer. If
within said three (3) year period any structure or part of any
structure furnished and/or installed or constructed, or caused to be
installed or constructed by Subdivider, or any of the work done
under this agreement, fails to fulfill any of the requirements of
this agreement, or the specifications referred to herein as a result
of the inadequate workmanship or materials, Subdivider shall,
without delay and without any cost to City, repair and replace or
reconstruct any defective or otherwise unsatisfactory part or parts
of the work or structure. Should Subdivider fail to act promptly or
in accordance with this requirement, or should the exigencies of the
situation require repairs or replacements to be made before
Subdivider can be notified, City may, at its option, make the
necessary repairs and replacements or perform the necessary work,
060731 syn 0120111
4
and Subdivider shall pay to the City the actual cost of such repairs
and replacement. -
Ii. Breach of Agreement; Performance by C~ty. -If
Subdivider shall .refuse or fail to satisfactorily complete any of
the work and improvements provided for herein within the time
specified above, or any extension or extensions thereof including
extension pursuant to Section 30 of this Agreement, or if delay in
the construction of any portion of the improvements shall, in the
opinion of the City Engineer, endanger property outside the
boundaries of said tract, or if Subdivider should be adjudged a
bankrupt, or shall make a general assignment for the benefit of
Subdivider’screditors, or if a receiver should be appointed in the
event of Subdivider’s insolvency, or if Subdivider, or any of
Subdivider’s contractors, subcontractors, agents or employees,
should violate any of the provisions of this agreement, the City
Engineer or City Council or its designated representative may serve
written notice upon Subdivider for breach of this agreement, or any
portion hereof.
In the event of any such notice, after reasonable
opportunity to cure by Subdivider, City may, without relieving
Subdivider of any of its obligations hereunder, take over any or all
of the work and prosecute the same to completion, by contract or by
any other method City may deem advisable, for the account, and at
the expense of Subdivider, and the full cost and expense of said
work done by City shall be recovered by City from Subdivider.
12. Estimate of Improvement Costs; Security. The
estimated cost for the demolition of the structures and improvements
to be constructed under this agreement is Two Hundred Thousand
Dollars ($200,000). Said estimate includes applicable amounts for
the expense of checking plans and for inspection of work hereunder.
A full and detailed accounting of said estimate is set forth in
Exhibit "A", which is attached hereto and incorporated herein by
this reference.
Contemporaneous with the execution of this agreement,
Subdivider shall file with City a certificate(s) of deposit with the
City of Palo Alto named as beneficiary and in the total sum of the
estimated cost set forth above, to guarantee faithful performance of
all of the provisions of this agreement and compliance with all of
the provisions of the Palo Alto Municipal Code, including Titles 16,
18, and 21, and to secure payment to the contractor, his or her
subcontractor and to persons renting equipment or furnishing labor
or materials to them for the improvements required under this
agreement.
13o Permits; Compliance with Law. Subdivider shall, at
Subdivider’s expense, obtain all necessary permits and licenses for
the work and improvements hereunder, give all necessary notices and
pay all fees and taxes required by law. Subdivider shall also apply
060731 syn 0120111
for and receive a protected tree relocation permit issued by the
Department of Planning and Community Environment, for the protected
oak specified for relocation. In the performance of this agreement,
Subdivider shall comply with all laws, ordinances, regulations and
rules of all governmental agencies having jurisdiction therefor,
including but not limited to, the provisions of the Labor Code of
the State of California.
14. Inspection by City. Subdivider shall at all times
maintain proper facilities and provide safe access for inspection by
City to all parts of the work.
15. Subdivider Not Agent of City. Neither Subdivider nor
Subdivider’s contractors, subcontractors, agents, officers, or
employees are agents or employees of City, and Subdivider’s
relationship to City, if any, arising herefrom is strictly that of
an independent contractor.
16. Liability. Neither City nor any of its officers,
agents, or employees shall be liable to Subdivider, its contractors,
subcontractors, officers, agents, or employees, for any error or
omission, or any obligation whatsoever, arising out of or in
connection with any work to be performed under this agreement.
City, its officers, agents, and employees shall not be liable to the
Subdivider or to any person, firm or corporation whatsoever, for any
error or omission, or any obligation or liability whatsoever,
arising out of or in connection with any work to be performed under
this agreement. City, its officers, agents, and employees shall not
be liable to Subdivider or to any person, firm, or corporation
whatsoever for any injury or damage that may result to any person or
property or any obligation whatsoever from any.cause arising in, on,
or about the land of Subdivider or from performance or failure, to
perform any provision of this agreement. Subdivider hereby releases
and waives any claim it may possess or come to possess against City,
its officers, agents, and employees.
17. Hold~Harmless. Subdivider hereby agrees to and shall
protect, indemnify and hold City, its officers, agents, and
employees harmless from any and all liabilities, obligations,
damages, costs, injuries, or claims thereof, including but not
limited to, claims for damage or personal injury, including death,
and claims for property damage, arising in any manner from the
performance or failure to perform the provisions of this agreement,
except to the extent arising solely from the negligence or willful
misconduct of the City or its agents or the breach of this agreement
by City. Subdivider agrees to, and shall, defend City, its officers,
agents, and employees, from any suits or actions at law or in equity
for damages, liabilities, or Obligations caused by or arising from,
or alleged to be caused by or arising from, the performance of this
agreement, except to the extent arising solely from the negligence
or w~llful misconduct of the City or its agents or the breach of
this agreement by City.
060731 syn 0120111
6
18. Use of Improvements. Subdivider agrees that the use
of any and all of the public improvements hereinabove specified for
any purpose and by any person shall be at the. sole and exclusive
risk of Subdivider at all times prior to final acceptance by City.
This shall in no way eliminate, discharge or lessen any of
Subdivider’s obligations and undertakings contained in this
agreement. The issuance of any occupancy permits by City for
dwellings located within the subdivision shall not be construed in
any manner to constitute acceptance or approval of any or all of the
improvements to be constructed hereunder.
19. Insurance. Prior to the commencement of any work,
Subdivider shall furnish to City, on City’s standard form
certificate of insurance, satisfactory evidence of a policy of
liability insurance which shall be maintained at all times during
the performance of this agreement, in form and by a responsible
company satisfactory to City, insuring City, its officers, agents,
and employees against loss or liability arising out of the condition
of the premises or any of the work to be performed under this
agreement, including all costs of defending any claim arising as a
result thereof. Both bodily injury and property damage insurance
shall be on an occurrence basis, and said policy or policies shall
provide that the coverage afforded thereby shall be primary coverage
to the full limit of liability stated in the declarations, and that
if any of City insureds have other insurance against the loss
covered by said policy or policies, the other insurance shall be
excess only. Said policy or policies shall provide for minimum
limits in the amount of One Million Dollars ($i,000,000) for bodily
injury or death, each person, and One Million Dollars ($i,000,000)
for bodily injury or death, each occurrence, and One Million Dollars
($i,000,000) for property damage, ~ each occurrence. Each policy
shall contain an endorsement that said policy shall not be canceled
or coverage reduced except upon thirty (30) days advance written
notice thereof to City. Subdivider will be required to obtain a
"Permit for Construction in a Public Street" ("Permit") prior to
constructing any of the improvements set forth in paragraph 1 or
Exhibit "A" hereof. City will consider a request by Subdivider that
the insurance posted for the Permit also be used to satisfy the
insurance obligation of this paragraph 19.
20. Title to Public Improvements. Title to and ownership
of all public improvements constructed hereunder shall vest
absolutely in City, upon completion and acceptance thereof by City.
21. Final Drawingsl Upon completion of all improvements,
subsequent to acceptance thereof by City, Subdivider shall supply
City with "as-built" drawings. The as-built drawings of the project
shall consist of one (i) permanent (mylar--3 mil) drawing, and one
set of computer-aided drafting (CAD) drawings (the ~CAD Drawings").
The CAD Drawings shall be without representation or warranty as to
any portion of the plans which contain reference to improvements
7
060731 syn 0120111 ........
that are not designed or constructed by Subdivider, and shall be
compatible with the City’s geographic information systems, and
depict all water,~ gas, wastewater, storm drain, electric, telephone,
communications, and cable television facilities, therein. -The CA-D
Drawings shall conform to the California Coordinate System, Zone 3
(CCS83). The CAD Drawings shall be certified as being "as-builts"
and shall reflect the job as actually constructed, with all changes
incorporated therein. The requirements of this paragraph 21 shall
not apply to the private improvements to be performed hereunder,
specified as Items 9-12 of Exhibit A hereof. However, Subdivider
shall comply with all requirements of Titles 16 and 18 of the Palo
Alto Municipal Code concerning all public and private improvements
required to be performed hereunder.
22. Notice of Completion. Subdivider shall file, or
cause to be filed, a Notice of Completion of the improvements herein
specified.
23. Final Inspection, Acceptance and Certification. All
of the improvements must be completed prior to the final inspection.
Notice in writing, requesting final inspection shall be submitted
to the City Engineer at least five (5) days prior to the anticipated.
date. Upon the satisfactory completion of the improvements by
Subdivider, the City Engineer shall certify that the work of said
improvements has been satisfactorily completed. Such certification
shall be made in writing in accordance with standard City
procedures.
24. Trees.
(a) Compliance with Tree Preservation Measures.
Subdivider shall implement all tree preservation measures for all of
the on-site and off-site trees associated with the project,
including but not limited to the special Protected Tree Relocation
Plan and all its elements; a Monitoring Agreement and a security
guarantee for the relocated tree(s). Street trees shall be provided
in accordance with the required elements stipulated in the
Conditions of Approval and shall be included in the arborist
monitoring inspections reported to the City on an annual basis.
(b) Monitoring Agreement. Subdivider shall provide to the
City of Palo Alto annual arborist monitoring inspection reports
prepared by the project arborist or other qualified certified
arborist. These inspection reports shall include assessment,
changes, instructions needed to correct construction impacts or
potential tree decline for all trees to be saved and protected,
including the two Oaks relocated off-site as part of the mitigation
program. The report shall summarize effectiveness of the program,
update status of tree health and recommend specific tree care
maintenance practices for the property owner. The written annual
monitoring agreement shall begin at final occupancy and extend for a
period of two years. The written tree monitoring reports shall be
060731 syn 0120111
addressed to the Planning Department Landscape Specialist, 250
Hamilton Avenue, Palo Alto, CA 94301. -
(c) Security Deposit. Two Protected Oaks,- #X03. and
#X05, will be relocated at the expense of Subdivider pursuant to the
Protected Tree Relocation Plan. For a period of two (2) years
following completion of construction (certificate of final
occupancy), Subdivider shall maintain a security guarantee (faithful
performance bond or bonds by one or more duly authorized corporate
sureties or other approved form) in an amount equal to seven
thousand dollars ($7,000.00), to secure the health and/or
replacement, as the case may be, of the relocated trees. Use of
the security guarantee shall be determined at the end of. the two-
year period after reviewing.the annual tree monitoring report. If
replacement tree(s) are required, the Subdivider shall plant trees
as specified by the City, and an appropriate portion of the security
guarantee shall be withheld as further security to ensure survival
of the replacement trees for a new two year period..
25. Grade Differential. The Project that is the subject
of this agreement shall return to the City Council for further
approval if there is a change in the grade differential of one (i)
foot or greater in height from neighboring sites.
26. ARB Compliance. The Project shall be constructed in
compliance with all conditions established by the ARB.
27. Assignment of Contract. Neither this agreement, nor
any part hereof, shall be assignable by Subdivider without the
written consent of City. Any attempted assignment without first
obtaining such consent shall be void and of no effect.
28. Binding on Successors. The terms, covenants and
conditions of this agreement shall run with the land and shall apply
to, and shall bind, the heirs, successors, executors,
administrators, assigns, contractors, and subcontractors of the
parties.
29. Costs and Attorneys’ Fees. The prevailing party in
any action brought to enforce the terms of this agreement or arising
out of this agreement may recover from the other party its
reasonable costs ~and attorneys’ fees expended in connection with
such an action.
30. Force Majeure. Any prevention, delay or stoppage due
to strikes, lockouts, labor .disputes, acts of God, acts of war,
terrorist acts, inability to obtain services, labor, or materials or
reasonable substitutes therefore, governmental actions or inactions
(including those of the City), civil commotions, fire or other
casualty, and other causes beyond the reasonable control of the
party obligated to perform (collectively, a "Force Majeure"),
notwithstanding anything to the contrary contained in this
060731 syn 0120111
agreement, shall excuse the performance of such party for a period
equal to any such prevention, delay or stoppage provided such party
has provided the other party notice of the Force Majeure event and,
therefore, if this agreement specifies a time period for performance
of an obligation of either party, that time period shall be extended
by the period of any delay in such party’s performance caused by a
Force Majeure.
30. Notices. All notices hereunder shall be given in
writing and mailed, postage prepaid, by certified mail, addressed as
follows:
To City: Office of the City Clerk
250 Hamilton Avenue
Palo Alto, CA 94301
To Subdivider:Tall Tree Partners I, LLC
4.90 California Avenue, Suite 400
Palo Alto, CA 94306
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed in duplicate the day and year first above
written.
CITY OF PALO ALTO
TALL TREE PARTNERS I LLC,
A California L.L.C.
Assistant City Manager
APPROVED AS TO FORM:
Name:
Title:
Name:
Title:
Deputy City Attorney
APPROVED AS TO CONTENT:
Director of Public Works
Director of Planning
and Community Environment
060731 syn 0120111
10
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF
COUNTY OF
)
)
)
On , before me] , a
notary public in and for said County, personally appeared
, personally known to me (or 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.
WITNESS my hand and official seal.
060731 syn 0120111
11
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF
COUNTY OF
On , before me,, a
notary public in and for said ~County, personally appeared
, personally known to me (or 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.
WITNESS my hand and official seal.
060731 syn 0120111
12
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF
COUNTY OF
)
)
)
On , before me, , a
notary public in and for said County, personally appeared
, personally known to me (or 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.
WITNESS my hand and official seal.
13
060731 syn 0120111
EXHIBIT A
260 Homer
Estimated Offsite Construction Costs
Demolition
Sawcut AC paving
Remove water meter
Remove water lateral
Remove gas lateral
Remove SSCO
Remove SS lateral
Remove AC paving
Relocate pullbox
Remove sidewalk
Remove driveway
Adjust SDCB to finish grade
Remove curb and gutter
Remove existing trees
$700
$60o
$738
$264
$40O
$345
$7,120
$100
$5,600
$830
$50o
$1,040
$2,000
Grading and Paving
Install wheelchair ramp
Install driveway
Install curb and gutter
Install sidewalk
12" deep lift
Slurry seal
4" PCC/10" CL II
$1,000
$81o
$5,720
$11,035
$17,800
$1,923
$90o
Utilities
Install SSCO
Install 6" SS
Install storm drain manhole
Install 12" SD
Install water meter
Replace fire hydrant head
Change ground box to vault
Adjust vault to finish grade
Install 2" water line
Install 4" water line
Install 8" fire line
Install fire hydrant
Install 2" gas line
Install 1.5" gas line
Install 2" gas meter
Install 1.5" gas meter
Install 3, 3" pipe curb outlets
$2,000
$1,375
$1;500
$1,ooo
$2,50O
$1,ooo
$6,OOO
$5,ooo
$3,9O0
$1,480
$3,840
$1,500
$1,770
$1,876
$2,000
$1,8oo
$8OO
Striping
Pavement marking
Install new stop sign
Relocate signs on 2" IP
$1,000
$200
$50o
Landscaping
Street trees on Homer
Street trees on Ramona
Planting & irrigation in treewells
$11,000
$14,000
$22,585
Subtotal =
Contingency =
Bondinq Amount =
$148,051
$51,949
Attachment C
When Recorded Return To:
Hanna & Van Atta
525 University Avenue, Suite 705
PaiD Alto, California 94301
INITIAL WORKING DRAFT - 7.20.2006 -
CONDOMINIUM DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
260 Homer CONDOMINIUMS, A MIXED USE CONDOMINIUM PROJECT
THIS DECLARATION CONTAINS A BINDING ARBITRATION PROVISION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION ACT. YOU MUST READ THE ARBITRATION PROVISION
CAREFULLY AND SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS.
IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR, RELIGION~
SEX, SEXUAL ORIENTATION, FAMILIAL STATUS~ MARITAL STATUS, DISABILITY, NATIONAL
ORIGIN, SOURCE OF INCOME AS DEFINED IN SUBDIVISION (P) OF SECTION 12955, OR
ANCESTRY, THAT RESTRICTION VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS
AND IS VOID, AND MAY BE REMOVED PURSUANT TO SECTION 12956.2 OF THE
GOVERNMENT CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON
THE AGE OF OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS
SHALL NOT BE CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS.
CONDOMINIUM DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR -
260 HOMER CONDOMINIUMS, A MIXED USE CONDOMINIUM PROJECT
TABLE OF CONTENTS
INTRODUCTORY PARAGRAPHS .................................................................................................1
A.Location of Property ....................................~ ....................................................................................3
B.Description of Project .......................................................................................................................3
C.Owner’s Interest ...............................................................................................................................3
D.Intention ............................................................................................................................................3
ARTICLE I. DEFINITIONS .............................................................................................................................3
1.1,
1.2.
1.3.
1.4.
1.5.
1.6.
1.7.
1.8.
1.9.
1.10.
1.11.
1.12.
1.13.
1.14.
1.15.
1.16.
1.17.
1.18.
1.19.
1.20.
1.21.
1.22.
1.23.
1.24.
1.25.
1.26.
1.27.
1.28.
1.29.
1.30.
1.31.
1.32.
1.33.
1.34.
1.35.
1.36.
1.37.
1.38.
1.39.
1.40.
1.41.
1.42.
"Articles". ......................................................................................................................................3
"Assessment" ...............................................................................................................................3
"Assessment Lien". ......................................................................................................................3
"Association". ...............................................................................................................................3
"Building". .....................................................................................................................................3
"Board" or "Board of Directors". ...................................................................................................3
"Bylaws". .......................................................................................................................................3
"City". ....................................................................: .......................................................................3
"Church [Ramona] Building". ........................................................................................................3
"Church [Ramona] Unit". ..............................................................................................................3
"Church [Ramona] Unit Cost Center". ..........................................................................................3
"Church [Ramona] Unit Owner". ..................................................................................................3
"Commercial Area". ......................................................................................................................3
"Commercial Office Area Cost Center". .......................................................................................3
"Commercial Office Unit". ............................................................................................................3
"Commercial Owner". ...................................................................................................................3
"Commercial Unit". .......................................................................................................................3
"Common Area(s)". ......................................................................................................................3
"Common Expenses". ..................................................................................................................3
"Common Interest". ...............................................................: .................................i ....................3
"Condominium". ...........................................................................................................................3
"Condominium Documents". ........................................................................................................3
"Condominium Plan". ...................................................................................................................3
"Cost Center". ...............................................................................................................................3
"Cost Center Allocation". ..............................................................................................................3
"Cost Center Budget". ..................................................................................................................3
"Cost Center Committee". ............................................................................................................3
"Cost Center Expense". ...............................................................................................................3
"Cost Center Item" .......................................................................................................................3
"County". .......................................................................................................................................3
"Declarant". ..................................................................................................................................3
"Declaration". ................................................................................................................................3
"Eligible Mortgages". ....................................................................................................................3
"Eligible Mortgage Holder". ..........................................................................................................3
"Eligible Insurer or Guarantor". ...... ...............................................................................................3
"Exclusive Use Common Area", ....................................................................................................3
"First Lender". ...............................................................................................................................3
"First Mortgage". ...........................................................................................................................3
"Foreclosure" ................................................................................................................................3
"Main [Homer] Building". ..............................................................................................................3
"Main [Homer] Building Cost Center": ..........................................................................................3
"Main [Homer] Building Charges": ................................................................................................3
ii
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1.43.
1.44.
1.45.
1.46.
1.47.
1.48.
1.49.
1.50.
1.51.
1.53.
1.54.
1.55.
1.56.
1.58.
1.59.
1.60.
1.61.
1.62.
1.63.
1.64.
1.65.
1.66.
1.67.
1.68.
1.69.
Map ............................................................................................................................................
"Member". ....................................................................................................................................3
Mortgage ....................................................................................................................................3
"Mortgagee". .................................................................................................................................3
"Mortgagor". ...................................................................................................................................3
"Notice of De nquent Assessment". .............................................................................................3
"Owner" or Owners ....................................................................................................................3
"PAHC Parking Agreement". ........................................................................................................3
"820 Ramona Parking Agreement". .............................................................................................3
G r ""Parking a age : .........................................................................................................................3
"Parking Space": ..........................................................................................................................3
"Person" ........................................................................................................................................3
"Project". .................+ ............................................................................................................3
"Public Report". ............................................................................................................................3
Regular Assessments ................................................................................................................3
"Reimbursement Charge". ...........................................................................................................3
"Residential Area". .......................................................................................................................3
"Residential Area Cost Center". ...................................................................................................3
"Residential Use Area". ................................................................................................................3
"Residential Owner(s)". ................................................................................................................3
"ResidentialUnit ..........................................................................................................................+
Rules ..........................................................................................................................................
"Special Assessments". ...............................................................................................................3
"Unit". ...........................................................................................................................................3
"Utility Facilities". ..........................................................................................................................3
ARTICLE II. DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS ....................................................................................................................................3
2.1.Description of Property .................................................................................................................3
2.2.Division of Property ......................................................................................................................3
A.Residential Units ...........~ ..............................................................................................................3
B.Residential Use Area ...................................................................................................................3
C.Exclusive Use Common Areas - Residential ...............................................................................3
D.Commercial Office Units ..............................................................................................................3
E.Exclusive Use Common Areas - Commercial Office Units .........................................................3
F.Church [Ramona] Unit: .................................................................................................................3
G.Common Area .......................................................................: .................................. ....................3
2.3.Exclusion, Encroachments ...........................................................................................................3
2.4.No Separate Conveyance of Undivided interests or Easements .................................................3
2.5.Rights of Entry and Use ...............................................................................................................3
2.6.Structural and Support Easements ..............................’ ................................................................3
2.7.Partition Prohibited .......................................................................................................................3
2.10 Lien Claims ..................................................................................................................................3
2.11 All Easements Part of Common Plan ...........................................................................................3
ARTICLE IlL ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS ........................3
3.1.Association to Manage Common Areas .......................................................................................3
3.2.Ownership and Management of Common Property .....................................................................3
3.3.Membership .................................................................................................................................3
3.4.Transferred Membership ..............................................................................................................3
3.5.Membership and Voting Rights ....................................................................................................3
3.61 Cost Center Committees: .............................................................................................................3
The Cost Center Committees shall consistof the following: .....................................................................3
ARTICLE IV. MAINTENANCE AND ASSESSMENTS ..................................................................................3
4.1.Creation of the Lien and Personal Obligation of Assessments ....................................................3
4.2.Purpose of Assessments .............................................................................................................3
4.3.Assessments ................................................................................................................................3
A.Regular Assessments ..................................................................................................................3
B.Special Assessments ...................................................................................................................3
C.Cost Center Allocations ................................................................................................................3
4.4.Restrictions on Increases in Regular Assessments or Special Assessments .............................3
III
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B.
C.
4.5.
4.6.
4.7.
4.8.
4.9.
4.10.
A.
B.
C.
D.
E.
F.
G.
H.
J.
4.13.
ARTICLE
A.
E.
F.
G.
H.
I.
J.
K.
5.2.
A.
B.
C.
D.
E.
F.
G.
H.
J.
K.
L.
M.
N.
O.
P.
Q.
R.
5.3.
5.4.
ARTICLE
6.2.
ARTICLE
7.2.
7.3.
Restrictions ..................................................................................................................................3
Assessments - Emergency Situations .........................................................................................3
Notice and Quorum for Any Action Authorized Under Section 4.4 ..........................................-. ....3
Division of Assessments ..............................................................................................................3
Collection of Assessments ...........................................................................................................3Date of Commencement of Regular Assessment; Due Dates ....................................................3Effect of Nonp&yment of Assessments ........................................................................................3Transfer of Condominium by Sale or Foreclosure .......................................................................3
Reimbursement Charges; Fines and Penalties ...........................................................................3
Priorities; Enforcement; Remedies ..............................................................................................3
Statement of Charges ..................................................................................................................3
Payment Plan ...............................................................................................................................3
Notice of Delinquent Assessment ................................................................................................3
Lien Releases ..............................................................................................................................3
Enforcement of Assessment Lien and Limitations on Foreclosure ..............................................3
Foreclosure ..................................................................................................................................3Sale by Trustee ............................................................................................................................3
Purchase By Association ..............................................................................................................3
Suspension of Rights of Delinquent Owner: ................................................................................3
Fines and Penalties ......................................................................................................................3
Unallocated Taxes .......................................................................................................................3
IV. DUTIES AND POWERS OF THE ASSOCIATION ..............................................................3
Duties ........~ ..................................................................................................................................3
Maintenance, Repair and Replacement - Common Area ...........................................: ...............3Inspection and Maintenance Guidelines ......................................................................................3
Compliance with Laws and Ordinances .......................................................................................3
Insurance .....................................................................................................................................3Discharge of Liens .......................................................................................................................3
Assessments ................................................................................................................................3
Payment of Expenses and Taxes ................................................................................................3
Enforcement .................................................................................................................................3
Powers .........................................................................................................................................3
Utility Service: ......................... ......................................................................................................3
Easements ...................................................................................................................................3
Manager .................................................................~ .....................................................................3
Adoption of Rules ....................................................................................................i ....................3Access..........................................................................................................................................3
Assessments and Lien .................................................................................................................3
Fines and Disciplinary Action .......................................................................................................3
Enforcement .................................................................................................................................3
Acquisition and Disposition of Property ........................................................................................3
Loans ...........................................................................................................................................3
Dedication ....................................................................................................................................3
Contracts ......................................................................................................................................3Delegation .............................................................................................................................; ......3
Security .............................................................................................................................., .........3
Appointment of Trustee ................................................................................................................3
Litigation/Arbitration ......................................................................................................................3
Other Powers ...............................................................................................................................3
Common Area Improvements ......................................................................................................3
Commencement of Association’s Duties and Powers .................................................................3
Duties and Powers of the Commercial Owner .............................................................................3
VI.UTILITIES ............................................................................................................................3Owners’ Rights and Duties ...........................................................................................................3
Maintenance Obligations ..............................................................................................................3
VII. USE RESTRICTIONS .........................................................................................................3
Residential Condominium Use .....................................................................................................3
Use - Commercial Units ...............................................................................................................3
Use -. ...........................................................................................................................................3
iv
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7.4,
7.5.
7.6.
7.7.
7.8.
7.9.
7.10.
7.11.
7.12.
7.13.
7.14.
7.15.
A.
7.16.
7.17.
7.18.
7.19.
7.20.
7.21.
7.22.
7.23.
7.24.
7.25.
7.26.
7.27.
7.28
7.29
7.30
7.31
7.32
A.
B.
C.
D.
E.
F.
ARTICLE
8.1.
A.
E.
F.
G.
H.
I.
J.
K.
L.
8.2.
D.
E.
8.3.
Health Care Facilities ...................................................................................................................3
Day Care Use ...............................................................................................................................3
Time Shares Prohibited ...........................................................................................................: ....3
Nuisances ....................................................................................................................................3
Permitted Vehicles and Parking ...................................................................................................3
Signs ..............: .............................................................................................................................3
Animals and Pets .........................................................................................................................3
Garbage and Refuse Disposal .....................................................................................................3
Radio and Television Antennas ...................................................................................................3
Residential Units, Right to Lease .................................................................................................3
Commercial Units - Right to Lease ..............................................................................................3
Architectural Control .....................................................................................................................3
Submittal Requirements ...............................................................................................................3
Window Coverings .......................................................................................................................3
Clothes Lines ...............................................................................................................................3
Power Equipment and Motor Vehicle Maintenance .....................................................................3
Commonly Metered Utilities .........................................................................................................3
Liability of Owners for Damage to Residential Common Area .....................................................3
Flags, Banners, Signs, Stickers, Etc: ...........................................................................................3
Water Bed and Aquarium Restrictions: ........................................................................................3
Activities Causing Increase in Insurance Rates ................................................, ..........................3
Balconies, Decks, Patios, Courtyards, Corridors and Hallways: ..................................................3
Appliances: ...................................................................................................................................3
Floor Coverings ............................................................................................................................3
Sound Transmission Restrictions ................................................................................................3
Dishwasher and Washer Dryer ....................................................................................................3
Water Usage ................................................................................................................................3
Fire and Life Safety Equipment.... ................................................................................................3
No Roof Access ...........................................................................................................................3
Owner’s Right and Obligation to Maintain and Repair .................................................................3
Maintenance of Units .............................................................................................................. .....3
Smoke Detectors and Fire Sprinklers ..........................................................................................3
Other Unit Maintenance ...............................................................................................................3
Mold ..............................................................................................................................................3
Maintenance Guidelines ...............................................................................................................3
Enforcement of Maintenance Responsibility ................................................................................3
VIII. INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION .......................................3
Insurance .....................................................................................................................................3
Type of Insurance Coverage: .......................................................................................................3
FNMA and FHLMC Deductibles ...................................................................................................3
Representation for Claims ............................................................................................................3
Waiver of Subrogation .................................................................................................................3
Review of Policies ........................................................................................................................3
Separate Insurance Limitations ....................................................................................................3
Copies of Policies; Notice to Members ........................................................................................3
Limitation on Liability ....................................................................................................................3
Policies and Procedures Regarding the Filing and Processing of Claims ...................................3
Damage or Destruction ................................................................................................................3
Process For Repair or Reconstruction .........................................................................................3
Process If Repair or Reconstruction Not Undertaken ..................................................................3
Condemnation ..............................................................................................................................3
ARTICLE IX. GENERAL PROVISIONS ........................................................................................................3
9.1.
9.2.
9.3.
9.4.
A.
B.
C.
Enforcement .................................................................................................................................3
Invalidity of Any Provision .............................................................................................................3
Term .............................................................................................................................................3
Amendments ...........................................................................................................: ....................3
Amendments Regarding Initiation of Construction Defect Claims ...............................................3
Amendments to the Rights of Commercial Unit Owners .............................................................3
Amendments as to Rights of Residential Unit Owners ................................................................3
V
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9.5.
9.6.
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
K.
L.
9.7.
9.8.
9.9.
9.10.
9.11.
Area
9.12.
9.13.
9.14.
A.
B.
C.
D.
E.
9.15.
Encroachment Rights ...................................................................................................................3
Rights of First Lenders .................................................................................................................3
Copies of Project Documents .................................................................................................~ ....3
Audited Statement ........................................................................................................................3
Notice of Action ...........................................................................................................................3
Consent to Action .........................................................................................................................3
Right of First Refusal ....................................................................................................................3
Contracts ......................................................................................................................................3
Reserves ......................................................................................................................................3
Priority of Liens .............................................................................................................................3
Distribution of Insurance or Condemnation Proceeds .................................................................3
Termination of Professional Management ...................................................................................3
Status of Loan to Facilitate Resale ..............................................................................................3
Right to Appear at Meetings .........................................................................................................3
Limitation of Restrictions on Declarant .........................................................................................3
Termination of Any Responsibility of Declarant ...........................................................................3
Owners’ Compliance ....................................................................................................................3
Notice ...........................................................................................................................................3
Special Provisions Relating to Enforcement of Declarant’s Obligation to Complete Common
Improvements ...................................................................................................................................3
Special Provisions Relating to Enforcement of Declarant’s Obligation to Pay Assessments ......3
Fair Housing ..............................................................................................................................:..3
Dispute Resolution .......................................................................................................................3
Claims for Declaratory Relief or Enforcement of Project Documents ..........................................3
Design or Construction Defect Claims .........................................................................................3
Notices to Members of Legal Proceedings Against Declarant .....................................................3
Judicial Reference for Certain Disputes .......................................................................................3
Arbitration of Disputes ..................................................................................................................3
Number; Gender ..........................................................................................................................3
vi
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DRAFT - 7.20.2006 -INITIAL WORKING
CONDOMINIUM DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
260 HOMER CONDOMINIUMS, A MIXED USE CONDOMINIUM PROJECT
THIS DECLARATION, made on the date hereinafter set forth, by TALL TREE
PARTNERS I, LLC, a California limited liability company, hereinafter referred to as "Declarant," is
made with reference to the following facts:
A. Location of Property. Declarant is the owner of certain real property (the "Property")
located in the City of Palo Alto ("City"), County of Santa Clara, State of California, more particularly
described as Lot _ on that certain subdivision map entitled "Map of 260 Homer, for Condominium
Purposes", and described on that certain Condominium Plan entitled "Condominium Plan for 260
Homer, a Mixed Use Condominium Project", which was filed for record in the Office of the Recorder
of Santa Clara County, California, on ,200m, in Book __ of Maps, page(s) __
B. Description of Project. The Project consists of the Main [Homer] Building and the
Church [Ramona] Building, as herein defined. Declarant intends to develop, renovate, and improve
the Property by developing and improving the existing buildings on the Property and adding
additional improvements on the Property. The Project is intended to include the following separate
interests: four (4) residential condominium units on the third floor of the Main [Homer] Building; two
(2) commercial office condominium units on the 2nd floor of the Main [Homer] Building; two (2)
commercial office condominium units on the ground floor of the Main [Homer] Building and one (1) )
commercial office condominium unit in the Church [Ramona] Building, which includes area on the
ground floor and in the basement space of the Church [Ramona] Building. The subterranean space
of the Project contains the Parking Garage that will be Common Area for use of all of the Units as
set forth in this Declaration, subject to the granting of Exclusive Use Common Area rights to specific
Units in the Main [Homer] Building. Twenty (20) of the parking spaces in the Parking Garage are
subject to a right of use with the Palo Alto Housing Corporation, pursuant to the PAHC Parking
Agreement herein defined. Twelve (12) of the parking spaces in the Parking Garage are subject to
a right of use with the 820 Ramona Partners LLC, pursuant to the 820 Ramona Parking Agreement
herein defined. Sixty (60) of the parking spaces in the Parking Garage are subject to a right of use
by the public on evenings and weekends, pursuant to the Public Parking Agreement herein defined.
C. Owner’s Interest. The Owner of a Condominium will receive a separate interest in an
individual Unit and an undivided interest in common in the Common Area. Each Condominium shall
have appurtenant to it a membership in the 260 Homer Condominium Owners Association, a
nonprofit mutual benefit corporation.
D. Intention. Declarant intends to create a "condominium project," as defined in Section
1351 (f) of the California Civil Code, to subdivide the Property as authorized by Section 66427 of the
California Government Code into "condominiums" as defined in Section 783 of the California Civil
Code and to impose mutually beneficial restrictions under a general plan of improvement for the
benefit of all the Condominiums created pursuant to the Davis-Stirling Common Interest
Development Act.
NOW, THEREFORE, Declarant hereby declares that the Property and the Project that is
described in this Declaration, and each Condominium described in this Declaration, shall be held,
conveyed, mortgaged, encumbered, leased, rented, used, occupied, sold, and improved, subject to
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the following declarations, limitations, covenants, conditions, restrictions and easements, all of which
are for the purpose of enhancing and protecting the value and attractiveness of the Project, and
every part thereof, in accordance with the plan for the improvements of the Project 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 its
successors and assigns, and all parties having or acquiring any right, title or interest in or to any part
of the Project.
ARTICLE I. DEFINITIONS
1.1.
to time.
"Articles": The Articles of Incorporation of the Association, as amended from time
1.2. "Assessment": The cost of maintaining, improving, repairing, operating and
managing the Project which is to be paid by each Owner as determined by the Association, and
shall include Regular Assessments, Special Assessments, including Cost Center Allocations and
Reimbursement Charges.
1.3. "Assessment Lien": Described in section 4.9.
1.4. "Association": The [260 Homer][Homer Ramona] Condominium Owners
Association, a California nonprofit mutual benefit corporation, the Members of which shall be the
Owners of Condominiums in the Project.
1.5. "Building": A structure in the Project that contains Common Area and/or Units. The
Project includes the two (2) Buildings that are shown and described on the Condominium Plan as
the Main [Homer] Building and the Church [Ramona] Building.
1.6."Board" or "Board of Directors": The governing body of the Association.
"Bylaws": The bylaws of the Association, as amended from time to time.
1.8. "City": The City of Palo Alto, State of California.
1.9. "Church [Ramona] Building": That Building shown on the Condominium Plan as
the Church [Ramona] Building.
1.10. ,’Church [Ramona] Unit": The Commercial Unit designated on the Condominium
Plan as the "Church [Ramona] Unit".
1.11. "Church [Ramona] Unit Cost Center": The Church [Ramona] Unit in the context of
being designated as a separate Cost Center under this Declaration for certain portions of the
Assessments.
1.121 "Church [Ramona] Unit Owner": The owner of the Church [Ramona] Unit.
1.13. "Commercial Area": That area identified and described on the Condominium Plan
as "Commercial Area."
1.14."Commercial Office Area Cost Center": The Commercial Office Units in the Main
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[Homer] Building in the context of being designated as a separate Cost Center under-this
Declaration for certain portions of the Assessments.
1.15. "Commercial Office Unit": A Commercial Unit located in the Main [Homer] Building
used for office or other permitted commercial purposes.
1.16."Commercial Owner": The owner of a Commercial Unit.
1.17."Commercial Unit": A Commercial Office Unit and the Church [Ramona] Unit.
1.18. "Common Area(s)": The entire Project shown on the Condominium Plan, excepting
and excluding the Units, including without limitation, the land, bearing walls, columns, girders, ceiling
joists, subfloors, finished floors, roofs, and foundations of the Main [Homer] Building; the central
heating, central air conditioning equipment; tanks, pumps, motors, ducts, flues and chutes; conduits,
pipes, plumbing, wires and other utility installations of the Main [Homer] Building (except the outlets
thereof when located within the Unit, and excepting utility installations located within a Unit),
providing power, light, telephone, gas, water, sewerage, drainage, heat, air conditioning and
elevator service to the Main [Homer] Building; smoke detectors and fire sprinklers and sprinkler
pipes and other built-in fire protection devices and equipment, including sprinkler heads which
protrude into the air space of a condominium unit, central television antenna or cable television
installation within the Main [Homer] Building. Common Area shall include the landscaped areas of
the Project, the parking garage, parking and driveway areas, exterior sprinklers, sprinkler lines and
utility lines, and Utility Facilities located outside of the Units; decks; railings, steps, and elevator lifts
of the Main [Homer] Building; the Main [Homer] Building lobby, restrooms and common rooms.
Common Area shall not include the walls, roof, foundation, or other components of the Church
[Ramona] Unit.
1.19. "Common Expenses": The actual and estimated expenses of the Association
incurred for maintaining, repairing, operating and replacing the Common Area; any reasonable
reserve for such purposes as found and determined by the Board and all sums designated Common
Expenses by or pursuant to the Condominium Documents. Certain Common Expenses shall be
separately allocated to the Condominium Unit or Units in a Cost Center as Cost Center Allocations.
1.20. "Common Interest": The proportionate undivided interest in the Common Area that
is part of each Condominium as set forth in this Declaration.
1.21. "Condominium": An estate in real property as defined in California Civil Code
§§783 and 1351 (f), consisting of an undivided interest in common in a portion of the Project and a
separate interest in space called a Unit,
1.22. "Condominium Documents": The same as this Declaration, as amended from
time to time, the exhibits, if any, that are attached to this Declaration together with the other basic
documents used to create and govern the Project, including the Map, the Articles, the Bylaws, and
the Condominium Plan but excluding unrecorded Rules adopted by the Board or the Association.
1.23. "Condominium Plan": The recorded three-dimensional floor plan of the
Condominiums located in the Project which identifies the Common Area and each Unit as a
separate interest pursuant to California Civil Code §1351. The Condominium Plan [was recorded in
the Official Records of the County on ,200_ as Document No. ] [is
attached hereto as Exhibit "A"] and is incorporated by reference herein.
1.24."Cost Center":Each the Church [Ramona] Unit Cost Center, the Commercial
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Office Area Cost Center, the Main [Homer] Building Cost Center and the Residential Area L;ost
Center as provided in Section 4.3.0 of under this Declaration.
1.25. "Cost Center Allocation": The portion of Common Expenses, including operating
and reserve funds, budgeted, allocated and assessed exclusively to Units or Lots in a particular
Cost Center.
1.26. "Cost Center Budget":
Center.
A budget prepared each year by the Board for a Cost
1.27. "Cost Center Committee": A Committee formed and charged with the responsibility
of reviewing and approving a Cost Center budget each year for a Cost Center, as provided in
section 4.3.C.
1.28. "Cost Center Expense": Any cost or expense for undertaking the maintenance
obligations and responsibility of a Cost Center as set forth in this Declaration.
1.29. "Cost Center Item": One (1) or more areas, improvements, or facilities, located
within a Cost Center, the use or maintenance of which is substantially restricted to Owners of Units
located within a Cost Center, as specified in this Declaration, or in a Declaration of Annexation that
specifies that the costs and expenses of operating, maintaining and replacing such areas,
improvements or facilities are to be borne solely or disproportionately by the Owners of the Unit or
Units within that Cost Center.
1.30. "County": The County of Santa Clara, State of California.
1.31. "Declarant": TALL TREES PARTNERS I, LLC, a California limited liability
company, and any successor or assign that expressly assumes the rights and duties of the
Declarant under this Declaration, in a recorded written document.
1.32."Declaration.": This Declaration, as amended or supplemented from time to time.
1.33."Eligible Mortgages": Mortgages held by"Eligible Mortgage Holders".
1.34. "Eligible Mortgage Holder": A First Lender who has requested notice of certain
matters from the Association in accordance with section 9.6.C.
1.35. "Eligible Insurer or Guarantor": An insurer or governmental guarantor of a First
Mortgage who has requested notice of certain matters from the Association in accordance with
section 9.6.C.
1.36. "Exclusive Use Common Area": Those portions of the Common Area set aside for
exclusive use of an Owner of a Unit pursuant to section 2.2.E, and shall constitute "Exclusive Use
Common Area" within the meaning of California Civil Code section 1351 (i).
1.37. "First Lender": Any person, entity, bank, savings and loan association, insurance
company, or financial institution holding a recorded First Mortgage on any Condominium.
1.38. "First Mortgage": Any recorded Mortgage made in good faith and for value on a
Condominium with first priority over other Mortgages encumbering the Condominium.
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1.39. "Foreclosure"" The legal process by which a Condominium owned by an Ov~ner
who is in default under a Mortgage is sold pursuant to California Civil Code § 2924a et secj. or sale
by the Court pursuant to California Code of Civil Procedure § 725a etseq, and.any otller applicable
laws.
1.40. "Main [Homer] Building": That Building shown and designated on the Condominium
Plan as the Main [Homer] Building.
1.41 "Main [Homer] Building Cost Center": The Units in the Main [Homer] Building
consisting of those Commercial Units located on the first and second floors of the Main [Homer]
Building and the Residential Units located on the third floor of the Main [Homer] Building.
1.42. "Main [Homer] Building Charges": Those Common Expenses of the Association
that are to be allocated among the Units in the Main [Homer] Building, which, except for item (8),
below, are to be shared between the Commercial Units in the Main [Homer] Building and the
Residential Units as Main [Homer] Building Cost Center Allocations on the basis of 5.5% to the
Residential Units, to be share equally by the Residential Units, and 94.5% to the Commercial Units
in the Main [Homer] Building, except where noted otherwise, to be allocated to each such
Commercial Unit based on the relative square footage of each such Commercial Unit:
replacement;
(1) Main [Homer] Building exterior maintenance, repair and
(2)Main [Homer] Building exterior painting;
(3)Main [Homer] Building roofs maintenance, repair and replacement;
(4)Main [Homer] Building Common Area facilities maintenance, repair
and replacement, including lobby, elevator[s], common rest rooms;
(5) Common Area electricity and water costs and expenses; Common
Area landscaping maintenance, repair and replacement;
(6) Costs and expenses for maintenance and repair of garbage and
trash facilities located in the Main [Homer] Building and for the collection of garbage,, trash,
recycling from the parking Garage in the Main [Homer] Building;
(7) Costs and expenses for maintenance, repair and replacement
HVAC equipment that serves the Commercial Office Units in the Main [Homer] Building shall be
shared among the Commercial Office Units in the Main [Homer] Building on the basis of the
square footage of Commercial Office Unit divided by the total square footage of all Commercial
Office Units in the Main [Homer] Building.
(8) Main [Homer] Building Parking Garage maintenance and repair
shall be shared 8.3% to 820 Ramona Partners LLC; 5.5% to the Residential Units, 5.5% to the
Church Unit and 80.7% to the Commercial Office Units.
1.43."Map": The Map described above in Recital paragraph A.
1.44."Member": A person entitled to membership in the Association as provided herein.
1.45. "Mortgage": A mortgage,.deed of trust, assignment of rents, issues and profits or
other proper instrument (including, without limitation, those instruments and estates created by
sublease or assignment) given as security for the repayment of a loan or other financing which
encumbers a Condominium, made in good faith and for value.
1.46. "Mortgagee": The holder of a Mortgage including the beneficiary of a deed of trust
that constitutes a Mortgage.
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1.47. "Mortgagor": A Person who encumbers his Condominium with a Mortgage,
including a trustor of a deed of trust that constitutes a Mortgage. ¯ .....
1.48. "Notice of Delinquent Assessment": A notice of delinquent assessment filed by
the Association for a delinquent Assessment pursuant to section 4.11 .C.
1.49. "Owner" or "Owners": The record holder of fee simple title to a Condominium,
expressly excluding Persons having, any interest merely as security for the performance of an
obligation until such person obtains fee title thereto, and those parties who have leasehold interests
in a Condominium. If a Condominium is sold under a recorded contract of sale, the purchaser under
the contract of sale, rather than the holder of the fee interest, shall be considered the "Owner" from
and after the date the Association receives written notice of the recorded contract.
1.50. "PAHC Parking Agreement": the certain agreement entitled "Nonexclusive
Easement Agreement" made by and between Declarant and the Palo Alto Housing Corporation,
recorded in the Official Records of the County on ,2006 as Document
No.
1.51. "820 Ramona Parking Agreement" the certain agreement entitled "Nonexclusive
Easement Agreement" made by and between Declarant and 820 Ramona Partners LLC, recorded in
the Official Records of the County on , 2006 as Document No.
1.52. "City Parking Agreement" the certain agreement entitled "Easement and Maintenance
Agreement" made by and between Declarant and the City of Palo Alto, recorded in the Official-
Recoreds of the County on , 2006 as Document No.
1.53."Parking Garage":
1.54."Parking Space":
1.55. "Person": A natural person, a corporation, a partnership, a limited liability company,
a trust, or other legal entity.
1.56. "Project": All of the Property described on the Map and all improvements on that
Property that is subject to this Declaration.
1.57. "Property": The real property described on the Map and Condominium Plan.
1.58, "Public Report": The official document and permit issued pursuant to the
Subdivided Lands Act (Business & Professions Code §§ 11000 et seq.) by the State of.California
Department of Real Estate authorizing the offering of the Residential Units for sale to the public.
1.59. "Regular Assessments": A Regular Assessment levied by the Association
pursuant to section 4.3.A. Regular Assessments for each Cost Center shall include Cost Center
Allocations for each of the Cost Centers as established under the provisions of Section 4.3.C of this
Declaration.
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1.60. "Reimbursement Charge": A charge levied by the Board against an Owner to
reimburse the Association for costs and expenses incurred in bringing the Owner and/or his other
Unit into compliance with the provisions of this Declaration, determined and levied pursuant to
sections 4.11 and 5.1 .A of this Declaration.
1.61. "Residential Area": The portions of the Main [Homer] Building designated on the
Condominium Plan as the Residential Units and Residential Use Area.
1.62. "Residential Area Cost Center": The Residential Units in the context of being
designated as a separate Cost Center under this Declaration for certain portions of the
Assessments.
1.63. "Residential Use Area": That portion of the Common Area located in the Main
[Homer] Building designated on the Condominium Plan as [a] [the] "Residential Use Area".
1.64. "Residential Owner(s)": Record holder(s) of title to a Residential Unit in the Project.
1.65. "Residential Unit": A Unit used for residential purposes located within the Main
[Homer] Building.
1.66. "Rules": The rules adopted from time to time by the Association pursuant to
section 5.2.D.
1.67. "Special Assessments": A Special Assessment levied bythe Association pursuant
to section 4.3.B. Special Assessments shall include Cost Center Allocations that are allocated and-
assessed to a specific Cost Center under this Declaration.
1.68. "Unit": The elements of the Condominium, as defined in section 2.2.A, (Residential
Units) and section 2.2.D (Commercial Office Units) and 2.2.F (Church Ramona Unit) which are not
owned in common with the Owners of other Condominiums in the Project. Each Unit is identified by
separate number on the Condominium Plan.
1.69. "Utility Facilities": Defined in section 6.1.
ARTICLE II. DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS
2.1. Description of Property: The Project is a mixed-use project, consisting of the land,
described herein as the Property, the Residential and the Commercial Office Units located in the
Main [Homer] Building and the Church [Ramona] Unit located in the Church[Ramona] Building, and
all other improvements located within the Project. Declarant will renovate and construct upon the
Property a mixed-use residential/commercial office complex with the Parking Garage. Reference is
made to the Condominium Plan for further details.
2.2.Division of Property: The Project is divided as follows:
A. Residential Units: The four (4) Units (Nos.through __.)
designated on the Condominium Plan. Each Residential Unit, as separately shown, numbered and
described on the Condominium Plan, consists of the space bounded by and contained within the
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interior unfinished surfaces of the perimeter walls, floors, ceilings, windows, window frar~es,
skylights, doors and door frames and trim, of each Unit, each of such spaces being defined and
referred to herein as a "Unit." Bearing walls located within the interior of a Unit are Residential
Common Area, not part-of the Unit, except for the finished surfaces thereof. Each Unit includes the
utility installations located within its boundaries that the Owner has exclusive use of, including,
without limitation, hot water heaters, space heaters, cabinetry and lighting fixtures which are located
entirely within the Unit they serve. Each Unit includes both the Building so described and the
airspace so encompassed. The Unit does not include those areas and those things which are
defined as "Common Area" in section 1.18. Each Unit is subject to such encroachments as are
contained in the Main [Homer] Building, whether the same now exist or may be later caused or
created in any manner referred to in section 9.5. In interpreting deeds and plans, the then existing
physical boundaries of a Unit, when the boundaries of the Unit are contained within a Building, or of
a Unit reconstructed in substantial accordance with the original plans thereof, shall be conclusively
presumed to be its boundaries rather than the boundaries expressed in the deed or plan, regardless
of settling or lateral movement of the Building and regardless of minor variance between boundaries
shown on the plan or deed, and those of the Building. Each Residential Unit shall have appurtenant
to it nonexclusive rights for ingress, egress and support through the Common Area subject to the
rights of each Owner in the any Exclusive Use Common Area appurtenant to that Owner’s
Condominium.
B.Residential Use Area: That portion of the Common Area of the Main
[Homer] Building designated as the Residential Use Area which shall be exclusively used by the
Owners and occupants of the Residential Units.
C. Exclusive Use Common Areas - Residential: The following described
portions of the Common Area, referred to as Exclusive Use Common Areas, are set aside and
allocated for the exclusive use of the Owner of the Residential Unit to which they are attached or
assigned or shown on the Condominium Plan, and are appurtenant to that Residential Unit:
(1) Those Parking Spaces located in the Parking Garage designated "P",
followed by a number (to be described in the deed by which title is conveyed to the original buyer) of
the Residential Unit;
(2)Balcony designated "B", followed by the number of the Unit.
(3)Patio designated ".PT" followed by the number of the Unit.
In addition, the following areas or items are Exclusive Use Common Areas appurtenant to
the Condominiums in which they are located or attached:
The air conditioning equipment serving a Unit is part of the Unit, belongs to the Owner of that
Unit, and shall be maintained by the Owner. The space occupied by the air conditioning equipment,
wherever located, shall be restricted to the exclusive use of the Owner whose air conditioner
occupies such space.
D. Commercial Office Units: The four (4) Units (designated as Units Nos.
__. through ~ on the Condominium Plan, shall be the Commercial Office Units, each of
which Commercial Office Units, as separately shown, numbered and described on the
Condominium Plan, shall consist of the space bounded by and contained within the interior
unfinished surfaces of the perimeter walls, floors, ceilings, windows, window frames, skylights, doors
and door frames and trim, of each Unit, each of such spaces being defined and referred to herein as
a "Unit." Bearing walls located within the interior of a Unit are Common Area, not part of the Unit,
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except for the finished surfaces thereof. Each Unit includes the utility installations located withfn its
boundaries that the Owner has exclusive use of, including, without limitation, hot water heaters,
space heaters, cabinetry and lighting fixtures which are located entirely within the Unit they serve.
Each Unit includes both the Building so described and the airspace so encompassed. The Unit
does not include those areas and those things which are defined as "Common Area" in section 1.1 8.
Each Unit is subject to such encroachments as are contained in the Main [Homer] Building, whether
the same now exist or may be later caused or created in any manner referred to in section 9.5. In
interpreting deeds and plans, the then existing physical boundaries of a Unit, when the boundaries
of the Unit are contained within the Main [Homer] Building, or of a Unit reconstructed in substantial
accordance with the original plans thereof, shall be conclusively presumed to be its boundaries
rather than the boundaries expressed in the deed or plan, regardless of settling or lateral movement
of the Building and regardless of minor variance between boundaries shown on the plan or deed,
and those of the Building. Each Commercial Office Unit shall have appurtenant to it nonexclusive
rights for ingress, egress and support through the Common Area subject to the rights of each Owner
in the any Exclusive Use Common Area appurtenant to that Owner’s Condominium.
E.Exclusive Use Common Areas - Commercial Office Units: The following
described portions of the Common Area, referred to as Exclusive Use Common Areas, are set aside
and allocated for the exclusive use of the Owner of the Commercial Office Unit to which they are
attached or assigned or shown on the Condominium Plan, and are appurtenant to that Commercial
Office Unit:
(1) Parking Spaces designated "P", followed by a number (to be
described in the deed by which title is conveyed to the original buyer) of the Commercial Office Unit;
In addition, the following areas or items are Exclusive Use Common Areas appurtenant to
the Condominiums in which they are located or attached:
F.Church [Ramona] Unit: The Church [Ramona] Unit is a commercial office
Unit that consists of the airspace shown and designated on the Condominium Plan as the "Church
[Ramona] Unit" and includes the portions of the Church [Ramona] Building and the land and
airspace that is shown on the Condominium Plan as the Church [Ramona] Unit. All of the
improvements within the Church [Ramona] Unit as shown on the Condominium Plan shall be part of
the Church [Ramona] Unit, whether exterior walls, interior wall, bearing walls, and shall include the
roof and the foundation of and within the Church [Ramona] Unit, as shown on the Condominium
Plan. All fixtures and equipment within the Church [Ramona] Unit, including but not limited to, hot
water heaters, space heaters, cabinetry and lighting fixtures shall be part of the Church [Ramona]
Unit, The Church [Ramona] Unit includes both the Church [Ramona] Building so described and the
airspace so encompassed. The Church [Ramona] Unit is subject to such encroachments as are
contained in the Church [Ramona] Building, whether the same now exist or may be later caused or
created in any manner referred to in section 9.5. In interpreting deeds and plans, the then existing
physical boundaries of the Church [Ramona] Unit, when the boundaries of the Church [Ramona]
Unit are contained within the Church [Ramona] Building, or of a Unit reconstructed in substantial
accordance with the original plans thereof, shall be conclusively presumed to be its boundaries
rather than the boundaries expressed in the deed or plan, regardless of settling or lateral movement
of the building and regardless of minor variance between boundaries shown on the plan or deed,
and those of the Building. The Church [Ramona] Unit shall have appurtenant to it nonexclusive
rights for ingress, egress and support through the Common Area subject to the rights of each Owner
in the any Exclusive Use Common Area appurtenant to that Owner’s Condominium.
G. Common Area: Those portions of the Project exclusive of the Units
constitute the "Common Area" as defined in section 1.18. Each Owner shall have, as appurtenant
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to his or her Unit, an undivided Common Interest in and to the Common Area in the percentag~ set
forth in Exhibit "B" attached hereto and incorporated by reference herein. The Common Interest
appurtenant to each Unit is declared to be permanent in character and cannot be altered without’the
consent of all the Owners of Units in the Building in which the Unit is located, as expressed in an
amended Declaration. The undivided Common Interest in the Common Area cannot be separated
from the Unit, and any conveyance or transfer of the Unit shall include the undivided Common
Interest, the Owner’s membership in the Association, and any other benefits or burdens appurtenant
to that Owner’s Condominium. Subject to this Declaration and the Rules, each Owner in a Building
may have access to and use of the Common Area of the Building in which his or her Unit is situated
subject to the rights of each Owner in the Exclusive Use Common Area appurtenant to that Owner’s
Condominium and the provisions of this Declaration and the Rules of the Association.
2.3. Exclusion, Encroachments: The Units do not include those areas and those things
which are defined as Residential Common Area in section 1.18. Each Unit is subject to such
encroachments as are contained in the Buildings, whether the same now exist or may be later
caused or created in any manner referred to in section 9.5. In interpreting deeds and plans, the then
existing physical boundaries of a Unit, whether in its original state or reconstructed in substantial
accordance with the original plans thereof shall be conclusively presumed to be its boundaries
rather than the boundaries expressed in the deed or plan, regardless of settling or lateral movement
of the Buildings and regardless of minor variance between boundaries shown on the Condominium
Plan or deed, and those of the Buildings.
2.4. No Separate Conveyance of Undivided interests or Easements: The undivided
interests and easements described in this Declaration are hereby established and are to be
conveyed with the respective Units as indicated above, cannot be changed, except as herein set
forth, and Declarant, its successors, assigns and grantees covenant and agree that the undivided.
interests and easements in the Common Area and the fee title to the respective Units conveyed
therewith, and the undivided interests in the Common Property, and the easements over the
Commercial Area, shall not be separated or separately conveyed, and each such undivided interest
and easement shall be deemed to be conveyed or encumbered with its respective Unit or lot as the
case may be, even though the description in the instrument of conveyance or encumbrance may
refer only to the fee title to the Unit.
2.5. Rights of Entry and Use: The Units and Common Area (including Exclusive Use
Common Area) shall be subject to the following rights of entry and use:
A. The non-exclusive rights of each Owner for ingress, egress and support
through the Common Area, and use of the Common Area as provided in sections 2.2.A, 2.2.D and
2.2.F.
B. The right of the Association’s agents or employees to enter any Unit to cure
any violation of this Declaration or the Bylaws, provided that the Owner has received notice and a
hearing as required by the Bylaws (except in the case of an emergency) and the Owner has failed to
cure the violation or take steps necessary.to cure the violation within thirty (30) days after the finding
of a violation by the Association.
C. The access rights of the Association to maintain repair or replace
improvements or property located in the Common Area as described in section 5.2.E.
D. The rights of the Owners, the Association, and the Declarant to install,
maintain, repair or replace utilities as described in Article VI.
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E.The encroachment rights described in section 9.5.
section 9.7.
The rights of the Declarant during the construction period as described in
G. The rights of Owners to make improvements or alterations authorized by
California Civil Code § 1360(a)(2), subject to the provisions of section 7.14.
2.6. Structural and Support Easements: Easements exist in favor of each of the Units
and all Owners thereof are hereby reserved and established through those portions of the Common
area as necessary for structural support of the Units and the Buildings.
2.7. Partition Prohibited: The Common Area shall remain undivided except as follows:
The Common Area may be re-subdivided if approved unanimously by the Owners, and if approved
by the City and pursuant to and in accordance with the Subdivision Map Act and the Davis-Stirling
Act. Except as provided by California Civil Code §1359 or authorized under sections 8.2.B or 8.3,
no Owner shall bring any action for partition of the Common Area, 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 Condominium owned bytwo (2) or
more persons and division of the sale proceeds is not prohibited by this paragraph.
2.10 Lien Claims: In the event a lien claim is filed against the Common Area, the
Owner(s) or as the case may be, the Association, whose act or neglect caused said lien to be filed,
shall immediately, and at its expense, do whatever is required to remove the lien claim from the
Common Property.
2.11 All Easements Part of Common Plan: Whenever any easements are reserved or
created or are to be reserved or created herein, such easements shall constitute equitable
servitudes for the mutual benefit of all property in the Project, even if only certain Units are
specifically mentioned as subject to or benefiting from a particular easement, and when easements
referred to herein are subsequently created by grant deeds, such easements are part of the
common plan created by this Declaration for the benefit of all property Owners within the Project.
ARTICLE III. ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS
3.1. Association to Manage Common Areas: The management and operation of the
Common Areas shall be vested in the Association. The Owners of all the Condominiums covenant
and agree that the administration of the Project shall be in accordance with the provisions of this
Declaration, and the Articles and Bylaws,
3.2. Ownership and Management of Common Property: Title to the Common Property
shall be held in undivided interests by the Owners of the Commercial Area and of the Units as
provided in section 2.2.G. All decisions involving the ownership or management of the Common
Property shall require a majority of the .total voting power of the Members of the Residential
Association, including a vote of a majority of Members other than Declarant, if any, and the vote of
the Commercial Owner.
3.3. Membership: The Owner of a Unit shall automatically, upon becoming the Owner of
same, be a Member of the Association, and shall remain a Member thereof until such time as his
ownership ceases for any reason, at which time his membership in the Association shall
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automatically cease. Membership shall be held in accordance with the Articles and Bylaws of the
Association.
3.4. Transferred Membership: Membership in the Association shall not be transferred,
encumbered, pledged, or alienated in any way, except upon the sale or encumbrance of the Unit to
which it is appurtenant, and then only to the purchaser, in the case of a sale, or mortgagee, in the
case of an encumbrance of such Unit. On any transfer of title to an Owner’s Condominium,
including a transfer on the death of an Owner, membership passes automatically with title to the
transferee. A mortgagee does not have membership rights until it obtains title to the Condominium
by Foreclosure or deed in lieu thereof. Any attempt to make a prohibited transfer is void. No
Member may resign his membership. On notice of a transfer, the Association shall record the
transfer on its books.
3.5. Membership and Voting Rights: Membership and voting rights shall be as set
forth in the Bylaws.
3.6. Cost Center Committees: Declarant shall have the right to appoint or elect a
majority of each Cost Center Committee until Declarant has sold ninety percent (90%) of the Units in
the Cost Center. Each Owner of a Unit in a Cost Center shall have one (1) vote, which vote is
appurtenant to the Owner’s Unit. The Cost Center Committees shall review a budget prepared by or
on behalf of the Board each year for the operation and maintenance of the improvements within the
Cost Center established as the Cost Center Expense for that Cost Center pursuant to Section 4.3.C
of this Declaration.
The Cost Center Committees shall consist of the following:
(1) The Residential Cost Center Committee shall mean the four (4)
Residential Owners. All decisions of Residential Cost Center Committee shall be determined by a
vote or written consent of three (3) of the four (4) Residential Owners.
(2) The Commercial Area Cost Center Committee shall mean the four (4)
Commercial Office Unit Owners of the Commercial Office Units in the Main [Homer] Building. All
decisions of the Commercial Area Cost Center Committee shall be determined by vote or written
consent of three (3) of the four (4) Commercial Office Unit Owners.
(3)
[Ramona] Unit Owner.
The Church [Ramona] Cost Center Committee shall mean the Church
(4) The Main [Homer] Building Cost Center Committee shall mean the
four (4) Residential Owners and the four (4) Commercial Office Unit Owners. All decisions of the
Main [Homer] Building Cost Center shall be determined by the vote or written consent of a majority
of such Owners, provided however, in any event, of at least two (2) of the Residential Owners and at
least two (2) of the Commercial Office Unit Owners shall agree as to such decision.
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ARTICLE IV. MAINTENANCE AND ASSESSMENTS
4.1. Creation of the Lien and Personal Obligation of Assessments: The Declarant,
for each Condominium within the Project, hereby covenants, and each Owner of any Condominium
by acceptance of a deed for that condominium, whether or not it shall be so expressed in such
deed, covenants and agrees:
to pay Regular Assessments, including Cost Center Allocations, Special
Assessments, including Cost Center Allocations, and Reimbursement Charges to the Association
as established in this Declaration, and
to allow the Association to enforce any Assessment Lien established under this
Declaration by nonjudicial proceedings under a power of sale or by any other means authorized by
law.
The Regular Assessments, Cost Center Assessments, Special Assessments, and those
Reimbursement Charges that legally can be an Assessment Lien pursuant to section 4.11 hereof,
together with interest, late charges, collection costs and reasonable attorneys’ fees, shall be a
charge on the Condominium and shall be a continuing Assessment Lien upon the Condominium
against which each such Assessment is made, the lien to become effective upon recordation of a
Notice of Delinquent Assessment. Each Assessment, together with interest, late charges, collection
costs, and reasonable attorneys’ fees, shall also be the personal obligation of the person who was
the Owner of such Condominium at the time when the Assessment fell due. The personal obligation
for delinquent Assessments shall not pass to his successors in title unless expressly assumed by
them. No Owner shall be exempt from liability for payment of Assessments by waiver of the use or
enjoyment of any of the Common Areas or by the abandonment of the Owner’s Condominium.
The interest of any Owner in the amounts paid pursuant to any Assessment upon the
transfer of ownership shall pass to the new Owner. Upon the termination of these covenants for any
reason, any amounts remaining from the collection of such Assessments after paying all amounts
properly charged against such Assessments shall be distributed to the then Owners on the same
pro rata basis on which the Assessments were collected.
4.2. Purpose of Assessments: The Assessments levied by the Association shall be
used exclusively to promote the economic interests, recreation, health, safety, and welfare of all the
residents in the Project and to enable the Association to perform its obligations hereunder.
4.3.Assessments:
A.Regular Assessments: The Board shall establish and levy Regular
Assessments in an amount that the Board estimates will be sufficient to raise the funds needed to
perform the duties of the Association during each fiscal year. The Regular Assessment shall
include a portion for reserves in such amounts as the Board in its discretion considers appropriate to
meet the costs of the future repair, replacement or additions to the major improvements and fixtures
that the Association is obligated to maintain and repair. Reserve funds shall be deposited in a
separate account and the signatures of at ieast two (2) persons who shall either be members of the
Board or one officer who is not a member of the Board and a member of the Board shall be required
to withdraw monies from the reserve account. The Regular Assessment shall include the Cost
Center Allocation that is established for each Cost Center pursuant to the provisions of Section
4.3.C of this Declaration.
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B, Special Assessments: The Board, at any time, may levy a Special
Assessment in order to raise funds for unexpected operating or other costs, insufficient operating or
reserve funds, or such other purposes as the Board in its discretion considers appropriate. Special
Assessments shall be allocated among the Units in the same manner as Regular Assessments,
except in the case of an Assessment levied by the Board against a Member to reimburse the
Association for costs incurred in bringing a Member into compliance with provisions of the
Governing Documents. The Special Assessment shall include a Cost Center Allocation that is
established for a Cost Center pursuant to the provisions of Section 4.3.C of this Declaration as a
Special Assessment.
C. Cost Center Allocations: The Board shall determine and levy as part of the
Regular Assessment the Cost Center Allocations for Common Expenses, including operating and
reserve funds, budgeted or allocated exclusively to any particular Cost Center as such Cost Center
Assessments have been provided in the budgets on file with the Department of Real Estate. The
Cost Center Allocations for each Cost Center shall be estimated annually by the Board in a budget
prepared by or on behalf of the Board. The budgeted Cost Center Allocations for each Cost Center
shall be presented by the Board to the Cost Center Committee for each Cost Center. Each Cost
Center Committee shall review and comment on the budgeted Cost Center Allocations within ten
(10) days prior to the end of each fiscal year of the Association. The Board shall review the
comments on the budget for each Cost Center and take such comments into in consideration in
preparing the annual budget for the Association, provided, however, that the Board shall have the
final authority to decide the minimum level of maintenance (and the cost thereof) that in the Board’s
discretion is necessary to maintain the improvements within the Cost Center that are to be
maintained as Cost Center Expense in the manner consistent with the standards of the Project.
(1) Church [Ramona] Unit Cost Center Allocations: The costs of.
operation, maintenance, repair, replacement and insurance of the improvements within the Church
[Ramona] Unit Center as described and set forth on Exhibit "C-1", shall be allocated and assessed
to the Church [Ramona] Unit served by the Church [Ramona] Unit Cost Center as a Cost Center
Allocation.
(2) Commercial Area Cost Center Allocations: The costs of operation,
maintenance, repair, replacement and insurance of the improvements within the Commercial Area
Cost Center as described and set forth on Exhibit "C-2", shall be allocated and assessed among the
Units served by the Commercial Area Cost Center as a Cost Center Allocation.
(3) Residential Area Cost Center Allocations: The costs of operation,
maintenance, repair, replacement and insurance the improvement within the Residential Area Cost
Center as described and set forth on Exhibit "C-3", shall be allocated and assessed among the Units
served by the Residential Area Cost Center as a Cost Center Allocation.
(4) Main [Homer] Building Cost Center Allocations: The costs of
operation, maintenance, repair, replacement and insurance the improvement within the Main
[Homer] Building Cost Center as described and set forth on Exhibit "C-4", shall be allocated and
assessed among the Units served by the Main [Homer] Building Cost as a Cost Center Allocation
4.4.Restrictions on Increases in Regular Assessments or Special Assessments:
A.Restrictions: Except as provided in section 4.4B, without having first
obtained the approval of such action by the vote or written assent of Members casting a majority of
the votes at a meeting of the Association at which a quorum is present, the Board may not: (1)
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impose a Regular Assessment on any Condominium which is more than twenty percent (20%)
greater than the Regular Assessment for the immediately preceding fiscal year or (2) levy a Special
Assessment to defray the cost of any action or undertaking on behalf of the Association whichin-the
aggregate exceeds five percent (5%) of the budgeted gross expenses of the Association for that
fiscal year. For purposes of this section 4.4, a "quorum" means Members constituting more than fifty
percent (50%) of the voting power of the Association. Any meeting of the Association for purposes
of complying with this section 4.4 shall be conducted in accordance with Chapter 5 (commencing
with § 7510) of Part 3, Division 2 of Title 1 of the California Corporations Code and § 7613 of the
California Corporations Code. The right of the Board to increase Regular Assessments by up to
twenty percent (20%) over the Regular Assessment for the immediately preceding fiscal year is
subject to the Board having complied with the provisions of California Civil Code § 1365(a), which
provisions are set forth in section 12.1 (1) of the Bylaws or having obtained the approval of such
increase by the Members in the manner set forth above in this section 4.4.
B. Assessments - Emergency Situations: Notwithstanding the foregoing, the
Board, without membership approval, may increase Regular Assessments, increase or levy Special
Assessments necessary for an emergency situation in amounts that exceed the provisions of
section 4.4.A, above. For purposes of this section, an emergency situation is one of the following:
(1) an extraordinary expense required by an order of a court,
(2) an extraordinary expense necessary to repair or maintain the Project
or any part of it for which the Association is responsible where a threat to personal safety on the
Project is discovered, or
(3) an extraordinary expense necessary to repair or maintain the Project
or any part of it for which the Association is responsible that could not have been reasonably
foreseen by the Board in preparing and distributing the pro forma operating budget, provided,
however, that prior to the imposition or collection of the Assessment, the Board shall pass a
resolution containing written findings as to the necessity of the extraordinary expense .involved and
why the expense was not or could not have been reasonably foreseen in the budgeting process and
the resolution shall be distributed to the Members with the notice of the Assessment.
The Association shall provide to the Owners by first-class mail notice of any increase in the
Regular Assessments or Special Assessments of the Association, not less than thirty (30) nor more
than sixty (60) days prior to the increased Assessment becoming due.
This section 4:4 incorporates the statutory requirements of California Civil Code § 1366. If
this section of the California Civil Code is amended in any manner, this section 4.4 automatically
shall be automatically amended in the same manner without the necessity of amending this
Declaration.
C. Notice and Quorum for Any Action Authorized Under Section 4.4: Any
action authorized under section 4.4, which requires a vote of the membership, shall be taken at a
meeting called for that purpose, written notice of which shall be personally delivered or mailed 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, in the case of a special meeting, the nature of the
business to be undertaken. The action may also be taken without a meeting pursuant to the
provisions of California Corporations Code §7513.
4.5. Division of Assessments: Both Regular Assessments and Special Assessments,
other than Cost Center Allocations, shall be levied equally among the Units. The Church [Ramona]
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Unit Cost Center Allocations shall be levied against the Church [Ramona] Unit. The Commercial
Area Cost Center Allocations shall be levied equally against each Commercial Unit. The Residential
Area Cost Center Allocations shall be levied equally against each Residential Unlt. The- Main
[Homer] Building Cost Center Allocations shall be levied against the Units in the Cost Center as set
forth in Section 1.42.
4.6. Collection of Assessments: Regular Assessments shall be collected on a monthly
basis unless the Board directs otherwise. Cost Center Allocations shall be collected on a monthly
basis unless the Board directs otherwise. Special Assessments may be collected in one (1)
payment or periodically as the Board shall direct.
4.7. Date of Commencement of Regular Assessment; Due Dates: The Regular
Assessments, including Cost Center Allocations provided for in this Declaration shall commence as
to all Condominiums covered by this Declaration on the first day of the month following the first
conveyance of a Condominium to an individual Owner. The first Assessment shall be adjusted
according to the number of months remaining in the calendar, year.
The Board of Directors shall use its best efforts to fix the amount of the Regular Assessment,
including Cost Center Allocations, against each Condominium and send written notice thereof to
every Owner at least forty five (45) days in advance of each Assessment period, provided that failure
to comply with the foregoing shall not affect the validity of any Assessment levied by the Board.
Regular Assessments may be prorated on a monthly basis. The due dates shall be established by
the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a
certificate signed by an officer or designated representative of the Association stating that the
Assessments on a specified Condominium have been paid. Such a certificate shall be conclusive
evidence of such payment.
4.8. Effect of Nonpayment of Assessments: Any Assessment not paid within fifteen
(15) days after the due date shall be delinquent, shall bear interest at the rate of twelve percent
(12%) per annum commencing thirty (30) days after the due date until paid, and shall incur a late
payment penalty in an amount to be set by the Board from time to time, not to exceed the maximum
permitted by applicable law.
4.9. Transfer of Condominium by Sale or Foreclosure: Sale or transfer of any
Condominium shall not affect the Assessment Lien. However, the sale of any Condominium
pursuant to Foreclosure of a First Mortgage shall extinguish the lien of any Assessments on that
Condominium (including attorneys’ fees, late charges, or interest levied in connection therewith) as
to payments which became due prior to such sale or transfer (except for Assessment Liens as to
which a notice of delinquent assessments has been recorded prior to the mortgage). No
amendment of the preceding sentence may be made without the consent of Owners of
Condominiums to which at least sixty-seven percent (67%) of the votes in the Association are
allocated, and the consent of the Eligible Mortgage Holders holding first mortgages on
Condominiums comprising fifty-one percent (51%) of the Condominiums subject to First Mortgages.
No sale or transfer shall relieve such Condominium from liability for any Assessments thereafter
becoming due or from the lien thereof. The unpaid share of such Assessments shall be deemed to
be Common Expenses collectible from all of the Condominium Owners including such acquirer, his
successors or assigns.
If a Condominium is transferred, the grantor shall remain liable to the Association for all
unpaid Assessments against the Condominium through and including the date of the transfer. The
grantee shall be entitled to a statement from the Association, dated as of the date of transfer, setting
forth the amount of the unpaid Assessments against the Condominium to be transferred and the
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Condominium shall not be subject to a lien for unpaid Assessments in excess of the amount set
forth in the statement, provided, however, the grantee shall be liable for any Assessments that
become due after the date of the transfer.
4.10. Reimbursement Charges; Fines and Penalties: The Board may levy a
Reimbursement Charge against a Member to reimburse the Association for costs incurred by the
Association in the repair of damage to the Common Area and facilities for which the Member or the
Member’s guests or tenants were responsible and in bringing the Member and his Unit into
compliance with the provisions of the Project Documents in the amount required to reimburse the
Association for the actual costs and expenses incurred and the amounts incurred to enforce the
Associations rights under this Declaration as are then permitted by law. Reimbursement Charges
shall be payable when directed bythe Board after written notice to the Owners, which notice shall in
no event be less than thirty (30) days. If an Owner disputes a Reimbursement Charge, the Owner
may request a hearing before the Board, Except as hereinafter provided, Reimbursement Charges,
fines and penalties for violation of this Declaration or the Rules are not "Assessments," and are not
enforceable by an Assessment Lien, but are enforceable by court proceedings. After such time as
Declarant no longer owns any Units in the Project that are subject to the jurisdiction of the
Department of Real Estate under a Public Report, pursuant to Civil Code §1367.1(e), monetary
penalties imposed by the Association to reimburse the Association for costs incurred for repair of
damage to Common Area or facilities for which the Owner, or guests or tenants of an Owner, were
responsible may become the subject of an Assessment Lien. If Civil Code section 1367.1(e) is
amended to permit fines and penalties imposed by the Association for violation of this Declaration
as a disciplinary measure for failure of an Owner to comply with this Declaration or the Rules to be
enforceable by Assessment Lien, then this provision shall be deemed amended to conform to any
such amendment of Civil Code §§1367.1 (e).
4.11. Priorities; Enforcement; Remedies: If an Ownerfails to payan Assessment when
due, the Association has the right, and option, to bring legal action against the Owner to enforce
collection of the unpaid and past due Assessment, or may impose an Assessment Lien on the Unit
owned by Owner pursuant to the provisions of Civil Code § 1367.1. Suit to recover a money
judgment for unpaid Assessments and attorneys’ fees; shall be maintainable without foreclosing or
waiving the lien securing the same. The Association shall distribute the written notice described in
subdivision (b) of Civil Code § 1365.1 entitled "Notice Assessments and Foreclosure" to each
Member during the 60-day period immediately precedi.ng the beginning of the Association’s fiscal
year. The notice is to be printed in at least 12-point type.
A.Statement of Charges: At least 30 days prior to the Association recording
an Assessment Lien upon a Unit pursuant to Civil Code § 1367.1 (a), the Association shall notify the
owner of record in writing by certified mail of the following:
(1) A general description of the collection and lien enforcement
proce.dures of the Association and the method of calculation of the amount owed, a statement that
the Owner has the right to inspect the Association’s records, pursuant to section 8333 of the
Corporations Code, and the following statement in 14-point boldface type, if printed, or in capital
letters, if typed: "IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN
FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD
WITHOUT COURT ACTION".
(2) An itemized statement of the charges owed by the Owner, including
items on the statement which indicate the amount of any delinquent Assessments, the fees and
reasonable costs of collection, reasonable attorney’s fees, any late charges, and interest, if any.
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(3) A statement that the Owner shall not be liable to pay the charges,
interest, and costs of collection, if it is determined the Assessment was paid on time tothe
Association.
(4) The right to request a meeting with the Board as provided by Civil
Code Section 1367.1 (c)(3).
(5) The right to dispute the Assessment debt by submitting a written
request for dispute resolution to the Association pursuant to the Association’s "meet and confer"
program required in Article 5 (commencing with Section 1363.810) of Chapter 4 of the Civil Code.
(6) The right to req uest alternative dis pute resolution with a neutral third
party pursuant to Article 2 (commencing with Section 1369.510) of Chapter 7 of the Civil Code
before the Association may initiate foreclosure against the Owner’s Unit, except that binding
arbitration shall not be available if the Association intends to initiate a judicial foreclosure.
Note: Any payments made by the Owner toward the debt shall first be applied to the
Assessments owed, and, only after the Assessments owed are paid in full shall the payments be
applied to the fees and costs of collection, attorneys’ fees, late charges, or interest. The Association
need not accept any tender of a partial payment of an Assessment and all costs and attorneys’ fees
attributable thereto. Acceptance of any such tender does not waive the Association’s right to
demand and receive full payment.. When an Owner makes a payment, the owner may request a
receipt and the Association shall provide it. The receipt shall indicate the date of payment and the
person who received it. The Association shall provide a mailing address for overnight payment of
Assessments.
B.Payment Plan: An Owner may submit a written request to meet with the
Board to discuss a payment plan for the Assessment debt noticed pursuant to section 4.11 .A. The
Association shall provide the Owners the standards for payment plans, if any exist. The Board shall
meet with the Owner in executive session within forty five (45) days of the postmark of the request, if
the request is mailed within fifteen (15) days of the date of the postmark of the notice, unless there is
no regularly scheduled Board meeting within that period, in which case the Board may designate a
committee of one or more members to meet with the Owner. Payment plans may incorporate any
Assessments that accrue during the payment plan period. Payment plans shall not impede the
Association’s ability to record a lien on the Owner’s Unit to secure payment of delinquent
Assessments. Additional late fees shall not accrue during the payment plan period if the Owner is in
compliance with the terms of the payment plan. In the event of a default on any payment plan, the
Association may resume its efforts to collect the delinquent Assessments from the time prior to
entering into the payment plan.
C.Notice of Delinquent Assessment: After compliance with the provisions of
Civil Code § 1367.1(a), the Association may record a Notice of Delinquent Assessment and
establish an Assessment Lien against the Unit of the delinquent Owner prior and superior to all
other liens recorded subsequent to the Notice of Delinquent Assessment, except (1) all taxes,
bonds, Assessments and other levies which, by law, would be superior thereto, and (2) the lien or
charge of any First Mortgage of record recorded prior to the Notice of Delinquent Assessment. The
Notice of Delinquent Assessment shall include an itemized statement of the charges owed by the
Owner described in section 4.11A above, a description of the Unit 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 any officer
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of the Association or any management agent retained by the Association and shall be mailed by
certified mail to every person whose name is shown as an Owner of the Unit in the Association’s
records no later than ten (10) calendar days after recordation.
D. Lien Releases: Within twenty-one (21) days after payment of the sums
specified in the Notice of Delinquent Assessment, the Association shall record or cause to be
recorded in the Office of the County Recorder in which the Notice of Delinquent Assessment is
recorded a lien release or notice of rescission and provide the Owner a copy of the lien release or
notice that the delinquent Assessment has been satisfied.
E.Enforcement of Assessment Lien and Limitations on Foreclosure: The
collection by the Association of delinquent Regular Assessments or delinquent Special
Assessments of an amount less than one thousand eight hundred dollars ($1,800), not including any
accelerated Assessments, late charges, fees and costs of collection, attorney’s fees, or interest,
may not be enforced through judicial or nonjudicial foreclosure, but may be collected or secured in
any of the following ways:
(1) By a civil action in small claims court, pursuant to Chapter 5.5
(commencing with Section 116.110) of Title 1 of the Code of Civil Procedure. If the Association
chooses to proceed by an action in small claims court, and prevails, the Association may enforce the
judgment as permitted under Article 8 (commencing with Section 116.810) of Title 1 of the Code of
Civil Procedure. The amount that may be recovered in small claims court to collect upon a debt for
delinquent Assessments may not exceed the jurisdictional limits of the small claims court and shall
be the sum of the following:
(a)
small claims court proceeding.
The amount owed as of the date of filing the complaint in the
(b) In the discretion of the court, an additional amount to that
described in subparagraph (a) equal to the amount owed for the period from the date the complaint
is filed until satisfaction of the judgment, which total amount may include accruing unpaid
Assessments and any reasonable late charges, fees and costs of collection, attorney’s fees, and
interest, up to the jurisdictional limits of the small claims court.
(2) By recording a lien on the Owner’s Unit upon which the Association
may not foreclose until the amount of the delinquent Assessments secured by the lien, exclusive of
any accelerated Assessments, late charges, fees and costs of collection, attorney’s fees, or interest,
equals or exceeds one thousand eight hundred dollars ($1,800) or the Assessments are more than
12 months delinquent. If the Association chooses to record a lien under these provisions, prior to
recording the lien, the Association shall offer the Owner and, if so requested by the Owner,
participate in dispute resolution as set forth in Article 5 (commencing with Section 1368.810) of
Chapter 4.
foreclosure.
(3)Any other manner provided by law, except for judicial or nonjudicial
F.Foreclosure: The Association may collect delinquent Regular Assessments
or delinquent Special Assessments of an amount of one thousand eight hundred dollars ($1,800) or
more, not including any accelerated Assessments, late charges, fees and costs of collection,
attorney’s fees, .or interest, or any Assessments that are more than 12 months delinquent, using
judicial or nonjudicial foreclosure subject to the following conditions:
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(1) Prior to initiating a foreclosure on an owner’s separate interest~ the
Association shall offer the Owner and, if so requested by the Owner, participate in dispute resolution
pursuant to the Association’s "meet and confer" program required in Article 5 (commencing with
Section 1363.810) of-Chapter 4 or alternative dispute resolution as set forth in Article 2
(commencing with Section 1369.510) of Chapter 7. The decision to pursue dispute resolution or a
particular type of alternative dispute resolution shall be the choice of the Owner, except that binding
arbitration shall not be available if the Association intends to initiate a judicial foreclosure.
(2) The decision to initiate Foreclosure of an Assessment Lien for
delinquent Assessments that has been validly recorded shall be made only by the Board and may
not be delegated to an agent of the Association. The Board shall approve the decision by a majority
vote of the Board members in an executive session. The Board shall record the vote in the minutes
of the next meeting of the Board open to all members. The Board shall maintain the confidentiality of
the Owner or Owners of the Unit by identifying the matter in the minutes by the Unit number of the
property, rather than the name of the Owner or Owners. A Board vote to approve foreclosure of a
lien shall take place at least 30 days prior to any public sale.
(3) The Board shall provide notice by personal service to an Owner of a
Unit who occupies the Unit or to the owner’s legal representative, if the Board votes to foreclose
upon the Unit. The Board shall provide written notice to an Owner of a Unit who does not occupy
the Unit by first-class mail, postage prepaid, at the most current address shown on the books of the
Association. In the absence of written notification by the Owner to the Association, the address of
the Owner’s Unit may be treated as the Owner’s mailing address.
(4) A nonjudicial foreclosure by the Association to collect upon a debt for
delinquent Assessments shall be subject to a right of redemption. The redemption period within
which the Unit may be redeemed from a foreclosure sale under this paragraph ends 90 days after
the sale.
In addition to the requirements of Civil Code Section 2924, a notice of default shall be served
by the Association on the Owner’s legal representative in accordance with the manner of service of
summons in Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code
of Civil Procedure. Upon receipt of a written request by an Owner identifying a secondary address
for purposes of collection notices, the Association shall send additional copies of any notices
required by this section to the secondary address provided. The Association shall notify Owners of
their right to submit secondary addresses to the Association, at the time the Association issues the
pro forma operating budget pursuant to Section 1365. The Owner’s request shall be in writing and
shall be mailed to the Association in a manner that shall indicate the Association has received it.
The Owner may identify or change a secondary address at any time, provided that, if a secondary
address is identified or changed during the collection process, the Association shall only be required
to send notices to the indicated secondary address from the point the Association receives the
request.
G. Sale by Trustee: Any sale by the trustee shall be conducted in accordance
with the provisions of §§ 2924, 2924b, 2924c, 2924f, 2924g, 2924h and 2924j of the California Civil
Code applicable to the exercise of powers of sale in mortgages and deeds of trust, including any
successor statutes thereto, or in any other manner permitted by law. The fees of a trustee may not
exceed the amounts prescribed in Civil Code §§ 2924c and 2924d. Nothing in this Declaration shall
preclude the Association from bringing an action directly against an Owner for breach of the
personal obligation to pay Assessments nor from taking a deed in lieu of foreclosure.
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H,Purchase By Association: The Association, acting on behalf of-the
Condominium Owners, shall have the power to bid for the Condominium at a Foreclosure sale, and
to acquire and hold, lease, mortgage and convey the Condominium. If the purchase of~a
Condominium would result in a five percent (5%) or greater increase in Assessments, the purchase
shall require the vote or written consent of a majority of the total voting power of the Association,
including a majority of Members other than Declarant. During the period a Condominium is owned
by the Association, following Foreclosure:
(1)no right to vote shall be exercised on behalf of the Condominium;
(2)no Assessment shall be assessed or levied on the Condominium; and
(3)each other Condominium shall be charged, in addition to its usual
Assessment, its share of the Assessment that would have been charged to such Condominium had
it not been acquired by the Association as a result of Foreclosure.
After acquiring title to the Condominium at Foreclosure sale following notice and publication,
the Association may execute, acknowledge and record a deed conveying title to the Condominium
which deed shall be binding upon the Owners, successors, and all other parties.
I.Suspension of Rights of Delinquent Owner: The Board may temporarily
suspend the voting rights and right to use Common Area facilities of a Member who is in default in
payment of any Assessment, after notice and hearing, as provided in the Bylaws,
J.Fines and Penalties: Fines and penalties imposed by the Association for
violation of this Declaration as a disciplinary measure for failure of an Owner to comply with this
Declaration or the Rules, except for late payments, are not "Assessments" and are not enforceable
by Assessment Lien, but are enforceable by court proceedings; provided, however, pursuant to Civil
Code § 1367.1 (d), monetary penalties imposed by the Association to reimburse the Association for
costs incurred for repair of damage to Common Area or facilities for which the Owner, or guests or
tenants of an Owner, were responsible may become the subject of a lien. Provided however that
any such enforcement as a lien shall only be permitted if there are no Units in the Project that are
subject to the jurisdiction of the Department of Real Estate under a Final Subdivision Public Report.
In the event that Civil Code §1367.1 (e) is amended to permit fines and penalties imposed by the
Association for violation of this Declaration as a disciplinary measure for failure of an Owner to
comply with this Declaration or the Rules to be enforceable by Assessment Lien, then this provision
shall be deemed amended to conform to any such amendment of Civil Code §1367.1 (e).
4.13, Unallocated Taxes: In the event that any taxes are assessed against the Common
Area, or the personal property of the Association, rather than against the Units, said taxes shall be
included inthe Assessments made under the provisions of section 4.1 and, if necessary, a special
Assessment may be levied against the Units in an amount equal to said taxes, to be paid in two (2)
installments, thirty (30) days prior to the due date of each tax installment.
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ARTICLE IV. DUTIES AND POWERS OF THE ASSOCIATION
5.1. Duties: In addition to the duties enumerated in the Bylaws, or elsewhere pr0vi~ted
for in this Declaration, and without limiting the generality of those duties, the Association shall
perform the following duties:
A.Maintenance, Repair and Replacement- Common Area: The Association
shall maintain, repair, replace (when necessary), restore, operate and manage all of the Common
Area, and all facilities (including Utility Facilities to the extent described in section 6.2), and all
improvements, furnishings, equipment and landscaping thereon, and all property that may be
acquired by the Association. The costs and expenses of such maintenance, repair, replacement
restoration, and operation of the Common Area shall be allocated and assessed as a Cost Center
Allocation to the Units in the Main [Homer] Building Cost Center as Main [Homer] Building Charges.
(1) Such maintenance, repair, replacement and restoration shall include,
without limitation, as Main [Homer] Building Charge, painting, maintaining, cleaning, repairing and
replacing of all such Common Areas, including the exterior walls, doors, and windows of the Main
[Homer] Building (excluding windows to Units, which shall be the responsibility of the Unit Owner of
the Unit), exterior lighting fixtures, including those attached to the Main [Homer] Building, which
fixtures are intended to illuminate the Common Area, shall be maintained by the Association.
(2) The Association shall have the Common Area of the Main [Homer]
Building, as Main [Homer] Building Charge, periodically inspected for wood-destroying pests and
organisms and shall take appropriate corrective measures therefor. The Association shall have the
authority to require the temporary removal of occupants of a Unit in the Main [Homer] Building as
may be necessary in’connection with the treatment of wood-destroying pests or organisms, pursuant
to the procedures described in Civil Code § 1364(d) or any successor statute thereto. The costs of
any temporary relocation shall be borne by each Owner of a Unit who is required to temporarily
relocate.
(3) Common Area landscaping maintenance shall include, as Main
[Homer] Building Charge, regular fertilization, irrigation, pruning, and other prudent garden
management practice necessary to promote a healthy weed-free environment for optimum plant
growth. The Association shall take appropriate steps to maintain the irrigation of the landscaping
and to prevent damage resulting from misdirected and/or excessive watering. For the life of the
Project, all landscape shall be well-maintained, watered, fertilized, and pruned according to Nursery
and American National Standards for Tree, Shrub and Other Woody Plant Maintenance- Standard
Practices (ANSI A300-1995). Any vegetation that dies shall be replaced or failed automatic irrigation
repaired by the Association within no less than thirty (30) 30 of discovery of the problem.
(4) The Association shall be responsible, as Main [Homer] Building
Charge, for the periodic maintenance, testing, repair and replacement of any built-in fire detection
and protection equipment and devices located in the Main [Homer] Building (including any interior
sprinklers but excluding smoke detectors located inside the residences). Each Owner shall
immediately notify the Association of any problems with any sprinkler heads located in the Owner’s
Unit. Maintenance shall include periodic testing of such equipment.
(5) In order to reduce the presence of mold, fungi, spores, pollens and
other botanical substances, or other allergens (collectively "Mold"), within the dwellings and
Common Area, the Association shall inspect, as Main [Homer] Building Charge, the exterior of the
Main [Homer] Building not less frequently than once each year to check for water leaks or other
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breaches of the watertight integrity of the improvements, and for the presence of Mold. If any Water
leaks and/or Mold are detected, the Association shall immediately take appropriate corrective steps
to repair the leak, and/or remove the Mold and to maintain proper ventilation within enclosed areas,
and to maintain humidity levels to reduce the risk of Mold growth, and shall periodically inspect the
irrigation system to ensure proper watering, and to correct any leaks and/or misdirected or excessive
watering, and periodically inspect the ground surface around the foundations to ensure that no water
is pooling around or within the foundations, and shall maintain rain gutters in a clean and proper
operating condition at all times, and take such other prudent steps as may be appropriate to prevent
Mold growth, or eliminate any existing Mold.
B. Church [Ramona] Unit Maintenance: Maintenance and repair the following
portions of the Church IRamona] Unit shall be undertaken by the Association and the costs and
expenses of such maintenance and repair shall be assessed as a Church [Ramona] Unit Cost
Center Allocation to the Church [Ramona] Unit:
(1) Maintenance of Building: Maintenance, repair and replacement of
the roofs, roof membranes, exterior walls, siding, and other components of the Church [Ramona]
Building, excluding the improvements located within the interior of the Church [Ramona] Building.
(2) Painting of Building: painting, maintaining, cleaning, repairing and
replacing of all the exterior walls, and other exterior areas of the Church [Ramona] Building,
including exterior doors, and window trim, excluding hardware thereon.
(3) Pest Treatment: The Association shall have the Church [Ramona]
Building periodically inspected for wood-destroying pests and organisms and shall take appropriate
corrective measures therefor. The Association shall have the authority to require the temporary
removal of occupants of the Church [Ramona] Building as may be necessary in connection with the
treatment of wood-destroying pests or organisms, pursuant to the procedures described in Civil
Code § 1364(d) or any successor statute thereto. The costs of any temporary relocation shall be
borne by the Owner of the Church [Ramona] Unit who is required to temporarily relocate.
(4) Heating and Air Conditioning Equipment. The Church [Ramona]
Building Unit Owner shall be responsible for the maintenance, repair, and replacement of the
heating and air conditioning equipment and facilities that serve the Church [Ramona]Unit.
C. Commercial Office Area Maintenance: Maintenance and repair the
following portions of the Commercial Office Area shall be undertaken by the Association and the
costs and expenses of which shall be assessed as a Commercial Area Cost Center Allocation to
each Commercial Unit:
(1) Air Conditioning Equipment. The Association shall maintain, repair
and replace the heating and air conditioning equipment serving the Commercial Office Units and
allocate the costs of such maintenance, repair and replacement to the Commercial Office Units as a
Cost Center Allocation to the Commercial Office Area Cost Center.
D.Residential Area Maintenance: Maintenance and repair the following
portions of the Residential Area shall be undertaken by the Association and the costs and expenses
of which shall be assessed as a Residential Area Cost Center Allocation to each Residential Unit;
(1) Maintenance of Residential Use Area: Maintenance, repair and
replacement of the improvements within the Residential Use Area.
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(2) Fireplaces and Chimneys: Maintenance shall include periodic
sweeping or cleaning of fireplace chimneys and flues, with the cost thereof to be specially assessed
to those Units having fireplaces.
(3) Air Conditioning Equipment. The Association shall maintain, repair
and replace the heating and air conditioning equipment [HVAC] units serving the Residential Units
as charge the costs of such maintenance, repair or replacement as a Residential Cost Center
Expense to the Residential Units.
E.Inspection and Maintenance Guidelines: The Declarant has provided the
Association and each Owner with the inspection and maintenance guidelines and schedules
including manufacturers’ guidelines and schedules for the inspection and maintenance of the
improvements within the Project ("Maintenance Guidelines"). When an Owner transfers a Unit, the
Owner shall deliver complete copies of the Maintenance Guidelines to the transferee of the Unit on
or before the date of the transfer of title. Replacement copies of the Maintenance Guidelines may be
obtained from the Declarant at Declarant’s principal place of business. Declarant may charge a
reasonable fee for providing replacement copies of the Maintenance Guidelines. The Board shall
comply with the Maintenance Guidelines for the periodic inspection, and maintenance of the
Common Area improvements and landscaping that the Association is required to maintain under this
Declaration, and any other improvements outside of the Common Area, which the Association has
the responsibility to maintain. The Board shall take all appropriate actions to implement and comply
with the Maintenance Guidelines. The Board periodically and at least once every three (3) years
shall review and update the Maintenance Guidelines. [ALT: The Maintenance Guidelines may not
be modified by the Association to reduce the maintenance obligations and requirements of the
Association without prior written approval of Declarant for a period of ten (10) years after the
conveyance of the first Unit in the Project to an Owner other than the Declarant.]
(1) The Association shall cause professional inspections of all
infrastructure to be routinely made. The inspectors shall include, at least, an Architect, a Civil
Engineer and a Landscape Architect. Inspections shall be made at least yearly, and for appropriate
items or events, more often. Inspections will include a review of all repair records since the previous
inspection.
(2) The inspections shall be reported at the annual membership meeting
and in writing, and shall include recommendations for cleaning, maintenance, repair, replacement,
etc. (if any), as well as opinions of the costs, The reports shall address any noted deterioration
which may require future attention. The reports may also recommend supplemental specialized
investigations (i.e., termite, mechanical, arborist, limnologist, geologist, structural, etc).
(3) The Association shall keep permanent records of all: (a) Complaints
and potential problems, including description, date and by whom; (b) Reports, including inspections
and recommendations; (c) Repairs, including description, location, date, by whom made and cost;
and (d) Plans, including construction drawings, subsequent modifications, and repair plans.
(4) The Board may, from time to time, make appropriate revisions to the
Association’s Maintenance Manual based on the Board’s review thereof, to update such manual to
provide for maintenance according to current industry practices so long as such changes do not
reduce the useful life or functionality of the items being maintained. No changes may be made to
the Maintenance Manual without the Declarant’s prior written consent as long as there are Class B
Members of the Association pursuant to the Bylaws.
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F.Compliance with Laws and Ordinances: The Association shall maintain
and operate the Common Area of the Project in accordance with all applicable municipal, state, and
federal laws, statutes and ordinances, as the case may be. The Association shall also, as a
separate and distinct responsibility, insure that third parties (including Owners and their guests)
utilize the Common Area in accordance with the aforementioned regulations. The Association shall,
when it becomes aware of any violation of the aforementioned regulations, expeditiously correct
such violations.
G. Insurance: The Association shall maintain such policy or policies of
insurance as are required by section 8.1 of this Declaration.
H.Discharge of Liens: The Association shall discharge by payment, if
necessary, any lien against the Residential Common Area or Common Property, and charge the
cost thereof to the Owner(s) responsible for the existence of the lien (after notice and a hearing, as
provided in the Bylaws).
I. Assessments: The Association shall fix, levy, collect and enforce
Assessments as set forth in Article IV hereof.
J.Payment of Expenses and Taxes: 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.
K=
this Declaration.
Enforcement: The Association shall be responsible for the enforcement of
5.2. Powers: In addition to the powers enumerated in its Articles and Bylaws, or
elsewhere provided for herein, and without limiting the generality thereof, the Association shall have
the following powers:
A.Utility Service: The Association shall have the authority (but not the
obligation) to obtain, for the benefit of all of the Condominiums, refuse collection, janitorial services
and window cleaning services.
B.Easements: The Association shall have authority, by document signed or
approved by two-thirds (2/3rds) of the Members including two-thirds (2/3rds) of the Members other
than Declarant, to grant easements (in addition to those shown on the Map) or Condominium Plan,
and/or referred to in Article VI, where necessary for utilities, cable television, drainage, venting,
sewer facilities and other such facilities over the Common Area as the Board deems reasonable and
appropriate for the Project, and/or where necessary to satisfy or achieve appropriate governmental
purpose or request. The Board of Directors may grant rights as Exclusive Use Common Area over a
portion of the Common Area to a Member with the affirmative vote of sixty-seven percent (67%) of
the separate interests in the Project, and without the approval of the Members in those limited cases
set forth in Civil Code §1363.07.
C.Manager: The Association may employ a manager or other persons and
contract with independent contractors or managing agents to perform all or any part of the duties
and responsibilities of the Association, except for the responsibility to levy fines, impose discipline,
hold hearings, file suit, record or foreclose liens, or make capital expenditures, provided that any
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contract with a firm or person appointed as a manager or managing agent shall not exceed a one (1)
year term, shall provide for the right of the Association to terminate the same at the first annual
meeting of the Members of the Association, and to terminate the same for cause on thirty (30) days’
written notice, or without cause or payment of a termination fee on ninety (90) days’ written notice.
D, Adoption of Rules: The Association or the Board may adopt, for its
Members, reasonable Rules not inconsistent with this Declaration relating to the use of the Project
and all facilities thereon, and the conduct of Owners and their tenants and guests with respect to the
Project and other Owners. Written copies of such Rules and any schedule of fines and penalties
adopted by the Board shall be furnished to Owners.
E.Access: For the purpose of performing construction, maintenance or
emergency repair for the benefit of the Common Area, the Association’s agents or employees shall
have the right, after reasonable notice (not less than twenty-four (24) hours except in emergencies)
to the Owner thereof, to enter any Unit or to enter any portion of the Common Area at reasonable
hours. Such entry shall be made with as little inconvenience to the Owner as practicable and any
damage caused thereby shall be repaired by the Board at the expense of the Association.
F. Assessments and Liens: The Board shall have the power to levy and
collect Assessments in accordance with the provisions of Article IV hereof.
G. Fines and Disciplinary Action: The Board 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 and the Rules. Penalties may include, but are not limited to, fines,
temporary suspension of voting rights, or other appropriate discipline, provided the Member is given
notice and a hearing as provided in the Bylaws before the imposition of any fine or disciplinary.
action. The Board shall have the power to adopt a schedule of reasonable fines and penalties for
violations of the terms of this Declaration, and for violations of any Rules adopted pursuant to
section 5.2.D. The penalties prescribed may include suspension of all rights and privileges of
membership; provided, however, that suspension for failure to pay Assessments shall be for a
maximum period of thirty (30) days, renewable by the Board for an additional thirty (30) day period or
periods until paid; and provided further that suspension for infraction of Rules or violation of this
Declaration, other than for failure to pay Assessments, shall be limited to a maximum period of
thirty (30) days per infraction or violation, and shall be imposed only after a hearing before the
Board. The Board may extend that period for an additional thirty (30) day period or periods in the
case of a continuing infraction or violation, and no hearing need be held for such extension. Written
copies of Rules and the schedule of penalties shall be furnished to Owners. The Board shall levy
fines and penalties and shall enforce such assessments as appropriate under applicable law.
H. Enforcement: The Board shall have the authority to enforce this Declaration
as per Article IX hereof.
I.Acquisition and Disposition of Property: The Board shall have the power
to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain,
convey, sell, lease, transfer, or otherwise dispose of real or personal property in connection with the
affairs of the Association. Any transfer of property shall be by document signed or approved by
two-thirds (2/3rds) of the Members, including two-thirds (2/3rds) of the Members other than
Declarant, or where the two (2) class voting structure is still in effect, two-thirds (2/3rds) of the voting
power of each class of Members.
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J,Loans: The Board shall have the power to borrow money, and onlywith the
assent (by vote or written consent) of two-thirds (2/3rds) of the Members, including two-thirds
(2/3rds) of the Members other than Declarant, or where the two (2) class voting structure is still in
effect, two-thirds (2/3rds) of each class of its Members, to mortgage, pledge, deed in trust, or
hypothecate any or all of its real or personal property as security for money borrowed or debts
incurred.
K. Dedication: The Association shall have the power to dedicate all or any part
of the Common Area to any public agency, authority, or utility for such purposes and subject to such
conditions as may be agreed to by the Members. No such dedication of Common Area shall be
effective unless an instrument has been signed or approved by two-thirds (2/3rds) of the Members,
including two-thirds (2/3rds) of the Members other than Declarant or, where the two (2) class voting
structure is still in effect, two-thirds (2/3rds) of each class of Members, agreeing to such dedication.
L.Contracts: The Board shall have the power to contract for goods and/or
services for the discharge of its responsibilities, subject to limitations set forth in the Bylaws, or
elsewhere herein. The Board shall not enter into any contracts with an independent contractor until
it meets the requirements of section 8.1 (3) herein.
M. Delegation: The Association, the Board, and the officers of the Association
shall have the power to delegate their authority and powers to committees, officers or employees of
the Association, or to a manager employed by the Association, provided that the Board shall not
delegate its responsibility:
(1) To make expenditures for capital additions or improvements
chargeable against the reserve funds;
(2) To conduct hearings concerning compliance by an Owner or his
tenant, lessee, guest or invitee with the Declaration, Bylaws or Rules promulgated by the Board;
(3) To make a decision to levy monetary fines, impose special
Assessments against individual Units, temporarily suspend an Owner’s rights as a Member of the
Association or otherwise impose discipline;
(4)To make a decision to levy annual or special Assessments; or
(5)To make a decision to bring suit, record a claim of lien or institute
Foreclosure proceedings for default in payment of Assessments.
N. Security: The Board shall have the power (but not the obligation) to contract
for security service for the Common Area. Notwithstanding the foregoing, if the Association elects to
provide any security services or systems, neither the Association nor the Board shall be deemed to
have made any representation or warranty to any Owner, nor the tenants or invitees of any Owner,
nor to any other Person using the facilities or Improvements within the Project regarding security or
safety. Each Owner shall be responsible for the security and safety of Persons who occupy or use
the Condominium owned by the respective Owner. The Association shall not be subject to any
claims or liability in connection with the provision of any security service or security system, or the
failure to provide any security service or security system, within any portion of the Project.
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O. Appointment of Trustee: The Board acting on behalf of the Association; has
the power to appoint or designate a trustee to enforce Assessment Liens by sale as provided in
section 4.11 and California Civil Code § 1367(d). ¯
P. LitigationlArbitration: The Board, subject to sections 9.11 (Enforcement of
Common Area Improvement Bond) and 9.12 (Enforcement of Assessment Bond) of this Declaration,
shall have the power to institute, defend, settle or intervene in litigation, arbitration, mediation or
administrative proceedings on behalf of the Association pursuant to Civil Code § 1368.3. The Board
of Directors has authority to enter into a contingent fee contract with an attorney in a matter involving
alleged design or construction defects in the Project, only as to the facilities or improvements the
Association is responsible for maintaining as provided herein, only if the matter is not resolved
pursuant to the procedures set forth in section 9.15, and only after getting the vote at a duly noticed
and properly held membership meeting, of a majority of the Members other than Declarant.
If, and to the extent that, there is any inconsistency between this section 5.2.P and
applicable provisions of the California Civil Code Procedure pertaining to the commencement of an
action by the Association for construction defect litigation, the applicable provisions of the California
statutes shall control.
Q. Other Powers: In addition to the powers contained herein, the Board may
exercise the powers granted to a nonprofit mutual benefit corporation under California Corporations
Code § 7140.
R.Common Area Improvements: The Association shall have the authority and
power to construct, improve, repair, demolish, remove and reconstruct any and all improvements on
or over or under the Common Area not inconsistent with this Declaration, and appropriate for the.
use and benefit of the Members of the Association, and to charge for the use thereof, provided that
the Association shall not include in any assessment, annual or special, the cost of any new capital
improvement which exceeds $5,000 in cost to be expended in any one calendar year, unless fifty-
one percent (51%) or more of the voting power of the Association previously shall have approved
said expenditure.
5.3. Commencement of Association’s Duties and Powers: Until incorporation of the
Association, all duties and powers of the Association as described herein, including all rights of
consent and approval, shall be and remain the duties and powers of Declarant. From and after the
date of incorporation of the Association, the Association shall assume all of its duties and powers,
and Declarant shall be relieved of any further liability therefor.
5.4. Duties and Powers of the Commercial Owner: The Commercial Owner shall be
responsible for the repair and maintenance of the Commercial Area, including, the structural
portions of the Building which support the Residential Area of the Building, the garage, the
commercial elevators, and the stairs and lobbies which serve the Commercial Area. The
Commercial Owner and the Association shall at all times carry insurance as provided in section 8.1
hereof. In the event of damage or destruction the obligation to rebuild shall be as set forth in section
8.1 hereof.
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ARTICLE VI. UTILITIES
6.1. Owners’ Rights and Duties: The rights and duties of the Owners of C-ondominiU-ms
within the Project and Of the Commercial Owner, with respect to sanitary sewer, water, drainage,
electric, gas, television receiving, telephone equipment, cables and lines, exhaust flues and heating
and air-conditioning facilities (hereinafter referred to, collectively, as "Utility Facilities") shall be as
follows:
A. Whenever Utility Facilities are installed within the Project, which Utility
Facilities or any portion thereof lie in or upon any portion of the Project owned by other than or in
addition to the Owner of the portion of the Project served by said Utility Facilities, the Owners of (or
their agents or employees, or agents or employees of the Association) any portion of the Project
served by said Utility Facilities shall have the right, and are hereby granted an easement to the full
extent necessary therefor, (after reasonable notice, not less than twenty-four (24) hours except in
emergencies) to enter upon any portion of the Project or to have the utility companies enter upon
any portion of the Project in or upon which said Utility Facilities, or any portion thereof, lie, to
construct, reconstruct, repair, replace and generally maintain said Utility Facilities as and when
necessary.
B. Whenever Utility Facilities are installed within the Project which Utility
Facilities serve more than one (1) Condominium, the Owner of each Condominium served by said
Utility Facilities shall be entitled to the full use and enjoyment of such portions of said Utility Facilities
as service his Condominium.
C.In the event of a dispute between an Owner and the Association, or between
or among the Owners with respect to the repair or maintenance rebuilding of said Utility Facilities.
used by both, or Utility Facilities used by one (1) but which pass through the area under control of
the other, then, upon written request of one (1) Owner addressed to the Association or other
Owner(s), the matter shall be submitted first to the Board for mediation, and thereafter, if the dispute
remains unresolved, to binding arbitration within sixty (60) days pursuant to the rules of the
American Arbitration Association, or any successor thereto, or tO any other generally recognized
system of alternative dispute resolution, and the decision of the arbitrator(s) shall be final and
conclusive on the parties, and judgment may be entered thereon in any court having jurisdiction.
6.2. Maintenance Obligations: The Association shall maintain all Utility Facilities
located in the Common Area, except for those facilities maintained by utility companies, public,
private, or municipal and except as provided elsewhere herein. The Association shall pay all
charges for utility services supplied to the areas of the Project over which it has jurisdiction and
control except those metered or charged separately to the Units.
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ARTICLE VII. USE RESTRICTIONS -
In addition to all of the covenants contained herein, the use of the Project and-e~,ch
Condominium therein is subject to the following:
7.1. Residential Condominium Use: No Residential Condominium shall be occupied
and used except for residential purposes by the Owners, their tenants, and social guests, and no
trade or business shall be conducted therein, except that Residential Units may be used as a
combined residence and executive or professional office by the Owner thereof, so long as such use
does not interfere with the quiet enjoyment by other Residential Unit Owners of their Units and does
not include visiting clients or external signs. Declarant, its successors or assigns, may use any Unit
or Units in the Project owned by Declarant for a model home site or sites and display and sales
office during construction and until the last Unit in the Project is sold by Declarant, or until three (3)
years from the date of closing of the first sale in the Project, whichever occurs earlier. No tent,
shack, trailer, basement, garage, outbuilding or structure of a temporary character shall be used at
any time as a residence, either temporarily or permanently. There shall be no commercial use of
any Residential Unit.
No more than two (2) persons per bedroom shall be permitted as permanent residents in
any Unit. A "permanent resident" means any person residing in a Condominium more than sixty (60)
days out of any twelve (12) consecutive month period, provided that one person shall be allowed in
addition to the maximum number of permanent residents otherwise permitted in each Unit.
7.2. Use - Commercial Units: The Commercial Units in the Main [Homer] Building may
be occupied and used for office uses and purposes and other commercial uses and purposes
provided that any such use shall be in compliance with the applicable laws, rules and regulations of~
the City as to such commercial office use. There shall be no residential use of any Commercial Unit.
7.3. Use - Church [Ramona] Unit: The Church [Ramona] Unit may be occupied and
used as and for commercial office uses and such ancillary uses as are in compliance with the
applicable laws, rules and regulations of the City as to commercial office uses. There shall be no
residential use of the Church [Ramona] Unit.
7.4. Health Care Facilities: No health care facilities operating as a business or charity
and serving the sick, elderly, disabled, handicapped or retarded shall be permitted in the Project.
7.5. Day Care Use: No family day care center for children shall be permitted within the
Project except as specifically authorized by California Health and Safety Code §1597.40 and other
applicable state statutes. The owner/operator of any such day care facility shall comply with all local
and state laws regarding the licensing and operating of a day care center and, in addition, shall:
A. Name the Association as an additional insured on the liability insurance
policy or bond carried by the owner/operator of the day care center;
B. Defend, indemnify and hold the Association harmless from any liability arising
out of the existence and operation of the day care center;
C.Abide by and comply with all of the Association’s Rules;
D.Supervise and be completely responsible for children at all times while they
are within the project;
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Cooperate with the Association if the Association’s insurance agent or ca~rrier
requires proof of insurance, proof of the agreement of the owner or operator of the center to these
conditions, or other reasonable requests.
7.6. Time Shares Prohibited: No Condominium or any portion thereof in the Project
shall be leased, subleased, occupied, rented, let, sublet, or used for or in connection with any time
sharing agreement, plan, program or arrangement, including, without limitation, any so called
"vacation license," "travel club," "extended vacation," or other membership or time interval ownership
arrangement. The term "time sharing" as used herein shall be deemed to include, but shall not be
limited to, any agreement, plan, program, or arrangement under which the right to use, occupy, or
possess the Unit or Units or any portion thereof in the Project rotates among various persons, either
corporate, partnership, individual, or otherwise, on a periodically recurring basis for value
exchanged, whether monetary or like kind use privileges, according to a fixed or floating interval or
period of time of twenty-five (25) consecutive calendar days or less. Provided, this section shall not
be construed to limit the personal use of any Unit or any portion thereof in the Project by any Unit
Owner or his or her or its social or familial guests.
7.7. Nuisances: No noxious, illegal, or seriously offensive activities shall be carried on
upon any Condominium, or in any part of the Project, nor shall anything be done thereon which may
be or may become 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 cancelled or to cause a refusal
to renew the same, or which will impair the structural integrity of any Building. The Board shall have
the authority to determine in its discretion what constitutes a nuisance.
7.8. Permitted Vehicles and Parking: Except as otherwise permitted in this section 7.8.
only Permitted Vehicles (as defined in subparagraph 7.8.B, below) shall be parked, or operated
within the Project.
A.Parking of Permitted Vehicles shall conform to the following requirements:
(1) The Residential Owners shall be entitled to park two (2) Permitted
Vehicles in eight (8) of the Parking Spaces in the Parking Garage that are assigned or conveyed to
such Residential Owners as Exclusive Use Common Area;
(2) The Church [Ramona} Owner shall be entitled to park eight (8)
Permitted Vehicles in eight (8) of the Parking Spaces in the Parking Garage that are assigned or
conveyed to the Church [Ramona] Owner as Exclusive Common Area.
(3) The Commercial Owners in the Main [Homer] Building shall be entitled
to park Permitted Vehicles in the Parking Ga~;age, based upon the use of 96 of the Parking Spaces,
which shall be allocated to each of the Commercial Owners in the Main [Homer] Building based
upon the relative square footage of each of the Commercial Units in the Main [Homer] Building.
B. Permitted Vehicles shall mean appropriately licensed passenger automobiles,
sports utility vehicles, motorcycles, and trucks having carrying capacity of ¾ ton or less, vans having
seating capacity of eight (8) persons or less. Owners and their tenants and invitees shall park their
Permitted Vehicles only in the garages or parking space appurtenant to or assigned to their Unit.
Vehicles that are not Permitted Vehicles shall not be parked in the Project. Except for commercial
vehicles or construction equipment that are providing services to a Unit or the Association (but only
during the period of time in which such services are being provided and subject to the Rules),
Permitted Vehicles shall not include any commercial vehicle, construction equipment, trailer,
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camper, mobile home, recreational vehicle, truck having carrying capacity of greater than 3.4 ton;van
having seating capacity in excess of eight (8) persons, inoperable vehicles, boats or similar
equipment, or any vehicle which is too large to fit within the Owner’s garage. Vehicles that-are
otherwise Permitted Vehicles that are used both for business and personal use are not prohibited,
provided that any signs or markings of a commercial nature on such vehicles shall be unobtrusive
and inoffensive as determined by the Board. No excessively noisy or smoky vehicles shall be
operated on the Project. No Residential Owner or other occupants of any Residential Unit shall park
more than two (2) Permitted Vehicles per Residential Unit within the Project at any one time. No
Commercial Owner or occupants of any Commercial Unit shall park more than one (1) Permitted
Vehicle per 300 square feet of their Commercial Unit within the Project at any one time.
C. The Association may install a sign at each vehicular entrance to the Project
containing a statement that public parking is prohibited and that all vehicles not authorized to park
on the Project will be removed at the owner’s expense. The sign shall contain the telephone
number of the local traffic law enforcement agency and shall not be less than 17 x 22 inches in size
with lettering not less than one (1) inch in height.
D. The Association may cause the removal of any vehicle wrongfully parked on
the Project, including a vehicle owned by an occupant of a Unit. If the identity of the registered
owner of the vehicle is known or readily ascertainable, the President of the Association or his
designee shall, within a reasonable time thereafter, notify the owner of the removal in writing by
personal delivery or first- class mail. In addition, notice of the removal shall be given to the local
traffic law enforcement agency immediately after the vehicle has been removed. The notice shall
include a description of the vehicle, the license plate number and the address from where the
vehicle was removed. If the identity of the owner is not known or readily ascertainable and the
vehicle has not been returned to the owner within one hundred twenty (120) hours after its removal,.
the Association immediately shall send or cause to be sent a written report of the removal by mail to
the California Department of Justice in Sacramento, California and shall file a copy of the notice with
the proprietor of the public garage in which the vehicle is stored. The report shall be made on a
form furnished by the Department of Justice and shall include a complete description of the vehicle,
the date, time and place from which the vehicle was removed, the amount of mileage on the vehicle
at the time of removal, the grounds for removal and the name of the garage or place where the
vehicle is stored. Notwithstanding the foregoing, the Association may cause the removal, without
notice, of any vehicle parked in a marked fire lane, within fifteen (15) feet of a fire hydrant, in a
parking space designated for handicapped without proper authority or in a manner which interferes
with any entrance to, or exit from, the Project or any Condominium, parking space or garage located
thereon. The Association shall not be liable for any damages incurred by the vehicle owner because
of the removal in compliance with this section or for any damage to the vehicle caused by the
removal, unless such damage resulted from the intentional or negligent act of the Association or any
person causing the removal of or removing the vehicle. If requested by the owner of the vehicle, the
Association shall state the grounds for the removal of the vehicle.
Parking Spaces shall be used solely for parking of Permitted Vehicles and may not be
converted into any other use (such as storage of any items or things other than Permitted Vehicles)
The provisions of this section 7.8 are intended to comply with Vehicle Code section
22658.2 in effect as of January 1, 2006. If this Vehicle Code section is amended, this provision
automatically shall be amended in the same manner. If this section is repealed and no successor
section is enacted, this provision shall remain in full force and effect. Vehicle Code section 22658.2
may have been amended by the State Legislature since this Declaration was recorded, and the
Board should confirm the current statutory requirements.
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7.9. Signs: No signs shall be displayed to the public view on any portion of the Project,
except as provided in this section 7.9: --
(1) Residential Units: No signs shall be displayed to the public view on any
Residential Units or any portion of the Project, except such signs as are approved by the Board or
committee appointed by the Board. Each Residential Owner may display only one (1) "For Sale" or
"For Rent" or "For Exchange" sign and may also display one (1) sign advertising directions to
another Owners’ Unit which is for sale, rent, or exchange, provided the design, dimensions and
locations are reasonable.
(2) Signs in the Commercial Area shall conform to City Ordinances, and
any regulations established by the [owner of the Commercial Area] [Board][Committee appointed by
the Board]. No signs or posters shall be affixed to the windows of a Commercial Unit.
7.11). Animals and Pets: Except as provided in this Declaration and permitted by the
Rules, no animals of any kind shall be raised, bred, or kept in any Condominium, or on any other
portion of the Project. Trained dogs used for assistance by visually impaired, hearing impaired or
physically handicapped persons may be kept by an occupant or invitee of an Owner. No aggressive
and/or trained attack dogs are permitted in the Project. Owners, their tenants or other occupants of
Residential Units may keep no more than [two (2) dogs or two (2) cats] [one (1) cat or one (1) dog]
within a Residential Unit (as provided by California Civil Code § 1360.5), and may keep a
reasonable number of other ordinary household pets and fish that are kept in cages or aquariums.
No such dog, cat or other animal or fish may be kept, bred, or maintained for any commercial
purposes in any Unit. Owners, their tenants or other occupants of Commercial Units may keep a
reasonable number of fish that are kept in aquariums. All pets shall be kept under reasonable
control at all times. No pet shall be housed in or on, or reside in or on, any Restricted Common Area
without written permission from the Board. No pets shall be allowed in the Common Area except as
may be permitted by Rules of the Board. No Owner shall allow his dog or cat to enter the Common
Area except on a leash. After making a reasonable attempt to notify the Owner, the Association or
any Owner may cause any pet found within the Common Area in Violation of the Rules of the Board
or this Declaration to be removed by the Association (or any Owner) to a pound or animal shelter
under the jurisdiction of the City by calling the appropriate authorities, whereupon the Owner may,
upon payment of all expenses connected therewith, repossess the pet. Owners shall prevent their
pets from soiling all portions of the Common Area and shall promptly clean up any waste left by their
pets. Owners shall be fully responsible for any damage caused by their pets. An Owner shall use
reasonable efforts to prevent any pet from making disturbing noises that can be heard from any
other Unit. An Owner in violation of this section shall be deemed to be permitting, or causing a
threat to safety or a serious annoyance or nuisance, and after notice and hearing in compliance with
the Bylaws, may be required to permanently remove the pet from the Project.
Owners shall use reasonable efforts to prevent any animal within his Unit from making
disturbing noises that can be heard from any other Unit between the hours of 10:00 PM to 7:00 AM.
Owners in violation of this section may be deemed to be permitting, or causing a serious annoyance
or nuisance to any other Owner.
[ALT." Owners are required to inform the Association of the type of breed of pet upon
commencement of occupancy and provide the Association with proof of rabies vaccination. In no
event shall any Owner authorize, bring or keep within the Project: (a) any pit bull, rottweiler,
doberman pinscher, mastiff, canaria presa, or any other breed known as a "fighting breed" or any
dog being a mix thereof; or (b) any snakes, pigs, large lizards, spiders, rats or vermin.]
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7.11. Garbage and Refuse Disposal: All rubbish, trash and garbage shall be regularly
removed from the Project, and shall not be allowed to accumulatethereon. Trash,-garbage and
other waste shall not bekept 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 or
recycling containers, woodpiles, or storage piles shall be kept screened and concealed from view of
other Units, streets and the Common Area, except when placed out for pick up on the designated
garbage pick up day. The Association shall be responsible for removal of refuse generated by the
Owners [other than the Church [Ramona] Unit Owner] from the central trash disposal area in the
Parking Garage, as a Common Expense that shall be assessed and allocated as a Main [Homer]
Building Charge to the Units in the Main [Homer] Building Cost Center. No toxic or hazardous
materials shall be disposed of within the Project by dumping in the garbage containers or down the
drains, or otherwise. The Owners, and all occupants of Units in the Main [Homer] Building shall use
the trash chute[s] within the Building for disposal of trash, garbage and refuse that fits appropriately
into such trash chute. Any trash chutes shall be used in a manner to avoid obstruction. All trash,
garbage and refuse items that do not fit appropriately into the trash chute shall be taken to the
.trash collection facilities located in the Parking Garage in accordance to the Rules. The trash chutes
and trash collection areas of the Project shall be used in accordance with the Rules.
7.12. Radio and Television Antennas: No outside television antenna, microwave or
satellite dish, aerial, or other such device (collectively "Antennas") shall be erected, constructed or
placed on any Common Area. Notwithstanding the foregoing, antennas with a diameter or diagonal
measurement of 36 inches or less may be installed within designated areas of the Common Area if
they conform to the Rules and any Board Standards and, if then required by the Board Standards,
any necessary approval is obtained in accordance with the provisions of section 7.15. Reasonable
restrictions which do not significantly increase the cost of the Antenna system or significantly
decrease its efficiency or performance may be imposed. Antennas may not be attached to the
exterior surface of any Building or to any Common Area fence or wall. The Architectural Review
Committee shall, in acting upon requests for approval of a satellite dish or other signal reception or
transmission devices comply with California Civil Code §1376 and FCC (Federal Communications
Commission) regulations.
7.13. Residential Units, Right to Lease:
A. Any Owner who wishes to lease his or her Residential Condominium must
meet each and every one of the following Rules, and the lease will be subject to these Rules
whether they are included within the lease or not:
(1) all leases must be in writing;
(2) the lease must be for the entire Unit and not merely parts thereof,
unless Owner remains in occupancy;
(3) all leases shall be subject in all respects to provisions of the
Declaration, the Bylaws, and all Rules bythe Board;
(4) all Owners who lease their Residential Condominiums shall promptly
notify the secretary of the Association in writing of the names of all tenants and members of tenants’
family occupying such Residential Condominium and shall provide the secretary of the Association
with a complete copy of the lease; all Owners leasing their Condominium shall promptly notify the
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secretary of the Association with the address and telephone number where such Owner can be
reached; and
(5) no owner shall lease his Unit for a period of less than thirty (30) days.
B. Any failure of the tenant to comply with the foregoing shall be a default under
the lease, regardless of whether the lease so provides. In the event of any such default, the Owner
immediately shall take all actions to cure the default including, if necessary, eviction of the tenant;
C.If any Owner acting as a landlord, or tenant is in violation of the provisions of
the Declaration, Bylaws, or Rules of the Association or Board, the Association, may in the
alternative, bring an action in its own name and/or in the name of the Owner to have the tenant
evicted and/or to recover damages. If the court finds that the tenant is, or has violated any of the
provisions of the Declaration, the Bylaws of the Association, or the Rules of the Association or the
Board, the court may find the tenant guilty of unlawful detainer notwithstanding the fact that the
Owner is not a party to the action and/or the tenant is not otherwise in violation of tenant’s lease or
other rental agreement with the Owner/landlord. For purposes of granting an unlawful detainer
against the tenant, the court may consider the Owner or person in whose name a contract (the lease
or rental agreement) was made for the benefit of the Association. The remedy provided by this
subsection is not exclusive and is in addition to any other remedy or remedies which the Association
has. If permitted by present or future law, the Association may recover all its costs, including court
costs and reasonable attorneys’ fees, and such costs shall be a continuing lien upon the Unit which
shall bind the Unit.
D. The Association will give the tenant and the Owner notice in writing of the
nature of the violation of the Rules, and twenty (20) days from the mailing of the notice in which to.
cure the violation before the Association may file for eviction.
Each Owner shall provide a copy of the Declaration, Bylaws and all Rules of
the Association to each tenant of his or her Unit. By becoming a tenant, each tenant.agrees to be
bound by the Declaration, the Bylaws and the other Rules of the Association, and recognizes and
accepts the rights and power of the Association to evict a tenant for any violation by the tenant of the
Declaration, the Bylaws, and other rules and regulations of the Association.
7.14. Commercial Units - Right to Lease:
A. Any Commercial Owner who wishes to lease its Retail Unit must meet each of
the following requirements, and the lease will be subject to these requirements whether they are
included within the lease or not:
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(1) all leases must be in writing; -
(2) all leases shall be subject in all respects to provisions of the Declaration,
and the Bylaws;
(3) a Commercial Owners who lease its Commercial Unit shall promptly notify
the Secretary of the Association in writing of the names of all tenants and any other Persons
occupying such Retail Condominiums and shall provide the Secretary of the Association with a
complete copy of the lease. A Commercial Owner who leases its Commercial Unit shall promptly
notify the Secretary of the Association of the address and telephone number where such
Commercial Owner can be reached.
B. The Commercial Owner shall be deemed to have agreed to indemnify the
Association for any costs or expenses that may be incurred by the Association or from claims that
may be made against the Association arising from the leasing or renting of a Commercial Unit by the
Commercial Owner. The provisions of this Section 7.14 cannot be amended, altered, eliminated,
removed or otherwise revised without the written approval of all of the Commercial Owners.
7.15. Architectural Control: There shall be no alteration, modification, painting or other
improvement or physical change to any portion of the Common Area or to Units ("Alterations") that is
in violation of the terms of the Restrictive Covenant-Historic Properties unless and until the same
has been approved in writing by the Board and the City. Notwithstanding the foregoing, an Owner
may improve or alter any improvements within the interior boundaries of the Owner’s Unit, provided
such improvement or alteration does not impair the structural or acoustical integrity of any Common
Area, the utilities or other systems servicing the Common Area or other Condominiums, does not
involve altering any Common Area (including bearing walls).
A.Submittal Requirements. If any Owner desires to make any Alterations that
requires approval under this section 7.15, the Owner shall submit to the Board such plans,
specifications and other relevant materials required by the Board showing the nature, kind, shape,
color, size, materials and location of any proposed Alterations. The Board shall review such
submitted plans, specifications and materials for approval as to quality of workmanship and design
and harmony of external design of such Alterations with existing structures, and as to location in
relation to surrounding structures, topography, and finish grade elevation. The owner shall be
responsible for submitting such proposed alterations to the City for approval as may be necessary.
(1) No permission or approval of the Board shall be required to repaint in
accordance with Declarant’s original color scheme, or to rebuild in accordance with Declarant’s
original plans and specifications.
(2) No permission or approval shall be required to repaint in accordance
with a color scheme previously approved by the Board, or to rebuild in accordance with plans and
specifications previously approved by the Board. Nothing contained in this paragraph shall be
construed to limit the right of an Owner to paint the interior of his or her Unit any color desired.
B. Landscaping and replacement of landscaping and vegetation in the Common
AreaS of the Project shall only be undertaken by the Association. No Alterations to such landscaping
may occur without the approval of the Board.
C. Approval Requirements: In the event the Board fails to approve or
disapprove a submittal for Alterations in writing within thirty (30) days after the same have been
submitted to it, the submittal will be deemed disapproved. Approval of plans by the Board shall in no
way make the Board or its members responsible for or liable for the improvements built after
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approval of the plans, and the Owner whose plans are approved shall defend, indemnify and hold
the Board, the Association, and its members harmless from any and all liability arising out of such
approval.
D.’ Governmental Approvals: All Alterations on or within Units or the Common
Areas of the Project shall comply with all design requirements, approvals and procedures of the City.
Before commencement of any alteration or improvements approved by the Board, the Owner shall
comply with all appropriate governmental laws and regulations. Approval by the Board does not
satisfy the appropriate approvals that may be required by any governmental entity with appropriate
jurisdiction.
E.Completion of Work; Review of Work: Upon approval of the Board, the
Owner shall diligently proceed with the commencement and completion of all work so approved in
compliance with the approvals granted. The work must be commenced within six months from the
date of approval unless the Board permits the work to be commenced at a later time.
(1) If the work is not commenced within six months after the approval
date, or such later time as the Board has granted, then the approval shall be deemed cancelled, and
the Owner must reapply to the Board before undertaking any such work.
(2) The Board shall inspect work within sixty days after a notice of
completion has been delivered to the Board by the Owner. The Board may also inspect the work at
any time prior to completion as it deems appropriate to determine that the Board approval is being
followed. The Board is to inspect the work performed, and determine whether it was performed and
completed in compliance of the approval granted in all material respects.
(3) If at any time during the construction of any work, the Board finds that
the work was not performed or completed in compliance of the approval granted in all material
respects, or if the Board finds that the appropriate approval which was required for any work was not
obtained, the Board shall notify the Owner in writing of the non-compliance. The notice shall specify
in writing the particulars of non-compliance, and shall set forth the requirement of the Owner to
remedy the non-compliance. The Board shall determine in its reasonable judgment whether an
alteration, modification or improvement complies with the approval as granted in material respects.
Minor changes, deviations or imperfections that do not negatively affect or impact the Project shall
not be considered as non-compliance.
(4) If the Board has determined an Owner has not constructed an
improvement in compliance of the approval granted in all material respects, and if the Owner fails to
remedy such non-compliance in accordance with provisions of the notice of non-compliance, then
after expiration of 30 days from the date of such notification, and the Board shall provide Notice and
Hearing to consider the Owner’s continuing non-compliance. The Board shall act after expiration of
thirty (30) days from the date of such notification. At the Hearing, if the Board finds that there is no
valid reason for the continuing non-compliance, the Board shall then require the Owner to remedy
the non-compliance as necessary and appropriate in the determination of the Board as to result in
the improvement being rendered as reasonably in compliance as is appropriate for the overall good
and benefit of the Project, or remove the same within a period of not more than 45 days from the
date of the Board’s determination. If the Owner does not comply with the Board’s ruling within such
period, or within any extension of such period as the Board, in its discretion may grant, the Board
may (1) remove the non-complying improvement, (2) remedy the non-compliance, (3) institute legal
proceedings to enforce compliance or completion.
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F, Structural Integrity: Nothing shall be done in or on any Unit or in or or~ the
Common Area which will impair the structural integrity of any building.
7.16. Window Coverings: All drapes, curtains, shutters, blinds or other window coverings
of Residential Units visible from the street or Common Areas shall be beige, white, or off-white in
color or lined in beige, white, or off-white, or as the case may be, of colors, materials and patterns
which are approved bythe Board or the Architectural Control Committee, Appropriate window
treatments shall be installed in Units no less than 30 days after conveyance of the Residential Unit
from Declarant to the original Owner. No temporary materials may be used for window coverings,
including sheets, blankets, paper or foil.
7.17. Clothes Lines: There shall be no outside laundering or drying of clothes.
7.18. Power Equipment and Motor Vehicle Maintenance: No power equipment, hobby
shops, or motor vehicle maintenance (other than emergency work) shall be permitted in the
Residential Area except with prior written approval of the Residential Association’s Board, or in the
Commercial Area with prior written approval of the Commercial Owner. Approval shall not be
unreasonably withheld and in deciding whether to grant approval the Board or the Commercial
Owner shall consider the effects of noise, air pollution, dirt or grease, fire hazard, interference with
radio or television reception, and similar objections. All hazardous waste shall be disposed of
properly by each Owner.
7.19. Commonly Metered Utilities: The Board may establish restrictions regarding the
individual use of any utility on a common meter, and may impose reasonable charges for the
individual use thereof.
7.20. Liability of Owners for Damage to Residential Common Area: The Owner of
each Unit shall be liable to the Association for all damages to the Residential Common Area or
improvements to the extent described in section 5.1A.
7.21. Flags, Banners, Signs, Stickers, Etc: There shall be no exhibiting, flying or
hanging of any flags, pennants, banners, kites, towels, etc., or affixing any signs, stickers, etc to any
windows in any Residential Unit, or from any Exclusive Use Common Area that is appurtenants to
any such Residential Unit, or from any Common Areas of the Project (except the Declarant’s sales
office) that would be visible from the street, Common Area, or the other Residential Units, except in
conformance with Rules adopted by the Board or the Architectural Control Committee, and for flags,
banners and signs that are expressly required to be allowed by statute. The Association may adopt
Rules regarding the display of flags, banners and signs provided that such Rules shall be consistent
with the then applicable laws. The provisions of this Section 7.21 do not pertain to Commercial
Owners and Commercial Units which are subject to the signage criteria outlined in Exhibit F which
cannot be amended, altered, eliminated, removed or otherwise revised without the written approval
of all of the Commercial Owners.
7.22. Water Bed and Aquarium Restrictions: No water beds shall be permitted in any
Units. Aquariums and fish tanks are subject to approval by the Association who may limit the use
based upon the weight of the aquarium or fish tank and the location of the Unit. Units on the second
or third floors pose a higher risk with regard to both leakage and impact to the building structural
system.
7.23. Activities Causing Increase in Insurance Rates: Nothing shall be done or kept in
any Unit or in any improvements constructed thereon, or in the Common Area, which will increase
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any applicable rate of insurance or which will result in the cancellation of insurance on any Ur~it or
any part of the Common Area, or which would be in violation of any law.
7.24. Balconies, Decks, Patios, Courtyards, Corridors and Hallways: No storage,
landscaping or other physical improvements or additions shall be made to any Balconies, Decks,
Patios, courtyards or hallways/corridors by any Owner until plans and specifications showing the
nature, kind, shape and location of the materials shall have been submitted to and approved in
writing by the Board or by an Architectural Control Committee appointed by the Board. Outdoor
furniture and equipment on balconies, decks, porches, and courtyards are permitted, but must be
approved by the Board or by an Architectural Control Committee appointed by the Board. ~
7.25. Appliances: Owners shall adhere to all manufacturers’ recommendations for the
installation, use, maintenance and repair of any components Owner may install in Owner’s Unit.
Dryers shall be "high-efficiency" in rating and comply with the minimum performance specification of
the venting system constructed by Declarant which requires a dryer to have the capacity to exhaust
170 cubic feet per minute through a dryer vent with a maximum length of 44’ with two 90 degree
elbows. Washer connection hoses shall be of steel mesh or equivalent metal and not rubber
construction unless otherwise specified by the manufacturer. Electrical appliances shall not be used
where manufacturer recommendations restrict circuit loads, wattage or other specific rating
restrictions. The Association shall have the right, but not the obligation, to enter upon an Owner’s
Unit to correct any violation.
The openings for the refrigerator, stove/oven, oven exhaust fan, dishwasher, microwave and
washer/dryer are designed for certain dimensions, utility and duct locations; and therefore, will
accommodate only specific appliances, but not all types or sizes of appliances. If an Owner installs
appliances not in accordance with Declarant’s recommendations, such Owner must take care to
ensure that the appliance will fit and operate properly. All such installations should be completed by
qualified professionals.
7.26. Floor Coverings: No change in the floor covering materials originally.installed in a
[Residential] Units shall be permitted except with the consent of the Architectural Control
Committee. To reduce sound transmission, all Units which are above other Units shall have all floor
areas except kitchens and bathrooms covered with carpet or other material which provides
equivalent insulation against sound transmission to the Unit below.] Floor Coverings: The
Residential Units in the second and third floors of the Project have been constructed with an
acoustical flooring material in all rooms except bedrooms. Buyers can not remove or damage the
acoustical floor material and can not remove carpet and padding from bedroom flooring in the
Residential Units on the second and third floors in order to maintain noise transference levels
between Residential Units. Replacement of carpet and padding in bedrooms is permitted.
7.27, Sound Transmission Restrictions: No alteration or replacement of the floor
covering materials originally installed in the Units shall be permitted except with the consent of the
[Board][Architectural Control Committee]. [To reduce sound transmission, all Units which are above
other Units shall have all floor areas except kitchens and bathrooms covered with carpet or other
material which provides equivalent insulation against sound transmission to the Unit below.]
Caution is recommended for alteration of any wall in the Unit, including demising walls and common
walls. It is necessary to have limitations regarding such walls to minimize transmission of sound
and/or vibration between Units and to protect against installation of equipment and devices that are
of greater weight than the weight which the wall system was designed to carry. The following
limitations shall apply to affixing or installing equipment, including but not limited to televisions,
speakers and other such equipment, to the walls of a Unit:
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A. No recessed or affixed speakers or noise/vibration-emitting device shall be
affixed or attached to (mechanically fastened) to any demising wall or common wall of a- Unit.
Caution is recommended for alteration of any wall in the Unit - not just demising or common walls.
El. No televisions of any type shall be affixed to any demising wall, common wall
or ceiling of a Unit. A demising wall, common wall or ceiling of a Unit cannot be cut or opened to
allow for wiring or cabling for any purpose (entertainment, communications, networking, electrical
transmission.)
O. No audio or video speakers are to be mounted on walls that are shared with
another unit. Floor mounted speakers are to be placed on acoustical material that will dampen both
the sound and vibration.
7.28 Dishwasher and Washer Dryer: Use of washers and dryers is not permitted
between 11 pm and 6 am due to noise.
7.29 Water Usage: No high pressure washing of halls and corridors because it can force
water under entry doors which were installed, per code, with a handicap compliant threshold. No
hosing down of trash rooms. No spraying of water from kitchen faucet outside of kitchen sink.
7.30 Fire and Life Safety Equipment: There shall be no disconnecting or tampering with
the fire or life safety equipment. The Owner or occupants of a Unit shall not hang anything from the
automatic sprinkler heads, including, without limitation, decorations, balloons or crepe paper. Use of
equipment, such as powerful leaf blowing equipment, which can set off smoke alarms, is prohibited.
7.31 No Roof Access: Access to the roof is restricted and must be authorized by the
Association.
7.32 Owner’s Right and Obligation to Maintain and Repair:
A.Maintenance of Units: Except for those portions of the Project which the
Association is required to maintain and repair, each Condominium Owner shall, at his sole cost and
expense, maintain and repair the Unit, keeping the same in good condition. Each Owner shall be
responsible for and bear the cost of maintenance, repair and replacement of the following items
within such Owner’s Unit: interior surfaces of all perimeter and interior walls, ceilings and floors
(including wood flooring, tile, plaster and paint or other covering); garbage disposals, ranges,
refrigerators, dishwashers, washing machines, dryers, light fixtures, smoke detectors, sub-meters
and any and all other appliances of any nature whatsoever; heating, ventilating and air conditioning
equipment servicing such Unit (although such equipment may be located in part outside such Unit);
exterior doors and door hardware, gaskets and seals, interior doors, including all hardware on the
doors; cabinets, light bulbs; plumbing and other fixtures of any nature whatsoever; "built-in" features;
and decorative features, fireplaces, if any, and any furniture and furnishings.
B. Smoke Detectors and Fire Sprinklers: Each Owner shall maintain, repair
and replace any smoke detectors located in the Owner’s Unit. The Association shall maintain any
automatic fire sprinkler heads located in any Unit, provided that each Owner immediately shall notify
the Association of any problems with any automatic sprinkler heads located in the Owner’s Unit.
C. Other Unit Maintenance: In addition, each Owner shall be responsible for
and bear the cost of maintenance, repair and replacement of the following items serving such
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Owner’s Unit: interior entrance and stairway surfaces, elevators, and windows. Each Owner shall
keep the Exclusive Use Common Area appurtenant to the Owner’s Condominium in a clean and
neat condition at all times. .....
D. Mold: In order to reduce the presence of mold, fungi, spores, pollens and
other botanical substances, or other allergens (collectively "Mold") within the Unit, the Owners shall
inspect the interior of their dwellings not less frequently than once each quarter to check for water
leaks or other breaches of the watertight integrity of the improvements, and for the presence of
Mold. If anywater leaks and/or Mold are detected within the Unit, the Owner shall immediately take
appropriate corrective steps to repair the leak, and/or remove the Mold and to maintain proper
ventilation within enclosed areas, and to maintain humidity levels to reduce the risk of Mold growth,
and take such other prudent steps as may be appropriate to prevent Mold growth, or eliminate any
existing Mold.
E.Maintenance Guidelines: Each Owner shall maintain the improvements
within his or her Unit in accordance with the Maintenance Guidelines established by the Declarant. A
copy of the Maintenance Guidelines shall be delivered by Declarant to each Owner when the Unit is
sold to the Owner. Each Owner shall retain the Maintenance Guidelines and take all appropriate
actions to comply with and implement the Maintenance Guidelines. When an Owner transfers a
Unit, the Owner shall deliver a complete copy of the Maintenance Guidelines to the transferee of the
Unit on or before the date the Unit is transferred.
F.Enforcement of Maintenance Responsibility: In the event an Owner
fails to maintain the interior of his Unit in a manner which the Board deems necessary to preserve
the appearance and value of the Project, the Board may notify Owner of the work required and
request it be done within sixty (60) days from the giving of such notice. In the event the Owner fails.
to carry out such maintenance within said period, the Board may, following notice and hearing as
provided in the Bylaws, cause such work to be done and the cost of the work shall immediately be
paid by such Owner to the Association as a Reimbursement Charge, and until paid shall bear
interest at the rate of twelve percent (12%) per annum (but no greater than the maximum rate
authorized by law).
ARTICLE VIII. INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION
8.1.Insurance: The Association shall obtain and maintain the following insurance:
A.Type of Insurance Coverage:
(1) a master hazard policy insuring all improvements, equipment and
fixtures in the Project (including the Units as originally constructed) with policy limits of either: [a] full
replacement value of the covered improvements or [b] no less than 80% of replacement cost of the
covered improvements, excluding foundations and footings in either instances, unless otherwise
required by FNMA or FHLMC requirements as set forth in subparagraph 8.1A, below. The following
endorsements should be included in any Such master hazard policy, if commercially reasonable to
obtain:
(a) changes in building codes ("ordinance or law endorsement");
(b) inflation guard coverage;
(c) demolition coverage;
(d) "agreed-amount" endorsement (to eliminate a coinsurance
problem);
(e) replacement cost endorsement; and
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(f) primary coverage endorsement.
(2) if obtainable, an occurrence version comprehensive general liability
policy insuring the Association, its agents, the Owners and their respective family members, against
liability incident to the ownership or use of the Common Area or any other Association owned or
maintained real or persOnal property. The amount of general liability insurance that the Association
shall carry at all times shall be not less than the minimum amounts required by California Civil Code
§1365.7 and § 1365.9;
(3) workers’ compensation insurance to the extent required by law (or
such greater amount as the Board deems necessary). The Association shall obtain a Certificate of
Insurance naming it as an additional insured in regard to workers’ compensation claims from any
independent contractor who performs any service for the Association, if the receipt of such a
certificate is practicable;
(4) fidelity bonds or insurance covering officers, directors, and employees
that have access to any Association funds;
(5) flood insurance if the Project is located in an area designated by an
appropriate governmental agency as a special flood hazard area;
(6) officers and directors liability insurance in the minimum amounts
required by California Civil Code §§ 1365.7;
(7) insurance against water damage, and liability for non-owned and hired
automobiles, such other insurance as the Board in its discretion considers necessary or advisable;
and
(8) earthquake insurance to the extent required by law, and if not required
by law, then to the extent available at commercially reasonable rates in the opinion of the Board.
B.Insurance - Commercial Units:
C.Insurance - Residential Units:
D.Insurance - Church [Ramona] Unit:
(1) a master hazard policy insuring all improvements, equipment and fixtures
in the Condominium Parcels (including the Units as originally constructed) as a Condominium Cost
Center Allocation to the Condominium Units with POlicy limits of either: Ia] full replacement value of
the covered improvements or [bl no less than 80% of replacement cost of the covered
improvements, excluding foundations and footings in either instances, unless otherwise required by
FNMA or FHLMC requirements as set forth in subparagraph 8.1 D, below.
(2) an occurrence version comprehensive general liability policy insuring the
Association, its ~,gents, the Owners and their respective family members, against liability incident to
the ownership or use of the Condominium Building Common Area or any other Association owned
or maintained real or personal property. The amount of general liability insurance that the
Association shall carry at all times shall be not less than the minimum amounts required by
California Civil Code §1365.7 and § 1365.9.
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E,FNMA and FHLMC Deductibles. 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, notices of changes or cancellations,
and the insurance company rating) shall satisfy the minimum requirements imposed for this type of
project by the Federal National Mortgage Association ("FNMA") and the Federal Home Loan
Mortgage Corporation ("FHLMC") or any successor to either of those entities (except for earthquake
insurance, the purchase of which shall be within the discretion of the Board, as provided in § 8.1 (8)
above). If the FNMA or FHLMC requirements conflict, the more stringent requirement shall be met.
If FNMA and FHLMC do not impose requirements on any policy required hereunder, the term,
amount and coverage of such policy shall be no less than that which is customary for similar policies
on similar projects in the area. The Board shall adopt a policy regarding payment of deductibles on
any insurance coverage. Unless the Board determines otherwise, the Association shall pay
deductibles required under any insurance claims from Association funds, unless insufficient funds
are available to the Association from the Association’s accounts or from funds borrowed by the
Association in accordance with this Declaration, in which event the Association shall levy a Special
Assessment, in accordance with sections 4.3B and 4.4 of this Declaration, with respect to the
amount of any such deductible which exceeds funds available to the Association from Association
funds or from borrowing.
F.Representation for Claims. Each Owner appoints the Association or any
insurance trustee 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.
G. Waiver of Subrogation. 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 and Mortgagees, and, if obtainable, a cross-liability or
severability of interest endorsement insuring each insured against liability to each other insured.
All individually owned insurance shall contain a waiver of subrogation as to the Association and
its officers, directors and Members, the Owners and occupants of the Condominiums and
Mortgagees, and all Members are deemed to have waived subrogation rights as to the
Association and/or other Members, whether or not their policies so provide.
H.Review of Policies. The Association shall periodically(and not less than
once every three (3) years) review all insurance policies maintained by the Association to determine
the adequacy of the coverage and to adjust the policies accordingly.
I.Separate Insurance Limitations. No Owner shall separately insure his
Condominium against loss by fire or other casualty covered by any insurance carried by the
Association. If any Owner violates this provision, any diminution in insurance proceeds otherwise
payable under the Association’s policies that results from the existence of such other insurance will
be chargeable to the Owner who acquired other insurance. The insurance maintained by the
Association does not cover the personal property in the Units and does not cover personal liability
for damages or injuries occurring in the Units. Each Owner shall insure its personal property against
loss and obtain personal liability insurance that meets the standards set by the Board, or if no
standards have been established within the standards for such insurance as are reasonable and
appropriate based on the nature of the Unit and the use of the Unit for similar Units and uses in the
City. In addition, any improvements made by an Owner within its Unit shall be separately insured by
the Owner, but the insurance is to be limited to the type and nature of coverage commonly known as
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"improvements insurance". The Owner shall not obtain such insurance if the policy referred to in
section 8.1 (1) will provide coverage for such improvements.
J.Copies of Policies; Notice to Members. The Association shall make
available to all Members a copy of the Association’s policy to enable Members to insure their Units
without duplicating insurance carried by the Association and inadvertently triggering a co-insurance
clause in the Association’s policy referred to in section 8.1(1). The Association shall distribute
annually to the Members a summary of the Association’s insurance policies as required by Civil
Code section 1365(e) and as provided in the Bylaws. The Association, as soon as reasonably
practical, shall notify its Members by first-class mail if any of the policies have been cancelled and
not immediately renewed or restored or if there is a significant change such as a reduction in
coverage or limits or an increase in the deductible for any policy. If the Association receives any
notice of non-renewal of a policy, the Association immediately shall notify its Members if
replacement coverage will not be in effect by the date the existing coverage will lapse.
To the extent that the information required to be disclosed, as described in Civil Code
§1365(e), is specified in the insurance policy declaration page, the Association may meet its
disclosure obligations by making copies of that page and distributing copies to all its Members.
K.Limitation on Liability. ]’he Association, and its directors and officers, shall
have no liability to any Owner or Mortgagee if, after a good faith effort, it is unable to obtain the
insurance required hereunder, because the insurance is no longer available or, if available, can be
obtained only at a cost that the Board in its sole discretion determines is unreasonable under the
circumstances, or the Members fail to approve any Assessment increase needed to fund the
insurance premiums. In such event, the Board immediately shall notify each Member and any
Mortgagee entitled to notice that the insurance will not be obtained or renewed.
L.Policies and Procedures Regarding the Filing and Processing of Claims:
The Board shall adopt a policies and procedures regarding the filing and processing of claims for
damage and destruction of Common Area improvements or any other matters coveredby insurance
maintained by the Association.
8.2. Damage or Destruction: If Project improvements are damaged or destroyed by fire
or other casualty, the improvements shall be repaired or reconstructed substantially in accordance
with the original as-built plans and specifications, modified as may be required by applicable building
codes and regulations in force at the time of such repair or reconstruction and subject to such
alterations or upgrades as may be approved by the Architectural Control Committee, unless either of
the following occurs: (1) the cost of repair or reconstruction is more than fifty percent (50%) of the
current replacement costs of all Project improvements, available insurance proceeds are not
sufficient to pay for at least eighty-five percent (85%) of the cost of such repairs or reconstruction,
and three-fourths (3/4) of the total voting power of the Association residing in Members and their
First Lenders vote against such repair and reconstruction; or (2) available insurance proceeds are
not sufficient to substantially repair or reconstruct the improvements within a reasonable time as
determined by the Board, a special Assessment levied to supplement the insurance fails to receive
the requisite approval (if such approval is required) as provided in section 4.4, and the Board,
without the requirement of approval by the Owners, is unable to supplement the insurance by
borrowing on behalf of the Association sufficient monies to enable the improvements to be
substantially repaired or.reconstructed within a reasonable time.
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A. Costs of Damage-Commercial Units: In the case of damage or destruction
of a Commercial Unit, whether by fire, earthquake or other causes, the Owner of that Commercial
Units shall be responsible for the costs of repair or reconstruction that is not covered bythe
Association’s insurance policies or is within the deductible amount. If an Owner fails to pay the
costs of such repair or reconstruction, the Association may elect to pay for the uninsured portion of
the cost or deductible amount and shall have the right to assess the Owner(s) for the cost thereof as
a Reimbursement Charge and to enforce the Reimbursement Charge as provided in this
Declaration. In any case where insurance proceeds are pre-empted by any Owner’s lender for
application to said Owner’s debt, the Association shall immediately impose an individual
Assessment upon said Owner’s Unit equal in amount to such preemption pursuant to section 4.12,
and shall enforce such Assessment in accordance with sections 4.12 and 5.2.F hereof. The
proceeds of such Assessment or lien shall then be substituted for the pre-empted insurance
proceeds.
B. Costs of Damage - Residential Units: In the case of damage or destruction
of a Residential Unit, whether by fire, earthquake or other causes, the Owner of that Residential
Units shall be responsible for the costs of repair or reconstruction that is not covered by the
Association’s insurance policies or is within the deductible amount. If an Owner fails to pay the
costs of such repair or reconstruction, the Association may elect to pay for the uninsured portion of
the cost or deductible amount and shall have the right to assess the Owner(s) for the cost thereof as
a Reimbursement Charge and to enforce the Reimbursement Charge as provided in this
Declaration. In any case where insurance proceeds are pre-empted by any Owner’s lender for
application to said Owner’s debt, the Association shall immediately impose an individual
Assessment upon said Owner’s Unit equal in amount to such preemption pursuant to section 4.12,
and shall enforce such Assessment in accordance with sections 4.12 and 5.2.F hereof. The
proceeds of such Assessment or lien shall then be substituted for the pre-empted insurance
proceeds.
C. Costs of Damage - Church [Ramona] Unit: In the case of damage or
destruction of the Church [Ramona] Unit, whether by fire, earthquake or other causes, the Owner of
that Unit shall be responsible for the costs of repair or reconstruction that is not covered by the
Association’s insurance policies or is within the deductible amount. If the Owner of the Church
[Ramona] Unit fails to pay the costs of such repair or reconstruction, the Association may elect to
pay for the uninsured portion of the cost or deductible amount and shall have the right to assess the
Owner of the Church [Ramona] Unit for the cost thereof as a Reimbursement Charge and to enforce
the Reimbursement Charge as provided in this Declaration. In any case where insurance proceeds
are pre-empted by any Owner’s lender for application to said Owner’s debt, the Association shall
immediately impose an individual Assessment upon said Owner of the Church [Ramona] Unit equal
in amount to such preemption pursuant to section 4.12, and shall enforce such Assessment in
accordance with sections 4.12 and 5.2.F hereof. The proceeds of such Assessment or lien shall
then be substituted for the pre-empted insurance proceeds.
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D. Process For Repair or Reconstruction: If the improvement is to be repaired
or reconstructed and the cost for repair or reconstruction is in excess of twenty-five percent (25%) of
the current replacement cost of all the Project improvements, the Board shall-designate a
construction consultant; a general contractor, and an architect for the repair or reconstruction. All
insurance proceeds, Association monies allocated for the repair or reconstruction, and any
borrowings by the Association for the repair or reconstruction shall be deposited with a commercial
lending institution experienced in the disbursement of construction loan funds (the "depository") as
selected by the Board. Funds shall be disbursed in accordance with the normal construction ~loan
practices of the depository that require as a minimum that the construction consultant, general
contractor and architect certify within ten (10) days prior to any disbursement substantially the
following:
(1) that all of the work completed as of the date of such request for
disbursement has been done in compliance with the approved plans and specifications;
(2) that such disbursement request represents monies which either have
been paid by or on behalf of the construction consultant, the general contractor or the architect
and/or are justly due to contractors, subcontractors, materialmen, engineers, or other persons
(whose name and address shall be stated) who have rendered or furnished certain services or
materials for the work and giving a brief description of such services and materials and the principal
subdivisions or categories thereof and the respective amounts paid or due to each of said persons
in respect thereof and stating the progress of the work up to the date of said certificate;
(3) that the sum then requested to be disbursed plus all sums previously
disbursed does not exceed the cost of the work insofar as actually accomplished up to the date of
such certificate;
(4) that no part of the cost of the services and materials described in the
foregoing paragraph 8.2(1 ) has been or is being made the basis for the disbursement of any funds
in any previous or then pending application; and
(5) that the amount held by the depository, after payment of the amount
requested in the pending disbursement request, will be sufficient to pay in full the costs necessary to
complete the repair or reconstruction.
If the cost of repair or reconstruction is less than twenty-five percent (25%) of the current
replacement cost of all the Project improvements, the Board shall disburse the available funds for
the repair and reconstruction under such procedures as the Board deems appropriate under the
circumstances.
The repair or reconstruction shall commence as soon as reasonably practicable after the
date of such damage or destruction and shall be completed as quickly as is reasonably practicable
after commencement of reconstruction, subject to delays that are beyond the control of the party
responsible for making the repairs. The Owner of the damaged or destroyed improvement
immediately shall take such steps as may be reasonably necessary to secure any hazardous
condition and to screen any unsightly views resulting from the damage or destruction.
E.Process If Repair or Reconstruction Not Undertaken: If the improvements
are not required to be repaired or reconstructed in accordance with the foregoing, all available
insurance proceeds shall be disbursed among the Owners of the damaged Units and their
respective mortgagees in proportion to the respective fair market values of their Condominiums as
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of the date immediately preceding the date of damage or destruction as determined by a qualified
independent appraiser selected by the Board, after first applying the proceeds to the cost of
mitigating hazardous conditions on the Project, making provision for the continuance of public
liability insurance to protect the interests of the Owners until the Project can be sold, and complying
with all other applicable requirements of governmental agencies. In the event of a failure tO agree
upon an appraiser, the appraiser shall be appointed bythe then President of the Santa Clara County
Bar Association.
If the failure to repair or reconstruct results in a material alteration of the use of the Project
from its use immediately preceding the damage or destruction as determined by the Board (a
material alteration shall be conclusively presumed if repair or reconstruction costs exceed
twenty-five percent (25%) of the current replacement cost of all Project improvements), the Project
shall be sold in its entirety under such terms and conditions as the Board deems appropriate. If any
Owner or First Lender disputes the Board’s determination as to a material alteration, the dispute
shall be submitted to arbitration pursuant to the rules of the American Arbitration Association, and
the decision of the arbitrator shall be conclusive and binding on all Owners and their mortgagees.
If the Project is sold, the sales proceeds shall be distributed to all Owners and their
respective mortgagees in proportion to their respective fair market values of their Condominiums as
of the date immediately preceding the date of damage or destruction as determined by the
independent appraisal procedure described above. For the purpose of accomplishing a sale under
this section 8.2, each Owner grants to the Association an irrevocable power of attorney to sell the
entire Project for the benefit of the Owners, to terminate the Declaration and to dissolve the
Association. In the event the Association fails to take the necessary steps to sell the entire Project
as required hereunder within sixty (60) days following the date of a determination by the Board or
arbitrator of a material alteration, or if within one hundred twenty (120) days following the date of~
damage or destruction the Board has failed to make a determination as to a material alteration, any
Owner may file a partition action as to the entire Project under California Civil Code § 1359, or any
successor statute, and the court shall order partition by sale of the entire Project and distribution of
the sale proceeds as provided herein.
Notwithstanding anything herein to the contrary, any Owner or group of Owners shall have a
right of first refusal to match the terms and conditions of any offer made to the Association in the
event of a sale of the Project under this section 8.2B, provided this right is exercised within ten (10)
days of receipt by the Owners of a notice from the Association containing the terms and conditions
of any offer it has received. If the Owner or group of Owners subsequently default on their offer to
purchase, they shall be liable to the other Owners and their respective mortgagees for any damages
resulting from the default. If more than one (1) Owner or group elects to exercise this right, the
Board shall accept the offer that in its determination is the best offer,
8.3. Condemnation: The Association shall represent the Owners in any condemnation
proceedings or in negotiations, settlements and agreements with the condemning authority for
acquisition of the Common Area(s), or part thereof. In the event of a taking or acquisition of part or
all of the Common Area(s) by a condemning authority, 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 Owners and their mortgagees as their interests may appear. 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 Condominium 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,
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and the Declaration shall be amended to reflect such taking and to readjust proportionately the
percentages of undivided interest of the remaining Owners in the Project. In the event of a taking by
eminent domain of any part of the Common Area, the Association shall participate in~-the
negotiations, and shall .propose the method of division of the proceeds of condemnation, where
Condominiums are not valued separately by the condemning authority or by the court. Proceeds of
condemnation shall be distributed among Owners of. Condominiums and their respective
mortgagees according to the relative values of the Condominiums affected by the condemnation,
said values to be determined by the method provided in section 8.2.
If there is a substantial taking of the Project (more than fifty percent (50%)), the Owners may
terminate the legal status of the Project and, if necessary, bring a partition action under California
Civil Code § 1359 or any successor statute, on the election to terminate by fifty-one percent (51%) of
the total voting power of the Association and the approval of Eligible Mortgage Holders holding
mortgages on Condominiums which have at least fifty-one percent (51%) of the votes of
Condominiums subject to Eligible Holder Mortgages. The proceeds from the partition sale shall be
distributed to the Owners and their respective mortgagees in proportion to the fair market values of
their Condominiums as determined under the method described in section 8.2.
ARTICLE IX. GENERAL PROVISIONS
9.1. Enforcement: The Association, or any of its Members, 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, and in such action
shall be entitled to recover reasonable attorneys’ fees as are ordered by the Court. The Association
has the right to record a Notice of Violation against the Condominium of an Owner who is not in
compliance with the provisions of the Project Documents. Failure by the Association or by any
Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver
of the right to do so thereafter. The City has the authority, but not the responsibility, to enforce the
provisions of the Declaration according to its terms.
9.2. Invalidity of Any Provision: Should any provision or portion hereof be declared
invalid or in conflict with any law of the jurisdiction where this Project is situated, the validity of all
other provisions and portions hereof shall remain unaffected and in full force and effect.
9.3. Term: The covenants and restrictions of this Declaration shall run with and bind the
Project, 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 this Declaration is recorded, after which time
they shall be automatically extended for successive periods of ten (10) years, unless an instrument
in writing, signed by both the Commercial Owner and a majority of the then Owners of the
Residential Condominiums, has been recorded within the year preceding the beginning of each
successive period of ten (10) years, agreeing to change covenants and restrictions in whole or in
part, or to terminate the same.
9.4. Amendments: Prior to close of escrow on the sale of the first Residential Unit under
the authority of a public report Declarant may amend this Declaration. After close of escrow on the
sale of the first Residential Unit under the authority of a public report, this Declaration may be
amended only by the affirmative vote (in person or by proxy) or written consent of both a majority of
the Commercial Owners and a majority of the Residential Owners other than the Declarant. Any
such amendment shall require the written consent of the Declarant as long as Declarant [holds a
Class B vote under the Bylaws] [owns at least two (2) Residential Units and/or at least two (2)
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Commercial Units]. However, the percentage of voting power necessary to amend a specific clause
shall not be less than the prescribed percentage of affirmative votes required for action to be taken
under that clause. Any amendment ("material amendment") which will have a substantial and
material adverse effect on the rights or obligations of a Commercial Owner shall require the approval
of that Commercial Owner’s First Mortgagee. "Material amendment" shall mean any amendment
governing the following subjects: (a) The percentage interest of the Unit Owners in the common
elements of the Project; (b) the fundamental purpose for which the Project was created (such as a
change from residential use to a different use); (c) voting; (d) Assessments, assessment liens and
subordination thereof; (e) the reserve for repair and replacement of common elements; (f) Project
maintenance obligations; (g) casualty and liability insurance; (h) reconstruction in the event of
damage or destruction; (i) rights to use the common elements; (j) annexation; (k) any provision
which by its terms is specifically for the benefit of first mortgagees or specifically confers rights on
first mortgagees. Any approved amendment shall be signed by the President and Secretary of the
Association, with such officers certifying that the appropriate consents for such amendment have
been appropriately obtained and recorded in the Official Records of the County, and shall become
effective upon being so recorded.
A.Amendments Regarding Initiation of Construction Defect Claims:
Notwithstanding anything to the contrary contained in this Declaration, this section 9.4 and section
9.14 of this Declaration shall not be amended without the vote or approval by written ballot of at least
(a) ninety percent (90%) of the voting power of the Members of the Association other than
Declarant, and (b) at least ninety percent (90%) of the First Lenders.
B. Amendments to the Rights of Commercial Unit Owners: Notwithstanding
the foregoing, no amendment of section 7.2, nor any additional restrictions on the use of a
Commercial Unit by a Commercial Unit Owner shall be effective unless such amendment is.
approved by a majority of the Owners of such Commercial Units.
C. Amendments as to Rights of Residential Unit Owners: Notwithstanding
the foregoing, no amendment of section 7.1 of this Declaration, nor any additional restrictions on the
use of a Residential Unit by an Owner of a Residential Unit, shall be effective unless such
amendment is approved by a majority of the Residential Owners.
9.5. Encroachment Rights: If any portion of the Common Area encroaches on any Unit
or any portion of a Unit encroaches on any Common Area due to engineering errors, errors or
adjustment in original construction, reconstruction, repair, settlement, shifting, or movement of the
Building, or any other cause, there shall be valid easements for the encroachments as long as the
encroachments shall exist, and the rights and obligations of Owners shall not be altered in any way
by the 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 the encroachment
occurred due to the intentional conduct of the Owner or Owners other than adjustments by
Declarant in the original construction. In the event a structure is partially or totally destroyed, and
then repaired or rebuilt, the Owners agree that minor encroachments over adjoining Common Area
or Units shall be permitted and that there shall be valid easements for the maintenance of the
encroachments so long as they shall exist. In the event that an error in engineering, design or
construction results in an encroachment Of a Building into the Common Area, or into or onto an
adjoining lot, or into a required setback area, a correcting modification may be made in the
subdivision map and/or Condominium plan. Said modification may be in the form of a certificate of
correction and shall be executed by Declarant (so long as Declarant is the sole Owner of the
Project) and by Declarant’s engineer (in the case of a Condominium plan) and, in addition, by the
city engineer (in the case of a subdivision map or parcel map). If the correction occurs after title to
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the Residential Common Area has been conveyed to the Association, the Association shall ~,lso
execute the certificate of correction. The Board of Directors may, by vote Or written approval of a
majority of the directors, authorize the execution of the certificate ofcorrection. Th~ modifi~ati0n
may also be made by Lot line adjustment, if more appropriate.
9.6. Rights of First Lenders: No breach of any of the covenants, conditions and
restrictions herein contained, nor the enforcement of any lien provisions herein, shall render invalid
the lien of any first mortgage (meaning a mortgage with first priority over any other mortgage) on any
Unit made in good faith and for value, but all of said covenants, conditions and restrictions shall be
binding upon and effective against any Owner whose title is derived through Foreclosure or trustee’s
sale, or otherwise. Notwithstanding any provision in the Project Documents to the contrary, First
Lenders shall have the following rights:
A.Copies of Project Documents: The Association shall make available to Unit
Owners and First Lenders, and to holders, insurers or guarantors of any first mortgage, current
copies of the Declaration, Bylaws, Articles or other Rules concerning the Project 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 Board may impose a fee for providing the foregoing which may not exceed the reasonable cost
to prepare and reproduce the requested documents.
B. Audited Statement: Any holder of a first mortgage shall be entitled, upon
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.
C.Notice of Action: Upon written request to the Association, identifying the
name and address of the Eligible Mortgage Holder or Eligible Insurer or Guarantor, and the Unit
number or address, such Eligible Mortgage Holder or Eligible Insurer or Guarantor will be entitled to
timely written notice of: (1) any condemnation loss or any casualty loss which affects a material
portion of the Project or any Unit on which there is a first mortgage held, insured, or guaranteed by
such Eligible Mortgage Holder or Eligible Insurer or Guarantor, as applicable; (2) any default in
performance of obligations under the Project Documents or delinquency in the payment of
Assessments or charges owed by an Owner of a Unit subject to a first mortgage held, insured or
guaranteed by such Eligible Mortgage Holder or Eligible Insurer or Guarantor, which remains
uncured for a period of sixty (60) days; (3) any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Association; (4) any proposed action which would
require the consent of a specified percentage of Eligible Mortgage Holders as specified in
section 9.6D. The Association shall discharge its obligation to notify Eligible Mortgage Holders or
Eligible Insurers or Guarantors by sending written notices required herein to such parties; at the
address given on the current request for notice, in the manner prescribed by section [9.11].
D.Consent to Action:
(1) Except as provided by statute or by other provision of the Project
Documents in case of substantial destruction or condemnation of the Project, and further excepting
any reallocation of interests in the Common Area(s) which might occur pursuant to any plan of
expansion or phased development contained in the original Condominium Documents:
(a) The consent of Owners of Units to which at least sixty-seven
percent (67%) of the votes in the Association are allocated and the approval of Eligible Mortgage
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Holders holding mortgages on Units which have at least sixty-seven percent (67%) of the vot6s of
Units subject to Eligible Holder Mortgages, shall be required to terminate the legal status of the
Project as a Condominium Project; .......
(b) the consent of Owners of Condominiums to which at least sixty
seven percent (67%) of the votes in the Association are allocated and the approval of Eligible
Mortgage Holders holding Mortgages on Units which have at least fifty one percent (51%) of the
votes of the Condominiums subject to Eligible Mortgages, 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: (i) voting rights; (ii) increases in Assessments that raise the previously
assessed amount by more than twenty-five percent (25%), Assessment Liens, or the priority of
Assessment Liens; (iii) reductions in reserves for maintenance, repair, and replacement of Common
Areas; (iv) responsibility for maintenance and repairs; (v) reallocation of interests in the general or
Exclusive Use Common Areas, or rights to their use; (vi) convertibility of Units into Common Areas
or vice versa; (vii) expansion or contraction of the Project, or the addition, Annexation, or withdrawal
of property to or from the Project; (viii) hazard or fidelity insurance requirements; (ix) imposition or
any restrictions on the leasing of Units; (x) imposition of any restrictions on an Owner’s right to sell
or transfer his Unit; (xi) restoration or repair of the Project (after damage or partial condemnation) in
a manner other than that specified in the Condominium Documents; or (xii) any provisions that
expressly benefit Mortgage holders, insurers, or guarantors;
(¢) An Eligible Mortgage Holder who receives a written request to
approve additions or amendments who does not deliver or post to the requesting party a negative
response within thirty (30) days after the notice of the proposed addition or amendment shall be
deemed to have approved such request, provided the notice has been delivered to the mortgage
holder by certified or registered mail, return receipt requested.
(2) Except as provided by statute in case of condemnation or substantial
loss to the Units and/or common elements of the Condominium Project, unless the holder(s) of at
least two-thirds (2/3rds) of the first mortgages (based upon one (1) vote for each first mortgage
owned), or Owners of the individual Condominium Units have given their prior written approval, the
Association and/or the Owners shall not be entitled to:
(a) By act or omission, seek to abandon or terminate the
Condominium Project (except for abandonment or termination provided by law in the case of
substantial destruction by fire or other casualty or in the case of a taking by condemnation or
eminent domain);
(b) Change the pro rata interest or obligations of any individual
Condominium Unit for the purpose of: (i) levying Assessments or charges or allocating distributions
of hazard insurance proceeds or condemnation awards, or (ii) determining the pro rata share of
ownership of each Condominium Unit in the Residential Common Area; provided that no Owner’s
undivided interest in the Residential Common Area may be changed without the consent of that
Owner;
(¢) Partition or subdivide any Condominium Unit;
(d) By act or omission, seek to abandon, partition, subdivide,
encumber, sell or transfer the Residential Common Area. (The granting of easements for public
utilities or for other public purposes consistent with the intended use of the Residential Common
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Area by the residential Condominiums shall not be deemed a transfer within the meaning of-this
clause);
(e) Use hazard insurance proceeds for losses to any residential
Condominium property (whether to Units or to Residential Common Area) for other than the repair,
replacement or reconstruction of such property,
E.Right of First Refusal: The Condominium Documents contain no provisions
creating a "right of first refusal," but should any such rights be created in the future, any such rights
shall not impair the rights of any First Lender to: (1) foreclose or take title to a Condominium
pursuant to the remedies provided in the Mortgage, or (2) accept a deed (or assignment) in lieu of
foreclosure in the event of a default by a Mortgagor, or (3) sell or lease a Condominium acquired by
the Mortgagee.
F.Contracts: Any agreement for professional management of the
Condominium Project, or lease or any other contract providing for services of the developer,
sponsor, or builder, may not exceed one (1) year. Any agreement, contract, or lease, including a
management contract entered into prior to passage of control of the Board of Directors of the
Association to Unit purchasers, must provide for termination by either party for cause on thirty (30)
days’ written notice, or without cause and without payment of a termination fee or penalty on ninety
(90) days’ or less written notice.
G. Reserves: Condominium dues or charges shall include an adequate reserve
fund for maintenance, repairs, and replacement of those Residential Common Area improvements
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.
H.Priority of Liens: Any lien created under the provisions of this Declaration is
expressly made subject and subordinate to the lien and encumbrance of any First Mortgage that
encumbers all or any portion of the Project, or any Unit. Each holder of a First Mortgage lien on a
Condominium who comes into possession of the Condominium by virtue of Foreclosure of the
Mortgage, or any purchaser at a foreclosure sale under a first deed of trust, will take the
Condominium free of any claims for unpaid Assessments and fees, late charges, fines or interest
levied in connection with such claims, against the Condominium which accrue prior to the time such
holder takes title to the Condominium, except for claims for a pro rata share of such Assessments or
charges to all Condominiums including the mortgaged Condominium, and except for assessment
liens as to which a notice of delinquent assessment has been recorded prior to the Mortgage.
I.Distribution of Insurance or Condemnation Proceeds: No provision of the
Project Documents gives an Owner, or any other party, priority over any rights of first mortgagees in
the case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or
taking of Condominium Units and/or Common Area.
J.Termination of Professional Management: When professional
management has been previously required by the Project Documents or by any Eligible Mortgage
Holder or Eligible Insurer or Guarantor, whether such entity became an Eligible Mortgage Holder or
Eligible Insurer or Guarantor at that time or later, any decision to establish self management by the
Association shall require the prior consent of Owners of Units to which at least sixty-seven percent
(67%) of the votes in the Association are allocated and the approval of Eligible Mortgage Holders
holding mortgages on Units which have at least fifty-one percent (51%) of the votes of Units subject
to Eligible Holder Mortgages.
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K, Status of Loan to Facilitate Resale: Any First Mortgage given to secure a
loan to facilitate the resale of a Condominium after acquisition by foreclosure or by a deed in liet]of
foreclosure or by an assignment in lieu of foreclosure, shall be deemed to be a loan made in good
faith and for value and entitled to all of the rights and protections of Mortgages under this
Declaration.
L. Right to Appear at Meetings: Any Eligible Mortgage Holder may appear
(but cannot vote)at meetings of Owners and the Board to draw attention to violations of this
Declaration that have not been corrected or that have been made the subject of remedial
proceedings or Assessments.
9.7. Limitation of Restrictions on Declarant: Declarant is undertaking the work of
construction of the mixed use Project with the Commercial Units and the Residential Units and
incidental improvements upon the subject Project. The completion of that work and the sale, rental,
and other disposal of said Commercial Units and Residential Units is essential to the establishment
and welfare of said Project as a combined commercial and residential community. In order that said
work may be completed and said Project be established as a fully occupied residential community
as rapidly as possible, nothing in this Declaration shall be understood or construed to:
A. Prevent Declarant, its contractors, or subcontractors from doing on the Project
or any Unit, whatever is reasonably necessary or advisable in connection with the completion of said
work; or
B.Prevent Declarant or its representatives from erecting, constructing and
maintaining on the Project (except upon Units owned by others), such structures as may be
reasonable and necessary for the conduct of its business of completing said work and establishing
said Project as a combined commercial and residential community and disposing of the same in
parcels by sale, lease or otherwise; or
C.Prevent Declarant from conducting on the Project (except upon Units owned
by others) its business of completing said work and of establishing a plan of Condominium
ownership and of disposing of said Project in Commercial Units and Residential Units by sale, lease
or otherwise (including use of one (1) or more Units as a sales office);
D. Prevent Declarant from maintaining or displaying such sign(s), pennants and
flag(s) on the Project (except upon Units owned by others) as may be necessary for the sale, lease
or disposition thereof; or
E, Subject Declarant to the architectural control provisions of section 7.10 for
construction of any condominium or other improvements on the Project.
The foregoing rights of Declarant shall terminate upon sale of Declarant’s entire interest in
the Project,
So long as Declarant, its successors and assigns, owns an interest in the Project,
Declarant, its successors and assigns, shall be subject to the provisions of this Declaration.
Declarant shall make reasonable efforts to avoid disturbing the use and enjoyment of their Project
by Owners, while completing any work on the Project.
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9.8. Termination of Any Responsibility of Declarant: In the event Declarant ~;hall
convey all of its right, title and interest in and to the Project to any person then and in such event,
Declarant shall be relieved of the performance of any further duty orobligation hereunder, and
person shall be obligated to perform all such duties and obligations of the Declarant.
9.9. Owners’ Compliance: Each Owner, tenant or occupant of a Condominium or the
Commercial Area, and the Association, shall be liable for performance of, and are bound by and
shall corn ply with the provisions of this Declaration, and (to the extent they are not in conflict with the
Declaration) the Articles, and Bylaws, and the decisions and resolutions of the Association or the
Board, as lawfully amended from time to time. Failure to comply with any such provisions, decisions,
or resolutions, shall be grounds for an action 1) to recover sums due, 2) for damages, 3) for
injunctive relief, 4) for costs and attorneys fees, or 5) any combination of the foregoing.
All agreements and determinations lawfully made by the Association in accordance with the
voting percentages established in this Declaration or in the Articles or the Bylaws of the Association
shall be deemed to be binding on all Owners of Condominiums, their successors and assigns.
9.10. Notice: Any notice permitted or required by the Declaration, Articles or Bylaws of the
Association may be delivered either personally or by mail. If delivery is by mail, first class or
registered, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the
same has been deposited in the United States mail, first class, postage prepaid, addressed to the
person to be notified at the current address given by such person to the Secretary of the Board or
addressed to the Unit of such person if no address has been given to the Secretary.
9.11. Special Provisions Relating to Enforcement of Declarant’s Obligation to
Complete Common Area Improvements: Where the Project includes Common Area
improvements which have not been completed prior to the close of escrow on the sale of the first
Unit, and where the Association is obligee under a bond or other arrangement (hereafter "bond") to
secure performance of the commitment of Declarant to complete said improvements, the Board
shall consider and vote on the question of action by the Association to enforce the obligations under
the bond with respect to any improvement for which a notice of completion has not been filed within
sixty (60) days after the completion date specified for that improvement in the planned construction
statement appended to the bond, If the Association has given an extension in writing for the
completion of any Common Area improvement, the Board shall consider and vote on the aforesaid
question if a notice of completion has not been filed within thirty (30) days after the expiration of the
extension. A special meeting of Members of the Association for the purpose of voting to override a
decision by the Board not to initiate action to enforce the obligations under the bond or on the failure
of the Board to consider and vote on the question shall be held not less than thirty-five (35) days nor
more than forty-five (45) days after receipt by the Board of a petition for such a meeting signed by
Members representing five percent (5%) or more of the total voting power of the Association. At
such special meeting a vote of a majority of Members of the Association other than the Declarant
shall be required to take action to enforce the obligations under the bond and a vote of a majority of
the voting power of the Association, excluding Declarant, shall be deemed to be the decision of the
Association, and the Board shall thereafter implement this decision by initiating and pursuing
appropriate action in the name of the Association.
On satisfaction of the Declarant’s obligation to complete the Common Area improvements,
the Association shall acknowledge in writing that it approves the release of the bond and shall
execute any other documents as may be necessary to effect the release of the bond. The
Association shall not condition its approval of the release of the bond on the satisfaction of any
condition other than the completion of the Common Area improvements as described on the
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planned construction statement. Any dispute between the Declarant and the Association regarding
the completion of the Common Area shall be submitted to binding Arbitration pursuant to section
9.14 of this Declaration.
9.12. Special Provisions Relating to Enforcement of Declarant’s Obligation to Pay
Assessments: Where the Association is obligee under a bond or other arrangement (hereafter
"bond") to secure performance of the commitment of Declarant to pay assessments on Units owned
by Declaranti the Board shall consider and vote on the question of action by the Association to
enforce the obligations under the bond with respect to any of Declarant’s assessments which are
delinquent for thirty (30) days. A special meeting of Members of the Association for the purpose of
voting to override a decision by the Board not to initiate action to enforce the obligations under the
bond or such a meeting to consider the failure of the Board to consider and vote on the question
shall be held not less than ten (10) days nor more than twenty (20) days after receipt bythe Board of
a petition for such a meeting signed by Members representing five percent (5%) or more of the total
voting power of the Association. At such special meeting a vote of a majority of Members of the
Association other than the Declarant shall be required to take action to enforce the obligations under
the bond and a vote of a majority of the voting power of the Association, excluding Declarant, shall
be deemed to be the decision of the Association, and the Board shall thereafter implement this
decision by initiating and pursuing appropriate action in the name of the Association.
Upon satisfaction of the Declarant’s obligation to assure the availability of funds to pay
assessments upon unsold Units as set forth in Title 10 Cal Code of Regs § 2792,9, the escrow
holder holding the bond shall return the bond to Declarant, after delivery to said escrow holder of
Declarant’s written request for release of the bond, and Declarant’s written statement that [1]
Declarant has paid, as and when due, all regular and special assessments levied by the Association
against Units owned by the Declarant and that [2] 80% of the Units in the Project have been
conveyed by Declarant, unless pursuant to Title 10 Cal Code of Regs § 2792.9, the Association
delivers to said escrow holder its written objection to the return of the Bond to Declarant within forty
(40) days after delivery of notice of Declarant’s request from release and the statement to the
Association. The Association shall not condition its approval of the release of the.bond on the
satisfaction of any condition other than the payment of Assessments.
If the Association delivers to the escrow holder of the bond a demand for remittance of the
bond or a portion thereof, or the proceeds thereof to the escrow holder of the bond, which demand
is accompanied by a written statement signed by an officer of the Association that the Declarant is
delinquent in the payment of regular or special assessments which have been levied by the
Association against Units owned by the Declarant, then all of some specified portion of the security
as demanded shall be remitted to the Association upon the Declarant’s failure to give the escrow
holder within forty (40) days after receipt of delivery of the demand by the escrow holder, the
subdivider’s written objection to remittance of the security. Both the Declarant and the Association
shall adhere and comply with the tei’ms of escrow instructions with the escrow depository of the
bond, which shall be in the form approved by the Department of Real Estate, with respect to the
holding of the bond, the return or remittance of the bond and other disposition of matters set forth in
said escrow instructions with respect to the bond. Any dispute between the Declarant and the
Association regarding the question of satisfaction of the conditions for exoneration or release of the
security shall, at the request of either partyl be submitted to Arbitration as provided in section9.14. E
hereof.
9.13. Fair Housing: No Owner shall, either directly or indirectly, forbid or restrict the
conveyance, encumbrance, leasing, or mortgaging, or occupancy of his lot or Unit to any person of a
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specified race, color, religion, ancestry, age, marital status, sex, physical handicap, or natibnal
origin.
9.14. DisputeResolution: The Board is authorized to resolve any civil claim or action
through alternative dispute resolution proceedings such as mediation, binding arbitration, or non-
binding arbitration proceedings.
A.Claims for Declaratory Relief or Enforcement of Project Documents:
Prior to the filing of an enforcement action for declaratory, injunctive, or writ relief in conjunction with
a claim for monetary damages not in excess of Five Thousand Dollars ($5,000), the Board, or any
Owner who seeks such relief, shall first endeavor to submit the matter to alternative dispute
resolution in compliance with the provisions of California Civil Code sections 1369.510-1369.580.
The Board shall comply with the requirements of California Civil Code section 1369.590 by providing
Members of the Association annually with a summary of the provisions of Article 2 (commencing
with Civil Code section 1369.510) of Chapter 7 of Title 6 (Division 2, Part 4) of the California Civil
Code, including the following language: "Failure of a Member of the Association to comply with the
alternative dispute resolution requirements of Section 1369.520 of the Civil Code may result in the
loss of your right to sue the Association or another Member of the Association regarding
enforcement of the Governing Documents or the applicable law"
B.Design or Construction Defect Claims: Actions by the Association
pertaining to or based upon a claim for defects in the design or construction of improvements within
the Project against the Declarant, or any architect, engineer or other consultant, or any contractor,
subcontractor or materials supplier engaged by or on behalf of Declarant for the design and/or
construction of the Project, or any element thereof, or otherwise defined in Civil Code sections 896
or 897 as an Actionable Defect ("Claim"), shall be resolved and administered in accordance with
Civil Code sections 895 through 945.5, and Civil Code sections 1375 and 1375.05, as such sections
may be amended, revised or superseded, from time to time.
(1) If a Claim is subject to pre-litigation procedures in Civil Code sections
910 through 938, or any successor statutes, each Owner, and the Declarant, prior to filing any civil
action, arbitration or action in judicial reference regarding such Claim shall comply with the
prelitigation procedures of Civil Code sections 910 through 938. Notices of Claims shall specify all
of the matters as set forth in Civil Code section 1368.5 and/or Civil Code sections 910 through 938,
as applicable, and any successor statutes or laws.
(2) The Association and not the individual Members shall have the power
to pursue any Claims for alleged construction defects in the Common Area or other improvements or
property within the Project that the Association is obligated to maintain or repair under this
Declaration. Any recovery by the Association with respect to any damage to or defect in the
Common Area or other improvements or property within the Project that the Association is obligated
to maintain or repair under this Declaration shall be utilized solely for the purpose of paying for the
costs of obtaining the recovery and for correcting such damage or defect.
(3) If the Claim is not resolved by and pursuant to the prelitigation
procedures of under Civil Code sections 910 through 9386, subject to the provisions of Civil Code
section 1375 and 1375.05, then notwithstanding the provisions of California Code of Civil Procedure
Section 1298.7, the Claim shall be resolved in accordance with the provisions of section 9.14.D of
this Declaration [Judicial Reference], and section 9.14.E of this Declaration [Arbitration of Disputes].
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C.Notices to Members of Legal Proceedings Against Declarant.- In
accordance with Civil Code Section 1368.5, at least 30 days prior to filing any civil action, including
arbitration, against Declarant or other developer of the Project for alleged damage to (i)~-the
Common Area, (ii) all or portions of Units which the Association is required to maintain, or (iii) the
Units which arises from or is integrally related to alleged damage to the Common Area or all or
portions of the Units which the Association is required to maintain, the Board shall provide written
notice to each Member specifying each of the following:
(1)That a meeting will take place to discuss problems that may lead to
the filing of a civil action;
problems; and
(2) The options, including civil actions, that are available to address the
(3)The time and place of the meeting.
If the Association has reason to believe that the applicable statute of limitations will expire
before the Association is able to give notice, hold the meeting and file the civil action, the
Association may file the civil action first and then give the notice within thirty (30) days after filing of
the action.
D. Judicial Reference for Certain Disputes: For any action by the Association
or any Owner against the Declarant, any architect, engineer or other consultant, or any contractor,
subcontractor or materials supplier engaged by or on behalf of Declarant for the design and/or
construction of the Project, or any element thereof ("Developer Parties"), subject to the provisions of
Civil Code sections 895 through 938, Civil Code section 1375 and Civil Code section 1375.05, or
any other action by the Association or any Owner against the Declarant, except as otherwise
provided herein, such claim shall be submitted to Judicial Reference as hereinafter provided:
(1) The dispute shall be submitted to binding general judicial reference
pursuant to California Code of Civil Procedure Sections 638(1) through 645.1, or any successor
statutes thereto pertaining to proceedings under judicial reference ("Judicial Reference"). The
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 it is satisfied that all necessary and appropriate parties will
participate, The parties shall share the fees and costs of the Referee for the Judicial Reference
proceeding as determined by the Referee.
(2) The Referee shall have the authority to try all issues, whether of fact or
law, and to report a statement of decision to the court. The parties shall use the procedures
adopted by Judicial Arbitration and Mediation Services ("JAMS") for judicial reference (or any other
entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the
parties), provided that the following rules and procedures shall apply in all cases unless the parties
agree otherwise:
(a) If the Declarant is a party to the Judicial Reference, then any fee to
initiate the Judicial Reference shall be paid by Declarant, provided however, that the cost of the
judicial reference shall ultimately be borne as determined by the Referee;
(b) The proceedings shall be heard in the County;
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(¢) The Referee must be a neutral and disinterested party whdis a
retired judge or a licensed attorney with at least ten (10) years’ experience in relevant real estate
matters; ......
(d) Any dispute regarding the selection of the Referee shall be
resolved by JAMS or the entity providing the reference services, or, if no entity is involved, by the
court with appropriate jurisdiction;
(e) The Referee may require one or more pre-hearing conferences;
(f) The parties shall be entitled to discovery, and the Referee shall
oversee discovery and may enforce all discovery orders in the same manner as any trial court judge;
(~1) A stenographic record of the Judicial Reference proceedings shall
be made, provided that the record shall remain confidential except as may be necessary for post-
hearing motions and any appeals;
(h) The Referee’s statement of decision shall contain findings of fact
and conclusions of law to the extent applicable;
(i) The Referee shall have the authority to rule on all post-hearing
motions in the same manner as a trial judge;
(j) The Referee shall be authorized to provide all recognized
remedies available in law or equity for any cause of action that is the basis of the Judicial Reference;
and
(k) The statement of decision of the Referee upon all of the issues
considered by the Referee shall be binding upon the parties, and upon filing of the statement of
decision with the clerk of the court, or with the judge where there is no clerk, judgment may be
entered thereon. The decision of the Referee shall be appealable as if rendered by the court.
(I) If submission of a disputed matter referenced in this section 9.14.D
to Judicial Reference is not permitted under the then applicable law, then notwithstanding California
Code of Civil Procedure Section 1298.7, if the dispute is not resolved through mediation, each
Owner, the Association and Declarant shall resolve such dispute exclusively through binding
arbitration pursuant to section 9.14.E of this Declaration.
(3) Judicial Reference shall only proceed for any matter that is subject to
the requirements of California Civil Code section 1354 after the parties have attempted to
reasonably comply with the alternative dispute resolution requirements set forth in California Civil
Code section 1354, as same may be amended from time to time.
(4) Notwithstanding the foregoing, any dispute under sections 9.11 and
9.12 of this Declaration between the Declarant and the Association regarding the question of
satisfaction of the conditions for exoneration or release of the security shall, at the request of either
party, be submitted to arbitration pursuant to section 9.14.15 of this Declaration.
15. Arbitration of Disputes: If a dispute is the subject of binding arbitration
under this Declaration, the following shall apply:
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(1) costs and fees of the arbitration, including ongoing costs and fe~s of
the arbitration shall be paid as agreed by the parties, and, if the parties cannot agree, as determined
by the arbitrator; provided, however, if the Declarant is a party to the arbitration, then any fee-to
initiate arbitration shall be paid by Declarant, but the cost of arbitration shall ultimately be borne as
determined by the arbitrator;
(2) a neutral and impartial individual shall be appointed to serve as
arbitrator, with the arbitrator to be selected by mutual agreement of the parties. If the parties are
unable to agree on an arbitrator within fifteen (15) days after any party initiates the arbitration, a
neutral and impartial arbitrator shall be selected by the JAMS. In selecting the arbitrator, the
provisions of §1297.121 of the Code of Civil Procedure sh all apply. An arbitrator may be challenged
for any of the grounds listed in §1297.121, or in §1297.124 of the Code of Civil Procedure;
(3) venue of the arbitration to be in the County;
(4) the arbitration shall commence in a prompt and timely manner in
accordance with (i) the Commercial Rules of the JAMS, or if the rules do not specify a date by which
arbitration is to commence, then (ii) by a date agreed upon by the parties, and if they cannot agree
as to a commencement date, (iii) a date determined by the arbitrator. 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. When the arbitrator is prepared
to make the award, the arbitrator shall first so inform the parties, who shall have ten (10) days to
attempt to resolve the matter by a binding agreement between them. If the parties resolve the
matter, the arbitrator shall not make any award. If the parties do not so resolve the matter within the
ten (10) day period, the arbitrator shall make the award on the eleventh day following the arbitrator’s
notice of being prepared to make the award;
Rules of the JAMS;
(5) the arbitration shall be conducted in accordance with the Commercial
timely manner;
(6) the arbitration shall be conducted and concluded in a prompt and
(7) the arbitrator shall be authorized to provide all recognized remedies
available in law or equity for any cause of action that is the basis of arbitration;
(8) A judgment upon the award rendered by the arbitrator may be entered
in any court having jurisdiction or application may be made to such court for judicial acceptance of
the award and an order of enforcement. The parties agree to be bound by the decision of the
arbitrator, which shall be final and non-appealable.
(9) Preliminary Procedures. If state or federal law requires an Owner, the
Association or Declarant to take steps or procedures before commencing an action in arbitration,
then the Owner, the Association or Declarant must take such steps or follow such procedures, as
the case may be, before commencing the arbitration. For example, any claim or Disputes pursuant
to California Civil Code Section 895 et seq., as hereafter amended may be subject to the
non-adversarial procedures set forth in California Civil Code Section 910 through 938, prior to the
initiation of any arbitration. In addition, nothing contained herein shall be deemed a waiver or
limitation of the provisions of California Civil Code Sections 1368.5, 1375, 1375.05 or 1375.1;
(10) Participation by Other Parties. An Owner, the Association and
Declarant, to such extent any such party is defending a claim in the arbitration, may, if it chooses,
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have all necessary and appropriate parties included as parties to the arbitration;
(11) Federal Arbitration Act. Because many of the materials and
products incorporated into the home are manufactured in other states, the development and
conveyance of the Property evidences a transaction involving interstate commerce and the
Federal Arbitration Act (9 U.S.C. §1 et seq.) now in effect and as it may be hereafter amended
will govern the interpretation and enforcement of the arbitration provisions set forth herein;
F.ARBITRATION OF DISPUTES. BY EXECUTING THIS DECLARATION,
DECLARANT, AND BY ACCEPTING A DEED TO ANY PORTION OF THE PROPERTY, EACH
OWNER AND THE ASSOCIATION, SHALL BE DEEMED TO HAVE AGREED TO HAVE ANY
DISPUTE DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE
CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT,
AND DECLARANT, THE ASSOCIATION AND EACH OWNER ARE GIVING UP ANY RIGHTS
DECLARANT, THE ASSOCIATION AND EACH OWNER MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT TRIAL. DECLARANT, THE ASSOCIATION AND EACH
OWNER ARE GIVING UP JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE
RIGHTS ARE SPECIFICALLY INCLUDED IN THIS "ARBITRATION OF DISPUTES" PROVISION.
IF DECLARANT, THE ASSOCIATION OR ANY OWNER REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, DECLARANT, THE ASSOCIATION OR
SUCH OWNER MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE.
G. Cost Center Actions: In the event that the Owners of Units within a Cost
Center desire to have the Association bring a construction defect action under Civil Code §1368.3 or
Civil code §1375 or, for damage to Common Areas within a Cost Center, or damage to separate
interests within the Cost Center which the Association is obligated to maintain or repair, the
Association shall submit the claim to judicial reference upon receipt of evidence that a majority of the
Owners of Units within the Cost Center have voted to submit the claim, and in the absence of such
evidence, the Association shall not be obligated to submit the claim to judicial reference.
9.15. Number; Gender: The singular and plural number and masculine, feminine and
neuter gender shall each include the other where the context requires.
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IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed this
Declaration this day of ,20 ,
TALL TREE PARTNERS I, LLC, a California limited liability company,
BY: Menlo Equities Development Company IV LLC
a California Limited Liability Company, Its Manager
BY: IVlenlo Equities III LLC
a California Limited Liability Company, Its IVlanager
BY:Menlo Equities LLC,
a California Limited Liability Company, lts Manager
BY:Menlo Equities, !nc., a California corporation, Its Managing
Member
BY:
Henry Bullock, President
ADD APPLICABLE ACKNOWLEDGMENTS & SUBORDINATION CLAUSES
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HOMER CCRS DRAFT JULY
Attachment D
Mayor Kleinberg said once a job description was established the-Coundl--
would conduct the interviews and requested a schedule for the interviews.
Ms. Harrison said the job description would be brought back quickly with a
tentative hire date for June 1.
PUBLIC HEARINGS
Public Hearing: Consideration of a Request by Martin Parissenti, BKF
Engineers on Behalf of Tall Tree Partners I, LLC for a Tentative Map for
a Proposed Mixed-use Infill Development at 260 Homer Avenue [05-
PLN-00383]. This map is required in order to Merge Five Parcels into
One Parcel (Approximately .71 acres) for a Mixed-use Development
with Commercial Office use on the Ground and Second floors, and Four
Residential Condominium Units on the Third Floor. An Environmental
Impact Report (EIR) was prepared for the SOFA CAP Including this
Project.
Planning and Community Environment Director Steve Emslie said the
hearing was a Tentative Map request consistent with the joint Historic
Resources Board (HRB) and Architectural Review Board (ARB) boards that
reviewed projects in the South of Forest Avenue (SOFA) area. The project
had several hearings and modifications were made. The HRB/ARB decision
was not appealed and determined to be final. The item was a follow up to
consolidating five parcels, which existed in the proposed project area.
According to the Palo Alto Municipal Code (PAMC), a Tentative Map approval
by the Council was required when four or more lots merged.
Council Member Morton stated his firm provided accounting and tax services
to businesses in the general area but no action taken tonight would meet the
threshold that would require him to not participate.
NOTION: Vice Mayor Kishimoto moved, seconded by Klein, to approve the
proposed Tentative Map to merge five parcels (approximately.71 acres) and
create one parcel for a mixed-use development with commercial office use
on the ground floor and second floors, and four residential condominium
units on the third floor, based upon the findings and conditions contained
within the Record of Land Use Action.
NOTION I~.~SSED 8-0, Mossar absent.
8.Public Hearing: 2005-06 Adjusted Budget - Second Quarter (Q2)
Financial Results, Midyear Amendments and Capital Improvement
Program Status from the Finance Committee Meeting of February 7,
2006 and Consideration, Among Other Items, Mid-Year Changes to the
03/13/2006 8
2005-06 Municipal Fee Schedule, Including Adoption of New Fe-es, and
Increasing Existing Fees, Rates or Assessments.
Ordinance 4897 entitled "Ordinance of the Council of the City of Palo
Alto Amending the Budget for the Fiscal Year 2005-06 to Adjust
Budgeted Revenues and Expenditures in Accordance with the
Recommendations in the Midyear Report"
Resolution 8593 entitled "Resolution of the Council of the City of Palo
Alto Amending the Compensation Plan for Management and
Professional Personnel and Council Appointees Adopted by Resolution
No. 8554 to Change Four Classifications"
Resolution 8594 entitled "Resolution of the Council of the City of Palo
Alto Amending the Compensation Plan for Classified Personnel (SEIU)
Adopted by Resolution No. 8452, by Changing Two Classifications"
Vice Mayor Kishimoto said the 2005-06 Second Quarter (Q2) Report had
been discussed at the Finance Committee Meeting on February 7, 2006, and
an amendment to the report was put at places, which reflected an
elimination of one proposed re-classification. Council Member Morton would
not participate in the City Attorney’s Office request of $100,000 for litigation
expenses related to the collection of utility user tax due the City of Palo Alto
due to his ownership in Telecom stock. Staff presented the budget
adjustments made to revenues, expenditures, Municipal Fees, and to the
Table of Organization and Compensation Plan. Additions were made to the
sales tax, increases in property tax, a $1.1 million payback from the .State,
an overage in expenditures which included overtime, and $1.5 million in
surplus was projected for the end of the year. Other items discussed at the
meeting were Service Employee International Union (SEIU) reclassification
issues and changes to the Community Garden Fee.
Council Member Barton said the report indicated Police and Fire overtime
expenditures with savings in unfilled positions but he could not find where
the savings were shown in the report.
Administrative Services Director Carl Yeats said savings would be reflected in
the year-end report.
i~lOTION: Vice Mayor Kishimoto moved, seconded by Beecham, to approve
the City Attorney’s Office request of $100,000 for litigation expenses related
to the collection of utilities users’ tax due to the City of Palo Alto.
I~lOTIOl~l PASSED: 7-0, Morton not participating, Mossar absent.
03/13/2006 9
MOTION: Vice Mayor Kishimoto moved, seconded by Beecham, to adopt a
Budget Amendment Ordinance, which includes:
1. Proposed midyear adjustments to the 2005-06 Budget for the
General Fund, Enterprise Funds, Special Revenue Funds, Internal
Service Funds, and Capital Improvement Fund.
2.New or amended 2005-06 Capital Improvement Program Project
Descriptions.
3.Amendments to the 2005-06 Adopted Municipal Fee Schedule.
4.Amendments to the 2005-06 Table of Organization.
5.Resolutions to the 2005-06 Compensation Plan.
Furthermore, to eliminate the proposed reclassification of the 110 FTE
Coordinator, Library Programs, to Business Analyst as described on page 7
of the City Manager’s Report (CMR:135:06). This revision results in changes
to the following report attachments: Attachment 1, including Exhibit A
(General Fund Summaries - 1 and General Fund Details - 2) and Exhibit d
(Table of Organization - 3 of 7, Library Department) and Attachment 4,
including Exhibit A (2005-06 Compensation Plan Changes for Management/
Professional Personnel).
MOTION PASSED 8-0, Mossar absent.
ORDINANCES AND RESOLUTIONS
Approval of a Budget Amendment Ordinance for Fiscal Year 2005-06
for Reorganization of the Department of Planning and Community
Environment, Including Changes to the Table of Organization
Approve a Resolution Amending the Compensation Plan for
Management and Professional Personnel and Council Appointees
Adopted by Resolution No. 8554 to Add Two New Classifications and to
Change One Classification
Approve a Resolution Amending the Compensation Plan for Classified
Personnel (SEIU) Adopted by Resolution No. 8452, by Changing An
Employee Classification
City Manager Frank Benest gave a presentation as outlined in the staff
report (CMR:164:06). Staff asked the Council to approve the required
personnel changes in the reorganization plan and to authorize filling the two
vacancies in the department for the Chief Planning and Transportation
Official and the Deputy Director. He said staff would be returning to Council,
at a later date, to discuss a better working relationship with the Planning and
Transportation Commission (P&TC) and governance issues. Staff felt the
P&TC should have more decision-making authority consistent with the
03/13/2006 10
department’s streamlining efforts. Staff recommended a change-to the~-
proposed organizational chart to reflect a solid line reporting relationship
from the Director to the Planning and Building Divisions and a dotted line
reporting relationship from the Deputy and the Divisions. The Director
would have the ultimate authority over the Division, and the Deputy Director
would assist the Director to oversee the division’s functions. He clarified the
two issues before Council: 1) recommendation dealing with the
reorganization plan to focus on personnel issues; and 2)to go to the P&TC
to discuss their role in governance and finally to return to the Council in May
for further discussion.
Phil Plymale, Chapter Chair Palo Alto Chapter SEIU Local 715, disagreed with
the reorganization process and spoke regarding the lack of communication
with affected staff employees. He said the plan was submitted with no
employee or community input. He asked the Council to direct the City
Manager to take back the proposal and work with staff and the community
to work on an acceptable plan.
Sheri Furman, 3094 Greer Road, endorsed Mr. Plymale’s comments. She
said changes to the Municipal Code could have long-range impacts on
everyone involved, including the public, and public input should be included
in the reorganization process.
Emily Renzel, 1056 Forest Avenue, raised concern regarding land use
planning. She said the Planning Department was responsible for regulating.
all land use. She addressed the staff report’s discussion to have the Planning
Department staff work with Public Works to ensure all projects ran smoothly
meeting all City requirements. She urged the matter be referred to the
Policy and Services Committee for review.
AI Larsen, 930 Paradise, spoke regarding residents and contractors
experiencing long delays in getting needs met through the Building Division
in an efficient method. He asked the Council to be cautious when
reconfiguring and cutting back on staff since long delays cost residents
money.
Robert Moss, 4010 Orme Street, raised concerns regarding the merging of
traffic with land use. He felt the proposal should be discussed with the
Policy & Services Committee prior to Council’s approval.
Herb Borock, P.O. Box 632, addressed issues in the Planning Department
and the transition of staffing from officials of the American Institute of
Certified Planners (AICP) demonstrating skill and integrity to a situation
where people were ordered to answer in writing their reports.
03/13/2006 11
Planning Commissioner Paula Sandas, 2140 Columbia Street, had c~ncerns~-
regarding the disappearance of the Transportation Division and asked the
Council to not lose sight of traffic and transportation issues in the
reorganization plan.
Adam Atito, 3181 Louis Road, said the staff report did not include job
descriptions and he questioned the qualifications and managerial expertise
of individuals filling the positions.
Mr. Benest asked the record to show clarification to the SEIU
representative’s comments regarding lack of communication with affected
employees. He said on December 21, 2005, a discussion took place
between the leaving Planning & Transportation Director and Managers
regarding the Deputy Director requirements. Seven employees were
present. On January 11, 2006, managers participated in the Deputy Director
interview process. On February 7, 2006, there was a memo to staff
regarding vacancies in reassigned staff and a prelude into the restructuring
mode, On February 14, 2006, Management met regarding the reorganization
and retirements within the Department. In February and March 2006,
various meetings were held with Planning and Transportation Managers
regarding the reorganization. On March 9, 2006, there was closure of the
Development Center from 8:00 to 8:30 a.m. in order to provide staff with an
overview of the reorganization and the staff report was sent via e-mail by 3
p.m.
Council Member Cordell clarified the Council had directed the City Manager
to return to the Council with a reorganization plan to ensure the Planning
and Transportation Department ran smoothly. The task was completed and
presented to the Council at this evening’s meeting. The process did not ask
for the Manager to hold public hearings and return to the Council with public
input. The two issues being reviewed were the reorganization and
governance issues. The main focus this evening was to focus exclusively on
the reorganization plan and to decide whether to go forward with the plan or
not.
Council Member Morton concurred with Council Member Cordell’s comments
and asked to accept staff’s recommendation.
MOTION: Council Member Morton moved, seconded by Barton, to Amend
the Table of Organization, as provided in Attachment A, with a solid line
between the Director and the Planning & Transportation and the Inspection
Services and a dotted line between the Deputy Director and the Planning &
Transportation and Inspection Services.
Council Member Barton said there was confusion in the wording of the staff
03/13/2006 12
report. The intent was not that staff was unfriendly, but the confusion from ---
staff on how they-react to the rules in which they worked. He asked the
issue be set aside and to focus on the reorganization plan being presented to
the Council.
Council Member Beecham addressed the public’s concern regarding the
governance issue and the Council’s relationship to the P&TC and their
relationship to the public and staff. He clarified the City Charter stated the
P&TC would advise the Council. The P&TC did not have decision-making
authority but he favored giving them the authority to help streamline the
process. He spoke of the Planning Department Managers ultimately having
to complete work due to lack of staff, the Council and the community’s high
demand on the Department’s output. He viewed the reorganization plan to
have a higher span of control and hoped it would allow the Deputy Director
to manage and ensure that staff worked on the same objectives. He
supported the motion.
Vice Mayor Kishimoto did not feel sufficient time was allowed to review the
plan or to have community and stakeholders’ input. Traffic and housing were
the two top issues in Palo Alto. If Palo Alto was to continue to change and
grow successfully, a yeomen’s job would need to be put in transportation to
accommodate changes in land use. She was in favor of combining land use
and transportation under one Chief Planning & Transportation Official but
was concerned about downgrading the transportation skills. The current
Transportation Division staffing consists of one planner and several
engineers which resulted in a lack of planning.
Council Member Drekmeier spoke of concerns he.had received regarding the
Transportation Division issues, the slow hiring process, assurance that the
Deputy Director had a background in Planning and Transportation, and
customer friendly issues. He understood the need to move quickly in filling
the position, but expressed that better products come about through
discussion. He asked what the impact would be to slow down the process
and consider other buy-ins to the issue.
Mr. Benest said staff was willing to have discussions and engage the public
with governance issues, but he expressed the need to go forward with the
hiring process. The position had been open for nine months. To slow down
the process would jeopardize losing a qualified candidate and could mean
recruitment for the fourth time.
Council Member Klein shared Vice Mayor Kishimoto’s and Council Member
Drekmeier’s concerns and felt the idea needed to be vetted by the Council
and the P&TC.
03/13/2006 13
SUBSTITUTE MOTION: Council Member Klein moved, seconded by--
Kleinberg, to refer-the Department of Planning and Community Environment
reorganization to the Planning & Transportation Commission and request the
item return to Council for discussion no later than May 1, 2006.
Council Member Cordell said she sensed the frustration of the City Manager,
Council Members and the public. She shared Vice Mayor Kishimoto’s concern
regarding the Transportation element. She raised concerns regarding the
Deputy Director’s duties and questioned whether the recruitment was to find
an individual to focus on improving the department’s interaction with the
customers, facilitate collaboration and oversight for the entire department,
in addition to having expertise in land use and planning and transportation.
She supported the substitute motion.
Mayor Kleinberg asked whether the current organizational structure included
the Chief Planning and Deputy Director Position.
Planning and Community Environment Director Steve Emslie said it did. It
was a combined position, approved by the Council to upgrade the Chief
Planning Official to oversee the two divisions. The current proposal was a
request to divide the position since it had not been filled.
Mayor Kleinberg said she wanted the Deputy Director to have expertise in
planning, building, and transportation. She addressed combining the
transportation and the planning official duties and how it would affect land
use and building decisions. She understood governance would be discussed
at a later date, but felt some of the issues were not only for P&TC review.
There were major issues regarding the Council’s role, involvement, and
interaction with the various staff members. The Council had to be
comfortable as a policy-making body in order to move forward in a positive
way. She supported the substitute motion.
Council Member Morton viewed the Deputy Director’s position to provide
senior management support and to not add professional enrichment duties.
It was difficult to fill in with professional duties and manage at the same
time. He was not in favor of having the public’s help in designing the
Planning & Transportation Department. Under the Charter, it was the City
Manager who performed the task. He did not support the substitute motion.
Vice Mayor Kishimoto asked whatgeographical area the recruitment process
covered.
Mr. Benest said the recruitment process was not limited to Statewide
coverage. The process was difficult and three attempts were made in finding
a qualified candidate.An executive recruitment firm was hired and had
03/13/2006 14
suggested the recruitment be limited to the Bay Area due to the City’s-~
inability to offer a-salary to compensate for high cost in housing. Secondly,
the City had a reputation about being difficult and challenging in dealing with
planning issues.
Vice Mayor Kishimoto said it would be beneficial in the future to present a
proposal to the Council to allow time to digest the material and make
suggestions.
Council Member Drekmeier asked the maker of the motion to include a due
date of when the reorganization plan should be returned to the Council for
discussion.
Council Member Klein asked to include in the substitute motion "no later
than May 1, 2006".
Council Member Barton said to refer the reorganization chart to the P&TC
was a form of micro-management by delegation. The organizational chart
had policy components, but was not a policy, and to ask a policy-body to
comment on something that was not a policy was bad management of time.
Council Member Klein said the organizational chart had policy implications
and should be vetted by the P&TC. He did not feel it was unreasonable to
postpone making a decision on such an important issue.
Mayor Kleinberg said several policies were outlined, which were the
foundation for the reorganization chart. It contained fundamental issues on
the delivery of the City’s government in keeping with policies and the
Compensation Plan (Comp Plan) adopted by the Council.
SUBSTITUTE MOTION PASSED 5-3, Barton, Beecham, Morton no, Mossar
absent.
AT THIS POINT OF THE PROCEEDINGS, THE CITY COUNCIL
ADJOURNED AND RECONVENED AS THE PUBLIC IMPROVEMENT
CORPORATION
COUNCIL MA-I-I’E RS
10.Mayor Kleinberg Appointment of an Additional Member to the Police
Building Blue Ribbon Task Force
03/13/2006 15
MOTION: Council Member Cordell moved, seconded byBeecham, to’appoint--
Dave Ross as an additional member to the Police Building Blue Ribbon Task
Force.
MOTION PASSED 8-0, Mossar absent.
COUNCIL COMMENTS, ANNOUNCEMENTS, AND REPORTS FROM CONFERENCES
City Attorney Gary Baum noted the agenda had been revised to reflect the
legal requirements of AB1234 to report City funds spent outside the Palo
Alto area while attending conferences.
Council Member Beecham referred to Item No. 5 regarding protocols for
spending monies needing approval of the Mayor requesting clarification of
approval by e-mail with copy to City Clerk.
MOTION: Council Member Beecham moved, seconded by Kleinberg, to
amend protocols to bring Item 5 back for reconsideration.
MOTION PASSED 8-0, Mossar absent.
MOTION: Council Member Beecham moved, seconded by Barton, to clarify
that the protocols are changed so the Mayor can give approval for
reimbursement of expenses with a copy to the City Clerk.
MOTION PASSED 8-0, Mossar absent.
Vice Mayor Kishimoto said certain eligible activities were not being approved
by staff due to past precedence and changes to the policy should be
considered.
Mayor Kleinberg said Council Members received a small compensation and
the public was unaware of the number of events Council Members were
asked to attend and not compensated for. She suggested eligible costs be
referred to the Policy and Services Committee.
Council Member Beecham asked whether expense reports needed to be
written or verbal.
Mr. Baum said State law implied ~oral reports. He said verbal was the first
choice and written was second if Council Member was absent or unable to
provide the report at the next meeting.
Council Member Beecham clarified State law was
given at the next meeting.
03/13/2006
precise that reports be
16
MOTION: Vice Mayor Kishimoto moved, seconded by Drekmeier, to refer--
the issue of Council travel and meeting expenses to the Policy and Services
Committee.
MOTION PASSED 7-1, Morton no, Mossar absent.
Council Member Cordell presented an update on the "YES" program and
noted she will give progress reports.
Council Member Drekmeier reported there will be a rally in the Civic Center
Plaza on Saturday at noon by the Peninsula Peace and Justice Center against
the war in Iraq.
FINAL ADJOURNMENT: The meeting adjourned at 9:45 p.m.
03/13/2006 17