CC SR 20150804 L - 28220 Highridge FinalCITY OF tiRANCHO PALOS VERDES
Community Development Department
MEMORANDUM
TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS
FROM: JOEL ROJAS, AICD, COMMUNITY DEVELOPMENT DIRECTO
DATE: AUGUST 4, 2015 4s-9,
SUBJECT: FINAL VESTING TRACT MAP NO. 68796 (A 28 -UNIT,
CONDOMINIUM SUBDIVISION LOCATED AT 28220 HIGHRIDGE;
APPLICANT: CAL COAST)
REVIEWED: DOUG WILLMORE, CITY AGERMAIJ
Project Planner: Leza Mikhail, Senior Planner
RECOMMENDATION
Staff recommends that the City Council:
1. Approve and authorize the Mayor and City Clerk to execute and record the
Affordable Housing Agreement substantially in the form attached to this Report;
2. Approve and authorize the Mayor and City Clerk to execute and record the
Subdivision Improvement Agreement substantially in the form attached to this
Report; and,
3. Approve Final Tract Map No. 68796.
BACKGROUND
On October 21, 2008, the City Council approved a Vesting Tentative Tract Map, General
Plan Amendment, Zone Change, Conditional Use Permit, Grading Permit and Density
Bonus (Planning Case No. SUB2007-00003 and ZON2007-00072), in conjunction with the
adoption of a Mitigated Negative Declaration, to allow the subdivision of a 1.25 -acre site
into twenty-eight (28) residential condominium units. As part of the conditions of approval,
the applicant is required to pay a parkland dedication (Quimby) fee prior to recordation of
the final map. Construction of the project is underway and near completion.
The applicant submitted a Final Vesting Tract Map application to the Community
Development Department for approval. The approval of the Final Map is contingent upon
the applicant demonstrating that all Conditions of Approval of the Vesting Tentative Tract
Final Vesting Tract Map No. 68796
28820 Highridge — Cal Coast
August 4, 2015
Map and requirements of the Rancho Palos Verdes Municipal Code (RPVMC) have been
met. Among other things, the applicant must pay the parkland dedication (Quimby) in -lieu
fee, the Environmental Excise Tax (EET), execute an Affordable Housing Agreement,
execute the Subdivision Improvement Agreement and submit the draft CC&R's for approval
by the City.
On March 3, 2015, the City Council approved a Settlement Agreement with the Developer
to resolve a dispute concerning the amount of the parkland dedication (Quimby) fee for
Final Vesting Tract Map No. 68796. The City and the Developer agreed through the
Settlement Agreement that the Developer will pay a Quimby fee to the City in the amount
of $1,082,547. The Agreement requires the Developer to pay $827,904 to the City prior to
the recordation of the Final Map for the Project. The remaining $254,643 shall be paid
proportionately out of the sale proceeds for the first 15 market rate units that are sold, in
the amount of $16,976.20 per unit. A covenant (the "Fee Covenant") establishing this
obligation shall be executed, acknowledged and recorded against the Property prior to and
as a condition of the recordation of the Final Map for the Project.
The Developer also is required to pay the EET to the City prior to the recordation of the
Final Map. In order to ensure that the Quimby fee and the EET are paid, Staff will not
release the Final Map to the applicant unit the amounts are paid and posted in the City's
account.
CEQA CONSIDERATIONS
The actions being considered have already been reviewed and studied by the City as part
of the Mitigated Negative Declaration for the condominium project, which was approved by
the City Council on October 21, 2008.
CODE CONSIDERATION AND ANALYSIS
Affordable Housing Agreemenfi
The development project was subject to the inclusionary housing requirements of the City's
Development Code. Based upon the 28 -unit project, the applicant was obligated to provide
three (3) units as affordable to very low income households. At the time of approval, the
City Council permitted the applicant to provide two (2) affordable units on-site, and pay an
in -lieu fee for the third unit. This requirement was memorialized in a condition requiring an
Affordable Housing Agreement that must be recorded against the project.
In accordance with Section 17.11.090 of the RPVMC, the City Attorney and the City's
affordable housing consultant have prepared a draft Affordable Housing Agreement that
sets forth the obligation to provide two (2) affordable units and the in -lieu fee for the third
unit. In addition to requiring that two (2) units be provided as affordable to very low income
households, the Agreement also includes a requirement that the units must remain
affordable for a term of thirty years; that the affordable units must remain owner -occupied;
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Final Vesting Tract Map No. 68796
28820 Highridge — Cal Coast
August 4, 2015
and that the affordable units must be similar in appearance, interior improvements,
configuration and basic amenities to the market rate units in the project. The project
consists of sixteen three-bedroom units; ten two-bedroom units and two one -bedroom
units, which are the affordable units. Also included as part of the Affordable Housing
Agreement is a Notice of Restriction, which would be recorded specifically against the title
of each of the two (2) affordable units.
Copies of the Affordable Housing Agreement and the Notice are attached to this Report for
the Council's review. If the Council finds the terms and conditions to be acceptable, Staff
recommends that the City Council approve the Agreement and Notice and authorize the
execution of the Agreement by the Mayor and City Clerk prior to recordation of the Final
Vesting Tract Map with the County Recorder's Office.
Subdivision Improvement Agreement
Pursuant to State law, Government Code Section 66462 (a), the City must require the
developer to execute a Subdivision Improvement Agreement and post bonds for any public
improvements that have not been completed prior to the approval of the final map. The
City Attorney has prepared the Agreement that is attached to this Report. This agreement
must be executed by the developer before the Final Vesting Tract Map is recorded. if the
Council finds the terms and conditions to be acceptable, Staff recommends that the City
Council approve the Subdivision Improvement Agreement and authorize the execution of
the Agreement by the Mayor and City Clerk prior to recordation of the Final Vesting Tract
Map with the County Recorder's Office.
Covenants, Conditions and Restrictions (CC&R's)
As another condition of approval, the applicant is required to execute and record
Covenants, Conditions and Restrictions (CC&R's). Since the project includes a
condominium development with common areas, a Homeowners Association (HOA) will be
put into place to manage the common areas of the development. In essence, the CC&R's
are the rules of the development. The goal of the CC&R's is to protect, preserve, and
enhance the property values in the community. The CC&R's of this development also
include the applicable conditions of approval that were included in the Council -adopted
Resolutions.
The CC&R's are attached to this Report for informational purposes. The CC&R's were
reviewed by the City Attorney's office, who confirmed that the document complies with the
conditions imposed by the City Council.
ADDITIONAL INFORMATION
It is important to note that this item contains four distinct components that must be
completed in certain order, culminating with the recordation of the Final Vesting Tract Map
with the County Recorder's Office. Once the City Council approves the Final Vesting Tract
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Final Vesting Tract Map No. 68796
28820 Highridge —Cal Coast
August 4, 2015
Map, the following steps will be completed in the following order, with numbers 1-3
performed on dates or times prior to the date and time the Final Vesting Tract Map is
recorded.
1. The applicant will submit the Quimby fee and EET payments to the City;
2, The Developer must execute the Affordable Housing Agreement and related
Notice of Restrictions, in substantially the forms that are attached hereto, and
record the Agreement and the Notice;
3. The Developer must execute the Subdivision Improvement Agreement in
substantially the form that is attached hereto;
4. Staff then will have the Final Vesting Tract Map recorded.
CONCLUSION
Based upon the above discussion, Staff recommends that the City Council: 1) Approve and
authorize the Mayor and City Clerk to execute and record the Affordable Housing
Agreement; 2) Approve and authorize the Mayor and City Clerk to execute the Subdivision
Improvement Agreement; and, 3) Approve Final Vesting Tract Map No. 68796.
ALTERNATIVES
In addition to Staff's recommendation, the following alternatives are available to the City
Council:
1) Identify changes to the Affordable Housing Agreement, and direct Staff to modify the
document for consideration at a future meeting; or,
2) Identify changes to the Subdivision Improvement and direct Staff to modify the
document for consideration at a future meeting.
ATTACHMENTS
• Affordable Housing Agreement (Page 5)
• Subdivision Improvement Agreement (Page 38)
• Covenants, Conditions and Restrictions (Page 78)
• Resolution No. 2008-102, approving the Highridge Condo Project (Page 153)
El
1
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Attn: Director of Planning,
Building and Code
Enforcement
APN: 7589-007-018,019,020,021 This document is exempt from the payment
of a recording fee pursuant to Government
Code Sections 27383 and 6103
Tract 68796
THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement"), dated the day
of _ , 2015, is made by and between the CITY OF RANCHO PALOS VERDES,
CALIFORNIA, a California Municipal Corporation (the "City"), and GLENMONT CAL -
COAST RPV, LLC, a Delaware limited liability company (the "Owner"). City and Owner shall
be referred to collectively as the "Parties."
A. Recitals.
(i) Owner is the owner of certain real property (the "Site") located within the City of
Rancho Palos Verdes, County of Los Angeles, State of California, as shown on the site map
attached to this Agreement as Exhibit "A-1 ", and more fully described as set forth in
Exhibit "A-2", both attached hereto and incorporated herein by this reference.
(ii) Owner has obtained from the City Council of City the authorizations and
approvals necessary to construct a housing project consisting of twenty-eight (28) single-family
condominium units (the "Project") on the Site. These approvals include Resolutions
No. 2008-101 and 2008-102, both approved by the City Council on October 21, 2008, and all
other approvals generally identified in the records of City as Tentative Tract Map No. 68796
(collectively, the "Entitlements").
(iii) The City of Rancho Palos Verdes has adopted Chapter 17.11 of City's Municipal
Code establishing requirements for the construction of housing for low and moderate
households.
(iv) It is the desire of City to encourage developments designed to provide affordable
dwelling units for the residents of the City.
(v) Pursuant to Chapter 17.11 of the Rancho Palos Verdes Municipal Code and
Resolution No. 2008-102, Owner is required to provide two (2) new units affordable to Very
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Low Income Households (defined below) within the Site, and to make a payment of an
affordable housing in -lieu fee in -lieu of a third unit affordable to Very Low Income Households,
in order to qualify for a density bonus under State law and Chapter 17.11.
(vi) The parties desire to set forth herein the obligations of Owner regarding the
provision of the Affordable Units and payment of the In -Lieu Fee in connection with the
development of the Site.
R. Agreement.
NOW, THEREFORE, City and Owner hereby agree as follows:
1. Number of Affordable Units. In consideration of this Agreement and the
Entitlements, Owner agrees to restrict two (2) of the new residential dwellings in the Project to
sale to a Very Low Income Household at no more than the Affordable Housing Price. For
purposes of this Agreement:
(a) Affordable Housing Price" shall have the meaning set forth in
Paragraph 9 hereof.
(b) "Affordable Unit"; "Affordable Units" shall mean the single-family
residential units within the Project that are to be sold to Eligible Purchasers at no more than the
Affordable Housing Price.
(c) "Director" shall mean the Director of City's Department of Planning,
Building and Code Enforcement.
(d) "Clip_ible Purchaser" shall mean a Very Low Income Household.
(e) "HC D Regulations" shall mean the regulations adopted by the California
Department of Housing and Community Development pursuant to California Health and Safety
Code Sections 50052.5 and 50093.
(f) "In -Lieu Fee" shall mean the fee required by Conditions 53 and 54 of
Resolution No. 2008-102, established pursuant to Section 17.11.050 of City's Municipal Code.
(g) "Very Low Income Household" shall mean a household whose income is
greater than thirty percent (30%) but does not exceed fifty percent (50%) of the area's median
income, adjusted for family size, as determined by the HCD Regulations.
(h) "'Total Housing Costs" mean the total monthly or annual recurring
expenses required of a household to obtain shelter, and includes the mortgage payment (principal
and interest, based on a thirty year term), parking amenities such as a garage or carport, utilities,
homeowner's association dues, taxes, mortgage insurance and any other related assessments.
2. Location and Quality of Construction of the Affordable Units. The Affordable
Units shall be constructed within the Site and shall be dispersed throughout the Project. The
Affordable Units shall each be, at a minimum, a new one (1) bedroom residential dwelling unit
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of at least 770 square feet of habitable area, excluding the garage. The Affordable Units shall be
similar in exterior appearance, interior appointments, configuration and basic amenities (such as
storage space and outdoor living areas) to the other dwelling units that Owner is constructing in
the Project, as reasonably determined by the Director. Depending upon the size of an Affordable
Unit, no more than two (2) persons shall occupy a one (1) bedroom Affordable Unit, not
including children born after the date of initial sale and occupancy by a household.
3. Timing; of the Provision of the Affordable Units. The Affordable Units shall be
sold to Eligible Purchasers prior to the sale of no more than fifteen (15) of the residences in the
Project.
4. Purchaser Affordability Agreement; Duration of Affordability Requirements. The
Affordable Units shall be subject to the requirements of the Notice of Restrictions Affecting Real
Property and Right of First Refusal to Purchase Property (the "Purchaser Affordability
Agreement") attached hereto as Exhibit "B" and incorporated herein by this reference, for a
period of thirty (30) years, begirming on the date of the close of escrow for each Affordable Unit
by an Eligible Purchaser. No leasing of an Affordable Unit by Owner is permitted. The
applicable duration of the Purchaser Affordability Agreement shall be known as the
"Affordability Period." AT THE CLOSE OF ESCROW FOR THE SALE OF THE
AFFORDABLE UNIT, THE PURCHASER AFFORDABILITY AGREEMENT SHALL
BE RECORDED IN THE OFFICE OF THE COUNTY RECORDER FOR THE COUNTY
OF LOS ANGELES, SUBORDINATE ONLY TO THE GRANT DEED CONVEYING
THE AFFORDABLE UNIT TO THE ELIGIBLE PURCHASER AND THE FIRST
LENDER DEED OF TRUST (AS DEFINED IN THE PURCHASER AFFORDABILITY
AGREEMENT). A REQUEST FOR NOTICE OF DEFAULT UNDER THE FIRST
LENDER DEED OF TRUST, IN FAVOR OF THE CITY, SHALL ALSO BE
CORDED. Upon the recordation of a Purchaser Affordability Agreement for the Affordable
Unit, this Agreement shall be of no further force or effect AS TO THAT AFFORDABLE
UNIT ONLY. The parties shall execute, acknowledge and record such further documentation as
is reasonably necessary to evidence the release of the Affordable Unit from the provisions of this
Agreement.
5. Selection of Eligible Purchasers. The Affordable Units may be sold to Eligible
Purchasers selected by Owner who meet the income and affordability requirements provided
herein, upon the written approval of the proposed Eligible Purchaser by City. Owner shall not be
required to sell an Affordable Unit to an Eligible Purchaser referred by City, but Owner shall
accept or reject any such Eligible Purchaser based upon the same evaluation criteria that Owner
applies to buyers of residential units within the Project. Owner shall provide to City a written
response indicating the reasons for rejection of an Eligible Purchaser referred by City.
6. Income of Eligible Purchasers. Prior to the sale of the Affordable Unit, Owner
shall submit to City a completed income computation and certification form acceptable to or
otherwise provided by City certifying that the Eligible Purchaser purchasing the Affordable Unit
meets the income requirements established for the Affordable Unit. Owner shall obtain an
income certification form from the proposed Eligible Purchaser of the Affordable Unit and shall
certify that, to the best of Owner's knowledge, the income of the proposed Eligible Purchaser is
truthfully set forth in the income certification form. The Owner shall verify the income
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certification of the proposed Eligible Purchaser by one or more of the following methods, any of
which may be specifically requested by City:
(a) Obtain paycheck stubs from the proposed Eligible Purchaser's two (2)
most recent pay periods.
(b) Obtain a true copy of an income tax return from the proposed Eligible
Purchaser for the most recent tax year in which a return was filed.
(c) Obtain an income verification certification from the employer of the
proposed Eligible Purchaser.
(d) Obtain an income verification certification from the Social Security
Administration and/or the California Department of Social Services if the proposed Eligible
Purchaser receives assistance from such agencies.
City.
(e) Obtain an alternate form of income verification reasonably requested by
7. Ineligible Purchasers.
(a) The following individuals, by virtue of their position or relationship, are
ineligible to purchase an Affordable Unit:
(b) All employees and officials of City or its agencies, authorities, or
commission who have, by virtue of their position, policy-making authority or influence over the
implementation of the inclusionary housing program, as well as the immediate relatives of such
employees or officials, including spouses, children, grandchildren, parents, grandparents,
brothers, sisters, fathers-in-law, mothers-in-law, sons-in-law, daughters-in-law, aunts, uncles,
nieces, nephews, sisters in-law and brothers-in-law.
(c) The immediate relatives of Owner and its members, their officers, and
employees, including spouses, children, grandchildren, parents, grandparents, brothers, sisters,
fathers-in-law, mothers-in-law, sons-in-law, daughters-in-law, aunts, uncles, niece, nephews,
sisters in-law and brothers-in-law.
8. Determination of Sales Price. The Affordable Unit shall be sold to the Eligible
Purchaser at a price that does not exceed the Affordable Housing Price.
9. Affordable Housing Price. The maximum Affordable Housing Price for an
Affordable Unit shall be an amount equal to the price at which the Very Low Income Household
could qualify for a thirty (30) year loan after additional adjustments to qualifying income as set
forth in Section 50052.5 of the California Health and Safety Code and the HCD Regulations,
such that the monthly payments of the loan do not exceed the parameters of such Section
50052.5 and the HCD Regulations. The general formula by which the Affordable Housing Price
is to be determined is set forth in Exhibit "C" hereto.
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The maximum home loan amount for an Affordable Unit shall be based upon the
income of a household with the assumed family size of two persons or the actual household size
purchasing the Affordable Unit. The maximum home loan amount for the Affordable Unit shall
be submitted by Owner and approved or rejected by City within ten (10) business days from
receipt.
The parties understand and agree that the maximum Affordable Housing Price to
be established by this formula is not necessarily equal to the fair market value of the Affordable
Unit, and may be established at a price which is substantially below the fair market value.
10. Maintenance. Until the Affordable Unit is sold to a qualified owner occupant,
Owner shall maintain or cause to be maintained the interiors and exteriors of the Affordable Unit
in a decent, safe and sanitary manner, in accordance with the standard of maintenance of similar
housing units within the City, and in at least as good, a condition as the dwelling units on the
Site.
11. Payment of Ln -L icu Fee. Owner shall pay the In -Lieu Fee to City in the amount
of Two Hundred Twenty One Thousand, Eight Hundred and Eighteen and 30/100 Dollars
($221,818.30), prior to the sale or occupancy, whichever occurs first, of the twenty-fifth (25th)
unit in the Project.
12. Subordination. This Agreement shall run with the land and shall be prior to and
superior to all deeds of trust and liens other than those liens securing the payment of property
taxes and assessments. Owner and City agree that this Agreement and the Purchaser
Affordability Agreement shall not prevent or limit Owner in any manner from encumbering the
Site, any portion of the Site or any improvements on the Site with any conventional mortgage,
construction, bond, financing or security interest to secure financing with respect to the
construction of the Site. City shall, upon request, execute any and all documents reasonably
acceptable to City, which result in and cause the subordination of this Agreement to the
construction financing obtained by Owner.
13. Monitoring. Representatives of City shall be entitled to inspect the records of
Owner relating to the Affordable Units at any time, upon reasonable notice, and to conduct an
independent audit of such records. Such audit shall be at the expense of City, provided that if a
default of the terms of this Agreement is discovered, the cost of the audit shall be borne by
Owner. Until the Affordable Unit is occupied by a qualified owner occupant, representatives of
City shall be entitled to enter the Affordable Unit, upon reasonable notice, to monitor compliance
with this Agreement.
14. Enforcement. City shall be entitled to all remedies available under the law upon
the default of the terms of this Agreement by Owner, including: (a) specific performance of the
terms of this Agreement; (b) disgorgement of any amounts of sales proceeds which exceed an
Affordable Housing Price; and (c) an award of its reasonable attorney's fees, specifically
including the cost to City of time expended by the office of the City Attorney and other City staff
and outside consultants, attorneys and other personnel involved in enforcing the terms of this
Agreement.
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15. Notices. Any notices, requests or approvals given under this Agreement from one
Party to another may be personally delivered or deposited with the United States Postal Service
for mailing, postage prepared, to the address of the other Party as stated in this paragraph, and
shall be deemed to have been given at the time of personal delivery or at the time of deposit for
mailing. Notices shall be sent to:
CITY: Director of Planning, Building and Code Enforcement
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
OWNER: Glenmont Cal Coast RPV, LLC
11726 San Vicente Boulevard, Suite 235
Los Angeles, California 90049
16. Attorney's bees. Should either of the Parties to this Agreement incur attorney's
fees in seeking the enforcement of this Agreement, whether or not a final court judgment is
entered, the prevailing Party shall be entitled to reimbursement of all reasonable costs and
expenses incurred by the prevailing Party in such legal proceeding, including reasonable
attorneys' fees, court costs and expenses and consultant and expert witness fees and expenses.
17. Indemnification. Owner shall defend, indemnify and save harmless City, its
elected and appointed officials, officers, agents and employees, from all liability from loss,
damage or injury to persons or property, including the payment by Owner of any and all
reasonable legal costs and attorneys' fees, in any manner arising out of the acts and/or omissions
of Owner pursuant to this Agreement, including, but not limited to, all consequential damages, to
the maximum extent permitted by law. The indemnification obligations of Owner under this
Agreement shall survive the expiration or earlier termination of this Agreement.
18. Mreement Appurtenalat to Property. This Agreement is appurtenant to and shall
run with the Site and be binding upon the heirs, administrators, executors, successors, assigns
and transferees of the parties hereto.
19. Term. This Agreement shall terminate and be of no further force or effect when
all of the following have occurred:
(a) the Affordable Units are all sold to qualified Eligible Purchasers in
accordance with this Agreement;
(b) such Eligible Purchasers have executed the Purchaser Affordability
Agreement attached hereto as Exhibit B;
(c) the Purchaser Affordability Agreements and grant deeds conveying the
Affordable Units to the Eligible Purchaser have been recorded; and
(d) Owner has paid the In -Lieu Fee to City.
Both Parties to this Agreement shall promptly execute, acknowledge and deliver for
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recordation any documents that may be reasonably necessary to remove this Agreement as an
encumbrance against title to the Site.
20. Further Assurances. The Parties shall execute any further documents consistent
with the terms of this Agreement, including documents in recordable form, as may from time to
time be necessary or appropriate to effectuate the purpose of entering into this Agreement. The
City Manager is authorized to execute any further documents on behalf of City, including the
Purchaser Affordability Agreement and any subordination agreements.
21. Governing Law. This Agreement shall be governed by the laws of the State of
California. Any legal action brought under this Agreement must be instituted in the Superior
Court of the County of Los Angeles, State of California.
22. Amendment of A 7rg ec inept. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by Owner and City.
23. Assignment Prohibited. In no event shall Owner assign or transfer any portion of
this Agreement without the prior express written consent of City, which consent may be given or
withheld in City's sole discretion. Notwithstanding the preceding sentence, if any such
assigmnent or transfer is to a purchaser of the entire Project, City shall not unreasonably
withhold or delay its consent of the assignment.
24. Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties. This Agreement integrates all of the terms and conditions mentioned
herein or incidental thereto, and supersedes all prior negotiations, discussions and previous
agreements between City and Owner concerning all or any part of the subject matter of this
Agreement.
25. Counterparts. This Agreement may be signed in counterparts, each of which shall
constitute an original.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
ATTEST:
City Clerk
City Attorney
CITY OF RANCHO PALOS VERDES
Jim Knight, Mayor
GLENMONT CAL -COAST RPV, LLC
1-2
Its:
Name
Exhibits: "A -I" Site Map
"A-2" Legal Description
"B" Purchaser Affordability Agreement
"C" Illustration of Affordable Sales Price Calculation
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A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On — --__ before me, _ �. _ ._ _ Notary Public,
personally appeared _ _ , who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument
the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
Place Notary Seal Above
WITNESS my hand and official seal.
Signature of Notary Public
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A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, Notary Public,
personally appeared _ T—_ _ who proved to me on the basis of satisfactory
evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument
the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
Place Notary Seal Above
WITNESS my hand and official seal.
Signature of Notary Public
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EXHIBIT A -I
SITE MAP
A-1 16
R6876-000111916913v2.doc
EXHIBIT A-2
LEGAL DESCRIPTION
Real Property in the City of Rancho Palos Verdes, County of Los Angeles, State of California,
described as follows:
PARCEL 1:
THAT PORTION OF LOT H, PARTITION OF RANCHO LOS PALOS VERDES, IN THE
CITY OF RANCHO PALOS VERDES, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, ALLOTTED TO JOTHAM BIXBY BY DECREE OF PARTITION IN THE
ACTION `BIXBY, ET. AL., -VS- BENT, ET. AL.," AS SHOWN ON MAP FILED IN CASE
NO. 2373, IN THE DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT OF SAID
STATE OF CALIFORNIA IN AND FOR SAID COUNTY OF LOS ANGELES, AND
ENTERED IN BOOK 4 PAGE 57 OF JUDGMENTS, IN THE SUPERIOR COURT OF SAID
STATE, IN AND FOR SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST WESTERLY CORNER OF THE LAND DESCRIBED AS
PARCEL NO. 1, IN DEED RECORDED FEBRUARY 3, 1947, AS DOCUMENT NO. 122, IN
BOOK 24207 PAGE 123 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY; THENCE ALONG THE WESTERLY LINE OF SAID
LAND NORTH 30 52'00" EAST 48.81 FEET TO A LINE PARALLEL WITH AND
DISTANT NORTHWESTERLY 200 FEET, MEASURED AT RIGHT ANGLES, FROM THE
SOUTHWESTERLY PROLONGATION OF THAT COURSE IN THE EASTERLY LINE OF
SAID LAND DESCRIBED IN SAID DEED AS HAVING A BEARING OF NORTH 370 54'
20" EAST; THENCE ALONG SAID PARALLEL LINE SOUTH 37° 54' 20 WEST 36.72
FEET TO THE NORTHEASTERLY LINE OF
HIGHRIDGE ROAD, AS DESCRIBED IN DEED TO THE COUNTY OF LOS ANGELES,
RECORDED OCTOBER 22, 1962, AS DOCUMENT NO. 3266, IN BOOK D 1797 PAGE 466
OF SAID OFFICIAL RECORDS, SAID NORTHEASTERLY LINE BEING A CURVE
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 850 FEET; THENCE ALONG
A RADIAL LINE OF SAID CURVE SOUTH 450 16'39" WEST 50 FEET TO THE CENTER
LINE OF SAID HIGHRIDGE ROAD; THENCE ALONG SAID CENTER LINE, BEING A
CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 800 FEET, AN ARC
DISTANCE OF 25.85 FEET TO A POINT THROUGH WHICH THE PROLONGED RADIAL
LINE OF SAID CURVED CENTER LINE PASSES THROUGH THE POINT OF BEGINNING;
THENCE ALONG SAID PROLONGED RADIAL LINE NORTH 470 08' 09" EAST 50.26
FEET TO THE POINT OF BEGINNING.
APN: 7589-007-019 (SOUTHWEST TRIANGLE PORTION)
PARCEL 2:
THAT PORTION OF LOTS 40 AND 41 OF L.A.C.A. NO. 51, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 1 PAGE 1 OF
ASSESSOR'S MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
DESCRIBED AS FOLLOWS:
Page 1 of 2 17
R(,R7£_(11n(11\iR 6wiv7 (inc
BEGINNING AT THE MOST WESTERLY CORNER OF THE LAND DESCRIBED AS
PARCEL NO. 1, IN DEED RECORDED AS DOCUMENT NO. 122, ON FEBRUARY 3; 1947,
IN BOOK 24207 PAGE 123 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE SOUTH
690 56'05" EAST ALONG THE SOUTHWESTERLY BOUNDARY OF SAID LAND, A
DISTANCE OF 181.40 FEET TO THE INTERSECTION THEREOF WITH THE
SOUTHWESTERLY PROLONGATION OF A STRAIGHT LINE IN THE SOUTHEASTERLY
BOUNDARY OF SAID LAND THAT HAS A BEARING OF SOUTH 370 54'20" WEST;
THENCE SOUTH 370 54'20" WEST, ALONG SAID PROLONGATION, 103.01 FEET TO
THE NORTHEASTERLY LINE OF HIGHRIDGE ROAD, 100.00 FEET WIDE, AS
DESCRIBED INDEED TO SAID COUNTY LOS ANGELES, RECORDED IN BOOK D 1797
PAGE 466 OF SAID OFFICIAL RECORDS; THENCE SOUTH 59° 13'30" WEST, ALONG A
LINE RADIAL TO A CURVE IN SAID LINE THAT IS CONCAVE SOUTHWESTERLY
AND HAS A RADIUS OF 850.00 FEET, A DISTANCE OF 50.00 FEET TO THE CENTER
LINE OF SAID HIGHRIDGE ROAD; THENCE NORTHWESTERLY ALONG SAID
CENTER LINE, BEING A CURVE CONCAVE SOUTHWESTERLY AND HAVING A
RADIUS OF 800.00 FEET, A DISTANCE OF 168.83 FEET TO A LINE RADIAL TO SAID
CURVE PASSING THROUGH THE POINT OF BEGINNING; THENCE NORTH 47° 08' 09"
EAST ALONG SAID LAST MENTIONED RADIAL LINE TO THE POINT OF BEGINNING.
APN: 7589-007-020,021 PARCEL 3:
THAT PORTION OF LOT H OF RANCHO LOS PALOS VERDES, IN THE COUNTY OF
LOS ANGELES, STATE OF CALIFORNIA, ALLOTTED TO JOTHAM BIXBY BY DECREE
OF PARTITION IN THE ACTION "BIXBY, ET AL., - VS — BENT, ET AL., IN THE
DISTRICT COURT OF THE 17TH JUDICIAL DISTRICT OF SAID STATE OF
CALIFORNIA, IN AND FOR SAID COUNTY OF LOS ANGELES, AND ENTERED IN
BOOK 4, PAGE 57 OF JUDGMENTS, IN THE SUPERIOR COURT OF SAID STATE, IN
AND FOR SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF THE LAND DESCRIBED AS
PARCEL NO. 1, IN DEED RECORDED FEBRUARY 3, 1947 AS DOCUMENT NO. 122, IN
BOOK 24207, PAGE 123 OF OFFICIAL RECORDS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY; THENCE ALONG THE SOUTHEASTERLY LINE OF
SAID LAND, SOUTH 3754'20" WEST 533.02 FEET TO AN ANGLE POINT IN THE
EASTERLY BOUNDARY OF SAID LAND; THENCE CONTINUING SOUTH 37°54'20"
WEST, 36 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 52°05'40"
WEST, 200 FEET; THENCE SOUTH 37°54'20" WEST, 212.18 FEET TO THE WESTERLY
LINE OF SAID LAND; THENCE SOUTHERLY ALONG THE WESTERLY LINE OF SAID
LAND SOUTH 352'00" WEST, 48.81 FEET TO THE MOST WESTERLY CORNER OF
SAID LAND; THENCE SOUTH 69'56'05" EAST, ALONG THE BOUNDARY OF SAID
LAND, 181.40 FEET TO A POINT THAT IS SOUTH 37°54'20" WEST, 197,04 FEET FROM
THE TRUE POINT OF BEGINNING; THENCE NORTH 3754'20" EAST 197.04 FEET TO
THE TRUE POINT OF BEGINNING.
APN: 7589-007-018; 7589-007-019, LESS PORTION DESCRIBED IN PARCEL 1.
APN: 7589-007-018, 019, 020 and 021
Page 2 of 2 18
R6876-0001 \1 816913v2.doc
! C i
Form of Purchaser Affordability Agreement
Page 1 of 1
R6876-0001 \1816913v2.doc
lC,
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTION 27383,
AND WHEN RECORDED MAIL TO:
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
Attn: Director of Planning, Building & Code Enforcement
NOTICE OF COVENANTS AND RESTRICTIONS AFFECTING REAL PROPERTY
AND OPTION TO PURCHASE PROPERTY
Owner:
Residence:
Rancho Palos Verdes, CA
These Covenants, Restrictions and Option to Purchase (these "Restrictive
Covenants" or "Agreement") are entered into as of this day of , , by and
between the CITY OF RANCHO PALOS VERDES, CALIFORNIA, a California municipal
corporation (the "City"), and
"Owner").
RECITALS
an individual (the
A. Owner is the owner of certain real property (the "Property") located within the City of
Rancho Palos Verdes, County of Los Angeles, State of California, commonly known as
Unit , identified by Los Angeles County Assessor's Parcel Number
and more fully and legally described in Exhibit "1" attached hereto and
incorporated herein by this reference.
B. Glenmont Cal -Coast, RPV, LLC (the "Developer") is the owner of certain real property
(the "Entitlement Site") located within the City of Rancho Palos Verdes, County of Los Angeles,
State of California, commonly known as Tentative Tract Map No. 68796, which is more fully
described as set forth in Exhibit "2" attached hereto and incorporated herein by reference.
C. Pursuant to Chapter 1. 7.11 of the Rancho Palos Verdes Municipal Code ("Affordable
Housing Ordinance"), as a condition precedent to developing the Entitlement Site, Developer was
required to include two (2) condominium units in the Site that will be affordable to Very Low
Income Households at an Affordable Sales Price. In accordance with the provisions of
Chapter 17.11, Developer and City entered that certain Affordable Housing Agreement dated as of
2015, and recorded on , 2015 as Instrument No.
in the Official Records (the "Developer Agreement"), to ensure Developer's compliance with the
Affordable Housing Ordinance.
D. Pursuant to the terms of the Developer Agreement and the applicable provisions of
Chapter 17.11 of the Rancho Palos Verdes Municipal Code, the use and occupancy of the Property
Page 1 of 13
R6876-0001\1816913vldoc 20
is restricted to qualified very low-income purchasers to ensure its continued availability to Very
Low Income Households for a period of at least thirty (30) years.
E. The Property is to be further encumbered by the right, but not the obligation, of the City to
purchase the Property from Owner (i) on the same terms and for the same price as any bona fide
offer made to Owner to purchase the property during the term of this Restrictive Covenants and
(ii) in the event of default.
NOW, THEREFORE, in consideration of the benefits received by the Owner and the City, the
Owner and the City agree, as follows:
1. DEFINITIONS.
The following terms are specifically defined for these Restrictive Covenants and
their definitions can be found in the sections indicated below"
A. "Alternative Sale" - Section IOB.
B. "Base Price" — Section 12A.
C. "City" - First sentence of this Agreement on page 1.
D. "Restrictive Covenants" - First sentence of this Agreement on page 1.
E. "City's Share of Sales Proceeds" - Section 13C.
F. "Eligible Purchaser" - Section I IB.
G. "Eligible Transfer" - Section 11.
H. "Excess Proceeds" - Section 13C.
I. "Fair Market Value" — Section 9.
J. "First Lender" — Section 20A.
K. "First Lender Deed of Trust" — Section 20A.
L. "Increased Base Price" - Section 12A.
M. "Option" - Section 8.
N. "Owner" - First sentence of this Agreement on page 1.
O. "Owner's Share of Sales Proceeds" - Section 13B.
P. "Proposed Purchaser" - Section 11A.
Q. "Residence" - Section 2.
Page 2 of 13
R6876-0001 \1 816913v2,doc
21
R. "Restricted Sales Price" - Section 12.
S. "Total Sales Proceeds" - Section 13
T. "Transfer" - Section 5.
U. "Value of Capital Improvements" - Section 12B.
These Restrictive Covenants concern the real property commonly known as 28220
Highridge Road, Unit , Rancho Palos Verdes, California, 90275, which is more fully described
in Exhibit "1" attached hereto and incorporated herein by reference (the "Residence").
The Owner certifies that (a) the financial and other information previously
provided in order to qualify to purchase the Residence was true and correct as of the date first
written above; (b) the Owner does not own any other residential property as of the date of this
Agreement; and (c) the Owner shall occupy the Residence as the Owner's principal place of
residence. The Owner shall be considered as occupying the Residence if the Owner is living in
the Residence for at least ten (10) months out of each calendar year. The City may grant a
temporary waiver of this occupancy requirement for good cause in its sole discretion. If the
Residence is a one -bedroom unit, no more than two (2) persons shall occupy the Residence, not
including children born after the date of initial sale and occupancy by a household.
MMi►[l�/T97.� xy I I7 DiC�T�I
The Owner shall not lease the Residence for more than two (2) months during any
calendar year without the prior, written consent of the City and shall not lease the Residence
without providing the City with a copy of the lease at least sixty (60) days in advance of any
leasing of the Residence. Any lease in violation of these Restrictive Covenants is prohibited, and
shall constitute a default by the Owner hereunder.
"Transfer" means any sale, assignment or transfer, voluntary or involuntary, of any
interest in the Residence, including, but not limited to, a fee simple interest, a joint tenancy
interest, a life estate, a leasehold interest, or an interest evidenced by a land contract by which
possession of the Residence is transferred and Owner retains title. Any Transfer without
satisfaction of the provisions of these Restrictive Covenants is prohibited. Transfers by gift,
devise, or inheritance to an existing spouse, children, surviving joint tenant, or a spouse as part of
a dissolution proceeding or in connection with marriage, shall not be considered a "Transfer" for
the purposes of these Restrictive Covenants.
A. Refinancing of First Decd of Trust. Subject to compliance with the
provisions of subsection C hereof, the Owner may refinance a loan secured by a First Deed of
Page 3 of 13
86876-0001\1816913ti2.doe 22
Trust encumbering the Residence provided that the City's City Manager has previously reviewed
and approved the teens and conditions thereof including, but not limited to, the principal amount
of the proposed loan, the interest rate, the terms of repayment, the identity of the maker of the
proposed loan, any documentation pertaining to the subordination or enforcement of this
Agreement, and the costs and fees associated with the making of the proposed loan. The Owner
must have received the written approval of the proposed loan by the City's City Manager prior to
the date of its closing. In the event of a proposed refinance that includes a principal amount in
excess of that needed to repay the loan secured by the First Deed of Trust, any approval by the
City Manager shall include conditions which, in the sole discretion of the City Manager, are
warranted in order to insure the continued affordability of the Residence. Any refinancing of a
First Deed of Trust that has not been previously approved by the City Manager as herein
above described shall constitute a default under this Agreement.
B. Junior Liens. Subject to compliance with the provisions of subsection C
hereof, the Owner may enter into a loan secured by a lien junior and subordinate to this
Agreement provided that (i) the proceeds of each loan shall be used solely to pay for repairs or the
construction of improvements to the Residence, and (ii) the City's City Manager has previously
reviewed and approved the terms and conditions thereof, including, but not limited to, the
principal amount of the proposed loan, the interest rate, the terms of repayment, the identity of the
maker of the proposed loan, the costs and fees associated with the making of the proposed loan,
and the nature and costs of the proposed repairs or the construction of improvements, to be paid
with the proceeds thereof, and (iii) the Owner shall have received the written approval of the
proposed loan by City's City Manager prior to the date of its closing. Without limiting the
foregoing, the proceeds of the proposed loan shall not be used to pay for the construction of
improvement of a luxury nature such as ground pools, spas, or interior or exterior decorative
items, or improvements with an unreasonable useful life. The failure of the Owner to comply
fully with the provisions of this subsection when entering into a loan that is secured by a lien
junior and subordinate to this Agreement shall constitute a default under this Agreement.
C. Notification Prior to Encumbrance or Hypothecation. If Owner desires
to refinance any loan secured by a first lien encumbering the Residence pursuant to subsection A
hereof, or to borrow funds for a new loan to be secured by a junior lien encumbering the
Residence the proceeds of which are to be used to pay for repairs or the construction of
improvements to the Residence pursuant to subsection B hereof, prior written approval of the City
is required. The Owner must request such approval in writing at least 30 days prior to the
recordation of a lien securing any such refinancing or loan, the Owner shall submit to the City in
writing the following information:
(1) Name and address of lender.
(2) Terms of the loan, including, but not limited to, principal, interest
rate, term, and loan fees.
(3) Closing date of the loan.
(4) Copy of any proposed escrow instructions, loan application, security
agreement, Statement of Lien, and other agreements between the Owner and the lender.
Page 4 of 13
R6876-0001\1816913v2.doc 23
(5) Written documentation of compliance with the conditions for City
approval as set forth in subsections A or B hereof, as applicable.
(6) Other written documentation reasonably requested by the City.
The City shall have 15 working days after its receipt of all of such information to
approve or disapprove the proposed refinancing or loan. The subject refinancing or loan shall be
deemed disapproved by the City Manager of the City if it is not approved within such 15 working
day period.
In the event the Owner intends to Transfer or vacate the Residence, the Owner shall
promptly notify the City in writing of such intent. The written notice shall be given in accordance
with Section 23 of these Restrictive Covenants at least ninety (90) days prior to the actual date of
the proposed Transfer or vacation of the Residence. The notice from the Owner shall be sent by
certified mail, return receipt requested.
The Owner agrees that the City shall have the option, but not the obligation, to
purchase the Residence for an amount equal to the lesser of the Fair Market Value of the
Residence or the Restricted Sales Price calculated pursuant to Section 12 of this Agreement (the
"Option") . If the City decides to exercise its option to purchase the Residence, it shall, within
thirty (30) days of receipt of the notice specified in Section 7 above, notify the Owner in
accordance with Section 23 below that it chooses to exercise the Option. If the City exercises the
Option, it shall purchase the Residence within ninety (90) days of the date it receives the notice
specified in Section 7 above at the lesser of the Fair Market Value of the Residence or Restricted
Sales Price calculated pursuant to the formula set out in Section 12. The City may, instead of
purchasing the Residence itself, assign its right to purchase the Residence to a person who meets
the criteria established by the City or to a governmental agency or nonprofit organization that is
devoted to developing or preserving low and moderate income housing.
A. For purposes of this Agreement, the term "Fair Market Value" shall have
the meaning ascribed in Section 1263.320 of the California Code of Civil Procedure, as it now
exists or may subsequently be amended. If it is necessary to determine the Fair Market Value of
the Residence, it shall be determined by a real estate appraiser selected by the City. The appraiser
shall have been previously approved by the Federal National Mortgage Association or the Federal
Housing Administration and placed on their list of approved single-family housing appraisers. If
possible, the appraisal shall be based upon properties sold in the market during the three-month
period prior to the date of the notice of Transfer. The cost of the appraisal shall be divided equally
between the City and the Owner. In the event that improvements to the Residence have been
made by the Owner that increase the value of the Residence, or if damage to the Residence has
occurred or deferred maintenance while the Owner owned the Residence has decreased the value
of the Residence, the appraisal shall specifically ascribe a value to these adjustment factors and
state what the fair market value of the Residence would be without such adjustments. Nothing in
Page 5 of 13
R6876-0001\1 816913v2.dor
24
this section shall preclude the Owner and the City from establishing the fair market value of the
Residence by mutual agreement in lieu of an appraisal pursuant to this section.
B. If no appraisal has been conducted pursuant to Section 9A above, and it is
necessary to determine the Value of Capital Improvements made to the Residence by the Owner,
such determination shall be made by a real estate appraiser selected by the City. The cost of the
appraisal shall be divided equally between the City and the Owner.
In the event the City does not exercise its option to purchase pursuant to Section 8
above, the Owner may sell the Residence to a person of the Owner's choosing (the "Proposed
Purchaser") on the terms set forth in this Section.
A. Transfer to Eligible Purchaser: If the Owner Transfers the Residence in a
transaction that meets the Eligible Transfer requirements of Section 11, the maximum amount that
the Owner may receive for the Transfer shall be the Restricted Sales Price as defined in
Section 12.
B. Transfer to Ineligible Purchasers If the Owner Transfers the Residence
in a transaction that does not meet the Eligible Transfer requirements of Section 11, below
("Alternative Sale"), the gross proceeds of such sale shall be divided between the Owner and the
City pursuant to the formula in Section 13 below.
11. ELIGIBLE TRANSFER.
A Transfer of the Residence that meets the requirements set forth in this Section 11
shall qualify as an approved Transfer to an Eligible Purchaser ("Eligible Transfer"):
A. Disclosures and Submittals: The Owner and the proposed purchaser
("Proposed Purchaser") shall provide the following information and documents to the City:
(1) The name, address and telephone number in writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other supporting documentation requested by the City. The
financial information shall be used by the City to determine the income eligibility of the Proposed
Purchaser.
(3) The proposed sales contract and all other related documents that
shall set forth the terms of the sale of the Residence. The documents shall include the following
terms:
(a) The sales price; and
(b) The price to be paid by the Proposed Purchaser for the
Owner's personal property, if any, and for the services of the Owner, if any.
Page 6 of 13
R6876-000111816913v2.doc 25
(4) A written certification from the Owner and the Proposed Purchaser
in a form acceptable to the City that the sale shall be closed in accordance with the terms of the
sales contract and other documents submitted to and approved by the City. The certification shall
also provide that the Proposed Purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract and documents submitted to the City. The written certification shall also
include a provision that in the event a Transfer is made in violation of the terms of this Agreement
or false or misleading statements are made in any documents or certification submitted to the City,
the City shall have the right to file an action at law or in equity to make the parties terminate
and/or rescind the sale contract and/or declare the sale void, notwithstanding the fact that the sale
may have closed and become final as between the Owner and the Proposed Purchaser. In any
event, any costs, liabilities or obligations incurred by the Owner and the Proposed Purchaser for
the return of any monies paid or received in violation hereunder or for any costs and legal
expenses, shall be borne by Owner and/or the Proposed Purchaser and they shall hold the City and
its designee harmless and reimburse their expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5) Executed Restrictive Covenants from the Proposed Purchaser with
substantially the same terms as the terms of this Agreement, executed by the Proposed Purchaser
in. favor of the City. The recordation of the Restrictive Covenants and of a request for notice of
default under the First Lender Deed of Trust, in favor of the City, shall be a condition of the City's
approval of the proposed sale. The City may require the Proposed Purchaser to pay a reasonable
fee to the City and reimburse it for out of pocket costs to cover the costs of administering its right
and obligations under this Agreement.
(6) Upon the close of the proposed sale, a conformed copy of the
recorded Restrictive Covenants, a copy of the final sales contract, settlement statement, escrow
instructions, and any other document that the City may reasonably request.
B. Eligibility of Purchaser: A Proposed Purchaser who meets the following
requirements shall be an Eligible Purchaser:
(1) Each Proposed Purchaser shall certify that he or she will occupy the
Residence as his or her principal residence; and
(2) The combined maximum income for all household members of the
purchaser shall not exceed fifty percent (50%) of the median yearly income adjusted for household
size, for a household in Los Angeles County as published by the California Department of
Housing and Community Development ("HCD"). In the event such income determinations are no
longer published by HCD, or are not updated for a period of at least eighteen months, the City
shall provide other income determinations which are reasonably similar in method of calculation
to those previously published by HCD.
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IZ6876-0001\1816913v2.doc 26
The maximum sales price (the "Restricted Sales Price") that the Owner shall
receive for an Eligible Transfer of the Residence shall be the Increased Base Price, as adjusted by
Section 12B.
A. Increased Base Price: The Base Price of the Residence means the
purchase price paid by the Owner, inclusive of closing costs. The Increased Base Price of the
Residence means the Base Price, increased by the percentage of increase in household income for a
very low-income household of two (2) for a one -bedroom unit, all at fifty percent (50%) of the
median yearly income for a household in Los Angeles County, as published by HCD from time to
time. The increase in household income shall be computed from the date of the original purchase
of the Residence by the Owner to the date of receipt of notice to Transfer by the City or its assignee
required by Section 7. In the event that such income determination is no longer published, or has
not been updated for a period of at least eighteen (18) months, the City may use or develop such
other reasonable method as it may choose in order to determine such increase in income.
B. Adjusted Increased Base Price: The Increased Base Price shall also be
adjusted for the Value of Capital Improvements. The "Value of Capital Improvements" shall
mean the value of substantial structural or permanent fixed improvements that cannot be removed
without substantial damage to the Residence or substantial or total loss of value of the
improvements. No such valuation shall be made except for improvements: (i) made or installed
by or under the direction of the Owner; (ii) approved in advance by the City or its designee; and
(iii) with an initial cost of Two Thousand Dollars ($2,000) or more. The value of such
improvements to be taken into account in calculation of the Increased Base Price shall be the
increase in value of the Residence by reason of the improvements, and shall be determined by
agreement of the City and the Owner, or, in the event of failure to agree, by appraisal pursuant to
Section 9B of these Restrictive Covenants.
13. ALTERNATIVE SALE; PAYMENT TO THE CITE'.
If the Transfer is not to an Eligible Purchaser (i.e., an Alternative Sale), the Owner
shall pay a portion of the gross proceeds of sale (the "Total Sales Proceeds") to the City pursuant
to this Section.
A. Disclosures and Submittals: The Owner and Proposed Purchaser shall
provide the same information and documents to the City described in Section I IA above, except
that the financial statement of the Proposed Purchaser described in Section I l A(2) and the
Restrictive Covenants described in Section 11A(5) and I IA(6) shall not be required.
B. Amount Retained by Owner: The selling Owner shall initially receive the
lesser of the Total Sale Proceeds or the sum of (i) the Base Price of the Residence increased by the
percentage increase in the Consumer Price Index for All Urban Consumers (Base Years 1982-84 =
100) for the Los Angeles -Anaheim -Riverside Consolidated Metropolitan Statistical Area
(published by the United States Department of Labor, Bureau of Labor Statistics) (the "CPI")
from the date of the Owner's original purchase of the Residence to the date of the Alternative
Sale, plus (ii) the Value of City -approved Capital Improvements, if any. This amount shall be
referred to herein as "Owner's Share of Sales Proceeds."
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R6876-0001\1 816913v2.doc
27
C. Amount Paid to City: The Owner's Share of Sales Proceeds shall be
subtracted from the Total Sales Proceeds and the remaining amount, if any, shall be referred to
herein as the "Excess Proceeds." The City shall receive a share of the Excess Proceeds (the
"City's Share of Sales Proceeds") as follows:
(1) Years 1-5: If the Alternative Sale occurs in ownership years 1
through 5 (ending on the fifth anniversary of the date of these Restrictive Covenants), the City's
Share of Sales Proceeds shall be seventy-five percent (75%) of the Excess Proceeds;
(2) Year 6: If the Alternative Sale occurs in ownership year 6 (ending
on the sixth anniversary of the date of these Restrictive Covenants), the City's Share of Sales
Proceeds shall equal fifty percent (50%) of the Excess Proceeds;
(3) Year 7: If the Alternative Sale occurs in ownership year 7 (ending
on the seventh anniversary of the date of these Restrictive Covenants), the City's Share of Sales
Proceeds shall equal forty percent (40%) of the Excess Proceeds;
(4) Year S: If the Alternative Sale occurs in ownership year S (ending
on the eighth anniversary of the date of these Restrictive Covenants), the City's Share of Sales
Proceeds shall equal thirty percent (30%) of the Excess Proceeds;
(5) Year 9: If the Alternative Sale occurs in ownership year 9 (ending
on the ninth anniversary of the date of these Restrictive Covenants), the City's Share of Sales
Proceeds shall equal twenty percent (20%) of the Excess Proceeds;
(6) Year 10: If the Alternative Sale occurs in ownership year 10
(ending on the tenth anniversary of the date of these Restrictive Covenants), the City's Share of
Sales Proceeds shall equal fifteen percent (15%) of the Excess Proceeds; and
(7) Year 11: If the Alternative Sale occurs anytime during ownership
year 11 through 30, inclusive, the City's Share of Sales Proceeds shall equal ten percent (100/()) of
the Excess Proceeds.
Any portion of the Excess Proceeds not payable to the City pursuant to this
Section 13C shall be retained by the Owner.
D. Time of Payment of City's Share: The City's Share of Sale Proceeds
shall be paid to the City on the date the Alternative Sale occurs. In the event the Owner fails to
pay the City's Share of Sales Proceeds to the City when due, the City's Share of Sales Proceeds
shall accrue interest at the default rate of ten percent (10%) per annum, compounded annually.
14. DEFAULTS AND REMEDIES.
Upon a violation of any of the provisions of these Restrictive Covenants by the
Owner, the City shall give written notice to the Owner specifying the nature of the violation. If
the violation is not corrected to the satisfaction of the City within a reasonable period of time, not
longer than ten (10) days after the date notice is mailed for failure to pay the City's Share of Sales
Proceeds when due and not longer than thirty (30) days after the date the notice is mailed, or
within such further time as the City determines is necessary to correct the violation for any other
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R6876-0001\1816913v2.doc 28
violation of these Restrictive Covenants, the City may declare a default under these Restrictive
Covenants.
The City shall notify the First Lender if the City has declared a default under these
Restrictive Covenants. The notice to the First Lender shall indicate that the City may exercise its
option to purchase the Residence pursuant to Sections 8 and 15 of these Restrictive Covenants.
Upon the declaration of a default or if the Owner makes any misrepresentation in
connection with receiving any benefits under these Restrictive Covenants, the City may apply to a
court of competent jurisdiction for specific performance of these Restrictive Covenants, or for any
such other relief at law or in equity as may be appropriate, including suit for recovery of the City's
Share of Sales Proceeds plus accrued interest thereon at the default rate. In the event of any such
action, City shall be entitled to an award of its actually incurred attorney's fees, specifically
including the cost to City of time expended by the office of the City Attorney and other City staff
and outside consultants, attorneys and other personnel involved in enforcing the terms of this
Agreement.
A. Purchase Option: Notwithstanding, and in addition to, the remedies
provided the City in Section 14, the Owner hereby grants to the City the option to purchase the
Residence effective thirty (30) days after the City has given the Owner and the First Lender notice
of the declaration of a default. This option to purchase is given in consideration of the economic
benefits received by the Owner resulting from ownership of the Residence made possible by the
City requiring the Developer to sell the Residence to the Owner at an affordable housing cost.
B. Exercise of Option: The option to purchase pursuant to this Section 15
may be exercised upon a default under these Restrictive Covenants or upon default under any
promissory note, deed of trust or any other lien, recorded against the Residence. The City shall
have thirty (30) days after a default is declared to notify the Owner and the First Lender of its
decision to exercise its option to purchase. Not later than ninety (90) days after the notice is given
in accordance with Section 23 below to exercise its option pursuant to this Section 15, the City
shall purchase the Residence at the lesser of: (i) its Fair Market Value; or (ii) its Restricted Sales
Price.
In no event shall the City become in any way liable or obligated to the Owner or
any successor -in -interest to the Owner by reason of its option to purchase under Sections 8 and 15,
or for any failure to exercise its option to purchase under Sections 8 and 15.
If a creditor acquires title to the Residence through a deed in lieu of foreclosure, a
trustee's deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the
extent that such proceeds otherwise payable to the Owner when added to the proceeds paid or
credited to the creditor exceed the amount the Owner would have received by a sale in accordance
with Section 11. The Owner shall instruct the holder of such excess proceeds to pay such
Page 10 of 13
R6876-0001\1816913v2.doe
29
proceeds to the City as consideration for the regulatory requirements of the City allowing the
Residence to be sold to a household that would not otherwise have been able to afford it.
These Restrictive Covenants shall bind, and the benefit hereof shall insure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors, until the earlier of (a) the date which is thirty (30) years from the date
of these Restrictive Covenants, provided the Owner is not in default hereunder; (b) the date the
Owner pays the City the City's Share of Sales Proceeds pursuant to Section 13 above; or (c) the
date the City exercises its options under Sections 8 or 15.
The Owner covenants that he or she has not, and will not, execute any other
agreement with provisions contradictory to or in opposition to the provisions hereof, and that, in
any event, these Restrictive Covenants are controlling as to the rights and obligations between and
among the Owner, the City and their respective successors.
A. Notwithstanding any other provision hereof, these Restrictive Covenants
shall not diminish or affect the rights of the First Lender under the First Lender's Deed of Trust or
any subsequent First Lender deeds of trust hereafter recorded against the Residence. For purposes
of this Agreement, "First Lender" shall be the lender of a purchase money loan used for purchase
of the Property, which loan is secured by a deed of trust (the "First Lender Deed of Trust") in first
position on record title to the Property.
B. Notwithstanding any other provision hereof, the provisions of these
Restrictive Covenants shall be subordinate to the lien of the First Lender Deed of Trust and shall
not impair the rights of the First Lender, or such lender's assignee or successor in interest
(including but not limited to HUD, the Federal National Mortgage Association, or the Veterans
Administration, if applicable), to exercise its remedies under the First Lender Deed of Trust in the
event of default under the First Lender Deed of Trust by the Borrower, provided that (i) the City
has been given written notice of default under such First Lender Deed of Trust, and (ii) the City
shall not have cured the default under such First Lender Deed of Trust within the 30 -day period
provided in such notice sent to the Lender, or commenced to cure the default within such 30 -day
period and given its firm commitment to complete the cure in form and substance acceptable to
the First Lender, or notified Lender within such 30 -day period if its intent exercise its option to
purchase pursuant to Section 15. Such remedies under the First Lender Deed of Trust include the
right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such
foreclosure or acceptance of a deed in lieu of foreclosure, these Restrictive Covenants shall be
forever terminated and shall have no further effect as to the Property or any transferee thereafter.
21. INVALID PROVISIONS.
If any one or more of the provisions contained in these Restrictive Covenants shall
for any reason be held to be invalid, illegal or unenforceable in any respect, that such provision or
provisions shall be deemed severable from the remaining provisions contained in these Restrictive
Page 11 of 13
R6876-0001\1 816913v2.doc 30
Covenants, and these Restrictive Covenants shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
The terms of these Restrictive Covenants shall be interpreted under the laws of the
State of California.
23. NOTICES.
All notices required herein shall be sent by certified mail, return receipt requested
or express delivery service with a delivery receipt and shall be deemed to be effective as date
received or the date delivery was refused as indicated on the return receipt as follows:
To the Owner:
At the address of the Residence.
To the City:
City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, California 90275
Attention: Director of Planning, Building & Code Enforcement
To the First Lender:
At the address shown on the First Lender Deed of Trust.
The parties may subsequently change addresses by providing written notice of the
change in address to the other parties in accordance with this Section 23.
This Agreement may be signed in counterparts, each of which shall constitute an
original.
IN WITNESS WHEREOF, the parties have executed these Restrictive Covenants
on or as of the date first written above.
[signatures begin on next page]
Page 12 of 13
R6876-0001\1816913v2.doe
31
CITY OF RANCHO PALOS VERDES,
CALIFORNIA, a California municipal
corporation
By:
Print Name:
Title:
ATTEST:
City Clerk
By:
Print Name:
By: _
Print Name:
Page 13 of 13
R6876-0001\1 816913v2.doc
9%
A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, Notary Public,
personally appeared _ , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by
his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Place Notary Seal Above
WITNESS my hand and official seal.
Signature of Notary Public
Wl
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies
only the identity of the individual
who signed the document to which
this certificate is attached, and not
the truthfulness, accuracy, or
validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, Notary Public,
personally appeared_ , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by
his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
Place Notary Seal Above
R6976-0001\1 R 169130. dnc
WITNESS my hand and official seal.
Signature of Notary Public
EXHIBIT "1"
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: A CONDOMINIUM
COMPRISED
R6876-0001\1816913v2.doc 35
EXHIBIT "2"
LEGAL DESCRIPTION OF ENTITLEMENT SITE
That certain land located in the City of Rancho Palos Verdes, County of Los Angeles, California
described as follows:
R6876-0001\1816913v2.doc 36
EXHIBIT C
M"Mr ,: ,. i.
VERY LOW-INCOME EXAMPLE - 2015
Unit size: I -bedroom
Household Size: 2 -person
Maximum Household Income': $34,200
Median Income $51,850
Down Payment: 0.00% 3.50% 5.00% 10.00% 20.00%
Total Annual Housing Expense $7,777.50 $7,777.50 $7,777.50 $7,777.50 $7,777.50
Total Monthly Housing Expense $648.13 $648.13 $648.13 $648.13 $648.13
Components of housing expenses (allowances):
Property taxes3
$18.22
$18.70
$18.91
$19.66
$21.34
Homeowners association dues
$350
$350
$350
$350
$350
Insurance
$50
$50
$50
$50
$50
Utilities
$119
$119
$119
$119
$119
Maintenance & repairs
$0
$0
$0
$0
$0
mortgage insurance
$16.56
$17
$17.19
$17.87
$0
mortgage
$94.34
$93.43
$93.03
$91.6
$104.02
$648.13
Total monthly housing expenses
$648.13
$648.13
$648.13
$648.13
mortgage interest rate
3.875%
3.875%
3.875%
3.875%
3.875%
amortization period in years
30
30
30
30
30
mortgage payment
$94.34
$93.43
$93.03
$91.6
$104.02
mortgage amount
$19,877
$19,685
$19,600
$43,568
$49,759
down payment
$0
$714
$1,032
$2,144
$5,479
$27,395
Total Affordable Price
$19,877
$20,399
$20,631
$21,444
`Very Low -Income Limit for 2015 per Cal ornta Housing and Community Development Memormadum dated April 15, 2015
1%ryLow-Income maximum housing expense pursuant to California Health & Safety Code section 50052.5
3Property tax estimated based upon county assessor accepting the affordable price to be the assessed value and annual taxes estimated (q.) 1.10% of the
assessed value per year.
'Utility Allowance calculated from the Housing Authority of the County oj'Los Angeles Utility Allowance Schedule dated 7!1/2014 and available at
hitp:J/ivww3.lacdc. org/CDCWebsite/uploadedFiles/HA/Ut ititv%20Allowance%20Summary%20Schedule.pdf
R6876-0001\1 91 6913v2.doe 37
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Rancho Palos Verdes
Planning, Building and Code Enforcement
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
Attention: City Clerk
APN: 7589-007-018
NO FEE REQUIRED PURSUANT TO:
Government Code Sections 6103 and
27383
[Space above this line for Recorder's Use Only]
SUBDIVISION IMPROVEMENT AGREEMENT
SUBDIVISION REFERENCE DATA
FINAL TRACT MAP NO. 68796 ("Final Map" herein)
BASED ON VESTING TENTATIVE TRACT MAP NO. 68796
NAME OR TRACT NUMBER OF
SUBDIVISION:
LEGAL DESCRIPTION OF
PROPERTY:
CITY COUNCIL RESOLUTION OF
APPROVAL NO.:
IMPROVEMENT PLANS:
IMPROVEMENTS:
TRACT 68796 — Highridge Subdivision
("Subdivision" herein)
See Exhibit A — Legal Description of Property
(the "Property" herein) located at 28220
Highridge Road
Glenmont Cal -Coast RPV, LLC
Attn: Edward J. Miller
11726 San Vicente Blvd., Suite 235
Los Angeles, CA 90049
2008-102 ("Resolution of Approval" herein)
TRACT 68796
(hereinafter "Improvement Plans," which include
all Subdivision specifications.)
See Exhibit A — Schedule of Improvements and
Section 1.A below
0
39
ESTIMATED TOTAL COSTS OF
IMPROVEMENTS:
FORM OF IMPROVEMENT
SECURITY:
NAME AND ADDRESS OF SURETY
SURETY BOND NUMBERS:
EFFECTIVE DATE OF AGREEMENT
PERFORMANCE $576,950.00
PAYMENT $576,950.00
WARRANTY $TBD
TOTAL: $1153,900
(hereinafter "Estimated Total Costs")
[X]
I
[l
Surety bonds
Deposit of money
Other:
SureTec Insurance Company
1330 Post Oak Blvd., Suite 1100
Houston, Harris County, Texas
Performance Bond No.: 4377896 (Condition of
Approval No. 11) SureTec Insurance Company
Payment Bond No.: 4377896 (Condition of
Approval No. 11) SureTec Insurance Company
Performance Bond No.: 4377897 (Condition of
Approval No. 24) SureTec Insurance Company
Payment Bond No.: 4377897 (Condition of
Approval No. 24) SureTec Insurance Company
Performance Bond No.: 4377898 (Condition of
Approval No. 47) SureTec Insurance Company
Payment Bond No.: 4377898 (Condition of
Approval No. 47) SureTec Insurance Company
Performance Bond No.: 4377899 (Condition of
Approval No. 55) SureTec Insurance Company
Payment Bond No.: 4377899 (Condition of
Approval No. 55) SureTec Insurance Company
Performance Bond No.: 1078248 (Condition of
Approval No. 34) SureTec Insurance Company
Payment Bond No.: 1078248 (Condition of
Approval No. 35) SureTec Insurance Company
Warranty Bond No.: TBD
August 4, 2015
M
COMPLETION PERIOD: All Improvements of Subdivision shall be completed
within two years from the Effective Date of the Agreement (hereinafter, "Completion
Period").
**********************
a
TABLE OF CONTENTS
Page
1. SUBDIVIDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS ............................ 1
2, SOILS TESTING AND REPORT ............................................................................ ....... 3
3. SPECIFICATIONS FOR IMPROVEMENTS ................................................................... 4
4. INSPECTION OF WORK AND FINAL ACCEPTANCE .................................................. 4
5. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS ............................... - ...... 5
6. TIME EXTENSIONS ................................................................................... .................. 5
7. IMPROVEMENT SECURITY ................................................................................. ....... 6
8. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY ...................................... 7
9. INDEMNIFICATION OF CITY BY SUBDIVIDER ............................................................ 9
10. INSURANCE.............................................................................................................. 10
11. OWNERSHIP OF THE IMPROVEMENTS .............................. .................................. 16
12. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES OF THE
CITY...................................................................................................................... 17
13. RELATIONSHIP OF THE PARTIES ........................................................................... 18
14. ASSIGNMENT ........................................................................................................... 19
15. NOTICES .................................................................................. ................................ 19
16. ENTIRE AGREEMENT ........................................................................... I .................. 19
17. SEVERABILITY ...................................................................... ................................... 20
18. INCORPORATION OF SUBDIVISION REFERENCE DATA AND RECITALS........... 20
19. GOVERNING LAW; VENUE ................................................................................ .... . 20
20. COUNTERPARTS ......................................... ........................................................... 20
21. LIENS ............................... ......................................................................................... 20
22. EFFECTIVE DATE OF THE AGREEMENT ............................................................... 20
Exhibit A Legal Description of Property
Exhibit B Schedule of Improvements for Highridge Subdivision
Exhibit C Form of Improvement Securities
Exhibit D Consent and Subordination Agreement
42
THIS SUBDIVISION IMPROVEMENT AGREEMENT ("Agreement") is made and
entered into by and between the City of Rancho Palos Verdes, a California municipal
corporation (the "City"), and the Subdivider whose name and address is set forth above in
the Subdivision Reference Data.
RECITALS
A. Subdivider has presented to the City for approval and recordation a Final Map,
identified above in the Subdivision Reference Data, of a proposed subdivision pursuant to
the Subdivision Map Act of the State of California and the City's ordinances and regulations
relating to the filing, approval and recordation of subdivision maps (collectively referred to
herein as the "Subdivision Laws").
B. A vesting tentative tract map of the Subdivision was previously approved by the
City, subject to the Subdivision Laws and to the City's standard requirements and conditions
of approval contained in the City Council's Resolution of Approval, a copy of which is on file
in the Office of the City Clerk and which is incorporated herein by this reference.
C. The Subdivision Laws establish, as a condition precedent to the approval of a
Final Map, that the Subdivider comply with the City Council's Resolution of Approval and
either (i) complete, in compliance with City standards, all of the Improvements and land
development work required by the Subdivision Laws and the City Council's Resolution of
Approval; or (ii) enter into a secured agreement with the City to complete the Improvements
and land development work within a period of time specified by the City.
D. In consideration of approval of the Final Map for the Subdivision by the City
Council, the Subdivider desires to enter into this Agreement whereby the Subdivider
promises to install and complete, at its sole expense, all public and private improvement
work required by the City for the proposed Subdivision. The Subdivider has secured this
Agreement by improvement security required by the Subdivision Laws and approved by the
City, as set forth herein.
E. Improvement Plans, as designated above in the Subdivision Reference Data, for
the construction, installation and completion of the improvements identified in Exhibit B
hereto, have been prepared by the Subdivider, approved by the Director of Public Works or
his/her designee (the "Director"), and are on file in the office of the Director. Said
Improvement Plans are incorporated herein by this reference.
NOW, THEREFORE, in consideration of the approval and recordation by the City
Council of the Final Map of the Subdivision, the Subdivider and the City agree as follows:
1. SUBDIVIDER'S OBLIGATION TO CONSTRUCT IMPROVEMENTS
A. Subdivider shall, at its sole cost and expense, and in compliance with
the provisions of the Subdivision Laws, the Improvement Plans, all Conditions of the
Resolution of Approval, and all applicable City standards and fees, and in a good and
workmanlike fashion, furnish, construct, install and guarantee and warranty (as set forth in
Section 5 of this Agreement) the Improvements generally described in Exhibit B and more
-1- 43
specifically described in the tentative map and in the City Council's Resolution of Approval
relating thereto (collectively, the "Improvements").
B. To the extent necessary to construct the Improvements, as determined
by the Director, the Subdivider shall acquire and dedicate, or pay the cost of acquisition by
the City of, all rights-of-way, easements and other interests in real property for the
construction or installation of the Improvements, free and clear of all liens and
encumbrances. The Subdivider's obligations with regard to the acquisition by the City of
off-site rights-of-way, easements and other interests in real property, if any, shall be subject
to a separate agreement between the Subdivider and the City.
C. Subject to any time extensions granted in accordance with Section 6
of this Agreement, the Subdivider shall complete all Improvements within the Completion
Period specified in the Subdivision Reference Data; provided, however, that if the Director
reasonably determines in good faith that accelerated construction of the Improvements is
essential in order to protect the public health, welfare and safety, the Director shall give
Subdivider not less than fifteen (15) business days' prior written notice to commence or
accelerate installation and construction of such Improvements, or any portion thereof. The
notice shall describe the work to be done by the Subdivider, the time within which the work
will commence, the period within which the work will be completed, and the reasons that
such early commencement is essential in order to protect the public health, welfare and
safety. All or any portions of said Improvements may be required to be commenced and/or
completed at a specified time, providing the foregoing criteria are met. If the Subdivider
objects to acceleration of the schedule as specified by the Director, the Subdivider may
appeal the decision of the Director to the City Council. Any such appeal shall be filed with
the City Clerk within ten (10) days after the effective date of the written notice from the
Director.
D. If the Improvements to be constructed by Subdivider include
monumentation, such monumentation shall be installed not later than thirty (30) days after
the City's acceptance of all other Improvements pursuant to Section 4 of this Agreement.
As used herein, "monumentation" shall mean the setting of survey monuments and tie
points in accordance with the Subdivision Laws, and the delivery to the Director of tie notes
for said points.
E. Subdivider shall, at its sole expense, replace or repair all public
improvements, public property, public utility facilities, and surveying or subdivision
monuments which are destroyed or damaged as a result of any work under this Agreement
or any work related to the Subdivision. Any such replacement or repair shall be subject to
the approval of the Director.
F. In addition to, and separate from, the indemnity obligations contained
in Section 9 of this Agreement, and without limiting the City's remedies under general
construction defect law, Subdivider shall be responsible for the care, repair and
maintenance of the Improvements, and shall bear all risks of loss or damage to the
Improvements, until the later of the following time periods: (i) the category of Improvements
as set forth on Exhibit B is accepted by the City; or (ii) the expiration of the required one-
year guarantee and warranty period as specified herein; or (iii) the expiration of any
applicable period of time specified in any other agreement or obligation imposed on the
_2- 44
Subdivider regarding the Subdivider's obligation to maintain the Improvements. Neither the
City, nor its officers, officials, employees, agents or volunteers, shall have any liability for
any accident, loss or damage to the Improvements prior to their completion and acceptance
by the City.
G. In addition to, and separate from: (1) the indemnity obligations
contained in Section 9 of this Agreement, (2) the care, repair and maintenance provisions
under Subsection F of this Section 1 of this Agreement; and (3) the warranty and guarantee
provisions of Section 5 of this Agreement, the Subdivider shall repair and correct, or be
liable to the City for any cost to repair and correct, any defect in the construction of the
Improvements that is identified by City within ten (10) years after City's acceptance of the
Improvement, provided the City provides notice to Subdivider of the existence of the defect
within that time period, and the defect is caused directly or indirectly by the design,
construction, functionality, installation, assembly or workmanship of the Subdivider. Nothing
contained in this Subsection is intended to limit or otherwise waive any right or cause of
action under applicable construction defect law that City may assert against the Subdivider.
H. The Subdivider shall, at its sole expense, obtain all necessary permits
and licenses for the construction and installation of the Improvements, give all necessary
notices, and pay all taxes required by law. Additionally, the Subdivider shall pay all fees
and costs required by the City's ordinance or resolution, as set forth in the applicable fee
ordinance or resolution as adopted by the City Council from time to time, and required for
the development of the Subdivision, including but not limited to, building permit fees, final
map filing fee, final map plan check fees, final map monumentation fees, grading permit
fees, plan check and review fees, encroachment permit fees, and inspection fees.
I. Not less than fifteen (15) days prior to commencement of work on the
Improvements, the Subdivider shall give written notice to the Director of the date fixed for
such commencement of work so that the Director shall have adequate time to schedule all
necessary inspections.
J. Subdivider shall provide the City with final Record Drawings of all
plans developed for the Subdivision, showing all changes and as built conditions as
specified in the Resolution of Approval prior to the acceptance of Improvements and release
of bonds or other security.
2. SOILS TESTING AND REPORT
A. In the event the Director determines that soil testing is required for the
Improvements, the Subdivider shall employ and pay for a Soils Engineer acceptable to the
Director of the City and the Soils Engineer shall perform materials testing, construction
control testing, interpretation of test results, and design for the Improvements in accordance
with the requirements set forth in Improvement Plans, and to the extent applicable, the
APWA Standard Plans for Public Works Construction (Southern California Chapter)
(popularly known as, and hereinafter, the "Greenbook"), as approved by City.
B. The Soils Engineer shall provide the City the reports containing the
results of the testing, the interpretation of the results and the Improvement design done in
connection with the Improvement Plans and this Agreement. With the last report filed, the
_3_ 45
Soils Engineer shall include a certificate that the testing, interpretation, and design have
been done properly in accordance with the applicable provisions of the Greenbook, as
approved by the City, and good engineering practices. All reports and the certificates shall
be mailed or delivered to the City.
C. The street portion of the Improvements shall be constructed in
accordance with the pavement design, and any modification thereto, that is approved by the
Director.
3. SPECIFICATIONS FOR IMPROVEMENTS
Subdivider shall construct, at Subdivider's own expense, all of the Improvements in
compliance with the drawings, plans and specifications set forth below, which drawings,
plans and specifications are incorporated herein by this reference and made a part of this
Agreement as though set forth at length herein: Improvement Plans, as designated above
in the Subdivision Reference Data, on file in the office of the Director.
Consistent with the offers of dedication shown on the Final Map, Subdivider irrevocably
offers the public Improvements within City right of way and property, to City for public use.
4. INSPECTION OF WORK AND FINAL ACCEPTANCE
A. Subdivider shall at all times maintain proper facilities and safe access
for inspection of the Improvements by the Director and other City personnel and inspection
consultants.
B. Upon completion of the work on all of the Improvements specified in
Exhibit B, the Subdivider may request, in the form of a written letter, a final inspection by the
Director. Within forty-five (45) days of receipt of the written letter request, the Director shall
inspect the Improvements and provide written notice to Subdivider of the list of items which
have been found to be incomplete and the list of items which have been found to be
complete. If the Director determines that all of the Improvements have been completed in
accordance with this Agreement and in compliance with the Improvement Plans and all
applicable City standards, then the Director shall certify that determination in a report to the
City Council. If the Improvements that are completed are to be dedicated to or owned by
the City, the Director's certification shall be submitted to the City Council for final
acceptance by the City, unless such power to accept has been delegated by the City
Council to the Director or some other official of the City, in which case the final acceptance
shall be subject to the approval of that specified official. If the Improvements that are
completed are to be dedicated to or owned by a public entity other than the City, the
Subdivider's written request shall be submitted to the applicable public entity or other
owner, for final acceptance. Subdivider shall bear all costs of inspection and certification for
completeness in accordance with the City's formally adopted fees and rates.
C. Acceptance of all of public Improvements by the City Council (or other
specified official) shall be made upon recommendation and certification of the Director
following inspection of said public Improvements pursuant to Subsection B above. The City
Council (or other specified official) shall act upon the Director's recommendation that such
public Improvements have been completed within thirty (30) days following certification by
-4- 46
the Director. Acceptance by the City Council (or other specified official) of the
Improvements, or by the governing body of the entity that is to accept dedication or
ownership of all or part of the Improvements, shall not constitute a waiver by the City or
such other public entity of any defects in the Improvements.
5. GUARANTEE AND WARRANTY OF THE IMPROVEMENTS
A. Within the period commencing on the date all of the Improvements are
accepted by the City, if any Improvements or part of any Improvements furnished, installed
or constructed by the Subdivider, any of the materials comprising the Improvements, or any
of the work performed under this Agreement, fails to comply with any requirements of this
Agreement, or the Subdivision Laws, or the Improvement Plans, the Subdivider shall,
without delay and without cost to the City, repair, replace or reconstruct any defective or
otherwise unsatisfactory part or parts of the Improvements. This guarantee and warranty
on behalf of the Subdivider shall be separate from and in addition to the Improvement
Security defined and described in Section 7A(3) of this Agreement.
B. Should the Subdivider fail or refuse to act promptly or in accordance
with Subsection A above, or should the exigencies of the situation require repair,
replacement, or reconstruction to be undertaken before the Subdivider can be notified and
can perform the necessary work, then the City may, in its discretion, make the necessary
repairs or replacements or perform the necessary reconstruction. The City shall provide a
bill to the Subdivider of the total costs of such repair, replacement, or reconstruction, and
the Subdivider shall immediately reimburse the City for those total costs. If the Subdivider
does not immediately pay the total costs incurred, the City may opt to tender on the
Subdivider's Improvement Securities as defined in Subsection 7A, and/or take any other
lawful actions to recover any nonpayment or deficiency.
6. TIME EXTENSIONS
A. Upon a showing by the Subdivider of good cause, the duration of the
Completion Period for any or all of the Improvements may be extended by the Director. As
used herein, "good cause" may include, without limitation: delay resulting from acts of God
or force majeure, strikes, boycotts or similar job actions by employees or labor
organizations which prevent the conduct of the work; acts or failure to act by the California
Coastal Commission, including any order thereof; findings made by a governmental entity
that the site of a particular Improvement is of archeological significance; actions or failure to
act by the native American monitors(s); and the order of any court or the City.
B. A time extension may be granted without notice to any surety or
sureties of the Subdivider and shall not affect the validity of this Agreement nor release the
surety or sureties on any bond given as an Improvement Security pursuant to this
Agreement.
C. As a condition of any time extension provided for herein, the Director
may require the Subdivider to furnish new or modified Improvement Security guaranteeing
performance of this Agreement, as extended, in an increased amount as necessary to
compensate for any projected increase in the Estimated Total Costs, as determined by the
Director.
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7. IMPROVEMENT SECURITY
A. Prior to the City's execution of this Agreement, the Subdivider shall
provide as security to the City the following (collectively, "Improvement Securities" and
individually, an "Improvement Security"):
1. For Performance: Performance Security in an amount equal to
one hundred percent (100%) of the Estimated Total Costs, as set forth in the Subdivision
Reference Data. With this Performance Security, the Subdivider assures faithful
performance under this Agreement, as demonstrated by the City's acceptance, in
accordance with the Resolution of Approval and Improvement Plans.
2. For Payment: Payment Security in an amount equal to one
hundred percent (100%) of the Estimated Total Costs, as set forth in the Subdivision
Reference Data. With this Payment Security, the Subdivider guarantees payment to all
contractors, subcontractors, laborers, material suppliers, and other persons employed in the
performance of the agreement and referred to in Part 6 (commencing with Section 8000) of
Division 4 of the California Civil Code.
3. For Warranty: Warranty Security in an amount equal to one
hundred percent (100%) of the Estimated Total Costs, as set forth in the Subdivision
Reference Data, must be provided before final completion and the acceptance of any
category of Improvements by the City. With this Warranty Security, the Subdivider
guarantees the Improvements for one (1) year after the completion and acceptance of the
last of such Improvements, against any defective workmanship or materials or any
unsatisfactory performance, pursuant to Section 5 hereof.
B. Each Improvement Security shall be a bond issued by a California
admitted surety insurer or insurers having a Best rating of A or AA in substantially the form
set forth in Exhibit C, attached to this Agreement and incorporated by this reference, and
shall be subject to the approval and acceptance by the City Attorney and the City Council.
If, in the opinion of the City, any surety or sureties thereon (i) become insolvent or
liquidated, or any bond cannot be tendered upon for the full penal sum for any reason; (ii)
the surety's bond rating is downgraded; (iii) the surety declares bankruptcy; or (iv) the
surety is no longer deemed to be an admitted surety in California by the California
Department of Insurance, the Subdivider shall renew or replace any such surety bond with a
valid surety bond from a solvent surety or sureties in the amount of the full penal sum within
thirty (30) days after receiving from City written demand therefor.
C. Each Improvement Security shall be kept on file with the City Clerk. If
a surety bond is replaced by another approved bond, the Subdivider shall submit the
replacement bond to the City Clerk, and upon acceptance by the City Attorney, the
replacement Improvement Security shall be deemed to have been made a part of and
incorporated into this Agreement. Upon approval by the City Attorney of a replacement
bond, the former Improvement Security shall be released.
D. The Subdivider shall automatically increase the amount of each
Improvement Security by an amount equal to ten percent (10 %) of the deposited security
every year, subject to the provision that the Director may at any time determine that a
_6_ 48
greater increase in the amount of the Improvement Security is necessary due to a greater
increase in the cost of construction of the Improvements or any of them. In such event, the
Subdivider shall provide the additional Improvement Security within thirty (30) days after
receiving demand and justification therefor.
E. Modifications of the Improvement Plans and the Improvements, not
exceeding ten percent (10%) of the original Estimated Total Costs, shall not relieve or
release any Improvement Security furnished by Subdivider pursuant to this Agreement. If
any such modifications exceed ten percent (10%) of the Estimated Total Costs, Subdivider
shall furnish additional Improvement Securities for performance, payment, and guarantee
as required by Subsection A above, for one hundred percent (100%) of the revised
Estimated Total Cost of the Improvements. Alternatively, the Subdivider may provide
official notice from the surety company that it acknowledges receipt of the modified
Improvement Plans and that the existing bonds have been amended to reflect the new
penal sum, which shall be in the amount of the revised Estimated Total Costs, and that the
existing bonds shall therefore apply to warrant the Project as revised.
F. All Improvements shall be completed within the Completion Period
listed in the Subdivision Reference Data. Subject to any time extensions granted in
accordance with Section 6 herein, if the Subdivider has not completed the Improvements
within this specified time, the Subdivider shall be in default.
G. Alternatively, in the event of a default by the Subdivider pursuant to
Section 12, and after written notice to Subdivider and reasonable opportunity to cure, the
City, at its sole option, shall have the right, without limiting any other rights and remedies
available to the City at law or in equity, to draw upon or utilize any or all Improvement
Securities furnished herewith to construct and install the Improvements itself.
8. REDUCTION OR RELEASE OF IMPROVEMENT SECURITY
A. Performance Security shall be released in full upon the occurrence of
both of the following:
1. All "Public Improvements" (Improvements that are to be owned
or dedicated to the City or other public entity as distinguished from those owned by
individual property owners or a private community association) shall be first completed,
certified completed by the Director and then accepted as complete by the City Council.
2. All private Improvements (Improvements that are to be owned
by individual property owners or a private community association and not dedicated or
owned by the City or other public entity) shall be first completed and then certified as
complete by the Director.
B. Partial releases or reductions in the Subdivider's Performance Security
may be authorized prior to the City's acceptance of all Improvements required hereunder,
as follows:
1. At the time that the Subdivider believes that the obligation to
perform the work for which security was required is complete, the Subdivider may notify the
49
City in writing of the completed work, including a list of work completed. Upon receipt of the
written notice, the Director shall review and comment or approve the completion of the
required work within 45 days. If the Director does not agree that all work has been
completed in accordance with the plans and specifications for the improvements, the
Director shall supply a list of all remaining work to be completed within this 45 -day period.
2. Within 45 days of receipt of the list of remaining work from the
Director, the Subdivider may then provide cost estimates for all remaining work for review
and approval by the Director. Upon receipt of the cost estimates, the Director shall then
have 45 days to review, comment, and approve, modify, or disapprove those cost
estimates. The City shall not be required to engage in this process of partial release more
than once between the start of work and completion and acceptance of all work; however,
nothing in this section prohibits the City from allowing for a partial release as the Director
otherwise deems appropriate.
3. If the Director approves the cost estimate, the Director shall
release all Performance Security except for security in an amount up to two hundred
percent (200%) of the cost estimate of the remaining work. The process allowing for a
partial release of Performance Security shall occur when the cost estimate of the remaining
work does not exceed 20 percent of the total original Performance Security unless the
Director allows for a release at an earlier time. Substitute bonds or other security may be
used as a replacement for the Performance Security, subject to the approval of the Director.
If substitute bonds or other security is used as a replacement for the Performance Security
released, the release shall not be effective unless and until the Director receives and
approves that form of replacement security. A reduction in the Performance Security,
authorized under this section, is not, and shall not be deemed to be, an acceptance by the
City of the completed improvements, and the risk of loss or damage to the improvements
and the obligation to maintain the improvements shall remain the sole responsibility of the
Subdivider until all required Public Improvements have been accepted by the City and all
other required improvements have been fully completed in accordance with the plans and
specifications for the Improvements.
4. The Subdivider shall complete the works of improvement until
all items are accepted by the City.
5. Upon the completion of the work on all of the Improvements
specified in Exhibit B, the Subdivider, or his or her assigns, shall request in writing a final
inspection in accordance with Subsection 413, and within forty-five (45) days of the Director's
certification that the project is complete, the release of any remaining performance security
shall be placed upon the agenda of the City Council for approval of the release of any
remaining performance security.
C. Payment Security shall, after passage of the time within which claims
of lien are required to be recorded pursuant to Part 6 (commencing with Section 8000) of
Division 4 of the California Civil Code and after acceptance of the work, be reduced to an
amount equal to the total claimed by all claimants for whom claims of lien have been
recorded and notice thereof given in writing to the City Council, and if no claims have been
recorded, the security shall be released in full.
-8- 50
D. The partial release provisions of this Section 8 shall not apply to any
required guarantee and warranty period required by Section 66499.9 of the California
Government Code for the guarantee or warranty nor to the amount of the Warranty Security
deemed necessary by the City for the guarantee and warranty period nor to costs and
reasonable expenses and fees, including reasonable attorneys' fees. Security furnished to
guarantee and warrant the Improvements against any defective work or labor done or
defective materials furnished, shall be released within sixty (60) days after the completion of
the one-year period following completion and acceptance of all Improvements.
E. If Subdivider's obligations relating to any Improvements are subject to
the approval of another governmental agency, the City shall not release the improvement
Performance Security therefor until the obligations are performed to the satisfaction of such
other governmental agency. Such agency shall have two (2) months after the Subdivider's
performance of the obligation to register its satisfaction or dissatisfaction. If at the end of
that period it has not registered its satisfaction or dissatisfaction, it shall be conclusively
deemed that the Subdivider's performance of the obligation was done to its satisfaction, and
such Improvement Security shall be promptly released.
F. In the event the time periods for action by the City or other
governmental agency specified in this Section conflict with a shorter or longer time period
for such actions as provided in California Government Code Section 66499.7 or 66499.8,
the time periods in Government Code Section 66499.7 and 66499.8 shall control.
9. INDEMNIFICATION OF CITY BY SUBDIVIDER
A. Neither the City, nor its officers, officials, employees, agents and
volunteers (collectively, "City Personnel"), shall be liable or responsible for any accident,
injury, loss or damage to either property or person attributable to or arising out of the
construction, functionality, installation, assembly or improper maintenance, including,
without limitation, the use of defective or inferior methods, materials, workmanship, or
design (collectively, "Subdivider's Faults"), of the Improvements by Subdivider, its officers,
employees, contractors, subcontractors and agents. Subdivider shall indemnify, hold
harmless and defend the City and City Personnel from and against any and all losses,
claims, costs, expenses, liabilities, damages, actions, causes of action and judgments,
including attorneys' fees, arising directly or indirectly out of or attributable to Subdivider's
Faults, including Subdivider's acts or failure to act.
B. Subdivider's obligations under this Section 9 are not conditioned or
dependent upon whether the City, or City Personnel, prepared, supplied or reviewed any
Improvement Plans in connection with the Subdivision or the Improvements, or has
insurance or other indemnification covering any of these matters.
C. Subdivider's obligation to indemnify, hold harmless and defend the
City and City Personnel shall extend to injuries to persons and damages to or alleged taking
of property resulting from the Subdivider's Faults, including without limitation, design or
construction of the Subdivision, and the Improvements required herein, and shall likewise
extend to claims asserted by adjacent property owners based upon the diversion of waters
caused by the Subdivider's design or construction of Improvements. Except for a City
Directive as defined below, the City's acceptance of the Improvements shall not constitute
-9- 51
an assumption by the City of any responsibility or liability for any damage or alleged taking
of property referenced herein. The City shall not be responsible or liable for the design or
construction of the Subdivision or the Improvements constructed or installed pursuant to the
approved Improvement Plans or the Final Map, regardless of any act or omission by the
City in approving the Improvement Plans or the Final Map, unless the particular
Improvement design was required by the City over the written objection of the Subdivider,
which objection stated that the Improvement design was potentially dangerous or defective
and set forth an alternative design (a "City Directive"). After the City's acceptance of the
Improvements, the Subdivider shall remain obligated to correct or eliminate all dangerous
conditions created by defects in design or construction or Subdivider's Faults (other than
those required by a City Directive), The Subdivider's indemnity obligations hereunder shall
remain in effect for ten (10) years following acceptance of the respective Improvement(s) by
the City Council. Subdivider acknowledges and agrees that Subdivider shall be responsible
and liable for the Subdivider's Faults with respect to the Improvements and other work done
pursuant to this Agreement, unless the same is due to a City Directive. The City shall not
be liable for any acts or omissions in approving, reviewing, checking, correcting or
modifying any Improvement Plans, or in inspecting, reviewing or approving any work or
construction of Improvements, unless the same is due to a City Directive. The Subdivider's
Improvement Security shall not be required to secure the Subdivider's obligations under this
Subsection C beyond the one-year guarantee and warranty period set forth in Subsection
7(A)(3) of this Agreement.
D. Subdivider shall pay and satisfy any judgment, award or decree that
may be rendered against City and City Personnel to the extent of the indemnity provided
above, in any such suit, action, or other legal proceeding, provided the City gives the
Subdivider prompt written notice of such claim.
E. Subdivider's obligation to indemnify shall not be restricted to Insurance
proceeds, if any, received by the City and City Personnel.
F. Subdivider, on behalf of itself and all parties claiming under or through
it, hereby waives all rights of subrogation and contribution against the City and City
Personnel to the extent of the indemnity above provided.
10. INSURANCE
A. The following coverages shall be obtained and maintained by
Subdivider on behalf of City and in accordance with the requirements set forth herein. If
Subdivider performs construction activities through a general contractor, some or all of
these insurance requirements for the period of construction may be satisfied by the general
contractor's insurance coverages. In such case, Subdivider shall maintain during this same
construction period, and after the construction period, the coverages shown below as
"Insurance After Construction." In addition, Subdivider may elect to obtain, for all or any
portion of the Project, an "Owner -Controlled Wrap Up" insurance policy in satisfaction of the
insurance requirements for general contractors and subcontractors provided it satisfies all of
the insurance requirements below for general contractors and subcontractors. Throughout
these specifications, the word "Subdivider" refers to the Party responsible to provide the
coverages as specified and, depending on context, may refer either to Subdivider or to a
-� °- 52
separate General Contractor. Subdivider may satisfy insurance requirements contained
herein by Subdivider's master insurance policies covering other operations and locations,
B. Insurance During Construction
Subdivider shall obtain and maintain the following insurance during construction of the
Improvements. Insurance requirements may be met through insurance provided by
Subdivider's General Contractor:
Commercial General Liability Insurance
Commercial General Liability Insurance (primary) shall be provided on Insurance Services
Offices ("ISO") ISO -CGL Form No. CG 00 01 or equivalent coverage, including provisions
for defense of additional insureds. Policy limits shall be no less than one million dollars
($1,000,000) per occurrence for all coverages and two million dollars ($2,000,000) general
aggregate. City and City Personnel shall be added as additional insureds using ISO Form
CG 20 10 11 85, or other revision of the CG 20 10 form if available from the insurer and
reasonably acceptable to the City, not limiting coverage for the additional insured to
"ongoing operations" or in any way excluding coverage for completed operations. Coverage
shall apply on a primary non-contributing basis in relation to any other insurance or self-
insurance, primary or excess, available to City or any City Personnel. Coverage shall not be
limited to the vicarious liability or supervisory role of any additional insured. Coverage shall
contain no contractors' limitation or other endorsement limiting the scope of coverage for
liability arising from pollution, explosion, collapse, or underground property damage.
2. Umbrella Liability Insurance
Umbrella Liability Insurance (or, at Subdivider's election, Excess Liability Insurance) (over
primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a
minimum. Coverage shall be at least as broad as any underlying coverage. There shall be
no cross liability exclusion and no contractor's limitation endorsement. Policy limits shall be
not less than five million dollars ($5,000,000) per occurrence and in the aggregate, including
any limits required in the underlying policies. The policy shall have a starting date no later
than and an ending date no earlier than those of the underlying coverages. The Named
Insured (Subdivider or General Contractor as appropriate) may determine the layering of
primary and excess liability insurance provided that if such layering differs from that
described here, the actual coverage program meets the minimum total required limits and
complies with all other requirements listed here.
3. Business Auto Coverage
Business Auto Coverage shall be written on ISO Business Auto Coverage Form CA 00 01
or the equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not
own any vehicles, this requirement may be satisfied by a non -owned vehicle endorsement
to the general and umbrella liability policies. Limits shall be no less than one million dollars
per accident. This policy shall be scheduled as underlying insurance to the umbrella policy
required above for a total limit of no less than five million dollars ($5,000,000) each
accident.
-1'- 53
4. Workers' Compensation/Employer's Liability
Workers' Compensation/Employer's Liability shall provide workers' compensation statutory
benefits as required by law. Employer's liability limits shall be no less than one million
dollars ($1,000,000) per accident or disease. Employer's liability coverage shall be
scheduled under the umbrella or excess liability policy described above. This policy shall
be endorsed to waive any right of subrogation with respect to City, its officers, employees or
agents.
5. Builder's Risk Insurance
Builder's Risk Insurance covering all real and personal property for "all risks" of loss or
"comprehensive perils" coverage including but not limited to the perils of earth movement,
including earthquake (if required by Subdivider's lender or if available at commercially
reasonable rates) and flood for all Improvements.
C. Insurance After Construction
Upon completion of construction of the Improvements, and for the required guarantee and
warranty period (unless such longer period of time is specified herein), Subdivider at
Subdivider's expense shall obtain and maintain or cause to be maintained the following
insurance:
Commercial Property Insurance
Commercial Property Insurance covering the Improvements. Coverage shall be at least as
broad as the ISO broad causes of loss form CP 10 20, and reasonably approved of in
writing by the City. Coverage shall be sufficient to insure 100% of the replacement value
and there shall be no coinsurance provisions. The policy shall include an inflation guard
endorsement, contents coverage, coverage for personal property of others, ordinance or
law and increased cost of construction coverage. Subdivider also agrees to provide
builder's all-risk insurance using an inland marine form during the period of any major
alteration or improvement, using the broadest form available. This requirement may be
satisfied through a combination Builders' Risk and Property Insurance master policy at
Subdivider's option.
The insurance coverage for the peril of earthquake required for this project is subject to
availability on the open market at commercially reasonable premium cost, as determined by
mutual agreement between Subdivider and City. If such earthquake insurance coverage
should, after diligent effort be Subdivider, be unobtainable at such mutually determined
commercially reasonable premium cost, then Subdivider shall obtain the maximum
insurance reasonably obtainable at commercially reasonable premium cost (if any) and give
notice to City of the extent of Subdivider's inability to obtain, in full, the required insurance,
and in such event, Subdivider's obligation to procure and maintain such insurance as
unobtainable shall be excused. Subdivider and City agree that a premium cost of
earthquake insurance coverage of up to 100% of the premium cost paid by Subdivider for
such coverage on the Effective Date (to be adjusted over time based on the Consumer
Price Index,) shall constitute a commercially reasonable premium cost. Non-availability at
commercially reasonable premium cost must be documented by a letter from Subdivider's
-� 2- 54
insurance broker or agent indicating a good faith effort to place the required insurance and
showing, at a minimum, the names of the insurance carriers and the declinations or
quotations received from each.
2. Commercial General Liability Insurance
Commercial General Liability Insurance (primary) shall be provided on ISO -CGL form No.
CG 00 01 or equivalent coverage, including provisions for defense of additional insureds.
Policy limits shall be no less than one million dollars ($1,000,000) per occurrence for all
coverages and two million dollars general aggregate. City and City Personnel shall be
added as additional insureds using ISO Form CG 20 10 11 85, or other revision of the CG
20 10 form if available from the insurer and reasonably acceptable to the City, not limiting
coverage for the additional insured to "ongoing operations" or in any way excluding
coverage for completed operations. Coverage shall apply on a primary non-contributing
basis in relation to any other insurance or self-insurance, primary or excess, available to
City or any City Personnel.
3. Umbrella Liability Insurance
Umbrella Liability Insurance (or, at Subdivider's election, Excess Liability Insurance) (over
primary) shall apply to bodily injury/property damage, personal injury/advertising injury, at a
minimum. Coverage shall be at least as broad as any underlying coverage. Coverage shall
be provided on a "pay on behalf' basis. There shall be no cross liability exclusion. Policy
limits shall be not less than five million dollars ($5,000,000) per occurrence and in the
aggregate, including any limits required in the underlying policies. The policy shall have a
starting date no later than and an ending date no earlier than those of the underlying
coverages. Subdivider may determine the layering of primary and excess liability insurance
provided that if such layering differs from that described here, the actual coverage program
meets the minimum total required limits.
4. Workers Compensation Insurance
Workers' Compensation/Employer's Liability shall provide workers' compensation statutory
benefits as required by law. Employer's liability limits shall be no less than one million
dollars ($1,000,000) per accident or disease. Employer's liability coverage shall be
scheduled under any umbrella or excess liability policy described above. Unless otherwise
agreed, this policy shall be endorsed to waive any right of subrogation as respects City, its
employees or agents.
5. Business Auto Coverage
Business Auto Coverage for vehicles owned, operated or maintained in any way connected
with the project, shall be written on ISO Business Auto Coverage form CA 00 01 or the
equivalent, including symbol (1) (any Auto). If Subdivider (or Contractor) does not own any
vehicles, this requirement may be satisfied by a non -owned vehicle endorsement to the
general and umbrella liability policies. Limits shall be no less than one million dollars
($1,000,000) per accident. This policy shall be scheduled as underlying insurance to the
umbrella or excess liability policy required above for a total limit of no less than five million
dollars ($5,000,000) each accident.
-13- 55
D. Provisions Pertaining to Insurance Provided by Subdivider
1. All insurance coverage and limits provided pursuant to this
Agreement shall apply to the full extent of the policies involved, available or applicable.
Nothing contained in this Agreement or any other agreement relating to City or its
operations limits the application of such insurance coverage.
2. Requirements of specific coverage features or limits contained
in this Section are not intended as a limitation on coverage, limits or other requirements, or
a waiver of any coverage normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only and is not intended by any Party to be
all inclusive, or to the exclusion of other coverage, or a waiver of any type.
3. All general or auto liability insurance coverage provided
pursuant to this Agreement, or any other agreements pertaining to the performance of this
Agreement, shall not prohibit Subdivider, and Subdivider's employees, or agents, from
waiving the right of subrogation prior to a loss. Subdivider waives its right of subrogation
against City.
4. None of the policies required herein shall be in compliance with
these requirements if they include any limiting endorsement that has not been first
submitted to City and approved in writing by the City.
5. Unless otherwise approved by City, Subdivider's insurance and
insurance provided by any contractor or subcontractor relating to the construction of the
Improvements shall be written by insurers authorized to do business in the State of
California and with a minimum "Best's" Insurance Guide rating of at least "A -:VII." Self-
insurance will not comply with these insurance specifications unless expressly approved in
writing by the City.
6. In the event any policy of insurance required under this
Agreement does not comply with these requirements and Subdivider does not cure the non-
compliance within thirty (30) days after written notice from City (or Subdivider does not
provide reasonable evidence of such cure within such period), or if the insurance is
canceled and not replaced, City has the right but not the duty to obtain the insurance it
deems necessary and any premium paid by City will be promptly reimbursed by Subdivider.
7. Subdivider agrees to provide evidence of the insurance
required herein, satisfactory to City, consisting of certificate(s) of insurance evidencing all of
the coverages required and an additional insured endorsement to Subdivider's general
liability policies using ISO Form CG 20 10 11 85 or other revision of the CG 20 10 form if
available from the insurer and reasonably acceptable to the City. Certificate(s) are to reflect
that the insurer will provide 30 days notice of any cancellation of coverage and policies are
to have a "cancellation endorsement" to the same effect. Subdivider agrees to provide
complete copies of all required insurance policies, including without limitation, any
endorsements modifying coverage in any way, upon request from City.
8. Subdivider shall provide proof that policies of insurance
required herein expiring during the term of this Agreement have been renewed or replaced
-14- 56
with other policies providing at least the same coverage. Such evidence shall be in the form
of a certificate of insurance.
9. Any actual or alleged failure on the part of City or any other
additional insured under these requirements to obtain proof of insurance required under this
Agreement in no way waives any right or remedy of City or any additional insured, in this or
any other regard.
10. Subdivider agrees to require all subcontractors or other parties
(but not including a general contractor) hired for this project to construct the Improvements
to purchase and maintain insurance for general liability (minimum limit $1,000,000 per
occurrence), automobile liability ($1,000,000 per accident) and workers' compensation
(statutory benefits). The requirement for general liability may be satisfied by Subdivider
through the procurement of an OCIP policies covering some or all of the subcontractors.
Prior to the issuance of the Certificate of Completion for each Phase, Subdivider shall, upon
request by City, provide the City with copies of all insurance policies, certificates and
endorsements related to such Phase.
11. Subdivider agrees to monitor and review all coverage required
by this Section and assumes all responsibility for ensuring that such coverage is provided
as required here. Subdivider agrees to obtain certificates evidencing such coverage.
Subdivider agrees that upon request, all certificates of insurance obtained in compliance
with this Section will be submitted to City for review upon request by City. Failure of City to
request copies of such documents will not impose any liability on City, or its employees.
12. Subdivider agrees to require that no contract used by any
general contractor or subcontractor in connection with construction of the Improvements, or
contracts Subdivider enters into on behalf of City, will reserve the right to charge back to
City the cost of insurance required by this Agreement.
13. Where appropriate (such as in the case of automobile
insurance coverages), coverage will not be limited to the specific location designated as the
Property.
14. Subdivider agrees to provide notice to City of any claim or loss
against Subdivider that includes City as a defendant promptly after Subdivider receives
written notice or obtains knowledge thereof. City assumes no obligation or liability by such
notice, but has the right (but not the duty) to monitor the handling of any such claim or
claims if they are likely to involve City. City agrees to provide similar notice to Subdivider of
any such claims it is notified of respecting the Property.
15. Subdivider agrees not to attempt to avoid its defense and
indemnity obligations to City, and City Personnel by using as a defense Subdivider's
statutory immunity under workers' compensation and similar statutes.
16. Subdivider agrees to ensure that coverage provided to meet
these requirements is applicable separately to each insured and that there will be no cross
liability exclusions that preclude coverage for suits between Subdivider and City or between
-15- 57
City and any other insured or Named Insured under the policy, or between City and any
Party associated with City or its employees.
17. If Subdivider or any contractor or subcontractor is a Limited
Liability Company, general liability coverage must apply so that the Limited Liability
Company and its Managers, Members, Affiliates, and their employees are insureds.
18. Subdivider shall require General Contractor to maintain
commercial general liability, and if necessary, commercial umbrella liability insurance with a
limit of not less than five million dollars ($5,000,000) for each occurrence, until the warranty
period specified in this Agreement expires.
19. Subdivider agrees to obtain and provide to City evidence of
professional liability coverage for Architects, Engineers or other design professionals
working on the Improvements. The limit of liability required is subject to City approval, but
in no event to be less than $1 million per claim and in the aggregate, and Subdivider shall
use reasonable efforts to require and cause such professionals to maintain such coverage
with respect to each occurrence for at least three years following substantial completion of
the work and, in the event Subdivider is unable to do so, Subdivider shall promptly inform
the City of the scope of such efforts and the reasons that it was unable to do so. If
Subdivider requests that the City approve a lower limit for any particular design professional
Subdivider seeks to employ on the Improvements, City will evaluate each such request
based on City's perception of liability exposure associated with the work that would be
performed by that design professional.
20. To the extent a particular coverage or policy form or
specification is not reasonably available from Subdivider's insurer or would result in an
additional premium that is extraordinary or unreasonably disproportionate to the premium
for the policy as a whole, then Subdivider shall provide substantially similar coverage
reasonably acceptable to City for which the cost is not extraordinary or unreasonably
disproportionate.
A. Ownership of all or any category of the Improvements constructed and
installed by the Subdivider pursuant to this Agreement and shown on the Map to be
dedicated to the public shall vest, as applicable, in the City (or other specified governmental
agency) upon acceptance of said Improvements by the City Council (or other specified
governmental agency). The acceptance of the Improvements shall either be shown by a
certificate on the Final Map or by subsequent resolution accepting the Improvements
adopted by the City Council pursuant to Government Code Section 66477.2 and recorded
with the County Recorder.
B. The Subdivider shall at all times prior to the acceptance of the
Improvements by the City, give good and adequate warning to the public of each and every
dangerous and defective condition caused by the construction of the Improvements and
shall take all steps necessary to protect the public from such dangerous or defective
conditions. The Subdivider agrees and understands that until acceptance of the
Improvements by the City, each Improvement that is offered for dedication shall be under
�16- 58
the charge of the Subdivider, and the Subdivider may close all or a portion of any street or
area whenever necessary to protect the public during the construction of the Improvements.
12. DEFAULT AND BREACH BY THE SUBDIVIDER AND REMEDIES OF THE
CITY
A. Upon the occurrence of any of the following events, the Subdivider
shall be deemed to be in default under this Agreement:
1. Subject to any time extensions granted in accordance with
Section 6 of this Agreement, failure to complete construction and installation of the
Improvements or any of them by the Completion Date;
2. Failure to promptly correct or cure any defect in the
Improvements or any of them (other than a City Directive) during the guarantee and
warranty period required by Subsection 5(A) of this Agreement, or failure to commence
correction or cure of any such defect or failure to diligently prosecute same to completion, in
each instance following written notice that such defect exists;
3. Subject to any time extensions granted in accordance with
Section 6 of this Agreement, failure to perform substantial work on the Improvements or on
any of them, after commencement of work on same, for a period of thirty (30) days after
written notice thereof from the City;
4. Insolvency, appointment of a receiver, or the filing of any
petition in bankruptcy, whether voluntary or involuntary, and such is not cured or discharged
within a period of thirty (30) days;
5. Commencement of a foreclosure action against the Subdivision
or any portion thereof, or any conveyance by the Subdivider in lieu or in avoidance of
foreclosure, within thirty (30) days after written notice thereof from the City; or
6. Failure to perform any other obligations in accordance with the
terms and provisions of this Agreement within the time period specified in the Agreement for
the performance of that obligation, or if no time is specified, within thirty (30) days after
written notice thereof from the City.
B. The City reserves to itself all remedies available to it at law or in equity
for any breach of the Subdivider's obligations under this Agreement. After written notice to
the Subdivider of alleged default and failure by the Subdivider, and failure by Subdivider to
promptly commence the cure of any alleged default and diligently prosecute such cure to
completion, the City shall have the right, without limitation of other rights or remedies, to
tender against, draw upon or utilize any or all Improvement Securities furnished hereunder
to complete the Improvements, or request said surety take over and complete the
Improvements, or otherwise mitigate the City's damages in the event of the Subdivider's
default.
C. The Subdivider acknowledges that the Estimated Total Costs and
Improvement Security amounts set forth herein may not reflect the actual cost of
-1�- 59
construction or installation of the Improvements, and, consequently, the City's damages for
Subdivider's default shall be measured by the actual cost of completing the required
Improvements. If the damages incurred by the City in taking over and completing the
Improvements exceeds the principal amount of the improvement security, then the
Subdivider shall reimburse the City in the amount of such excess damages.
D. Following the written notice of alleged default and failure by the
Subdivider to promptly commence the cure of any alleged default and to diligently prosecute
such cure to completion, the City may, without liability for so doing, take possession of, and
utilize in completing the Improvements, such materials, appliances, plant and other property
belonging to the Subdivider as may be on the site of the work and necessary for the
performance of the work. The Subdivider hereby consents to such entry by the City and its
representatives, including employees, agents, and contractors, upon any real property in
the Subdivision owned by the Subdivider or by any assignee of this Agreement, in the event
the City elects to maintain or complete the work on the Improvements following the
Subdivider's default.
E. The Subdivider acknowledges and agrees that, upon approval of the
Final Map for the Subdivision, the City will confer substantial rights upon the Subdivider,
including the right to sell, lease or finance lots within the Subdivision, and that such
approval constitutes the final act necessary to permit the division of land within the
Subdivision. As a result, the City will be damaged to the extent of the cost of construction
or installation of the Improvements upon Subdivider's failure to perform its obligations under
this Agreement, which failure is not promptly remedied by sureties or by the Subdivider.
F. The City's failure to take an enforcement action with respect to a
default, or to declare a default or breach, shall not be construed as a waiver of that default
or breach or any subsequent default or breach of the Subdivider.
G. If any legal action or other proceeding, including action for declaratory
relief, is brought for the enforcement of this Agreement or because of an alleged dispute,
breach, default or misrepresentation in connection with this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, experts' fees, and other costs, in
addition to any other relief to which the party may be entitled. If City sues to compel
Subdivider's performance of this Agreement, or to recover damages or costs incurred in
completing or maintaining the work on the Improvements, Subdivider agrees to pay all
attorneys' fees and other costs and expenses of litigation incurred by the City in connection
therewith, even if Subdivider subsequently resumes and completes the work.
13. RELATIONSHIP OF THE PARTIES
Neither the Subdivider, nor any of the Subdivider's contractors, subcontractors, employees
or agents, are or shall be deemed to be, agents of the City in connection with the
performance of the Subdivider's obligations under this Agreement. The Subdivider shall
not, at any time or in any manner, represent or allow representation by its contractors,
subcontractors, employees or agents that any of them are contractors, subcontractors,
employees or agents of the City.
-�s- 60
14. ASSIGNMENT
A. Subdivider shall not assign this Agreement, or any portion thereof
without the prior written consent of the City. Any attempted or purported assignment in
violation of this Subsection A shall be null and void and shall have no force or effect.
B. The sale or other disposition of the Subdivision shall not relieve the
Subdivider of its obligations hereunder. If the Subdivider intends to sell the entire
Subdivision to any other person or entity, the Subdivider may request a novation of this
Agreement and a substitution of Improvement Securities. Upon the City's approval of the
novation and substitution of Improvement Securities, the Subdivider may request a release
or reduction of the Improvement Securities furnished pursuant to this Agreement.
15. NOTICES
All notices required or provided for in this Agreement shall be in writing and delivered
in person or be given by certified United States Mail, return receipt requested, or by
nationally recognized overnight courier, addressed as follows:
If to the City: City of Rancho Palos Verdes
30940 Hawthorne Boulevard
Rancho Palos Verdes, CA 90275
Attn: City Manager
With a copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, California 90071-3101
Attn: Carol Lynch, Esq.
If to the Subdivider: To the address set forth above in the Subdivision
Reference Data, or to such other address as may
subsequently be designated in written notice to the City.
Notice shall be effective on the date that it is delivered in person, or, if sent by certified mail,
shall be deemed effective on the date of delivery or attempted delivery shown on the return
receipt, and notices given by overnight courier shall be deemed effective one (1) business
day following delivery to the overnight courier. Any party may change its address for the
service of notice by giving written notice of such change to the other party, as specified
herein.
16. ENTIRE AGREEMENT
This Agreement, along with the conditions of approval and mitigation measures that
were imposed previously by the City, constitutes a single, integrated written contract,
expresses the entire agreement of the parties with respect to its subject matter, supersedes
all negotiations, prior discussions and preliminary agreements. All modifications,
amendments, or waivers of any terms of this Agreement shall be in writing and signed by
the duly authorized representatives of the parties. In the case of the City, the duly
authorized representative, unless otherwise specified herein, shall be the Director.
-' 9- 61
17. SEVERABILITY
The provisions of this Agreement are severable. If any portion of this Agreement is
held invalid by a court of competent jurisdiction, the remainder of the Agreement shall
remain in full force and effect.
18. INCORPORATION OF SUBDIVISION REFERENCE DATA AND RECITALS
The Subdivision Reference Data, the Recitals, and Exhibits A and B, are attached
hereto and incorporated into this Agreement.
19. GOVERNING LAW VENUE
This Agreement shall be governed by the domestic laws of the State of California,
without regard to its laws regarding choice of applicable law. Venue for any action relating
to this Agreement shall be in the Los Angeles County Superior Court.
20. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed to
be an original, but all of which, taken together, shall constitute one and the same
agreement.
21. LIENS
Subdivider represents and warrants that Subdivider owns the Property, and that
there are no encumbrances on the Property that would prohibit or interfere with this
Agreement or the rights granted to City hereunder, and that there are no monetary liens
(except for property taxes and assessments not yet delinquent) affecting the Property
except for (a) that certain deed of trust dated , recorded , in the office
of the County Recorder of the County of Los Angeles, California, as document number
executed by as trustor, in favor of
, as beneficiary; and (b) that certain deed of trust dated
recorded , in the office of the County Recorder of
the County of Los Angeles, California as document number , executed by
as trustor, in favor of , as beneficiary.
Subdivider has obtained from each such beneficiary a consent and subordination in the
form attached hereto as Exhibit D, duly executed by such lien holder and acknowledged,
and has delivered it to the City for recordation. Final Map No.71878 shall not be recorded
until such fully executed lien holder consent and subordination has been delivered to the
City and has been recorded.
22. EFFECTIVE DATE OF THE AGREEMENT
This Agreement shall be and become effective as of the date that it is executed by a
duly authorized officer or employee of the City, it being the intention of the parties that the
Subdivider shall first execute this Agreement and thereafter submit it to the City. The City
shall insert the effective date in the Subdivision Reference Data in all counterparts of this
Agreement and shall transmit a fully executed counterpart to the Subdivider.
-20- 62
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers, thereunto duly authorized, as of the dates set forth
below their respective signatures.
[Note: All signatures must be acknowledged GLENMONT CAL -COAST, LLC
by a notary public and the acknowledgement "SUBDIVIDER"
must be attached.]
ATTEST:
Carla Morreale, City Clerk
APPROVED AS TO FORM:
Carol Lynch, City Attorney
By:
Its:
Date:
"CITY"
CITY OF RANCHO PALOS VERDES
la
Jim Knight, Mayor
(SEAL)
-21-
Cel
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
m
personally appeared
before me, , NotaryPP_ublic
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
OPTIONAL
Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
o
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validityof that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
M
personally appeared
before me, Notary Public
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
❑ General
Number of Pages:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
65
EXHIBIT A
LEGAL DESCRIPTION
Real Property in the City of Rancho Palos Verdes, County of Los Angeles, State of
California, described as follows:
APN: 7589-007-018
M]
(Condition of Approval #11)
[3] Drainage $ 79,150.00 $ 79,150.00 $ 79,150.00 $ TBD
(Condition of Approval #24)
[4] Survey Monumentation $ 10,000.00 $ 10,000.00 $ 10,000.00 $ TBD
(Conditions of Approval #47)
[5] Grading and Demolition $ 460,000.00 $ 460,000.00 $ 460,000.00 $
(Condition of Approval #55)
TOTAL $ 576,950.00 $ 576,950.00 $ 576,950.00 $
"Conditions of Approval" refer to the numbered Conditions of Approval in Exhibit B to the Resolution of Approval.
TOTAL PERFORMANCE SECURITY: $576,950.00
TOTAL PAYMENT SECURITY: $576,950.00
TOTAL WARRANTY SECURITY: $576,950.00
-6
EEC
67
EXHIBIT B
SCHEDULE OF IMPROVEMENTS FOR HIGHRIDGE SUBDIVISION
FINAL TRACT MAP NO. 68796
CATEGORIES
AMOUNT OF
AMOUNT OF
AMOUNT OF
AMOUNT OF
OF
ESTIMATED
PERFORMANCE
PAYMENT
WARRANTY
IMPROVEMENTS
TOTAL COST
SECURITY
SECURITY
SECURITY
[1] Public Works & City
$ 10,000.00
$ $10,000.00
$ $10,000.00
$ TBD
Engineer conditions,
(Conditions of Approval #34)
[2] Sewers
$ 17,800.00
$ 17,800.00
$ 17,800.00
$ TBD
(Condition of Approval #11)
[3] Drainage $ 79,150.00 $ 79,150.00 $ 79,150.00 $ TBD
(Condition of Approval #24)
[4] Survey Monumentation $ 10,000.00 $ 10,000.00 $ 10,000.00 $ TBD
(Conditions of Approval #47)
[5] Grading and Demolition $ 460,000.00 $ 460,000.00 $ 460,000.00 $
(Condition of Approval #55)
TOTAL $ 576,950.00 $ 576,950.00 $ 576,950.00 $
"Conditions of Approval" refer to the numbered Conditions of Approval in Exhibit B to the Resolution of Approval.
TOTAL PERFORMANCE SECURITY: $576,950.00
TOTAL PAYMENT SECURITY: $576,950.00
TOTAL WARRANTY SECURITY: $576,950.00
-6
EEC
67
EXHIBIT C
Form of Improvement Securities
Performance Bond
Payment Bond
Warranty Bond
C-1 68
i! • •
FAITHFUL PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS that:
Whereas, the City Council of the City of Rancho Palos Verdes, State of California, and
(hereinafter designated as "Principal") have entered into
an agreement whereby Principal agrees to install and complete certain designated public
improvements, which said agreement, dated , 20 , and identified as
project , is hereby referred to and made a part hereof; and
Whereas, Principal is required under the terms of said agreement to furnish a bond for the
faithful performance of said agreement.
Now, therefore, we, the Principal and , as surety (hereinafter
designated as "Surety"), are held and firmly bound unto the City of Rancho Palos Verdes in
the penal sum of dollars ($ ) lawful money of the
United States, for the payment of which sum well and truly to be made, we bind ourselves,
our heirs, successors, executors and administrators, jointly and severally, firmly by these
presents.
The condition of this obligation is such that if the above bounded Principal, his, her, or its
heirs, executors, administrators, successors or assigns, shall in all things stand to and abide
by, and well and truly keep and perform the covenants, conditions and provisions in the said
agreement and any alteration thereof made as therein provided, on his, her, its or their part,
to be kept and performed at the time and in the manner therein specified, and in all respects
according to their true intent and meaning, and shall indemnify and save harmless the City
of Rancho Palos Verdes, its officers, agents and employees, as therein stipulated, then this
obligation shall become null and void; otherwise it shall be and remain in full force and
effect.
As a part of the obligation secured hereby and in addition to the face amount specified
therefor, there shall be included costs and reasonable expenses and fees, including
reasonable attorneys' fees, incurred by the City of Rancho Palos Verdes in successfully
enforcing such obligation, all to be taxed as costs and included in any judgment rendered.
Further, Surety hereby waives the provisions of California Civil Code sections 2845 and
2849. The City of Rancho Palos Verdes is the principal beneficiary of this bond and has all
rights of a party hereto.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in anywise affect its obligations on this bond,
and it does hereby waive notice of any such change, extension of time, alteration or addition
to the terms of the agreement or to the work or to the specifications.
-1- 69
IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which
shall for all purposes be deemed an original hereof, have been duly executed by Principal
and Surety, on the date set forth below, the name of Principal and Surety being hereto
affixed and these presents duly signed by Principal and by Surety's undersigned
representative(s) pursuant to authority of its governing body.
Dated:
"Principal"
(Seal)
Note: This bond must be executed in duplicate and
dated, all signatures must be notarized, and
evidence of the authority of any person signing
as attorney-in-fact must be attached.
"Surety"
By:
Its:
By:
Its:
(Seal)
APPROVED AS TO FORM:
RICHARDS, WATSON & GERSHON
A Professional Corporation
2
City Attorney
_2_ 70
FI-Telrorkon
PAYMENT BOND
KNOW ALL PERSONS BY THESE PRESENTS that:
Whereas, the City Council of the City of Rancho Palos Verdes, State of California, and
(hereinafter designated as "Principal") have entered into an
agreement whereby the Principal agrees to install and complete certain designated public
improvements, which agreement, dated , 20 , and identified as
project , is hereby referred to and made a part hereof; and
Whereas, under the terms of the agreement, the Principal is required before entering upon
the performance of the work, to file a good and sufficient payment bond with the City of
Rancho Palos Verdes to secure the claims to which reference is made in Part 6
(commencing with Section 8000) of Division 4 of the Civil Code.
Now, therefore, the Principal and , as corporate surety
(hereinafter designated as "Surety"), are held firmly bound unto the City of Rancho Palos
Verdes and all contractors, subcontractors, laborers, material suppliers, and other persons
employed in the performance of the agreement and referred to in Part 6 (commencing with
Section 8000) of Division 4 of the Civil Code in the sum of dollars
($ ), for materials furnished or labor thereon of any kind, or for amounts due
under the Unemployment Insurance Act with respect to this work or labor, that the Surety
will pay the same in an amount not exceeding the amount hereinabove set forth, and also in
case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs
and reasonable expenses and fees, including reasonable attorneys' fees, incurred by the
City of Rancho Palos Verdes in successfully enforcing this obligation, to be awarded and
fixed by the court, and to be taxed as costs and to be included in the judgment therein
rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any
and all persons, companies, and corporations entitled to file claims under Part 6
(commencing with Section 8000) of Division 4 of the Civil Code, so as to give a right of
action to them or their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null
and void, otherwise it shall be and remain in full force and effect.
Further, Surety hereby waives the provisions of California Civil Code sections 2845 and
2849. The City of Rancho Palos Verdes is the principal beneficiary of this bond and has all
rights of a party hereto.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or
addition to the terms of the agreement or the specifications accompanying the same shall in
any manner affect its obligations on this bond, and it does hereby waive notice of any such
change, extension, alteration, or addition.
-1- 71
IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which
shall for all purposes be deemed an original hereof, have been duly executed by Principal
and Surety, on the date set forth below, the name of Principal and Surety being hereto
affixed and these presents duly signed by Principal and by Surety's undersigned
representative(s) pursuant to authority of its governing body.
Dated:
"Principal"
(Seal)
Note: This bond must be executed in duplicate and
dated, all signatures must be notarized, and
evidence of the authority of any person signing
as attorney-in-fact must be attached.
"Surety"
By:
Its:
By:
Its:
(Seal)
APPROVED AS TO FORM:
RICHARDS, WATSON & GERSHON
A Professional Corporation
City Attorney
_2_ 72
WARRANTY BOND
KNOW ALL PERSONS BY THESE PRESENTS that:
Whereas, the City Council of the City of Rancho Palos Verdes, State of California, and
(hereinafter designated as "Principal") have entered into
an agreement, dated , 20 , and identified as project is
hereby referred to and made a part hereof; and
Whereas, Principal is required under the terms of said agreement to furnish a bond for the
good and sufficient warranty of all of the improvements installed pursuant to said
agreement.
Now, therefore, we, the Principal and , as surety (hereinafter
designated as "Surety"), are held and firmly bound unto the City of Rancho Palos Verdes in
the penal sum of dollars ($ ) lawful money of the
United States, for the payment of which sum well and truly to be made, we bind ourselves,
our heirs, successors, executors and administrators, jointly and severally, firmly by these
presents.
The condition of this obligation is such that, if the hereby bounded Principal, his, her or its
heirs, executors, administrators, successors or assigns, shall remedy, without cost to the
City of Rancho Palos Verdes, any defects which may develop during a period of one (1)
year from the date of the completion and acceptance of the last of the improvements
installed under the agreement, caused by defective or inferior design, materials,
workmanship or maintenance as determined by the City, and shall indemnify, defend and
hold harmless the City of Rancho Palos Verdes, its officers, officials, employees, agents
and volunteers for any and all claims, demands, causes of action, judgments, damages,
injuries, liabilities, losses, costs or expenses, including attorneys' fees and costs of defense,
which arise out of, pertain to, or relate to such defects or inferior design, materials,
workmanship or maintenance or to the Principal's actions or inactions in remedying such
defects or inferior design, materials, workmanship or maintenance, then this obligation shall
become null and void; otherwise it shall be and remain in full force and effect.
If suit is brought upon this bond, Surety further agrees to pay, in addition to the Penal Sum,
all costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred
by the City of Rancho Palos Verdes in successfully enforcing such obligation, all to be taxed
as costs and included in any judgment rendered.
Further, Surety hereby waives the provisions of California Civil Code sections 2845 and
2849. The City of Rancho Palos Verdes is the principal beneficiary of this bond and has all
rights of a party hereto.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in anywise affect its obligations on this bond,
-1- 73
and it does hereby waive notice of any such change, extension of time, alteration or addition
to the terms of the agreement or to the work or to the specifications.
IN WITNESS WHEREOF, two (2) identical counterparts of this instrument, each of which
shall for all purposes be deemed an original hereof, have been duly executed by Principal
and Surety, on the date set forth below, the name of Principal and Surety being hereto
affixed and these presents duly signed by Principal and by Surety's undersigned
representative(s) pursuant to authority of its governing body.
Dated:
"Principal"
(Seal)
Note: This bond must be executed in duplicate and
dated, all signatures must be notarized, and
evidence of the authority of any person signing
as attorney-in-fact must be attached.
"Surety"
By:
Its:
By:
Its:
(Seal)
APPROVED AS TO FORM:
RICHARDS, WATSON & GERSHON
A Professional Corporation
City Attorney
-�- 74
Consent and Subordination Agreement
D-1 75
CONSENT AND SUBORDINATION
The undersigned, , being the
owner and holder of (a) that certain deed of trust dated , recorded
in the office of the County Recorder of the County of Los
Angeles, California, as document number (as now or hereafter
increased, amended, modified, supplemented, consolidated, replaced, substituted,
extended and/or renewed, the "First Deed of Trust"); and (b) that certain deed of trust
dated , recorded , in the office of the
County Recorder of the County of Los Angeles, California as document number
(as now or hereafter increased, amended, modified, supplemented,
consolidated, replaced, substituted, extended and/or renewed, the "Second Deed of
Trust"), encumbering the Property, hereby executes this Consent and Subordination to
acknowledge its consent to the terms of the attached Subdivision Improvement
Agreement ("Agreement") and to agree that the First Deed of Trust and the Second
Deed of Trust will be subject and subordinate to the terms of the Agreement.
Print Name:
Print Name:
Title: Title:
D-2
76
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
personally appeared
before me, , Notary Public
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
Signer's Name:
❑ Individual
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
❑ General
Number of Pages:
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OF SIGNER
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77
ffe*l
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
GLENMONT CAL -COAST RPV, LLC
11726 San Vicente Blvd. Suite 235
Los Angeles CA 90049
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND
RESERVATION OF EASEMENTS
F;ot-
HIGHRIDGE CONDOMINIUMS - TRACT NO. 68796
(A Condominium Project)
THIS DECLARATION CONTAINS AN ALTERNATIVE DISPUTE RESOLUTION PROVISION WITH A
WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY.
YOU MUST READ THE PROVISION CAREFULLY (PAGE XIV -1, ARTICLE XIV,
SECTION 14.02) AND SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS.
Document Prepared By:
Murakami Law Office
371 Van Ness Way, Suite 130
Torrance, CA 90501
Tel: (310) 961-5260
[C -Single Attached: 12/04/05)
(This Set: 12/13/111
79
Article
TABLE OF CONTENTS
Description
DECLARATION AND RECITALS
SUMMARY
DEFINITIONS
DIVISION, MAINTENANCE AND INSURANCE OF PROPERTY
2.01
Units
2.02
Common Area(s)
2.03
Exclusive Use Common Area(s)
2.04
Repair and Maintenance of the Property by Owner
2.05
Repair and Maintenance of the Property by Association
2.06
Association Insurance
2.07
Board's Authority to Alter Insurance Coverage
2.08
Owner Insurance
2.09
Preventive Maintenance
3.10
OWNERS GENERAL USE RESTRICTIONS
3.01
Unit Use
3.02
Common Area Use
3.03
Nuisances
3.04
Debris, Trash, Refuse, and Hazardous Materials
3.05
Signs
3.06
California Vehicle Code and Parking Regulations
3.07
Animal Regulations
3.08
Antennas and Satellite Dishes
3.09
Temporary Structures
3.10
Basketball Standards
3.11
Exterior Lighting
3.12
Window Covers
3.13
Exterior Clotheslines
3.14
Common Fences
3.15
Air Conditioners and Other Equipment
3.16
Drains Located on Balconies
3.17
Indemnity of the Association by Owner
3.18
Use/Alteration Affecting Insurance Rates
3.19
Owner's Failure to Comply
3.20
Sound Attenuation
3.21
Declarant's Exemption from Use Restrictions
3.22
Documents to Subsequent Owners
[Q%
Article
IV
V
VI
VII
Description
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
4,01
Organization
4,02
Membership
4,03
Membership Classes
4,04
Voting Rights and Requirements
4,05
Transfer of Membership
DUTIES AND POWERS OF THE ASSOCIATION
5.01 Commencement of Duties
5.02 Specific Association Duties and Powers
5.03 Authority of Board to Alter Boundaries of Condominiums
5.04 Right of Entry
ARCHITECTURAL CONTROL
7.01
COVENANTS FOR ASSESSMENT
6.01
Assessments
6.02
Commencement; Due Dates of Assessments
6.03
Variable Assessment Rate
6.04
Assessment Duties of the Board of Directors
6.05
Effect of Nonpayment of Assessments:
7.07
Delinquency and Remedies of the Association
6.06
Collection of Assessment Debts Not Collectible Through Foreclosure
6.07
Reserves
6.08
Right of Redemption
6.09
Nonuse and Abandonment
6.10
Emergency Assessments
6.11
Waiver of Exemptions
ARCHITECTURAL CONTROL
7.01
The Architectural Committee
7.02
Architectural Guidelines
7.03
Plan Review Functions of the Architectural Committee
7.04
Approval
7,05
Variances
7.06
Non -Liability for Approval
7.07
Appeal
7.08
Commencement of Construction
7.09
Proceeding with Work
7.10
Failure to Complete Work
7.11
Inspection; Compliance and Noncompliance Statements
7.12
Remedy for Noncompliance
7.13
No Guarantee of Views
Article Description
VIII MORTGAGEE PROTECTION
8.01
Subordination of Lien and Foreclosure
8.02
Mortgagees Are Not Required to Cure Certain Breaches
8.03
Effect of Breach of Declaration
8.04
Exemption from Right of First Refusal
8.05
Restrictions on Certain Changes
8.06
Inspection of Association Books and Records
8.07
Condemnation Awards and Insurance Proceeds
8.08
Loss Payable Endorsement
8.09
Mortgagee's Right to Attend Meetings
8.10
Payments by Mortgagees
8.11
Notices to Mortgagees
8.12
Loan to Facilitate Resale
8.13
Control if Mortgagee Protections Conflict with Other Provisions
IX
DAMAGE AND DESTRUCTION TO IMPROVEMENTS
9.01
Restoration of the Property
9.02
Notice to Owners and Listed Mortgagees
9.03
Sale of Property and Right to Partition
9.04
Damage to Dwellings
X CONDEMNATION
10.01 Representation by Board in Condemnation Proceeding
10.02 Distribution of Award
XI COVENANT AGAINST PARTITION AND RESTRICTION
ON SEVERABILITY OF CONDOMINIUM COMPONENT INTEREST
11,01 No Partition; Exceptions; Power of Attorney
11,02 Proceeds of Partition Sale
11.03 No Separate Conveyance of Condominium Components
XII EASEMENTS
12.01 Creation of Easements
12.02 Reservation of Easements for Declarant's Construction and Marketing Activities
12.03 Certain Easements for Association
12.04 Certain Easements for Owners
12.05 Drainage Easements
12.06 Utility Easements
12.07 Encroachment
XIII AMENDMENT
13.01 Amendment
loom
Article Description
XIV
DISPUTE NOTIFICATION AND RESOLUTION PROCEDURES
14.01
Scope and Purpose of Article
14.02
No Right to Trial
14.03
Procedures Applicable to Resolution of Disputes Between the Association and an
Owner
14.04
Special Provisions Applicable to Resolution of Construction Defect Disputes;
Declarant's Election to "Opt In" to Statutory Pre -Litigation Procedures
14.05
Resolution of Construction Defect Disputes Against Declarant
14.06
Submission of Disputes to Judicial Reference
XV
MISCELLANEOUS PROVISIONS
15.01
Term of Declaration
15.02
Notices
15.03
Partial Invalidity
15.04
Number
15.05
Attorneys' Fees
15.06
Disclosures
15.07
Declarant's Rights After Sale of All Units in the Project
15.08
Supremacy of Legislation
15,09
No Enhanced Protection Agreement
15.10
Changing the Project Marketing Name
15.11
Conflict Between Declaration and Condominium Plan
EXECUTION PAGE
SUBORDINATION BY LIENHOLDER
EXHIBIT A - PROPERTY
EXHIBIT B - ASSESSMENT ALLOCATION
EXHIBIT C - BUDGET ITEMS SUBJECT TO VARIABLE ASSESSMENT
EXHIBIT D - O&M PLAN PROVISIONS
iv
DECLARATION OF COVENANTS,
CONDITIONS, RESTRICTIONS AND
RESERVATION OF EASEMENTS FOR
HIGHRIDGE CONDOMINIUMS
This Declaration is dated this day of , 20 (for
reference purposes), by GLENMONT CAL -COAST RPV, LLC, A DELAWARE LIMITED LIABILITY
COMPANY ("Declarant").
RECITALS
A. Declarant is the owner in fee of that certain real property ('Property") in the City of Rancho Palos
Verdes, County of Los Angeles, State of California, legally described in attached Exhibit "A".
B. Declarant intends to develop the Property into a Condominium project ("Project") under the
provisions of California Civil Code Section 1351(f).
C. Declarant desires to impose a general plan for the development, maintenance, improvement,
protection, use, occupancy and enjoyment of the Project, and to establish, adopt and impose
covenants, conditions, restrictions, easements, equitable servitudes, liens and charges upon the
Project for the purpose of enforcing, protecting and preserving the value, desirability and
attractiveness of the Project.
D. This Declaration, and all Governing Documents for this Property, shall be deemed in full force
and effect upon recordation of the first Grant Deed conveying fee title of a Condominium to an
Owner in the Property.
NOW, THEREFORE, Declarant hereby declares that the Property shall be held, conveyed,
mortgaged, encumbered, leased, rented, used, occupied, sold, and improved, subject to the following
declarations, limitations, covenants, conditions, restrictions, liens, charges and easements, all of which
are for the purpose of enhancing and protecting the value and attractiveness of the Property, and every
part thereof, in accordance with the plan for the improvement of the Property and division thereof into
Condominiums. All of the limitations, covenants, conditions, restrictions, and easements shall constitute
equitable servitudes in accordance with Civil Code Section 1354 and shall be binding upon Declarant and
its successors and assignees, and all parties having or acquiring any right, title or interest in or to any part
of the Property.
R-1
0
SUMMARY
The following "plain English" summary of the contents of this Declaration of Covenants,
Conditions, Restrictions and Reservation of Easements is provided solely for the convenience of
the reader. This summary is not a part of the Declaration and should not be relied upon except as
an explanatory index to the detailed provisions of the Declaration.
Article I provides definitions of the terms commonly used in this Declaration. Defined terms
are capitalized throughout the Declaration.
Article 11 defines the extent of a Condominium and of Common Areas, including portions
of the Common Area which Owners are exclusively entitled to use, and assigns maintenance and
insurance obligations to the Owners and the Association respectively. Owner maintenance
obligations generally include all interior elements of the Unit and certain exterior elements that service
only the Unit. Association maintenance obligations generally include all Common Areas, including
structural and exterior elements. The Association may maintain general liability insurance as provided by
law, may maintain higher policy limits, and can alter insurance coverage upon notice to Members.
Owners must insure their own Units.
Article III defines the manner in which residential Condominiums may be used. Units can
only be used as a single family dwelling. The Unit may be leased as long as certain information is given.
Usual uses of Common Areas are allowed. Association and Vehicle Code parking restrictions are
enforced. A maximum of two household dogs or cats, or one dog and one cat, are allowed, and certain
other small animals are also allowed if caged. Residents may install their own antennas or satellite
dishes only in limited situations and must indemnify the Association for damage they cause. These use
restrictions do not apply to the Declarant until all Units are sold.
Article IV defines Owners' Membership and voting rights and the Association's legal form.
Every Owner is automatically a Member of the Association and must abide with this Declaration and the
Association's Bylaws and Rules and Regulations. For up to two years, there are two classes of
Membership. The voting rights of the two classes, of co-owners of a Unit, and of Owners whose
payments of Assessments are delinquent are described. Upon sale of a Unit, Membership is
automatically transferred to the new Owner.
Article V describes in detail the duties and powers of the Association to govern its
Members and maintain the Common Areas. The Association's duties commence upon the First Close
of Escrow for a Unit. The Association has the power to enforce its own rules. The Board has authority to
alter Condominium boundaries in certain cases. The Association has the right to enter any Unit as
necessary to ensure compliance or in an emergency.
Article VI describes Assessments which Owners pay in order to fund Association
functions, including maintenance, insurance, etc. Every Owner agrees to pay Assessments, which
are the Owner's personal obligation and can become a recorded lien upon the Condominium.
Assessments begin when the first escrow in the Project closes. Assessment amounts are depend on the
size and use of the Condominium, according to the table attached to this Declaration as Exhibit "B". The
Board of Directors of the Association must levy Regular and Special Assessments according to law, and
must maintain separate bank accounts for operating and reserved funds. The Association has various
remedies for Delinquent Assessments, including Foreclosure for amounts over $1,800, charging interest
and penalties and suspending voting rights. The Association must charge as Regular Assessments
sufficient amounts to periodically maintain, repair or replace Improvements that the Association is
required to maintain. California homestead and exemption laws do not protect a delinquent Owner from
imposition of a lien on the Unit.
Article VII addresses alterations which Owners may wish to make to their Units. . An
Architectural Committee of 3 to 5 members shall be appointed. The Architectural Committee adopts and
promulgates guidelines for architectural alterations. The Architectural Committee reviews proposed plans
and may retain consultants, such as professional architects, for that purpose, and may charge reasonable
fees for the review. Plans for alterations require approval by the Architectural Committee. Construction
by a licensed contractor must begin within 6 months of approval. The Architectural Committee must
retain a set of the approved plans. The Architectural Committee must inspect the alteration for
Summary Page 1 of 3
compliance with the plans and must issue a certificate of compliance, which is conclusive proof that the
work complies with the plans; if a certificate of noncompliance is issued, the Owner must remedy the
noncompliance within 30 days. The Association has various remedies if the Owner fails to bring the
construction into compliance, but this right expires in 1 year or if the unit is sold.
Article VIII provides certain protections to holders of the First Mortgage on any Unit, in
order to make it easier for Owners to obtain purchase money loans or refinancing. Any lien by the
Association against a Unit for nonpayment of Assessments is subordinate to the rights of a Mortgagee.
The Mortgagee's rights are not impaired if the Owner gives a right of first refusal to the Association or
other Party. At least 51 % of Owners and at least 67% of First Mortgagees must approve certain changes.
Any First Mortgagee has the right to inspect the Association's books and records. If condemnation
awards or insurance proceeds are received for any Unit, a Mortgagee has the right to receive those
monies up to the amount of the Mortgage balance still owed. Insurance policies must name the
Mortgagee in the loss payable clause of the policy. A Mortgagee has the right to attend Association
meetings but not to vote, except in limited circumstances. Mortgagees have the right to pay taxes and
insurance premiums on Common Areas and to be reimbursed by the Association for such payments.
Mortgagees are entitled to notice of certain kinds of events affecting their security. A loan given to
facilitate resale of a Unit after Foreclosure is treated as a First Mortgage. The provisions of this Article
prevail over any conflicting provisions in another part of the Declaration.
Article IX concerns restoration or other disposition in the case of damage or destruction of
Common Areas. After a casualty loss, the Property is to be repaired or restored to its previous condition,
but if insurance proceeds cover less than 85% of the loss, the Owners must vote whether to levy a
reconstruction Assessment, rebuild to a lesser standard, or not rebuild. Notice of material damage must
be given to Mortgagees. If the Association elects not to rebuild, a licensed appraiser must appraise the
Units as of just before the casualty, and insurance proceeds must be distributed proportionately to those
values. If a Unit is damaged, the Owner must immediately secure the Unit against further damage, and
must promptly rebuild.
Article X concerns condemnation of Common Areas by a governmental entity. The Board
will represent the Owners at the condemnation hearing and will give the necessary notices and disburse
the condemnation proceeds in the manner described in the Article.
Article XI governs partition of the Property. Subject to obtaining the prior approval of the
Owners and First Mortgagees, the Association (through its Board) has irrevocable power of attorney to
sell the Property for the benefit of Owners and Mortgagees when partition takes place under California
Civil Code Section 1359. If there is a partition sale, the proceeds will be shared in the same proportions
as the relative values of the Units. The components of an Owner's interest cannot be severed from each
other, such as the separate interest in the Unit and the undivided interest in the Common Areas.
Article XII addresses easements within the Property. Easements are established upon the
First Close of Escrow. Easements are reserved to facilitate Declarant marketing, Association
maintenance, Owner use and drainage. Owners' respective rights when there are encroachments are
explained.
Article XIII concerns amendments to the Declaration. Until the first Unit is sold, the Declarant
can unilaterally amend the Declaration. Any amendment affecting the rights of the Declarant must be
approved by the Declarant. Minor amendments to correct clerical errors or to clarify are non -material and
may be made by the Board without a Membership vote.
Article XIV provides detailed procedures for resolution of Construction Defect claims and
other Disputes. The Article provides for economical, streamlined means of resolving Disputes between
or among the Declarant, Association and individual Owners, except for Disputes involving payment of
Assessments. There is no right to a jury trial or trial by a judge. Procedures applicable to all non -
Assessment types of Disputes require notice of the claim, informal meeting and conferring, mediation,
and if those means fail, judicial reference; there is an automatic right of appeal from the judgment entered
upon a judicial referee's award. In Disputes arising from Construction Defects, the Declarant has elected
to follow the statutory pre -litigation procedures set forth in the Civil Code.
Summary Page 2 of 3
1:191
Article XV covers miscellaneous issues not addressed elsewhere in the Declaration. The
Declaration's term is 60 years, automatically extendable for 10 years at a time. How written notices must
be given is specified. If any part of the Declaration is declared invalid, the remainder of the Declaration is
valid. In case of future changes in the laws governing common interest developments, those laws will
override this Declaration, which will be automatically amended to conform to the changes in the law,
without necessity for formally amending or recording an amended Declaration.
Summary Page 3 of 3
ARTICLE I
DEFINITIONS
Article I provides definitions of the terms commonly used in this
Declaration. Defined terms are capitalized throughout the
Declaration.
The following definitions apply unless otherwise required by the context:
"Alternative Dispute Resolution" - Resolution of Disputes arising out of claims of Construction Defects
or violations of Governing Documents in which Declarant and/or the Association and/or one or more
Owners are Parties, as set forth below in the Article entitled "Dispute Notification and Resolution
Procedures".
"Architectural Committee" - The committee created pursuant to the Article herein entitled "Architectural
Control".
"Architectural Guidelines" - The rules and standards adopted by the Board pursuant to the Section
hereof entitled "Architectural Guidelines" in the Article hereof entitled "Architectural Control".
"Articles" - The Articles of Incorporation of the Association, including any amendments.
"Assessments" - The cost of maintaining, improving, repairing, operating and managing the Project
which is to be paid by each Owner as determined by the Association. The three (3) types of Assessments
are Regular, Special, and Compliance Assessments.
"Association" - HIGHRIDGE CONDOMINIUMS, INC., a California nonprofit mutual benefit corporation
formed (or to be formed) to govern the Project, the Members of which shall be the Owners of Units in the
Project. The term includes its agents, the Board or any committee as applicable.
"Authorized Antenna" - (a) An antenna designed to receive direct broadcast satellite service, including
direct -to -home satellite service, that is one (1) meter or less in diameter, or (b) an antenna designed to
receive video programming service, including multichannel multipoint distribution service, instructional
television fixed service, and local multipoint distribution service, and is one (1) meter or less in diameter or
diagonal measurement, or (c) an antenna designed to receive television broadcast signals, and includes
(d) an antenna used to receive and transmit fixed wireless signals, or (e) as otherwise permitted by law,
that is of a size and type consistent with the provisions of California Civil Code Section 1376 and with the
provisions of Section 207 of the Telecommunications Act of 1996 (47 U.S.C. Section 303) or the
regulations promulgated there under.
"Beneficiary" - The lender on the security of a Deed of Trust.
"Board" or "Board of Directors" - The governing body of the Association.
"Bylaws" - The bylaws of the Association, including any amendments.
"Code Section" - Refers to Codes of the State of California (e.g "Civil Code", "Vehicle Code").
Reference to any specific Code Section includes any future successor Code Sections. Any applicable
new legislation or future amendment of any Code Section referenced in this Declaration shall
automatically amend this Declaration in the same way, without necessity for execution and recording of
any amendment to this Declaration.
"Common Area(s)" - The entire Property (including land and Improvements) other than the Units
described in this Declaration and the Condominium Plan.
"Common Expenses" - The actual and estimated expenses of the Association in performing its duties
as set forth in the Governing Documents.
1-1
"Compliance Assessment" - An Assessment imposed against a particular Owner in order to reimburse
the Association for any costs incurred in connection with that Owner's violation of the Governing
Documents, or a monetary penalty imposed by the Association as a disciplinary measure for failure to
comply with the Governing Documents. Compliance Assessments fall under the category of Special
Assessments.
"Condominium" - An estate in real property (defined in Sections 783 and 1351(f) of the California Civil
Code) consisting of both:
(a) A separate interest in space called a "Unit"; and
(b) An undivided interest in the Common Area.
"Condominium Plan" - The recorded diagrammatic drawings of the Units built or to be built on the
Property which identifies each Unit and shows its dimensions pursuant to California Civil Code Section
1351(e).
"Construction Defect" - Any deficiency with respect to water, structural, soil, fire protection, plumbing
and sewer, electrical or other areas of construction, as defined in Sections 896 and 897 of the California
Civil Code.
"Declarant" - The person(s) or entity identified in the introductory paragraph of this Declaration; also,
Declarant's successors to and assignees of special rights, preferences, or privileges designated herein,
including any Mortgagees acquiring Declarant's interest in the Project by Foreclosure or deed in lieu of
Foreclosure.
"Declarant Party(ies)" - Declarant, developer, builder, general contractor, subcontractor and/or design
professional who have participated in the development of the Project, or any insurer of any such party.
"Declaration" - This instrument and any amendments.
"Deed of Trust" - A three party security instrument conveying title to land as security for the repayment of
a loan. Also called "Trust Deed". Reference to Deed of Trust includes a mortgage.
"Dispute" - Any unresolved claim, Dispute or disagreement concerning the Property or the Governing
Documents for the Project, arising among Owners, Association, and/or Declarant Parties.
"DRE" - The California Department of Real Estate and any successors thereto.
"Eligible First Mortgagees'- Holders of First Mortgages who have requested the Association to notify
them of specified proposals and changes to the Governing Documents and other Association matters.
"Exclusive Use Common Area" - Those portions of the Common Area designated by the Declaration,
and/or Condominium Plan or by law for the exclusive or restricted use of the Owners of particular
designated Units.
"FHA" - The Federal Housing Administration of the United States Department of Housing and Urban
Development and any department or agency of the United States government that succeeds to the FHA's
function of insuring notes secured by Mortgages on residential real estate.
"FHLMC" - The Federal Home Loan Mortgage Corporation (also known as The Mortgage Corporation)
created by Title II of the Emergency Home Finance Act of 1970, and any successors to such corporation.
"First Close of Escrow" - The date on which the first Grant Deed is recorded conveying fee title to a
Condominium to the first Owner pursuant to a transaction requiring the issuance of a DRE final
Subdivision public Report by the Department of Real Estate.
1-2
"First Mortgage" or "First Mortgagee" - A Mortgage or Mortgagee that has priority over all other
Mortgages or Mortgagees encumbering the same Condominium or any other portion of the Project,
including a First Mortgagee's blanket Mortgage recorded prior to the recording of this Declaration.
"FNMA" - The Federal National Mortgage Association, a government-sponsored private corporation
established pursuant to Title VIII of the Housing and Urban Development Act of 1968, and any
successors to such corporation.
"Foreclosure" - The legal process by which the mortgaged property of a borrower in default under a
Mortgage is sold, and the borrower's interest in that property is sold, pursuant to California Civil Code
section 2924 et seq., or sale by the court pursuant to California Code of Civil Procedure section 725a et
seq., and any other applicable law.
"Governing Documents" - All documents governing the Property, including this Declaration, the
Articles, Bylaws, Condominium Plan, any maintenance manuals and any Rules and Regulations, as may
be amended from time to time.
"Grant Deed" - A written instrument transferring title to a Unit.
"Improvements" - Any structure or anything attached to a structure or to the land within the Project,
consistent with the provisions of Civil Code Section 3106.
"Institutional Mortgagee" - Any bank, savings and loan association, insurance company, real estate
investment trust, retirement fund trust, or other financial institution holding a recorded First Mortgage on
any Condominium.
"Manager" or "Managing Agent" - The party contractually engaged by the Association or Declarant to
manage the Common Area(s) and perform other duties of the Association.
"Member" - Any person who is an Owner based upon the provisions of the Governing Documents.
"Mortgage" - A two party security instrument pledging land as security for the performance of an
obligation. Reference to Mortgage includes the Deed of Trust.
"Mortgagee" - The party entitled to performance by a mortgagor. Reference to Mortgagee includes any
beneficiary under a Deed of Trust including a Deed of Trust on any portion of the Property, recorded prior
to the recording of this Declaration.
"Notice and Hearing" - A notice of time and an opportunity for a hearing as provided for in the
Governing Documents.
"Occupant" - An Owner, resident, guest, invitee, tenant, lessee, sublessee, or other person residing in a
Unit, including, without limitation, any family member(s) or children of any of the foregoing.
"Owner" or "Owners" - The person(s) or legal entity holding a recorded fee simple interest in a
Condominium (including the Declarant), or the purchaser(s) of a Condominium under an installment land
sales contract. "Owner" does not include any person or entity having an interest in a Condominium
merely as security for the performance of an obligation.
"Part ies " - The claimants and respondents in a proceeding to resolve a Dispute.
"Person" - A person, partnership, limited liability company, limited partnership, corporation, Trustee or
other legal entity.
"Proiect" or "Property" - The real property described in Exhibit "A" to this Declaration. The Project is a
"Condominium Project" as defined in Section 1351(f) of the California Civil Code. The Property is a
"Common Interest Development" as defined in Section 1351(c) of the California Civil Code,
1-3
NV
"Quorum" - Members entitled to vote (in person or by proxy) holding a majority of the Total Voting
Power of the Association constitute specifically, a quorum for business transactions at all Member
meetings (except as otherwise specifically provided in this Declaration or the Bylaws of the Association).
"Regular Assessments" - Assessments used to meet the Association's normal operating expenses and
to establish necessary reserves.
"Rules and Regulations" - The rules as established and adopted from time to time by the Board as
provided for in this Declaration.
"Service Lines and Facilities" - Electric, telephone, cable television, community antenna television
system, satellite television lines, water, gas, security system lines, sanitary sewer lines and drainage
facilities, irrigation lines, meters and related facilities, lines, cables, wires or other conduits or devices for
utilities and other service lines and facilities.
"Special Assessments" - Assessments levied on an as -needed basis to meet expenses of any
extraordinary or capital nature and may include but are not limited to Compliance Assessments.
"Total Voting Power" - One hundred percent (100%) of the votes by Owners which may potentially be
cast. (Even if any Owner's voting rights have been suspended, the number of votes constituting the Total
Voting Power would include any suspended vote(s).)
"Trustee" - A party (such as a title company) to whom legal title to real property is entrusted for the
benefit of the Beneficiary, as security for a loan.
"Unit" - The elements of a Condominium not owned in common with other Owners as defined in
California Civil Code Section 1351(f). Each Unit is designated as a Unit in the Condominium Plan for the
Property and is separately identified.
NA" - The Department of Veterans Affairs of the United States and any department or agency of the
federal government which succeeds to the VA's function of issuing guarantees of notes secured by
Mortgages on residential real estate.
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91
ARTICLE 11
DIVISION MAINTENANCE AND INSURANCE OF PROPERTY
Article l/ defines the extent of a Condominium and of Common
Areas, including portions of the Common Area which Owners of a
Condominium are exclusively entitled to use, and assigns
maintenance and insurance obligations to the Owners and the
Association respectively.
Ownership of each Condominium shall include a Unit, an undivided interest in the
Common Area (or a portion of it), Membership in the Association, and any Exclusive Use
Common Area(s) appurtenant to such Unit.
2.01 Units.
Each Unit consists of all elements and areas identified as such on the Condominium Plan.
2.02 Common Area(s).
(a) The Property not constituting the Units is the Common Area.
(b) Each Owner of a Condominium in the Property will receive the following undivided interest in the
Common Area in the Property: one/twenty-eighth (1/28).
2.03 Exclusive Use Common Area(s).
(a) Exclusive Use Common Area(s) include the following:
(1) Portions of the Common Area(s) designed to serve a particular Unit but located outside
the boundaries of the Unit, as set forth in Civil Code Section 1351(i)(1), if not shown and
designated as such on the Condominium Plan; and
(2) Those air space portions of the Common Area(s), more particularly described in the
Condominium Plan, for the exclusive use of the Owner(s) of the Unit to which the
Exclusive Use Common Area is appurtenant. Declarant hereby reserves and will convey
the following Exclusive Use Common Areas for the exclusive use of the appurtenant Unit:
parking spaces, patios/backyards, balconies/decks and storage spaces.
(b) Use of the Exclusive Use Common Area(s) are subject to reasonable restrictions contained in
any Governing Documents.
2.04 Repair and Maintenance of the Property by Owner.
(a) In accordance with the Governing Documents, each Owner must maintain, repair, replace, and
keep in good orderly condition all of the following, in the manner stated herein:
(1) All of the Owner's Unit (see the Condominium Plan for a detailed description) in a clean,
sanitary and attractive condition, including, but not limited to, the following within the
Unit's boundaries:
(A) Utility fixtures and equipment;
(B) Plumbing fixtures and pipes;
(C) Electrical fixtures;
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(D) Interior floor covering;
(E) Interior wall covering, lath, plaster and drywall;
(F) Interior doors, door frames, and thresholds; and
(G) Domestic electrical, gas, water, cable and trash.
(2) The improvements within the air space portions of the Unit's Exclusive Use Common
Area(s), and the interior finished surfaces thereof, as shown and designated on the
Condominium Plan, if any, in a clean, sanitary and attractive condition-,
(3) Utilities, whether located within or outside the Unit, that solely and exclusively serves the
Unit; and
(4) Windows, window frames, exterior doors and related hardware, door frames of exterior
doors, balcony doors, balcony door frames, patio doors, and patio door frames, subject to
the Board's approval as to structural integrity where doors and windows adjoin the
building, and aesthetic uniformity with the building exterior.
(b) Any damage to any real or personal property in the Project caused by an Owner or an Occupant,
even if the damage is to an area otherwise maintained by the Association or another Owner. All
the repairs shall be subject to prior approval of the Board;
(c) Balconies appurtenant to an Owner's Unit shall not be used for storage purposes and shall be
kept free of clutter and debris. The Association shall be responsible for waterproofing of the
finished surface and all issues pertaining to the structural integrity of the balcony. As soon as
practicable, the Owner shall notify the Association of any problem with the balcony's
waterproofing or structure.
Owners may not place on the decks/balconies large potted plants or other items which can
damage the waterproofing membrane and indoor/outdoor carpet or tile which can impair the
waterproofing and may even change drainage patterns. Any damage to the structure(s) caused
by Owner's negligence shall be billed to the Owner.
(d) An Owner may not do anything that unreasonably increases the level of noise from within the Unit
without obtaining the approval of the Board. If an Owner does anything within the Unit that may
increase the level of noise or sound that can be heard outside the Unit during normal use and
occupancy of the Unit, the Owner must first obtain approval from the Board, and upon approval,
take all reasonable measures (at own expense) to deaden, insulate or otherwise decrease the
level of such noise to the minimum level reasonably possible.
(e) No Owner shall make a change to the exterior appearance of a Unit without the prior written
approval of the Architectural Committee in accordance with the Governing Documents and
applicable laws.
(f) Notice and Mitigation Re art rding Water Intrusion and Mold. In the event of intrusion of water into
any Unit (including, without limitation, as a result of any roof, window, siding, plumbing or other
leaks), and whether or not the cause of such leak constitutes a repair issue, the Owner of the
affected Unit shall be obligated to immediately notify Declarant and Association of such event,
and Owner shall take all necessary and appropriate action to stop any such water intrusion.
Declarant and Association shall thereafter have the right to inspect the condition, including the
right to assess the likelihood of mold and mildew, and to offer recommendations for mitigation of
mold or mildew. Each Owner shall be obligated to take all reasonable steps to mitigate any
possible spread or accumulation of mold or mildew. Nothing herein shall obligate Declarant or
Association to take any action, nor shall any rights of Declarant or Association under this Section
constitute an admission or acknowledgment that any causes of any water intrusion are the result
of defective construction.
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Owner's obligation to inspect the Unit for evidence of mold or mildew and to remedy any such
infestation is enforceable by the Association as set forth in the article of this Declaration entitled
"Duties and Powers of the Association." Further, failure of any Owner to timely notify Declarant
and Association of any such water intrusion shall be cause to deny future claims against
Declarant and Association relating thereto, which claims could have been mitigated had earlier
action been taken.
(g) An Owner may not alter, affect, or otherwise impair the integrity of the Property's structural
components, including but not limited to puncturing, perforating, or piercing the ceiling, flooring,
perimeter walls, or partition walls of the Property unless first approved by the Architectural
Committee.
(h) Owner shall notify the Association of any problems that may arise from the air conditioning
equipment, heating equipment, or condensers ("HVAC System"). Owner shall not contact an
independent repair service and shall not attempt to himself repair or replace the HVAC System.
Owner is responsible for payment of all costs incurred for such maintenance and repair. Owner
shall make payment directly to the approved contractor.
2.05 Repair and Maintenance of the Property by Association.
(a) Except as otherwise specifically stated, the Association (not individual Owners) is responsible for
maintaining, repairing, modifying, replacing, and altering Common Areas and exterior surfaces of
Exclusive Use Common Areas (where applicable) including without limitation:
(1) Subfloors, bearing walls (except for the finished surfaces thereof);
(2) Pipes, utility lines, ducts, and conduits in Common Area walls;
(3) Roofs and foundations;
(4) Utility lines and fixtures in Common Areas;
(5) Common Area landscaping, including irrigation systems and related fixtures;
(6) Finished surfaces and structural components of balconies, balcony railings, if any;
(7) Patios, if any;
(8) Subterranean garage.
(b) The Association shall be responsible for maintaining the structural elements of decks/balconies.
Any damage to the structure(s) caused by Owner's negligence shall be billed to the Owner.
(c) The Association shall be responsible for the periodic cleaning of the exteriors of any windows
within or bordering a Unit that are inaccessible to the Owner thereof. Each Owner will cooperate
with the Association to provide access to the Association to clean such windows. The Association
shall provide reasonable advance notice to the Owners and shall be responsible for any damage
to the Unit resulting from such entry.
(d) Termite Eradication. If the Association adopts an inspection and preventive program for the
prevention and eradication of infestation by wood destroying pests and organisms, the
Association, upon reasonable notice (which shall be given no less than fifteen (15) days nor more
than thirty (30) days before the date of temporary relocation) to each Owner and the Occupants
of his or her Unit may require such Owner and Occupants to temporarily relocate from such Unit
in order to accommodate efforts by the Association to eradicate such infestation. The notice shall
state the reason for the temporary relocation, the date and time of the beginning of treatment, the
anticipated date and time of termination of treatment, and that the Occupants will be responsible
for their own accommodations during the temporary relocation. Any damage caused to a Unit by
such entry by the Association or by any person authorized by the Association shall be repaired by
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the Association as a Common Expense. All costs involved in maintaining the inspection and
preventive programs as well as repairing and replacing the Common Area and Improvements
thereon when the need for such maintenance, repair or replacement is the result of wood
destroying pests or organisms shall be a Common Expense subject to the restrictions applicable
to capital improvement Assessments.
(e) Graffiti Removal. The Association shall remove within forty-eight (48) hours all graffiti that is
placed anywhere on the Common Areas of the Project and the Association, and its agents and
contractors, shall have access upon and over all of the Units in the Project in order to accomplish
the same.
(f) SWPPP. The Association shall comply with the storm water pollution prevention plan ("SWPPP")
that was prepared by the Declarant and filed with the State of California, including, without
limitation, any "best management practices" contained therein, and any other SWPPP or
drainage area management plan prepared by the City. A copy of the SWPPP applicable to the
Property shall be on file with the Association or its Manager.
(g) Operation and Maintenance "O&M" Plan for Best Management Practices"BMPs" . Declarant,
the Association and each Owner of a Unit shall implement, and fund implementation of, the
Operation and Maintenance ("O&M") Plan for the Property, which was approved by the City as
part of the SWPPP required for the development of the Property, and shall operate and maintain
the Structural and Treatment Control Best Management Practices ("BMPs") described in the 0&M
Plan for the Property, which includes:
(1) The Association shall conduct maintenance inspections of all Structural or Treatment
Control BMPs at least once a year and retain proof of inspection;
(2) Initial Owners shall receive educational materials on good housekeeping practices which
contribute to the protection of storm water quality, highlight the requirements in this
Section 2.05(8), provide information on what storm water management facilities are
present, signs that maintenance is needed, and how the necessary maintenance can be
performed;
All Owners shall be required to transfer this information to future purchasers with any
subsequent sale of their Units; and
(3) All O&M provisions contained in Exhibit "D".
(h) Rights of the City. The City may inspect all storm water improvements within the Project
(including any located upon portions of the Project owned by Owners) during reasonable daylight
hours (or at any time in the event of emergency) in order to assure that such improvements are
being properly maintained as set forth herein and as required by the O&M Plan, any permits or
approvals, rules, regulations or guidelines applicable to the Project. The Association and the
Owners hereby grant in favor of the City an easement for access, ingress and egress with respect
to the rights contained in this subparagraph (h).
(i) Mold Remediation. At the option of the Board, and upon notice to each Owner of at least three
(3) days, the Association shall cause a mold remediation expert certified by the State of California
to inspect each Unit as part of a complete water intrusion/mold prevention program. Said
inspections shall be at the expense of the Association.
If the certified mold remediation expert determines that water intrusion or water leaks in any Unit
are likely to allow mold to spread to other units or to Common Areas, then the Association shall
notify the Owner of the finding and shall require the Owner to remedy the problem within thirty
(30) days of said notification. At the Owner's expense, the Owner shall have the right to challenge
the findings of the Association's expert by obtaining the opinion of an independent certified mold
remediation expert. Any disagreement between the Association's and Owner's respective
certified mold remediation experts shall be reconciled by them in a single opinion, for which the
Association and the Owner shall equally share the expense.
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If the Owner fails to make the required remediation within the thirty (30) day period, the
Association shall remediate the problem at the Owner's expense, and the Owner shall reimburse
the Association for the expense of remediation within six (6) months of being informed of the cost
of the remediation. Failure to reimburse the Association for the cost of mold remediation within
the stated period shall be deemed to constitute a default in the Owner's obligations under this
Declaration.
(j) The Association shall be responsible for arranging for the maintenance and repair of the HVAC
System through the use of appropriately qualified contractors.
(k) The Association shall not be liable for damage to property in the Project resulting from water
which may leak or flow from outside of any Unit, any part of the building, or from any pipes,
drains, conduits, appliances or equipment from any other place or source, unless caused by the
gross negligence of the Association, its Board, officers, its manager or staff.
(1) The Association's responsibility for maintenance and repair shall not extend to repairs or
replacements arising out of or caused by the willful or negligent act or omission of an Owner,
Owner's Occupant(s) or their pets, except if the repair is covered by the insurance carried by the
Association, the Association shall be responsible for making the repairs, and the responsible
Owner shall pay any deductible pursuant to the insurance policy. If the Owner fails to make such
payment, then the Association may make such payment and shall charge the responsible Owner
a Compliance Assessment for reimbursement of such payment, which charge shall bear interest
as set by the Board (but no greater than the maximum rate allowed by law) until paid in full.
Any repairs arising out of or caused by the willful or negligent act of an Owner, or his Occupants,
or their pets, the cost of which is not covered by insurance carried by the Association, shall be
made by the responsible Owner, provided the Board approves the person actually making the
repairs and the method of repair. If the responsible Owner fails to take the necessary steps to
make the repairs within a reasonable time under the circumstances, the Association shall make
the repairs and charge the cost thereof as Compliance Assessment to the responsible Owner,
which cost shall bear interest as set by the Board (but no greater than the maximum rate
authorized by law) until paid in full. If an Owner disputes his or her responsibility for the repairs,
the Owner shall be entitled to Notice and Hearing as provided in the Bylaws before any charge
may be imposed.
2.06 Association Insurance.
(a) The Board shall obtain and maintain the following specified (or equivalent) insurance coverages,
provided it is financially reasonably prudent to do so:
(1) A master or blanket policy of hazard insurance for the full insurable value of all of the
Improvements within the Common Areas and those portions of the Units as may be
required by FHA, FNMA, FHLMC or their successors. This coverage shall include policy
limits of 100% full replacement value of the covered Improvements, excluding
foundations, excavations and other items usually excluded from such insurance or
endorsements, and shall meet such other requirements as set forth below:
(A) The master policy shall include "walls -in" coverage (HO -6 policy) for the interior
of Units, including replacement of interior Improvements and betterment
coverage, to insure Improvements that may have been made to the Unit,
including the following: (i) fixtures, Improvements and alterations that are a part
of the building or structure; and (ii) permanently installed appliances, such as
those used for refrigerating, ventilating, cooking, dishwashing, laundering,
security or housekeeping.
(B) The policy shall contain an agreed amount endorsement or its equivalent, an
increased cost of construction endorsement or a contingent liability from
operation of building laws endorsement or its equivalent, an extended coverage
endorsement, vandalism, malicious mischief coverage, a special form
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endorsement and a determinable cash adjustment clause or a similar clause to
permit cash settlement covering full value of the improvements in case of partial
destruction and a decision not to rebuild.
(C) The policy shall name as insured the Association, Declarant (as long as
Declarant owns a Unit), the Owners and all Mortgagees as their respective
interests may appear, and may contain a loss payable endorsement in favor of
the Trustee described hereinafter.
(D) Notwithstanding any of the above provisions in this Section, the Board may, after
consultation with its insurance professional and if it deems it prudent to do so,
purchase coverage with deduction for depreciation and/or coinsurance.
(2) Comprehensive public liability insurance in a reasonably prudent amount that covers the
Association, Board, Managing Agent, Declarant (as long as Declarant owns a Unit),
Owners, Occupants and any other agents or employees incident to the ownership or use
of Common Area(s) against physical injury, death and property damage arising out of a
single occurrence. The Board should consider maintaining insurance in the amount
specified by Civil Code Sections 1365.7 and 1365.9.
(3) If available, an extended coverage endorsement clause known as "Special Form", and a
clause that permits a cash settlement to cover the full value of Improvements in case of
destruction and a subsequent decision not to rebuild.
(4) A fidelity bond that insures the Association for the estimated maximum amount (or at
least three (3) months' aggregate Assessments on all Condominiums and reserve funds)
that could be affected by the dishonest act of any Member of the Association or Board,
managing agent, employee, or Occupant, who handles funds for the Owners' benefit.
Fidelity bonds must provide for a ten (10) day written notice of modification or termination
to any insurance Trustee, and to each FNMA servicer who has filed a written request with
the carrier for such notice.
(5) Workers' compensation insurance, in compliance with all applicable laws (if there are any
employees or any workers hired to work in the Common Areas). If contractors are
utilized, the Association should require evidence of Workers Compensation insurance
and a certificate of insurance verifying Comprehensive General Liability insurance in a
minimum amount of $1,000,000.00, naming the Association as additional insured. The
contractor's policy shall have a minimum 30 day notice of cancellation provision.
(6) Director and officer liability insurance ("D&O") in an amount that satisfies Civil Code
section 1365.7(a)(4). In the absence of gross negligence, intentional misconduct, or
fraud, the Association shall indemnify directors and officers from personal liability for
claims made as a result of the performance of their duties.
(7) Any other insurance policy the Association deems appropriate.
(b) Association insurance policies shall contain the following provisions, if available:
(1) Statements that the policies are primary and non-contributing;
(2) Statements that an Owner's conduct will not constitute grounds for avoiding liability;
(3) Inflation Guard Endorsement (if obtainable at a reasonable cost);
(4) Standard Mortgagee clause, and name as Mortgagee FNMA or servicer (if applicable).
(c) The Board shall consider including in the Association policy earthquake insurance and flood
insurance coverage available under the appropriate programs for the National Flood Insurance
Agency, or any other such agency.
AN
(d) Each hazard insurance policy must be written by a carrier who meets FNMA requirements for a
"Best Rating".
(e) 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.
(f) Any insurance maintained by the Association shall contain "waiver of subrogation" as to the
Association and its officers, directors, and the Owners and occupants of the Condominiums and
Mortgagees, and all Owners are deemed to have waived subrogation rights as to the Association
and/or other Owners, whether or not their policies so provide.
(g) All insurance policies must require a written thirty (30) day notice of modification or termination of
coverage from the insurer to the Association, Declarant, Owners and their Mortgagees, and any
interested party who requests such a notice.
(h) The Association is not obligated to provide intra -Unit public liability insurance or any protection
against risks customarily covered under "homeowners" or "broad form homeowners" policies.
Owners shall individually insure against such risks.
(i) The Board shall adopt policies and procedures regarding the filing and processing of claims for
damage and destruction of Common Area Improvements or any other matters covered by
insurance maintained by the Association.
(j) At least annually, the Board must review the Association's insurance policies.
(k) The amount, term and coverage of any policy required herein shall satisfy the minimum
requirements imposed for this type of project by the FHA, FNMA and FHLMC or any successor to
either of those entities. If any of the requirements conflict, the more stringent requirement shall be
met. If FHA, FNMA and FHLMC do not impose requirements on any policy required herein, 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.
2.07 Board's Authority to Alter Insurance Coverage.
Subject to the provisions of Section 2.06(a)(2) above, the Board shall have the power and right to
deviate from the insurance requirements contained in this Article in any manner that the Board, in
its reasonable business discretion, considers to be in the best interests of the Association. If the
Board elects to materially reduce the coverage from the coverage required in this Article, the
Board shall make all reasonable efforts to notify the Members of the reduction in coverage and
the reasons therefor at least thirty (30) days prior to the effective date of the reduction. The
Association, and its directors and officers, shall have no liability to any Owner or Mortgagee if,
after a good faith effort, the Association is unable to obtain any insurance required hereunder
because the insurance is no longer available, or, if available, the insurance 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.
2.08 Owner Insurance.
(a) Each Owner shall carry personal liability and property damage liability insurance with respect to
his or her Unit and his or her conduct. 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. Owner policies shall provide primary coverage for any claim for
damage to or loss of Owner's property, and shall contain no language that the Owner's policy is
secondary to the Association's policy, or will not cover a loss because the loss is covered by the
Association's policy.
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(b) Any Improvements made by an Owner within a Unit that are separately insured by the Owner
must be limited to the type and nature of coverage commonly known as "improvements
insurance." The Owner shall not obtain such insurance if the policy referred to in Section 2.06 will
provide coverage for such Improvements.
(c) All such insurance that is individually carried must contain a waiver of subrogation rights by the
carrier as to the Association provided such waiver is available from the Owner's insurance carrier.
Except as provided in this Section, no Owner can separately insure his or her Unit or any part of
it, against loss by fire or other casualty covered by the Association's blanket insurance. If any
Owner violates this provision, any diminution in insurance proceeds otherwise payable pursuant
to the Association's policy that results from the existence of such other insurance will be
chargeable to the Owner who acquired such other insurance, and the Owner will be liable to the
Association to the extent of any diminution.
(d) Each Owner shall obtain and maintain loss assessment coverage in an amount equal to the dollar
deductible on the Association's fire and casualty (property) policy, but in no event less than ten
thousand dollars ($10,000.00). Loss assessment coverage shall cover loss involving
Assessments levied against the entire Membership, and those levied against the Owner
individually.
(e) Each Owner shall consider obtaining earthquake insurance and any other insurance for his or
Unit that he may desire.
(f) The Board may require tenants to carry renters insurance to protect personal property against
loss and limit exposure to personal liability claims.
(g) Each Owner shall obtain and be able to provide to the Association satisfactory proof that Owner
has obtained all insurance coverage Owner is required to obtain pursuant to this Section.
2.09 Preventive Maintenance.
(a) Inspections by Declarant. For a period often (10) years after the last sale by Declarant,
Declarant shall, in its sole discretion, be entitled to inspect all Common Areas of the Property with
or without notice to the Association and shall, within its sole discretion and at its expense, be
entitled to cure any defect, whether or not the Association or any Owner has complained of such
defect. Also in its sole discretion, Declarant may request permission to inspect individual Units
for the sole purpose of discovering and repairing structural defects. Nothing set forth herein shall
obligate Declarant to perform any inspection or repair, nor shall this Section be deemed to
increase Declarant's legal obligations to Owner/Association.
(b) Cooperation. The Board shall use its best efforts to obtain the consent of all Owners, upon three
(3) days' notice, for entry into and/or inspection of Units pursuant to paragraph (a) above.
Refusal by an Owner to allow access, or failure of the Board to attempt in good faith to obtain
Owner consent for such entry and/or inspection, shall be deemed a failure to mitigate damage in
the event of a defect as defined in Section 896 of the California Civil Code which could have been
avoided through preventive maintenance.
HE
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ARTICLE III
OWNERS GENERAL_ USE RESTRICTIONS
Article 111 defines the manner in which residential Condominiums
may be used.
3.01 Unit Use.
(a) A Unit may only be used for a single family dwelling.
(b) An Owner may lease a Unit for residential purposes provided:
(1) There is a written agreement;
(2) The lease states it is subject to all the provisions of the Governing Documents and that
any failure to comply with any provision of this Declaration or the other Governing
Documents shall constitute a default under the terms of said agreement;
(3) A copy of this Declaration is made available to each tenant or lessee by the Owner so
leasing;
(4) Owners must give the Board the names and telephone numbers of all Occupants;
(5) Occupants shall have no voting rights in the Association;
(6) No Owner may lease a Unit for hotel, motel or transient purposes or any other purpose
inconsistent with the provisions of this Declaration;
(7) Owners, at all times, are responsible for their Occupant(s)' compliance with all of the
provisions of the Governing Documents in the occupancy and use of the Units; and
(8) The Association and each Owner shall have a right of action directly against any
Occupant for any breach of any provision of the Governing Documents.
(c) Subject to Declarant's rights pursuant to the Article entitled "Easements" herein, occupations and
businesses that do not interfere with the residential nature or character of the Property or quiet
enjoyment by other Owners may be carried on within a Unit, provided that all applicable laws,
ordinances, zoning regulations and rules are satisfied and that there is no external evidence of
any such occupation, such as an unreasonable increase in visitors, or an increase in the sound or
smell emanating from the Unit.
3.02 Common Area Use.
(a) Common Area(s) and Exclusive Use Common Area(s), if any, may only be used for purposes
which are compatible with usages customarily associated with common areas located within
residential developments in California, and subject to the limitations described in this Declaration
and other Governing Documents.
(b) Any Owner may, subject to the Governing Documents, delegate his/her rights of use and
enjoyment of any Common Area facilities to the any Occupants of his/her Unit. If an Owner has
rented or leased his/her Condominium, such rights shall be automatically delegated to the tenants
or lessees for the duration of their tenancy, and the Owner shall forfeit any rights to use and enjoy
any such facilities for the duration of such tenancy. With respect to an installment land sales
contract, the seller under the contract shall be deemed to have delegated his/her rights to use
and enjoy any such facilities to the purchaser under the contract.
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3.03 Nuisances.
(a) Illegal, offensive, obnoxious actions, or noxious odors that interfere with any Occupant's quiet
enjoyment are not permitted anywhere on the Property.
(b) An Occupant may not cause the level of noise or sound from the Unit to interfere with the quiet
enjoyment of an Occupant of a Unit within the Project (i.e., loud music or television, shouting,
slamming of doors, and other such actions.)
(c) The Board shall have the right to determine if any unreasonable action, odor, noise or other
conduct constitutes a nuisance, and to appropriately deal with the situation.
(d) Each Owner shall be accountable to the Association and other Owners for the conduct and
behavior of Occupants of his/her Unit. Any damage to the Common Area(s), personal property of
the Association, or property of another Owner, caused by such Occupant(s) shall be repaired at
the sole expense of the Owner of that Unit.
3.04 Debris Trash Refuse and Hazardous Materials.
(a) Weeds, rubbish, debris, objects or materials of any kind that are unsanitary, unsightly, or
offensive may not be placed or permitted to accumulate in any Unit or the Common Area(s).
(b) No person shall discharge into the Project's sewer system or storm drain any toxic or noxious
liquids or materials in such concentrations as to be detrimental to or endanger the public health,
safety, welfare, violate any law, subject any Owner to liability under state and/or federal law for
any clean-up, or cause injury or damage to neighboring property or business elsewhere on the
Project.
3.05 Signs.
(a) Subject to Civil Code Sections 712 and 713, and any local ordinance, an Owner may advertise a
Condominium for sale or lease with sign(s) with a size, format, and location previously approved
by the Board.
(b) All Owners are subject to Civil Code Sections 1353.5 and 1353.6 in regard to the display of non-
commercial flags, banners, signs and posters. Notwithstanding the foregoing, nothing contained
in this Section shall be construed in such manner as to permit the maintenance of any sign which
is not in conformance with any ordinance of the City.
(c) No other sign, poster, display, or advertising device may be displayed anywhere on the
Property visible outside a Unit without the prior written consent of the Board.
(d) If Civil Code Sections 712, 713, 1353.5 and 1353.6 are amended, this provision automatically
shall be amended in the same manner. If these sections are repealed and no successor sections
are enacted, this provision shall remain in full force and effect. The Civil Codes may have been
amended by the State Legislature since this Declaration was recorded, and the Board should
confirm the current statutory requirements.
(e) Notwithstanding anything to the contrary herein, for as long as Declarant owns a Unit, Declarant
may erect and maintain any signs, advertising devices or structures to conduct development,
improvement, subdivision, sale or leasing operations on the Property without Board or
Architectural Committee approval, as long as the activities do not unreasonably interfere with any
Owner's use of the Property.
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3.06 California Vehicle Code and Parking Regulations.
(a) Authorized Vehicles. The following vehicles are authorized within the Property: motorized land
vehicles designed and used primarily for noncommercial passenger transport, such as
automobiles, passenger vans designed to accommodate ten (10) or fewer people, two -wheel
motorcycles, and pickup trucks having a manufacturer's rating or payload capacity of one (1) ton
or less (collectively, "Authorized Vehicles"). Authorized Vehicles may be parked in any portion of
the Property intended for parking of motorized vehicles.
(b) Prohibited Vehicles. The following vehicles are prohibited within the Property: recreational
vehicles (e.g. motorhomes, travel trailers, camper varrs, boats, etc.), commercial -type vehicles
(e.g. stakebed trucks, tank trucks, dump trucks, step vans, concrete trucks, etc.), buses or vans
designed to accommodate more than ten (10) people, vehicles having more than two (2) axles,
trailers, inoperable vehicles or parts of vehicles, aircraft, other similar vehicles or any vehicle or
vehicular equipment deemed a nuisance by the Board (collectively, "Prohibited Vehicles").
Prohibited Vehicles shall not be parked, stored or kept on any public or private street within,
adjacent to or visible from the Property or any other Common Area parking area, except for brief
periods for loading, unloading, making deliveries, emergency repairs, or unless specifically
authorized by the Board.
(c) All applicable provisions of the California Vehicle Code will be enforced on any private streets on
the Property in accordance with California Vehicle Code Section 22658 (or any successor statute
regarding removal of parked cars and required warning signs). The Association may establish
"Parking" and "No Parking" areas within the Common Area(s), in accordance with California
Vehicle Code Section 22658 (or successor statute).
(d) The Association (through the Board) may establish parking Rules and Regulations.
(e) The Association has the right and obligation to enforce all parking restrictions and to remove any
violating vehicles in accordance with the California Vehicle Code, or other applicable laws.
(f) Under no circumstances may explosives, fireworks, or highly flammable material such as
gasoline, kerosene, oil, oil-based paints, solvents, etc. be stored in the garage.
(g) Garage doors, if any, may not be left open, except as temporarily necessary or while used for
entering or exiting.
(h) All vehicles owned or operated by or within the control of an Owner or an Occupant who is a
resident of the Unit and kept within the Property shall be parked in the parking space assigned to
the Unit, and each Owner shall maintain his assigned parking space in a manner which ensures
that it is capable of accommodating no less than the number of Authorized Vehicles the space
was originally designed for by Declarant. Vehicles shall not be restored or repaired on the
Property.
(i) Garage space shall not be converted into any use (such as a recreational room or storage room)
that would prevent its use as parking for the number of vehicles the space was designed to
contain. Owners are to use their assigned parking spaces for parking of their vehicles so that
unassigned Common Area parking will be available for guest parking. The Association may
establish rules for the parking of vehicles in the Common Area.
(j) Neither the Association, Declarant, nor any of their officers, directors, agents or employees shall
be liable to any Owner or Occupant, or to any member of his family, his guests, servants,
employees or invitees, for any theft or, or injury to, any vehicle on the Project, except as provided
by Section 22658(d) of the Vehicle Code. Each Owner shall indemnify, defend, and hold
harmless the Association, Declarant and their officers, directors, agents, employees, and
representatives from any injury, damages, claims, liabilities, costs or expenses caused by, arising
out of, or related to the provisions of this Section, or any offending vehicle.
(k) The guest parking areas in the Project may not be used on a long-term or routine basis by
Owners or Occupants in the Project.
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Vehicles may not be washed on the Property except as provided for by the Board.
(m) The provisions of this Section are intended to comply with California Vehicle Code Section
22658 (regarding illegally parked cars) in effect on the date this Declaration was recorded. 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 §22658 may have been amended by the State
Legislature since this Declaration was recorded, and the Board should confirm the current
statutory requirements.
3.07 Animal Regulations.
(a) A maximum of two (2) domesticated cats or dogs, or one cat and one dog, may be kept in a Unit,
unless a greater number is authorized by the Board and provided they are not kept, bred or
raised for commercial purposes and they are kept under reasonable control at all times. The
Board may establish rules and regulations governing size, weight and number restrictions of
animals that may be allowed in the Project.
(b) In addition, small domesticated animals (e.g., birds, hamsters, fish, turtles) may be kept in a
contained environment (cage or aquarium), provided they are not kept, bred or raised for
commercial purposes, and subject to the following sub -paragraphs of this Section.
(c) No animal shall be permitted to become a nuisance or create any unreasonable disturbance. If a
pet is determined to constitute a nuisance pursuant to the Section entitled "Nuisances," the Board
may carry out enforcement measures, including fines and permanent removal of the animal from
the Project.
(d) An animal may only enter the Common Area(s) while on a leash not to exceed six (6) feet in
length that is held by a person capable of controlling it. No animal may be tied or left unattended
in any Common Area.
(e) Owners and Occupants must prevent their pets from soiling the Common Area(s), and shall
promptly clean up any waste left by their pets. No pets or animals of any kind may be taken into
recreational areas containing swimming pools or spas.
(f) The Owner of the Unit where the pet is kept shall be responsible for any damage to the Common
Area caused by the animal. Any damage caused by cleaning materials or any attempt to remedy
such damage shall be the full financial responsibility of said Owner. Each Owner of a pet shall
have sole liability for all damages claimed by any person harmed by such animal, and shall
defend, indemnify and hold harmless all other Owners, Declarant (as long as Declarant owns a
Unit), the management company, the Association and the Board of Directors from any and all
losses, costs, and liability arising from having any pet on the Property.
(g) Occupants must obtain approval from the Unit Owner before keeping pets in the Unit. The Owner
shall be responsible for an Occupant's compliance with any Rules and Regulations regarding
animals within the Project. Both the Occupant(s) and Owner of the Unit shall have joint and
several liability for any damage, including personal injury and property damage, claimed by any
person harmed by such pet.
(h) Notwithstanding the foregoing, no domestic dogs shall be within the Common Area that are
deemed by the Board to be vicious or potentially dangerous dogs. All vicious and potentially
dangerous dogs must be kept indoors or in a securely fenced area within the Owner's Unit from
which it cannot escape, and into which children or other individuals cannot trespass. A dog shall
be deemed "vicious" for purposes of this Section if, when unprovoked:
(1) It has bitten a person (however, a dog may be vicious even though it is not proven to
have bitten any person);
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(2) In an aggressive manner, it inflicts injury on or kills a human being; or
(3) It has previously been determined to be and is currently listed as a potentially dangerous
dog (as determined by the Board of Directors or local governmental authority) and, after
its Owner or keeper has been notified of this determination, it continues to engage in
behavior deemed potentially dangerous.
(i) A dog shall be deemed "potentially dangerous" for purposes of this Section if, when unprovoked:
(1) On two separate occasions within the prior 36 -month period, it engages in any behavior that
requires a defensive action by any person to prevent bodily injury when the person and the dog
are off the property of the Owner or keeper of the dog; (2) It has killed, seriously bitten, if
injury, or otherwise caused injury attacking a domestic animal off the property of the Owner or
keeper of the dog; or (3) The dog has run loose or, if leashed, was not under the control of a
responsible person on two occasions per sub -paragraph (d) above.
Q) The Association shall have the right to cause a dog found to be in violation of any provision of this
Section to be removed from the Property and to enforce this Section pursuant to the terms of
Article V of this Declaration and the Bylaws or any other provision or amendment thereto.
3.08 Antennas and Satellite Dishes.
(a) Except for Authorized Antennas, no television or radio poles, antennas, satellite dishes, or
technological evolutions of the foregoing, flag poles, clotheslines, or other external fixtures other
than those originally installed by the Declarant or approved in accordance with this Declaration
shall be constructed, erected or maintained on or within the Project, unless authorized by the
Architectural Committee.
(b) Any Owner who desires to install an Authorized Antenna shall agree to install such device wholly
within his Unit and/or Exclusive Use Common Area(s) so that it does not encroach upon another
Unit or Common Area(s), and maintain, repair or replace any Improvements affected by the
installation, maintenance or use of such antenna, if required by the Architectural Committee.
Under no circumstances shall any Owner drill through, or install any Improvements upon any
Common Area(s) with respect to the installation or maintenance of any antenna or wiring, unless
approved by the Architectural Committee. Nothing shall be done in any Unit or Common Area(s)
which will or may tend to impair the structural integrity of any building in the Project. There shall
be no alteration, repair or replacement of wall coverings within Units which may diminish the
effectiveness of the sound control engineering within the buildings in the Project.
(c) Architectural Committee Restrictions. The Architectural Committee may adopt reasonable
restrictions on installation and use of an Authorized Antenna in order to minimize visibility of the
Authorized Antenna from other Units. Such restrictions may designate one (1) or more preferred
installation locations, or require camouflage such as paint (subject to the antenna manufacturer's
recommendations), screening or other Improvements. However, no restriction imposed by the
Architectural Committee may (a) unreasonably delay or prevent the installation, maintenance or
use of an Authorized Antenna, (b) unreasonably increase the cost of the installation, maintenance
or use of an Authorized Antenna, or (c) preclude acceptable quality reception.
The Architectural Committee may prohibit the installation of an Authorized Antenna in a
particular location if, in the Architectural Committee's opinion, the installation, location or
maintenance of such Authorized Antenna unreasonably affects the safety of the Owners or any
other Person, or for any other safety-related reason established by the Architectural Committee.
The Architectural Committee may also prohibit an Owner from installing an Authorized Antenna
on any real property which such Owner does not own or is not part of his Exclusive Use Common
Area. Further, the Architectural Committee has the power to prohibit or restrict the installation of
any antenna or other over -the -air receiving device that does not meet the definition of an
Authorized Antenna.
The Architectural Committee may review the location and installation of an Authorized Antenna
after it is installed. After its review, the Architectural Committee may require that the Authorized
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Antenna be moved to a preferred location (if one has been designated) for safety reasons or to
comply with reasonable restrictions subject to this Section and applicable law.
(d) Declarant and the Association shall have the right, without obligation, to erect, place or install and
maintain any such apparatus, such as a central antenna, for the benefit of all or a portion of the
Project. In such event, an Owner may install an individual Authorized Antenna provided that:
(1) The Owner desires, and with an individual antenna could receive, particular video
programming or fixed wireless service that is unavailable from the central antenna;
(2) The signal quality of transmission to and from the Unit would be better with an individual
antenna than from the central antenna and would not affect the quality of reception in
other Units;
(3) Owner's costs associated with the use of the central antenna would be greater than
Owner's costs of installation, maintenance and use of an individual antenna; and
(4) The requirement to use the central antenna instead of an individual antenna would
unreasonably delay the Owner's ability to receive video programming or fixed wireless
services.
(e) All installers of antennas or satellite dishes agree to indemnify or reimburse the Association or its
Members for loss or damage caused by the installation, maintenance or use of an antenna or
satellite dish.
(f) Notwithstanding the foregoing, all restrictions on video or television antennas (including satellite
dishes) shall be subject to all applicable federal state and local laws, including, but not limited to,
the Federal Telecommunications Act of 1996 and California Civil Code Section 1376, as same
may be amended from time to time. Furthermore, all amendments, modifications, restatements
and interpretations of the laws applicable to the installation, use or maintenance of an antenna or
over -the -air receiving device shall be interpreted to amend, modify, restate and/or interpret this
Section.
3.09 Temporary Structures.
A temporary structure is only permitted on a Unit with approval of the Architectural Committee
and if it is incidental to construction actively in progress.
3.10 Basketball Standards.
No basketball standards or fixed sports apparatus shall be attached to any Unit except as
approved by the Board. The Rules and Regulations may further limit the use or placement of
portable basketball apparatus.
3.11 Exterior Lighting.
Any exterior electrical, gas or other artificial lighting installed on any Unit shall be positioned,
screened, or otherwise directed or situated and of such controlled focus and intensity so as not to
unreasonably disturb the residents of any other Unit. Further rules regarding exterior lighting may
be promulgated by the Architectural Committee.
3.12 Window Covers.
Newspaper, aluminum foil or similar materials may not be used as window coverings.
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3.13 Exterior Clotheslines.
No exterior clothesline shall be erected or maintained or hung on balconies or railings within the
Project and there shall be no exterior drying or laundering of clothes or any other items on any
Exclusive Use Common Area or Common Area.
3.14 Common Fences.
(a) An easement exists appurtenant to any Unit for any "Common Fences" (fences on boundary lines
between the Units and/or Common Area(s)) originally installed by the Declarant, whether or not
the fences are located precisely on the Unit boundary line.
(b) Owners with a Common Fence have an equal right to use the fence, with the following
provisions:
(1) Each Owner has exclusive right to use the interior surface of the fence facing the
Unit;
(2) Owners may not drive nails, screws, bolts or other objects more than half way through
any Common Fence;
(3) Owners may not interfere with the adjacent Owner's use and enjoyment of the Common
Fence;
(4) Owners may not threaten or impair the structural integrity of the Common Fence; and
(5) If any portion of the fence (other than the interior surface of one (1) side) is damaged by
any cause other than the act or negligence of either party, it must be repaired or rebuilt at
the relevant Owners' joint expense.
3.15 Air Conditioners and Other Equipment.
(a) Air conditioners, heating, cooling, ventilating equipment and all other mechanical, lighting, or
electrical devices shall be so operated and located so that they do not disturb the peace, quiet,
and comfort of neighboring Occupants residing in Units and shall be screened, shielded and/or
sound buffered from surrounding Units, streets and other portions of the Common Area. All such
equipment must be installed and operated in accordance with all applicable provisions of the local
Codes and any other applicable requirements.
(b) No wiring insulation, air conditioning, heating, or other machinery or equipment other than that
originally installed by Declarant or approved in accordance with the requirements of this
Declaration, and their replacements shall be constructed, erected or maintained on any Unit or
Common Area.
3.16 Drains Located on Balconies.
(a) Each Owner is responsible for the cleaning and maintenance of the drains that lie appurtenant to
the balconies of their Unit. Improperly maintained drains may cause water blockage and/or
potential flooding which can detrimentally affect other Owners/Occupants in adjoining Units.
Owners will be held liable for failing to clear the debris, leaves, garbage, dirt and other materials
that may obstruct or block these drains and the drains on all adjoining Common Areas.
(b) Additionally, an Owner may not engage in any activity that could obstruct, damage, impair or alter
the flow of water through such drains. Activities include, but are not limited to, interfering with or
altering the established drainage pattern, disposing of hazardous substance within the sewer
system or drains, placing any object which might otherwise block the flow of water, allowing
debris or other matter to accumulate in the drain opening, and/or intentionally or negligently
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damaging the drain in any manner that might prevent water from freely flowing through the drain.
Any damage, losses, or costs incurred due to an Owner's failure to regularly maintain such drains
or the intentional or negligent acts of an Owner or an Owner's Occupants or invitees, even if the
damage is to a portion of the drain that is otherwise maintained by the Association or another
Owner, shall be the responsibility of the Owner.
(c) All repairs shall be subject to prior approval of the Board and/or according to the standards set
forth by the Architectural Committee in compliance with the terms of this Declaration. An Owner
is obligated to promptly notify the Association in the event that an Owner detects damage to such
drain units. Should an Owner fail to comply with the regulations set forth in this provision, the
Association and/or the Architectural Committee is authorized to enter Owner's Unit or Exclusive
Use Common Area to remedy the violation, and shall be reimbursed by that same Owner for any
costs or expenses incurred therefrom. Any failure of the Owner to promptly notify the Association
or Board to comply with this Section shall be deemed a failure to mitigate damage in the event of
a defect as defined in Section 896 of the California Civil Code that could have been avoided
through preventive maintenance and may be cause for such claims to be denied.
3.17 Indemnity of the Association by Owner.
Each Owner shall defend and indemnify and hold the Declarant, Association, Managing Agent,
and other Owners harmless without limitation on any claims arising from the Owner's and/or any
other Unit Occupant(s)' negligence or willful misconduct for damages sustained on the Common
Area(s), including any costs incurred, to remedy the situation.
3.18 Use/Alteration Affecting Insurance Rates.
(a) Acts that threaten cancellation or an increase of insurance rates for the Property may not be
committed without Board approval.
(b) If a particular Owner's use or activity is the cause of increased insurance rates, the
responsible Owner is personally liable for the additional insurance premiums for the Association.
3.19 Owner's Failure to Comply.
Each Owner acknowledges by acceptance of the Grant Deed or other conveyance for a Unit,
whether or not it shall be expressed in any such deed or other instrument, that the covenants,
conditions and restrictions set forth in this Article benefit the Association, and that the Association
has a substantial interest in assuring compliance with, and enforcement of, this Section. In the
event that an Owner fails to comply with the conditions, obligations, regulations, and maintenance
set forth within the Governing Documents, the Board may deliver written notice to such Owner
demanding compliance and informing said Owner of the particular condition, obligation, regulation
or maintenance requirement that has been violated. Upon receipt, Owner shall have thirty (30)
days, unless an alternate reasonable time is established by the Board to correct the violation. In
the event that said Owner continues the violation beyond the designated period, the Board shall
have the right to enter onto any Unit to remedy the violation, and the Owner shall be charged a
Compliance Assessment equal to the Board's cost of repair, for which the Board may obtain a
court order and judgment for the Compliance Assessment which shall continue to accrue until
judgment is entered.
3.20 Sound Attenuation.
Acoustical privacy is in the mutual interest and benefit of all Owners, lessees, and other
Occupants of the Property. Acoustical privacy can only be achieved through understanding and
compliance with certain limitations and restrictions. It is recognized that total isolation from an
adjacent Unit in a manner comparable to a detached single-family residence is difficult if not
impossible to attain. There will usually be some awareness of one's neighbors and ambient noise
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from other Units due to common walls. Efforts have been made in the basic design of the
Property to alleviate airborne noise, structure -borne noise and impact noise transmission from
and to each Unit but will not eliminated all noise and sounds. Modification of design of the
structures or related components thereof by any Unit Owner, or installation of noise generating
instruments or equipment, could then alter the noise level. The following restrictions are intended
to maximize the acoustical privacy of all Owners and other Occupants of the Property.
(a) Impacts from Improvements; Noise Study. Any Improvement, equipment, or activity which may
create noise impacts for any Unit or Common Area shall be subject to the strict noise reduction
requirements and guidelines set forth herein and/or in any guidelines adopted by the Architectural
Committee orthe Association from time to time (the "Noise Guidelines"). The Architectural
Committee and/or the Board shall have the right to request that any Owner desiring to install any
such Improvements or equipment submit the results of a noise study prepared by a qualified
consultant reasonably acceptable to the Architectural Committee or the Board, as applicable.
(b) The Noise Guidelines shall include, but not be limited to, the following:
(1) Any holes or other penetrations made in party walls in Units shall comply with the
Architectural Guidelines established by the Board, but may not in any instance affect the
structural integrity of the building or cause damage to the other Units or Common Area.
(2) No modifications shall be made to any Unit which would result in a reduction in the
minimum impact insulation class of the Unit.
(3) Loudspeakers for music reproduction and television sound shall (i) not be supported from
or contact made to walls between adjoining Units, and (ii) shall be elevated from the floor
by a proper acoustic platform.
(4) Pianos shall have proper support pads to minimize vibration transmission into the
structure.
(5) Resilient pads must be placed under all washing machines and dishwashers in order to
avoid transmitting vibration to other Units.
(6) Furniture used for hard surface flooring shall contain rubber castors or felt pads.
(c) Prior to installing any improvement, equipment, or performing an activity which may create noise
impacts for any Unit, the Owner or Occupant of said Unit shall submit a written description to the
Architectural Committee of the measures that the Owner intends to take to ensure that said
equipment or instrument shall not disturb the Owners and other Occupants within the building
(the "Noise Reduction Measures"). Said Noise Reduction Measures may include, among other
things, using suitable mounting and/or vibration isolation products to preclude noise and vibration
transmission to other Units. The Architectural Committee shall review the proposed Noise
Reduction Measures submitted by an Owner or an Occupant of a Unit and, if the Architectural
Committee, in its sole discretion, determines that said measures will be adequate to minimize
noise, the Architectural Committee shall provide written notice of approval to said Owner or
Occupant within thirty (30) days of receipt of the Noise Reduction Measures. If the Architectural
Committee, in its sole discretion, determines that the Noise Reduction Measures are inadequate,
then the Owner shall be prohibited from making the desired installation. The Architectural
Committee may recommend additional or alternative reasonable measures. If the Architectural
Committee fails to provide written notice to the Owner or Occupant within said sixty (60) day
period, it shall be conclusively presumed that the Architectural Committee has approved the
Noise Reduction Measures.
(d) Noise Field Testing. In the event a complaint is made for non-compliance with the Noise
Guidelines, the Architectural Committee or the Board may retain the services of a recognized
acoustical engineer to field test the area of complaint. The costs shall be chargeable to the
complaining party in the event the field test shows that conditions meet the criteria of the
applicable guidelines. If such field tests show non-compliance, then the costs of the testing shall
be borne by the offending party. In the event an Owner or Occupant fails to comply with the
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provisions of this Section or any Noise Guidelines (a "Noise Violation"), the Association shall have
the right, after Notice and Hearing and reasonable opportunity to cure such Noise Violation as
determined by the Board pursuant to this Section, to enter into the Owner's Unit or Exclusive Use
Common Area for the purpose of remedying the Noise Violation. The Association shall not be
liable to trespass in connection with such entry. At any hearing on a noise issue, the Owner will
have an opportunity to discuss with the Board the merits of the claims set forth in the
Association's original notice of Noise Violation, and the Board will determine what action, if any
needs to be taken by the Owner to remedy the Violation and the time within which it must be
accomplished. The cost to the Association of remedying such Owner's failure to comply with the
provisions of this Section, as well as any damages suffered by the Association with respect
thereto, shall be assessed to the Owner as a Reimbursement Assessment.
(e) Other Devices. Many other devices or uses or misuses thereof, can likewise be the cause of
unacceptable sound or vibration in adjacent Units including, but not limited to, rotating, oscillating
or vibrating devices. Owners are forewarned and on notice that the criteria for acoustical privacy
set forth herein, shall apply for any condition resulting in annoyance and complaint by other Unit
Occupants within the Property.
(f) Indemnity. In the event that any Owner does not comply with the Noise Guidelines set forth
herein, irrespective of any approval by the Architectural Committee, all Owners shall indemnify,
defend and hold harmless Declarant and its successors -in -interest, the Association, the Board
and the Architectural Committee from any claims for defects, damages, liabilities, costs and/or
expenses (including reasonable attorneys' fees) arising out of, caused by, or associated with
such non-compliance.
3.21 Declarant's Exemption from Use Restrictions.
(a) Conveyance of a substantial number of the Units is essential to the establishment and welfare of
the Project. In order that all work necessary to complete the Project and to establish a
substantially occupied Project may proceed as rapidly as possible, nothing in this Declaration
shall be understood or construed to:
(1) Prevent Declarant, its contractor or subcontractors, or any of their representatives, from
doing any work on or at the Property or any part thereof for the purposes of completing
the build -out of the entire Project, including without limitation, any Units, Common Area or
any other part of the Property or Project;
(2) Prevent Declarant, its contractors, subcontractors, or any of their representatives, from
erecting, constructing and maintaining on any part or parts of the Property owned or
controlled by Declarant, including without limitation, such structures as may be
reasonably necessary to complete the Project, establish said Project as a residential
community and dispose of the same by sale, lease or otherwise;
(3) 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
(4) Subject Declarant to the architectural control provisions of Article VII for construction of
any Unit or other Improvements on the Project.
(b) The foregoing rights of Declarant shall terminate upon sale of Deciarant's entire interest in the
Project. So long as Declarant, its successors and assigns, owns a Unit, Declarant, and its
successors and assigns, shall be subject to the provisions of this Declaration and enjoy the
benefits conferred on Declarant pursuant to the provisions of this Declaration, including without
limitation, pursuant to this Section 3.21.
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3.22 Documents to Subsequent Owners.
Owner acknowledges being obligated to provide to subsequent purchasers of Owner's Unit all
documents received in conjunction with the initial sale of the Unit, including, but not limited to,
copies of (a) this recorded Declaration (and any amendments), (b) the recorded Condominium
Plan (and any amendments), (c) the recorded Notice of Non -Adversarial Procedures Under Civil
Code Section 912(f), (d) filed Articles of Incorporation, (e) Bylaws of the Association, (f) any
maintenance manual and warranty information, (g) current Association budget, and (h) any other
related disclosures.
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ARTICLE IV
ASSOCIATION MEMBERSHIP AND VOTING RIGHTS
Article IV defines Owners' Membership and voting rights.
4.01 Organization.
The Association is a California nonprofit mutual benefit corporation charged with the duties and
vested with the powers prescribed by law and set forth in the Governing Documents.
4.02 Membership.
Every Owner is automatically an Association Member. Each Member shall be obligated promptly,
fully and faithfully to comply with the provisions of this Declaration, and the Bylaws of the
Association, and any Rules and Regulations from time to time which may be prescribed by its
officers or directors.
4.03 Membershi Classes.
(a) The Association has two (2) classes of voting membership:
(1) Class A Members - All Owners (other than Declarant), entitled to one (1) vote for each
Unit owned.
(2) Class B Member - Declarant, entitled to three (3) votes for each Unit owned by
Declarant.
(b) Class B Membership irreversibly ceases and converts to Class A Membership on the first to
occur of the following:
(1) The total votes held by Class A Membership is equal to or is greater than the total votes
held by Class B Membership (tripled); or
(2) Two (2) years after the First Close of Escrow of a Unit in the Project.
4.04 Voting Rights and Requirements.
(a) Voting rights shall commence for each Unit within the Project when Assessments against the Unit
have been levied by the Association.
(b) Co -Owners shall have the following voting rights:
(1) Each Co -Owner has an indivisible interest in a single Membership.
(2) Each Unit's vote is cast as a single unit, without fraction. If Co -Owners cannot
unanimously agree how to cast their vote, they forfeit their right to vote on the matter in
question.
(3) If a Co -Owner casts a vote representing a certain Unit, it will be presumed for all
purposes to be a vote with the authority and consent of all other Co -Owners of the Unit.
(c) After Notice and Hearing as provided herein, the Board has the right to suspend the voting rights
of any Owner delinquent more than forty-five (45) days in the payment of Assessments.
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(d) Unless otherwise specifically required, Membership approval requires the affirmative vote of a
majority of a quorum of each class of Membership (and after conversion, approval of Class A
only).
(e) If Membership approval of a specified prescribed majority (e.g. 67%) of the voting power (other
than Declarant) is required, the following rules apply:
(1) If both Class A and Class B Members exist, the required vote is a bare majority of Class
B voting power, and the prescribed majority of Class A voting power; or
(2) After conversion to all Class A memberships, the required vote is the prescribed majority
of the Total Voting Power of Members other than Declarant.
(f) No provision which requires the approval of a prescribed majority of the voting power of Members
of the Association other than the Declarant for action to be taken by the Association is intended to
preclude the Declarant from casting votes attributable to Units which Declarant owns.
4.05 Transfer of Membership.
(a) Membership of each Owner shall be appurtenant to the Unit owned, and may only be (and is
automatically) transferred upon conveyance of title to a Unit to the new Owner.
(b) In connection with any transfer or change of ownership of any Unit, the Association and each
Owner must comply with Civil Code Section 1368.
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ARTICLE V
DUTIES AND POWERS OF THE ASSOCIATION
Article V describes in detail the duties and powers of the
Association to govern its Members and maintain the Common
Areas.
5.01 Commencement of Duties.
(a) The Association's responsibility to maintain Common Areas shall commence upon the First Close
of Escrow of a Condominium. Notwithstanding the foregoing, if the contractors or subcontractors
of Declarant are contractually obligated to maintain or warrant the landscaping or other
improvements on Common Areas for a specified period in which said contractors or
subcontractors shall perform such maintenance, the Association shall not interfere with the
performance of such warranty or other contractual maintenance obligations. Maintenance
performed by such contractors or subcontractors shall not serve to postpone the commencement
of Assessments pursuant to this Declaration, nor entitle an Owner to claim any offset or reduction
in the amount of such Assessments.
(b) In the event that a Dispute arises between Declarant and the Association with respect to the
nature, design, quality or quantity of the improvements in Common Areas, or the acceptance of
maintenance responsibilities therefor, the Association shall be obligated to assume and
undertake maintenance responsibilities pending resolution of the Dispute, in accordance with the
provisions set forth in the Article herein entitled "Dispute Notification and Resolution Procedures".
(c) Transfer of Control to the Association. Transfer of control of the Association shall pass to the Unit
Owners within the Project no later than the latest of the following:
(1) One hundred twenty (120) days after the date by which 75% of the Units have been
conveyed to the Unit purchasers;
(2) Three (3) years after completion of the project evidenced by the first conveyance to a
Unit purchaser; or
(3) The time frame established under state or local condominium laws if specific provisions
regarding transfer of control exist.
5.02 Specific Association Duties and Powers.
The duties and powers of the Association are those set forth in the Governing Documents,
together with its general and implied powers as a nonprofit mutual benefit corporation, generally
to do all things which are necessary or proper for the peace, health, comfort, safety and general
welfare of its Owners, including without limitation, the following:
(a) Enforce the applicable provisions of the Governing Documents and other instruments for the
ownership, management and control of the Project.
(b) Contract for goods and/or services for Common Areas (not including Exclusive Use Common
Areas), facilities, and interests, or for the Association subject to the limitations set forth in the
Bylaws.
(c) Borrow money with the assent of sixty-seven percent (67%) of the Total Voting Power and/or to
mortgage, pledge, or otherwise hypothecate any of its real or personal property as security for
money borrowed or debts incurred.
(d) Exercise any powers normally exercised by residential homeowner associations under the laws of
the State of California.
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(e) Have the authority, through the Board, to enter into a maintenance agreement, as reviewed by
DRE, with Declarant for temporary suspension of a portion of Regular Assessments.
5.03 Authority of Board to Alter Boundaries of Condominiums.
If any building or portion thereof containing Condominiums is damaged or destroyed or in need of
renovation or rehabilitation and the building is repaired or reconstructed, the Condominium
building may be repaired or reconstructed in a manner that alters the boundaries of the Units
and/or Common Areas provided all of the following conditions are satisfied:
(a) The alteration has been approved by the Board of Directors, by Members holding a majority of
the Total Voting Power of the Association, and by the holders of any First Mortgages to the extent
required herein;
(b) The Board has determined that the alteration is necessary in order to comply with current
building code requirements, to meet current building construction standards and procedures, or to
improve the conditions and quality of the Condominium building;
(c) The alteration does not materially change the location of any Unit or materially reduce the size of
any Unit without the consent of the Owner of such Unit and the holders of any First Mortgages
thereon. For purposes of this Declaration, a material reduction in the size of the Unit shall mean
any alteration that increases or decreases the square footage of the interior floor space of the
Unit by more than five percent (5%) from that which was originally constructed by Declarant;
(d) The Board has determined that any alteration that will relocate or reduce the Common Areas will
not unreasonably interfere with the rights of the Owners and occupants to use and enjoy the
Common Areas; and
(e) The Condominium Plan is amended to reflect the alteration to the Units or Common Areas.
5.04 Right of Entry,.
(a) The Association has the right to enter any Unit or Exclusive Use Common Area to determine
compliance with the Governing Documents and to perform its duties, including the duties to
maintain the Condominium building and to enforce the Governing Documents,
(b) In case of emergency, or by court order, a Unit may be entered immediately.
(c) Absent an emergency or court order, a Unit or its Exclusive Use Common Areas may only be
entered at reasonable hours after the Owner has received three (3) days' written notice. The
written notice of entry must state explicitly the Declarant/Association's reason(s) for the necessity
to enter any Unit or Exclusive Use Common Area.
(d) Entry must be made with as little inconvenience as possible to the Owner/Occupant and without a
breach of the peace. If the Association has reason to expect a breach of the peace upon entry, it
may take such preventive steps as it deems necessary, including obtaining a court order.
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ARTICLE VI
COVENANTS FOR ASSESSMENT
Article VI describes Assessments which Owners pay in order to
fund Association functions, including maintenance, insurance, etc.
6.01 Assessments.
(a) Assessments may be levied by the Association for improvement and maintenance of the
Common Area(s), administration of the Property, and to promote the recreation, safety, and
welfare for the common good of all the Owners.
(b) Each Owner, by acceptance of a Grant Deed to a Condominium, whether or not it shall be so
expressed in any deed, covenants and agrees to pay all Assessments to the Association.
(c) Assessments and related interest, collection costs, and reasonable attorneys' fees are the
personal obligations of the Owner, but are not the personal obligation of successors in title unless
expressly assumed by them. The Condominium remains subject to any Assessment liens of
record, except upon Foreclosure of a First Mortgage, as stated in the Article entitled "Mortgagee
Protection".
(d) Pursuant to Civil Code Section 1366.1, the Association may not collect an Assessment or fee that
exceeds the amount necessary to defray the costs for which it is levied.
6.02 Commencement; Due Dates of Assessments.
(a) Regular Assessments against all Condominiums in the Project commence on the first day of the
month following the First Close of Escrow within the Project. However, the closing of escrow for
any Condominium which is leased by a buyer back to Declarant for use as a model for sales
purposes shall not be deemed a First Close of Escrow for purposes of commencing
Assessments.
(b) Regular Assessments shall be due and payable in any reasonable manner established by the
Board.
6.03 Variable Assessment Rate.
All Assessments, both Regular and Special, shall be levied equally among the Units, except for
that portion of the Assessments specially allocated to meet the cost of those items as set forth on
Page 14 of the budget submitted to the California Department of Real Estate and included in
Exhibit "C" attached hereto. These specially allocated items shall be prorated based on the
relative square footage of the Units as set forth in Exhibit "B" attached hereto.
6.04 Assessment Duties of the Board of Directors.
(a) The Board must levy Regular and Special Assessments in compliance with Civil Code Section
1366.
(b) The Board must establish separate bank accounts for operating monies and reserve monies. In
the event of transfer or conveyance of an Owner's fee simple title to a Unit, said Owner shall have
no further right or interest in any Assessments collected prior to such transfer. Assessments
collected in accordance with the provisions of the Governing Documents shall be appurtenant to
a Unit and shall automatically transfer to a new Owner in the event of sale.
(c) The Board may not impose Special Assessments in a fiscal year aggregating more than five
percent (5%) of the budgeted gross expenses of the Association for that fiscal year unless
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approved by a majority of the votes cast at a meeting in which the need for a Special
Assessment is determined. Special Assessments levied by the Board in order to restore funds to
the reserve account are included in this limitation.
6.05 Effect of Nonpayment of Assessments: Delinquency and Remedies of the Association.
(a) An Assessment is delinquent ("Delinquent Assessment") if not paid within fifteen (15) days after
the due date. A Delinquent Assessment includes:
(1) A late charge imposed by the Board to the maximum amount in accordance with
California Civil Code Section 1366 (or any successor statutes);
(2) Reasonable collection costs and attorney's fees; and
(3) Interest on all costs and charges at the maximum permissible rate, commencing thirty
(30) days after the Assessment is due.
(b) Delinquent Assessments and related costs will be a continuing lien on the relevant Condominium
when a "Notice of Delinquent Assessment" is recorded against an Owner's fee interest in a
Condominium.
(c) Notwithstanding the foregoing, a Compliance Assessment imposed by the Board as a disciplinary
measure for failure of an Owner to comply with the Governing Documents may not become a lien
against the Owner's Unit enforceable by a sale of the Unit in accordance with the provisions of
Sections 2924, 2924(b) and 2924(c) of the Civil Code. However, this does not apply to charges
imposed against an Owner consisting of reasonable late payment penalties for Delinquent
Assessments and/or charges to reimburse the Association for the loss of interest or for costs
reasonably incurred including attorney's fees in its efforts to collect other Delinquent
Assessments.
(d) In addition to all other legal rights and remedies, the Association may:
(1) Bring legal action against an Owner who is personally obligated to pay the Assessment
and charges (without foreclosing or waiving any lien security);
(2) Judicially foreclose the lien against the Condominium, including the Assessment, interest,
collection costs and late charges;
(3) Foreclose the lien by power of sale in accordance with California Civil Code Sections
2924-2924h, or any other lawful manner;
(4) Bid on the Condominium through authorized agents at the Foreclosure sale, to acquire
and thereafter to hold, lease, mortgage or convey; or
(5) Temporarily suspend the voting rights of the Owner in accordance with the provisions of
this Declaration.
(e) The Association may not foreclose a lien unless the amount of Delinquent Assessments exceeds
one thousand eight hundred dollars ($1,800) exclusive of late charges, interest and fees and
costs of collection, or unless the Assessments have been delinquent for longer than twelve (12)
months.
(f) The decision either to record a lien for Delinquent Assessments or to initiate Foreclosure upon
such a lien shall be made only by the Board and may not be delegated to an agent of the
Association. The Board's decision shall be by majority vote of Directors present in an open
meeting and shall be recorded in the minutes of that meeting. The confidentiality of the affected
Owner shall be maintained by identifying the matter in the minutes by the Unit number rather than
the name of the Owner.
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(g) Upon an Owner's timely payment of a default and all related fees, Association officers may
prepare and record (at the Owner's cost) a release of the Notice of Delinquent Assessment.
6.06 Collection of Assessment Debts Not Collectible Through Foreclosure.
Delinquent Regular or Special Assessments of less than one thousand eight hundred dollars
($1,800), exclusive of interest, charges and fees, may be collected in any of the following ways,
as provided by Civil Code Section 1367.1(b) or successor statute:
(a) By a civil action in small claims court;
(b) By recording a lien on the Owner's Unit upon which the Association may not foreclose until the
amount of Delinquent Assessments exceeds one thousand eight hundred dollars ($1,800) or the
delinquency is for longer than twelve (12) months); or
(c) Any other manner provided by law except judicial or non judicial Foreclosure.
6.07 Reserves.
A portion of Regular Assessments shall go towards an adequate reserve fund for maintenance,
repairs and replacement of those Improvements that the Association is obligated to maintain
and/or that must be replaced on a periodic basis.
6.08 Right of Redemption.
A nonjudicial Foreclosure by the Association shall be subject to a right of redemption from a
Foreclosure sale within ninety (90) days after the Foreclosure sale.
6.09 Nonuse and Abandonment.
An Owner does not waive or otherwise avoid liability for Assessments by nonuse of the Common
Area(s) or abandonment of a Unit.
6.10 Emergency Assessments.
(a) Notwithstanding any other provision of this Article, the Board may increase Assessments in order
to fund any of the following:
(1) An extraordinary expense required by an order of the court;
(2) An extraordinary expense necessary to repair or maintain the Project or any part of it for
which the Association is responsible if a threat to personal safety on the Project is
discovered;
(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.
(b) Prior to imposition or collection of an Assessment for emergency purposes, the Board must pass
a resolution containing written findings as to the necessity for the extraordinary expense and why
it was not or could not have been reasonably foreseen while preparing the budget. The
resolution must be distributed to the Members together with the notice of Assessment.
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6.11 Waiver of Exemptions.
With respect to Assessment liens, each Owner waives (to the extent permitted by law) the
benefit of any California homestead or exemption laws in effect when any Assessment or
installment becomes delinquent or a lien is imposed.
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ARTICLE VII
ARCHITECTURAL CONTROL
Article Vll addresses alterations which Owners may wish to make to
their Units. The Architectural Committee's approval must be
obtained for most such changes.
7.01 The Architectural Committee.
(a) The Architectural Committee shall consist of not fewer than three (3) persons nor more than five
(5) persons as fixed from time to time by resolution of the Board.
(b) Declarant shall initially appoint the Architectural Committee. Declarant shall retain the right to
appoint, augment or replace all members of the Architectural Committee until one (1) year after
issuance of the original DRE final subdivision public report for the Property, at which time the
Board may appoint members, as further described herein.
(c) Declarant shall retain the right to appoint, augment or replace a majority of the members of the
Architectural Committee until (i) five (5) years after the First Close of Escrow, or (ii) close of
escrow has occurred on ninety percent (90%) of the Units within the Property, whichever shall
first occur, at which time the right to appoint, augment or replace all members of the Architectural
Committee shall automatically be transferred to the Board.
(d) As long as Declarant has the right to appoint some but not all of the members of the Architectural
Committee, the Board shall have the right but not the obligation to fill the remaining vacancies on
the Architectural Committee.
(e) Persons appointed by the Board to the Architectural Committee must be Members; however,
persons appointed by Declarant to the Architectural Committee need not be Members, in
Declarants sole discretion.
(f) The address of the Architectural Committee shall be the address established for giving notice to
the Association unless another address is specified for such purpose in the Architectural
Guidelines. Such address shall be the place for the submittal of plans and specifications and the
place where the current Architectural Guidelines shall be kept.
(g) Meetings of the Architectural Committee shall be held from time to time as necessary. Notice,
hearing and conduct of the meetings must be in accordance with the Bylaws of the Association
and general corporation laws regarding committee meetings.
(h) In addition to the powers set forth in this Article, the Architectural Committee may perform
other duties delegated to it by the Board.
7.02 Architectural Guidelines.
(a) The Board may, from time to time and in its reasonable discretion, adopt and promulgate
Architectural Guidelines to be administered through the Architectural Committee. The
Architectural Guidelines may deal with such matters, including without limitation, as the
construction, installation, modification, alteration, or appearance of any Improvement on or within
the Project, including Units.
(b) Any change in the Architectural Guidelines shall require a 30 -day written notice to the
Membership for their review and comment before the Board can approve the changes.
(c) The Board is required to annually disclose to the Members items that require architectural
approval. The disclosure shall also describe the Improvements which, if completed in conformity
with the Architectural Guidelines, do not require approval by the Architectural Committee. The
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annual membership notice shall contain the procedures used for reviewing architectural
applications.
7.03 Plan Review Functions of the Architectural Committee.
(a) The Architectural Committee shall consider and act upon proposals or plans submitted pursuant
to the terms of this Declaration or the Architectural Guidelines. Unless all of the rules of the
Architectural Committee have been complied with, such plans and specifications shall be deemed
not submitted.
(b) The Architectural Committee has the power, but not the duty, to retain Persons (including, but not
limited to, architects and other professionals) to advise its members in connection with decisions;
however, the Architectural Committee does not have the power to delegate its decision-making
power.
(c) The Architectural Committee may, from time to time, adopt, amend and repeal its rules, subject to
approval by the Board. Among other things, said rules may require the prepayment of a
reasonable deposit to be applied toward the payment of any Special Assessment levied by the
Board if an Owner fails to restore any portion of the Property to a clean and attractive condition;
may assess a reasonable fee as appropriate for the type and nature of the Improvement, to cover
the cost of inspections that may be necessary to insure compliance and in connection with the
review of plans and specifications for proposed Improvements, including, without limitation, a
procedure for approval of preliminary plans and drawings as well as final approval; may specify
the number of sets of plans to be submitted; and may require such detail as it deems proper,
including without limitation, floor plans, site plans, elevation drawings, and descriptions or
samples of exterior material and colors, landscape planting plans, drainage plans, lighting plans,
electrical plans, mechanical plans, and the like.
7.04 Approval.
(a) Declarant is not subject to the provisions of the Governing Documents pertaining to architectural
control. Any Improvements constructed by Declarant shall automatically be in compliance with
the Governing Documents and shall not be subject to further architectural control until and unless
there has been a change or alteration made by a successor in title to Declarant as to any Unit in
the material, texture, color or appearance of any such Improvement upon such Unit.
(b) Other than such Improvements by Declarant, no Improvements shall be made upon the Property
except in compliance with plans and specifications therefor which have been submitted to and
approved by the Architectural Committee except as may otherwise be provided for in the
Architectural Guidelines. Normal maintenance, repair or reconstruction by any successor in title to
Declarant in the event of a destruction, in substantial conformance with the Improvements
constructed by Declarant, shall not be deemed to be an Improvement that requires approval
pursuant to the provisions of this Article.
(c) The Architectural Committee shall review plans and specifications submitted for its approval as to
style, exterior design, appearance and location and shall approve such plans and specifications
only if it deems that the proposed Improvement will not be detrimental to the appearance of the
Property as a whole; that the Improvement complies with the Architectural Guidelines; that the
appearance of any Improvements will be in harmony with the surrounding structures; that the
construction of any Improvement will not detract from the beauty and attractiveness of the
Property or the enjoyment thereof by the Owners; and that the upkeep and maintenance of any
Improvement will not become a burden on the Association.
(d) Plans and specifications shall be approved by the Architectural Committee as to style, design,
appearance and location only, and are not approved for (i) engineering design, (ii) compliance
with zoning and building ordinances, and other applicable statutes, ordinances or governmental
rules or regulations, (iii) compliance with the requirements of any public utility, (iv) any easements
or other agreement, or (v) preservation of any view.
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(e) The Architectural Committee may (i) determine that the proposed Improvement cannot be
approved because of its effect on existing drainage, utility or other easements, (ii) require
submission of additional plans and specifications or other information or materials prior to
approving or disapproving plans and specifications submitted, or (iii) condition its approval of
plans and specifications for any Improvement on such changes therein as it deems appropriate.
(f) The Architectural Committee may also condition its approval of a proposed Improvement on
approval by a holder of an easement which may be impaired thereby or upon approval of any
such Improvement by the appropriate governmental agency. Any Architectural Committee
approval conditioned upon the approval by a governmental agency or an easement holder shall
not imply that the Association is enforcing any government codes or regulations or provisions of
any easement agreement, nor shall the failure to make such approval conditional imply that
approval by any such governmental agency or easement holder is not required.
(g) The Architectural Committee shall issue its decisions in writing. If an Owner's application is
disapproved, the Architectural Committee shall include an explanation for the disapproval.
(h) In the event the Architectural Committee fails to approve or disapprove plans and specifications
within sixty (60) days after the same have been duly submitted in accordance with the
Architectural Guidelines, such plans and specifications will be deemed approved.
7.05 Variances.
(a) The Board may authorize a variance from compliance with the Architectural Guidelines or with
provisions of this Article when circumstances such as topography, natural obstructions, hardship,
aesthetic, or environmental considerations may require. Such variance shall be evidenced in
writing, signed by a majority of the members of the Board and delivered to such Owner, and shall
become effective upon execution. A copy of the resolution of the Board authorizing such
variance must be retained in the permanent records of the Association.
(b) No violation of the Governing Documents shall be deemed to have occurred with respect to the
matter for which any such variance was granted. The granting of such a variance shall not
operate to waive any of the terms and provisions of the Governing Documents for any purpose
except as to the particular Unit and particular provision of this Article covered by the variance, nor
shall it affect in any way the Owner's obligation to comply with all government laws and
regulations affecting use of the Unit including, but not limited to, zoning ordinances and lot
setback lines or requirements imposed by any governmental or municipal authority.
7.06 Non -Liability for Approval.
(a) Each Owner shall be solely responsible for any violation of this Declaration, the Architectural
Guidelines, or any applicable instrument, law or regulation, caused by an Improvement made by
such Owner even though same is approved by the Architectural Committee.
(b) By approving such plans and specifications neither the Architectural Committee, the members
thereof, the Association, the Owners, the Board nor the Declarant, nor agents, employees,
attorneys or consultants of any of the foregoing, assume liability or responsibility therefor, or for
any defect in any Improvement constructed from such plans and specifications or for any
obstruction or impairment of view caused or created as the result of any Improvements approved
by the Architectural Committee. The Architectural Committee shall have a right to require, as a
condition of approval, that an Owner provide indemnification on terms and conditions satisfactory
to the Architectural Committee.
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7.07 Appeal.
(a) All decisions of the Architectural Committee are subject to review by the Board, except with
regard to Improvements made by Declarant.
(b) If an application is disapproved, the notice to the Owner shall include a description of the
procedure for appealing the decision to the Board. The hearing for reconsideration must be at an
opening meeting of the Board. If the disapproval was by the Board, then there shall be no
requirement for reconsideration by the Board.
(c) Written request for an appeal to the Board of a decision rendered by the Architectural Committee
must be received by the Board via certified mail with return receipt not more than fifteen (15) days
following the final decision of the Architectural Committee.
(d) Unless the composition of the Architectural Committee is identical to that of the Board (in which
case there are no appeals), the Board must review and decide upon the proposal within forty-five
(45) days after receipt of the appeal, otherwise the proposal will be deemed approved.
7.08 Commencement of Construction.
Upon approval by the Architectural Committee, an Owner must commence construction pursuant
to such approval within six (6) months of the date of such approval, or such approval shall no
longer be valid and such Owner shall be obligated to resubmit its request for approval pursuant to
the requirements of this Article. One (1) set of plans as finally approved shall be stamped
approved and shall be retained by the Architectural Committee as a permanent record. The
construction shall be performed by a qualified contractor licensed and bonded by the State of
California who maintains such insurance as is reasonably required by the Association.
7.09 Proceeding with Work.
(a) Upon receipt of approval from the Architectural Committee pursuant to this Article, the Owner
shall satisfy, as soon as practicable, all conditions thereof and shall commence construction and
shall thereafter work diligently to perform and complete all construction, reconstruction, additions,
grading, refinishing, alterations and excavations pursuant to said approval and in accordance with
the following provisions:
(b) Except in the case of a bona fide emergency, all work shall be performed during reasonable
daylight hours. All persons performing such work shall use their best efforts to minimize (i) the
duration of the work, (ii) the inconvenience to other Owners in the Project and (iii) the
accumulation of debris and construction materials on and around the Unit. All work shall be
performed in a neat and orderly manner, and all reasonable safety precautions shall be taken
during the performance of such work. Before commencement of any alteration or Improvement
approved by the Architectural Committee, the Owner shall comply with all appropriate
governmental laws and regulations and shall obtain all required governmental permits and
approvals therefor. Approval by the Architectural Committee does not satisfy necessary and
appropriate approvals and permits that may be required from any governmental entity with
appropriate jurisdiction.
(c) The Owner of any Unit upon which any work of Improvement is being performed shall indemnify,
defend and hold harmless Declarant, the Architectural Committee, the Board, the Association and
every other Owner in the Project from and against any and all liability arising out of or otherwise
resulting from any negligent or intentional act or omission relating to the performance of such
work by such Owner, its contractors, subcontractors, agents and employees.
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7.10 Failure to Complete Work.
The Owner must complete the construction and landscaping, reconstruction, refinishing, or
alteration of all Improvements on, in, under and/or about his Unit within a reasonable period of
time as established by the Architectural Committee for that Improvement, unless an extension of
time has been granted in writing by the Architectural Committee. If Owner fails to comply with this
Section, the Architectural Committee may proceed in accordance with the other provisions of this
Article as though the failure to complete the Improvement were a noncompliance with approved
plans.
7.11 Inspection; Compliance and Noncompliance Statements.
(a) Owner shall notify the Architectural Committee upon completion of Improvements, whereupon the
Architectural Committee shall inspect the Improvements in order to determine whether the
completed Improvements conform to plans and specifications approved by the Architectural
Committee.
(b) The Architectural Committee shall inspect the Improvements either within sixty (60) days after
notification by the Owner of the completion of an Improvement or within ninety (90) days after the
cessation of work on the Improvements if the Owner fails to notify the Architectural Committee of
completion. The Architectural Committee's inspection rights shall include the right to require an
Owner to take such action as may be necessary to remedy any non-compliance with the
Architectural Committee -approved plans for the Improvements or with the requirements of this
Declaration.
(c) If for any reason an inspection has not been made within sixty (60) days of notification by the
Owner of the completion of an Improvement or if the Owner has not been notified of any
noncompliance within thirty (30) days after such inspection, the Improvement shall be deemed to
be completed in substantial conformance with approved plans and specifications.
(d) If the Improvements upon such Unit comply or by virtue of the passage of time are deemed to
comply with the plans and specifications approved by the Architectural Committee, the
Architectural Committee shall, upon request, issue a statement (hereinafter a "Compliance
Statement") which will evidence such compliance.
(e) If any of the Improvements upon such Unit do not comply with the provisions of the Governing
Documents, the Architectural Committee shall issue a statement (hereinafter a
"Noncompliance Statement") delineating the corrective action that is required to bring such
Improvements into compliance with the Governing Documents. If an Owner fails to remedy any
such noncompliance noticed by the Architectural Committee, then the Architectural Committee
shall notify the Board in writing of the same.
(f) Any Compliance or Noncompliance Statement issued by the Architectural Committee shall be
executed by any person or persons authorized by resolution of the Board or by the president and
secretary of the Association, and a copy thereof shall be retained in the records of the
Association.
(g) In the event the Architectural Committee has issued a Noncompliance Statement as to any such
Unit, the Architectural Committee shall provide a Compliance Statement, upon request, after the
corrective work has been satisfactorily completed. Such Compliance Statement shall then
evidence that the Improvements upon such Unit comply with the provisions of the Governing
Documents.
(h) A Compliance Statement shall be conclusive evidence of compliance with the provisions of the
Governing Documents as to the Improvements described in the Compliance Statement and
further approval of any such Improvements shall not be required unless there is a change or
alteration in material, exterior appearance, color or texture in such Improvements.
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(i) In the event an Improvement was commenced without the required approval of the Architectural
Committee, or, if such Improvement was not completed within the time limitation established for
such Improvement in the Architectural Guidelines or in substantial conformance with the
approved plans and specifications, the Board shall notify the Owner in writing of such
noncompliance, specifying the particulars of noncompliance, and shall require the Owner to
remedy the same within thirty (30) days from the date of notification of such noncompliance. If
the noncompliance is not cured within such thirty (30) day period, the Board, after notice and
hearing as provided herein, may levy a Compliance Assessment against such Owner for the
costs of removing or remedying such noncompliance and the Architectural Committee shall
correct the violation or take other appropriate action.
7.12 Remedy for Noncompliance.
(a) In the event of issuance of a Noncompliance Statement, then the Owner shall remedy or remove
the same within thirty (30) days from the date that the written Noncompliance Statement is
delivered to the Owner.
(b) If the Owner does not correct the noncompliance within that period, then the Association shall
have the right (i) to enter the Owner's Unit and to cause the noncompliance to be corrected and
the cost of the same shall be reimbursed to the Association by the Owner and if not timely
reimbursed, then the Association shall be entitled to pursue any and all legal rights and remedies
against the Owner including the levying of a special assessment for the same against the
Owner's Unit as herein permitted and/or (ii) to bring an action for damages or injunctive relief to
remedy the same.
(c) After the lapse of one (1) year after notice of completion of the Improvement or after correction of
nonconforming work pursuant to a Noncompliance Statement, whichever occurs later, the
Architectural Committee shall have no further right to exercise its remedies under this section.
However, the Architectural Committee's remedies shall expire upon transfer of the Unit if such
transfer occurs within the one-year period specified in this paragraph.
7.13 No Guarantee of Views.
(a) Depending upon location, some Units in the Property may enjoy some unique view potential. The
view, if any, from a Unit in the Property is subject to the limitations and disclaimers set forth in this
section.
(b) There are no express or implied easements for views or for the passage of light and air to any
Unit in the Property. Although the provisions of this Article may have some effect on preserving
views from and providing for the passage of light and air to an individual Unit, nevertheless
Declarant, the Association, the Board, the Architectural Committee, and the directors, officers,
employees, consultants, agents and contractors of the foregoing, do not make any
representations or warranties, express or implied, concerning the view, if any, that a particular
Unit will enjoy. Furthermore, the payment by any Owner of any "premium" does not constitute a
representation or warranty, express or implied, concerning the view, if any, the Unit will enjoy.
(c) Each Owner, by accepting a Grant Deed to his respective Unit, expressly acknowledges and
agrees that any view which his Unit may enjoy as of the date of purchase may be impaired or
obstructed by the installation of trees, other landscaping or other types of barriers, the growth or
relocation of landscaping, the construction or other installation of Improvements in the Property
and/or on any property adjoining the Property in accordance with applicable laws, codes,
ordinances and regulations, and each Owner expressly consents to any such obstructions.
(d) Each Owner further understands that the provisions of this Declaration establish certain
architectural and landscaping controls applicable to the Property, and that each Owner has the
right to enforce such controls. Except as expressly set forth in this Declaration, there are no
rights concerning the preservation of any view.
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ARTICLE VIII
MORTGAGEE PROTECTION
Article Vlll provides certain protections to holders of the First
Mortgage on any Unit, in order to make it easier for Owners to
obtain purchase money loans or refinancing.
8.01 Subordination of Lien and Foreclosure.
(a) Any lien for Regular or Special Assessments created or claimed in this Declaration:
(1) Is subject and subordinate to the rights of any First Deed of Trust that encumbers any
part of the Property made for value in good faith; and
(2) May not in any way impair or invalidate the obligation or priority of a First Mortgage
unless expressly subordinated in writing by the Mortgagee. The signing of any Mortgagee
to any subordination by lienholder included in this Declaration shall not constitute said
lienholder's subordination to any future Assessment lien.
(3) The provisions of this paragraph (a) do not preclude other mortgagee protections
provided by California law.
(b) No breach of any provision of Declaration, nor the enforcement of any of its lien provisions, nor
the Foreclosure of any lien created by or claimed under this Declaration, shall invalidate, affect or
impair the lien of any Mortgage made in good faith and for value; but all of the covenants,
conditions and restrictions shall be binding on any Owner whose title is derived through
Foreclosure sale, Trustee's sale, or otherwise.
(c) Upon Foreclosure of a First Mortgage, the purchaser:
(1) Will take the Condominium title free of any Assessment lien accrued up to the time of the
Foreclosure sale, except that in the event the net sale proceeds exceed what is owed on
all encumbrances prior to the Assessment lien, the Association shall be entitled to
receive payment on any Assessment lien; and
(2) Is only obligated to pay Assessments or other Association charges accruing after the
title to the Condominium is acquired.
(d) Any First Mortgagee who obtains title to a Unit pursuant to the remedies in the Mortgage or by
deed in lieu of Foreclosure shall not be liable for more than six (6) months of the Unit's unpaid
Regular Assessments or charges accrued before acquisition of the title to said Unit by the
Mortgagee.
8.02 Mortgagees Are Not Required to Cure Certain Breaches.
A First Mortgagee who acquires title by Foreclosure or by a deed in lieu of Foreclosure or
assignment in lieu of Foreclosure shall not be obligated to cure an existing breach of this
Declaration that is non -curable or of a type that is not practical or feasible to cure.
8.03 Effect of Breach of Declaration.
(a) Breach of this Declaration may not:
(1) Cause any forfeiture or reversion of title; or
(2) Create any right of re-entry other than as provided for in this Declaration.
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(b) Breach of this Declaration may be enjoined or abated by court action by the Association,
Declarant, or any Owner, and damages may also be awarded provided that:
(1) The violation does not impair or invalidate the Mortgage lien or Deed of Trust made for
value in good faith; and
(2) This Declaration binds any Owner whose title is derived through Foreclosure, Trustee's
sale or otherwise.
8.04 Exemption From Right of First Refusal.
(a) Any right of first refusal or option to purchase a Condominium that may be granted to the
Association or other party may not impair the rights of a First Mortgagee to do any of the
following:
(1) Foreclose or take title to a Condominium, pursuant to the remedies provided in the
Mortgage;
(2) Accept a deed (or assignment) in lieu of Foreclosure in the event of default under the
Mortgage; or
(3) Sell or lease a Condominium acquired by the Mortgagee.
(b) No right of first refusal or similar restriction may be placed on an Owner's right to sell, transfer, or
otherwise convey a Condominium, unless the Mortgagee, if any, grants written consent for the
restriction.
8.05 Restrictions on Certain Changes.
(a) Except as provided by statute in case of condemnation or substantial loss to the Property, at
least sixty-seven percent (67%) of Owners and at least fifty-one percent (51 %) of the votes of
Eligible First Mortgagees (based on one vote per Unit for each Eligible First Mortgage held) must
give written approval before the Association may do any of the following:
(1) Alter the method of determining Assessments or other charges levied against an Owner.
(2) Change, waive or abandon any regulations or enforcement pertaining to the architectural
design, the exterior appearance or the maintenance of the Units or the Common Area(s).
(3) Fail to maintain Fire and Extended Coverage on insurable Common Area(s) as specified
in this Declaration.
(4) Amend the Governing Documents concerning any material provision, including but not
limited to the following:
(A) Voting rights;
(B) Reductions in reserves for maintenance, repair, or replacement of the Common
Area improvements;
(C) Responsibility for maintenance and repairs;
(D) Reallocation of interests in the Common Area or Exclusive Use Common Area or
rights to their use;
(E) Redefinition of any Unit boundary;
(F) Convertibility of Units into Common Area or Common Area into Units;
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(G) Expansion or contraction of the Project or the addition, annexation, or
withdrawal of property to or from the Project;
(H) Hazard or fidelity insurance requirements;
(1) Imposition of any restrictions on the leasing of Units except as provided herein;
(J) Imposition of any restrictions on a Unit Owner's right to sell or transfer his or
her Unit;
(K) Restoration or repair of the Project (after damage or partial condemnation) in a
manner other than that specified in this Declaration;
(L) Any provisions that expressly benefit mortgagees, insurers, or guarantors;
(M) Any action to terminate the legal status of the Project after substantial
destruction or condemnation occurs.
(b) Except as provided by statute in case of condemnation or substantial loss to the Property, at
least sixty-seven percent (67%) of the votes of the First Mortgagees (based on one vote per Unit
for each Eligible First Mortgage held), and at least sixty-seven percent (67%) of Owners, must
give written approval before the Association may, by act or omission, do any of the following:
(1) Abandon, partition, subdivide, encumber, sell or transfer any portion of a Unit or
Common Area (other than granting easements as specified in this Declaration);
(2) Partition or subdivide any Unit;
(3) Seek to abandon or terminate the legal status of the Property;
(4) Use hazard insurance proceeds for losses to the Property (Unit or Common Area) for
other than repair, replacement or reconstruction of the Property;
(5) Change the pro rata interest or obligation of any 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 each Owner in the
Common Area, provided that no Owner's undivided interest in the Common Area may be
changed without the consent of that Owner;
(6) Change or alter the priority of any liens created by or claimed under this Declaration;
(7) Modify or amend any provisions that are for the express benefit of First Mortgagees,
insurers or governmental guarantors of First Mortgages;
(8) Modify or amend any provisions of this Declaration regarding insurance;
(9) Modify or amend any provisions of this Declaration which is a requirement of the FHA,
VA, GNMA, FHLMC or FNMA.
(c) An Eligible First Mortgagee's approval will be considered granted if a negative response is not
delivered to the Board within sixty (60) days after the Eligible First Mortgagee receives notice of
the proposed action, provided notice was delivered personally or by certified or registered mail,
return receipt requested.
(d) Any addition or amendment to the Declaration or Bylaws shall not be considered material if it is
for the purpose of correcting technical errors, or for clarification only.
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8.06 Inspection of Association Books and Records.
Any First Mortgagee has the right to examine the books and records of the Association during
business hours and after notice to the Association. Any First Mortgagee shall be entitled, upon
written request, to have an audited financial statement for the immediately preceding year, free of
charge to the party so requesting.
8.07 Condemnation Awards and Insurance Proceeds.
Condemnation awards or insurance proceeds for losses to or taking of Units or Common Areas
shall be distributed to the Owner(s) in proportion to the fair market value of their Unit, provided
that if at the time of distribution there is a Mortgage on any individual Unit, the balance of such
Mortgage (in order of priority) shall first be paid before the distribution of any awards or proceeds
to the Owner whose Unit is mortgaged. Any provision to the contrary in this Declaration, the
Bylaws, or other Governing Documents is to such extent void.
8.08 Loss Payable Endorsement.
All applicable fire, physical loss or extended coverage insurance policies must contain loss
payable clauses naming the Mortgagees who encumber the Condominiums.
8.09 Mortgagee's Right to Attend Meetings.
Any Mortgagee may appear at Association and Board meetings, but is not eligible to vote except
as provided in Section 8.05.
8.10 Payments by Mortgagees.
(a) First Mortgagees may pay the following jointly or severally:
(1) Taxes or other charges in default which may be a charge against any part of the
Common Area(s); and
(2) Overdue premiums on hazard insurance policies, or to secure new hazard insurance
coverage on the lapse of a policy for the Common Area(s).
(b) Upon such payments, the Association:
(1) Owes immediate reimbursement to First Mortgagees making such payments; and
(2) Must, upon Mortgagee's request, execute an agreement that reflects the First
Mortgagees' entitlement to such reimbursement.
8.11 Notices to Mortgagees.
(a) Each Eligible First Mortgagee is entitled to timely written notice of:
(1) Any condemnation or casualty loss that affects a material portion of the Project or the
Unit securing its Mortgage;
(2) Any sixty-day delinquency in the payment of Assessments or charges owed by the
Owner of any Unit on which it holds the Mortgage or any other breach or default under
the Governing Documents by the Owner of any Unit on which it holds the Mortgage;
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(3) A lapse, cancellation, or material modification of any insurance policy or fidelity bond
maintained by the Association; and
(4) Any proposed action that requires the consent of a specified percentage of Eligible First
Mortgagees.
(b) To obtain the information above, the Mortgagee, insurer or guarantor must send a written
request to the Association, stating both its name and address and the Unit number or address of
the Unit for which it has the Mortgage.
8.12 Loan to Facilitate Resale.
Any First Mortgage given to secure a loan to facilitate the resale of a Unit after acquisition by
Foreclosure, or by a deed in lieu of Foreclosure or by an assignment in lieu in Foreclosure, shall
be deemed to be a loan made for value in good faith and entitled to all of the rights and
protections of First Mortgages under this Declaration.
8.13 Control if Mortgagee Protections Conflict With Other Provisions.
In the event of any conflict between any of the provisions of this Article and any other provisions
of this Declaration or the Governing Documents, whether now or as hereafter amended, the
provisions of this Article shall control.
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ARTICLE IX
DAMAGE AND DESTRUCTION TO IMPROVEMENTS
Article IX concerns restoration or other disposition in the case of
damage or destruction of common areas.
9.01 Restoration of the Property.
In case of casualty damage to Common Area Improvements, the Association will repair and
substantially restore the Common Area Improvements 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:
(a) If insurance proceeds cover at least eighty-five percent (85%) of repair costs, the Association will
repair the damage and levy a reconstruction Assessment equally against the Owners to make up
the balance of repair costs not covered by the insurance (according to the Article "Covenants for
Assessments").
(b) If insurance proceeds cover less than eighty-five percent (85%) of repair costs, the Association
will repair the damage and levy a reconstruction Assessment equally against the Owners for the
balance of the repair costs not covered by the insurance, unless at least sixty-seven percent
(67%) of the Owners (other than Declarant) determine either:
(1) To rebuild in a less expensive manner than substantial replacement, utilizing all available
insurance proceeds. The Association will levy a reconstruction Assessment equally
against the Owners to raise any rebuilding cost in excess of insurance proceeds; or
(2) Not to rebuild. All net insurance proceeds for the damage (after expenses of clearing
debris and making the damaged area aesthetically pleasing) are at the Association's
discretion to perform its functions according to the Governing Documents or to distribute
equally to the Owners (subject to the rights of Mortgagees of record).
(c) If the estimated cost of repair does not exceed five percent (5%) of the budgeted gross expenses
of the Association for that fiscal year, the Board shall cause the repair to occur without the
consent of Members irrespective of the available amount of insurance proceeds. The Board is
empowered to levy a Special Assessment if necessary as described herein.
(d) If the Owners and Mortgagees determine that restoration costs would be substantial and
reconstruction would not be in their best interests, the Owners may proceed as provided in
Section 9.03 below.
9.02 Notice to Owners and Listed Mortgagees.
Immediately upon learning of any material damage or destruction to the Common Area or any
Unit, the Board must notify all Owners, and First Mortgagees, insurers or guarantors of any
relevant Mortgagees who have filed a written request for Board notice (see "Mortgagee
Protection" Article).
9.03 Sale of Property and Right to Partition.
If the Owners elect not to rebuild, a qualified independent appraiser licensed by the State of
California Office of Real Estate Appraisers selected by the Board shall determine the relative fair
market values of all Condominiums as of a date immediately prior to any damage or destruction
and the proceeds of insurance shall be apportioned among all Owners, and their respective
Mortgagees, in proportion to such values.
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9.04 Damage to Dwellings.
(a) The repair or reconstruction of any damaged Units shall commence as soon as reasonably
practicable after the occurrence 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.
(b) If an Owner is required to make any repair, or if an Owner desires to rebuild any Improvement or
install any fixture or equipment, which will affect or involve any interior bearing wall or other
portion of the Common Area, the prior written approval of the Architectural Committee must be
obtained.
(c) Notwithstanding the foregoing, the Owner must immediately take reasonable steps as required to
secure any hazardous conditions resulting from the damage or destruction and to screen any
unsightly views resulting from the damage or destruction.
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ARTICLE X
CONDEMNATION
Article X concerns condemnation of Common Areas by a
governmental entity.
10.01 Representation by the Board in Condemnation Proceedings.
(a) If any portion of a Common Area is to be condemned or sold by eminent domain, the Board (or its
delegation) will:
(1) Represent Owners in the proceedings;
(2) Immediately give notice of the condemnation threat to all Mortgagees, insurers and
guarantors of First Mortgages who have filed written requests for notices; and
(3) Be entitled to make a voluntary sale to the condemner in lieu of engaging in a
condemnation action.
(b) Any award(s) received shall be paid to the Association.
(c) If only part of a Common Area is affected, the rules regarding restoration and replacement of the
Common Area and Improvements apply as if in the case of destruction.
(d) If any of the net condemnation award is not used to restore the remaining Common Area, the
Association will handle the award in accordance with the Article entitled, "Damage and
Destruction to Improvements".
10.02 Distribution of Award.
(a) In case of condemnation or sale by eminent domain, the Board must distribute any award
according to these provisions (after deducting fees and expenses related to the condemnation
proceedings).
(b) Any award must first be distributed to the Owner(s) in proportion to the fair market value of
their Condominium, provided that if at the time of distribution there is a Mortgage on any
individual Condominium, the balance of such Mortgage (in order of priority) shall first be paid
before the distribution of any awards or proceeds to the Owner whose Condominium is
mortgaged.
(c) If a condemnation judgment apportions the award among the Owners and Mortgagees, the Board
will distribute the remaining amount (after deductions above) according to the terms of the
judgment allocation.
(d) If by sale under threat of condemnation (or if the judgment of condemnation fails to apportion the
award), the Board will distribute the award based upon relative values of the affected
Condominiums as determined by a qualified independent appraiser licensed by the State of
California Office of Real Estate Appraisers that is selected by the Board.
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ARTICLE XI
COVENANT AGAINST PARTITION AND RESTRICTION ON
SEVERABILITY OF CONDOMINIUM COMPONENT INTEREST
Article XI governs partition of the Property.
11.01 No Partition; Exceptions; Power of Attorney.
(a) An Owner may not bring an action for partition of the Common Area by sale except as provided in
California Civil Code Section 1359 (or any similar statute in effect at the time).
(b) These provisions do not prevent a judicial partition between co -tenants of a Condominium.
11.02 Proceeds of Partition Sale.
(a) Whenever an action is brought for partition by sale, the Owners will share the proceeds in the
same proportion as the relative values of each Condominium, determined by comparing its fair
market value on partition date (established by an licensed appraiser selected by the Association)
to the fair market value of all Condominiums in the Property on that date.
(b) If applicable, distribution of partition sale proceeds must be adjusted to reflect prior
condemnation awards or insurance proceeds paid to Owners and Mortgagees.
11.03 No Separate Conveyance of Condominium Components.
(a) An Owner may not sever, sell, convey or encumber a Condominium's component interests, such
as the undivided interest in the Common Area from the Unit.
(b) The provisions of this Section terminate when a partition is decreed, either judicial or in
accordance with this Article.
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ARTICLE XII
EASEMENTS
Article Xll addresses easements within the property.
12.01 Creation of Easements.
(a) Easements referred to herein are established upon the First Close of Escrow in the Project, and
the provisions hereof with respect to such easements shall be covenants for the use and benefit
of Condominiums and Property superior to all other encumbrances.
(b) Individual Grant Deeds to Condominiums shall state that the grant is made subject to the
provisions of this Declaration, and may set forth reference to these easements, but are not
required to do so.
12.02 Reservation of Easements for Declarant's Construction and Marketing Activities.
(a) So long as Declarant, its successors or assigns, owns any of the real property described in this
Declaration, it shall have a right and easement over, through, in and to all of the Common Area
for ingress, egress, parking and enjoyment for itself, its agents, employees and prospective
purchasers of the Units, which rights and easements shall include, without limitation:
(1) Easements over the Common Area and the Property for the purpose of constructing,
erecting, completing, operating and maintaining Improvements thereon, therein or
thereunder, including roads, streets, walks, and driveways; and for construction of
improvements in connection with the development of the entire Project;
(2) Activities in furtherance of Declarant's sale and promotional activities, including the use of
a Unit or Units as models, a sales office and signs; provided that such use by Declarant
shall not unreasonably interfere with the use of the Common Area by Class A Members
of the Association (as hereinafter defined); and
(3) Utilities. Easements, whether or not shown on the Condominium Plan, over the Property,
including but not limited to those for the installation, maintenance, and repair of the
Service Lines and Facilities provided that access for such purpose is not otherwise
reasonably available; Declarant further reserves the right to grant and transfer
easements over the Units and Common Area(s) for installation, maintenance and repair
of the Service Lines and Facilities.
For as long as Declarant owns a Unit, the Association may not install new locks or
change the master key to any Common Areas, lobbies or gate controls without the written
permission of the Declarant.
(4) The performance of any duties or the exercise of any rights imposed on or reserved by
Declarant under this Declaration and/or by the City.
(b) The easements reserved to Declarant, or granted and conveyed by Declarant pursuant to this
Section shall not unreasonably interfere with the use and enjoyment by the Owners of the
Property, and any repair or restoration necessitated by any such installation, construction or
maintenance shall be completed by the holder of the easement that has entered upon the
Property for any such purpose within a reasonable time after the occurrence of such damage or
need for restoration.
(c) This reservation of easements by Declarant shall in no way be construed as an admission of any
duties or responsibilities above and beyond those set forth elsewhere in this Declaration.
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12.03 Certain Easements for Association.
(a) The Association has, and may grant, nonexclusive easements and rights of way for ingress,
egress and access to all portions of the Property as reasonably required to perform its
maintenance obligations and other duties established in this Declaration, and further has utility
and drainage easements as hereinafter provided to maintain the health, safety, convenience and
enjoyment of the Units and Common Area(s).
(b) Declarant hereby reserves for the benefit of the Association the right to grant additional
easements and rights-of-way over the Property to utility companies and public agencies, as
necessary, for the proper development and sale of the Property. Such right of Declarant shall
expire upon the close of escrow for the sale of all Units in the Project by Declarant.
(c) The Association shall have the right and power to grant and convey to any third party, easements
and rights of way in, on, over or under the Units and the Common Area for the purpose of
construction, erection, maintenance, repair, replacement, removal and inspection of present and
future utilities, including but not limited to pipelines, sewer, water and gas lines, drain pipes, utility
and telephone lines, meters and related facilities, lines, cables, wires or other conduits or devices
for water, gas or cable television, electricity, power, telephone and other purposes and any other
similar public or quasi -public improvements or facilities, and each purchaser, by acceptance of a
deed to his Unit, expressly consents to such easements. However, no such easement shall be
granted if it would interfere with the use, occupancy or enjoyment by any Owner of his Unit.
12.04 Certain Easements for Owners.
(a) Declarant grants nonexclusive easements for enjoyment, ingress, egress, pedestrian walkway
and general recreation purposes over and upon all portions of the Common Area (except
Exclusive Use Common Areas) to all Owners, subject to other provisions of the Governing
Documents.
(b) Owner rights and duties with respect to drainage facilities, sanitary sewer, water, electricity, gas,
telephone, cable television, security system lines, meters, wires, ducts, flues, pumps, boilers,
pipes and other service lines and facilities ("Service Lines and Facilities") are as follows:
Easements for Service Lines and Facilities in Units or Common Area(s) is granted in favor of the
Owner of a Unit or Association served by said Service Lines and Facilities to the full extent
necessary for the maintenance and repair by the Owner, Association, or servicing company;
Whenever Service Lines and Facilities are installed within the Project, which Service Lines and
Facilities or any portion of those facilities lies in or upon Condominiums owned by other than the
Owner of a Condominium served by those Service Lines and Facilities, the Owners of any Unit
served by those Service Lines and Facilities shall have the right of reasonable access for
themselves or for utility companies to repair, replace and generally maintain those Service Lines
and Facilities as and when necessary, due to failure or inability of the Board to take timely action
to make such repairs or perform such maintenance.
If Service Lines and Facilities serve more than one Unit, each Owner served is entitled to
reasonable use and enjoyment and access for repair, replacement and maintenance of all
necessary portions of the Service Lines and Facilities. In the event of a Dispute between Owners
respecting the repair, replacement or maintenance of the Service Lines and Facilities, or the
sharing of the cost thereof, said Owners shall first contact the appropriate utility company in an
effort to resolve the Dispute; provided however, if said Dispute remains unsolved, the matter shall
be submitted to the Board who shall decide the Dispute and the decision of the Board shall be
final and conclusive on the Owners.
(c) Notwithstanding that an Owner may install Improvements within said easement area with the
approval of the Architectural Committee, each Owner acknowledges that such Improvements
may be removed by the respective utility or public agency to maintain, repair or replace any of the
foregoing facilities without any liability to the Owner to repair or restore such Improvements.
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(d) Declarant hereby reserves, for its benefit and the benefit of the Association and each Owner,
nonexclusive easements on, over, across and through all Units for the construction, installation,
inspection, maintenance, repair and replacement of drainage lines and improvements, electrical,
plumbing, and subdrain lines, access ports, and the like, wherever same may be located, in
accordance with the provisions of this Declaration. Such easements over such portions of each
Unit shall be appurtenant to, binding upon, and shall pass with the title to, every Unit conveyed.
12.05 Drainage Easements.
(a) The Association and each Owner accept the sewer and drainage facilities and pattern for the
Units and Common Area(s) established by the final grading of the Property originally undertaken
by Declarant (including "cross -unit" drainage from adjacent Units and Common Areas).
(b) The established drainage pattern may not be altered without prior written approval by the
Association and/or Architectural Committee.
(c) If the drainage pattern must be altered, the party requesting the alteration must make
reasonable and adequate provisions for proper drainage and pay for its costs.
(d) In the event Declarant shall have installed any drainage lines or other facilities which serve two or
more Units, the Owners of said Units shall jointly maintain and repair said lines and facilities so as
to keep same in proper operating condition at all times.
12.06 Utility Easements.
The Association shall grant easements and rights of way through the Common Area and separate
interests for the maintenance or betterment of water, sewer, telephone and cable lines, satellite
television, gas and other utilities, storm drains, underground conduits, sprinkler systems, and
other purposes intended to maintain the health, safety, convenience and enjoyment of the Units
and Common Area, and for the reading of utility meters and sub -meters.
12.07 Encroachment.
(a) The Owners of each Unit are hereby granted an easement over all adjoining Units and the
Common Area for the purpose of accommodating any minor encroachments due to engineering
errors, errors in original construction, settlement or shifting of any building, or any other cause.
There shall be easements for the maintenance of said encroachments so long as they shall exist
and the rights and obligations of Owners shall not be altered in any way because of the
encroachment, settlement or shifting; provided that, in no event shall an easement for
encroachment be created in favor of any Owner if the encroachment occurred do to his willful
misconduct. In the event any portion of any building is partially or totally destroyed and then
rebuilt, each Owner agrees that easements for minor encroachments (and for the maintenance of
same) over all adjoining Units and the common Area shall exist so long as the encroachment
exists.
(b) If a portion of a Unit encroaches on, over and across any portion of a contiguous Unit or
Common Area, the encroaching Unit Owner's easement rights shall be exclusive.
(c) If a portion of the Common Area encroaches on, over and across any portion of a contiguous
Unit, the Association's easement rights shall be non-exclusive.
(d) Declarant, the Association and Owners of the encroaching Improvements shall have the right to
maintain, repair or replace the encroaching improvements.
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(e) In the event any portion of the Project is partially or totally destroyed, the encroachment
easement shall exist for any replacement structure that is rebuilt pursuant to the original
construction design.
(f) In interpreting this Declaration, the Condominium Plan and all instruments of conveyance, the
existing physical boundaries of Unit(s), including any encroachment as defined in (a) above, shall
be the actual boundaries, rather than any description and/or depiction set forth in this Declaration,
the Condominium Plan, or instrument of conveyance.
(g) Easements and reciprocal negative easements for utility services and repairs, replacement and
maintenance of same over the Common Area(s) are specifically reserved for the benefit of the
Owners. The foregoing easements shall not unreasonably interfere with an Owner's use and
enjoyment of such Owner's Unit.
(h) The easements for the maintenance of the encroaching improvement shall exist for as long as the
encroachments exist; provided, however, that no valid easement of encroachment shall be
created due to the willful misconduct of the Association or any Owner. Any easement of
encroachment may, but need not be, cured by repair and restoration of the structure.
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ARTICLE XIII
AMENDMENT
Article X111 concerns amendments to the Declaration.
13.01 Amendment.
(a) Before the First Close of Escrow of a Unit, and subject to the consent of the First Mortgagee, if
any, Declarant may unilaterally amend this Declaration (subject to the Article entitled "Mortgagee
Protection") by recording an instrument of amendment in the relevant County Recorder's Office.
(b) After the First Close of Escrow of a Unit, this Declaration may only be amended in the following
ways (and subject to the Article entitled "Mortgagee Protection"):
(1) If there is only one Membership Class, approval by at least sixty-seven percent (67%) of
Members other than Declarant, and by at least sixty-seven percent (67%) of the Total
Voting Power, including Declarant; and either i) an instrument signed by two (2)
Association officers certifying that the amendment was approved by at least sixty-seven
percent (67%) of Members other than Declarant, and also approved by at least sixty-
seven percent (67%) of the Total Voting Power, including Declarant; or ii) an instrument
signed by all Owners representing the required approval, including the Members other
than Declarant and the Total Voting Power, including Declarant.
(2) If Class B Membership exists, approval by at least sixty-seven percent (67%) of the
Members of each Class, and either i) an instrument signed by two (2) Association officers
certifying that the amendment was approved by sixty-seven percent (67%) of the
Members of each Class; or ii) an instrument signed by all Owners representing the
required vote of each Class.
(c) Any amendment must be properly recorded in the County Recorder's Office.
(d) The percentage of Owners needed to amend this Declaration may not be less than the
percentage of affirmative votes prescribed for action to be taken under the relevant provision.
(e) An Owner or the Association may petition the Superior Court for an order reducing the
percentage of affirmative votes needed to amend this Declaration (pursuant to Civil Code
Section 1356, or any successor statutes).
(f) While the Declarant holds or directly controls at least twenty-five percent (25%) of the votes, any
proposed amendment to any Governing Documents must comply with Business and Professions
Code Section 11018.7.
(g) No amendments to any provisions in this Declaration including, but not limited to, the Article
entitled "Dispute Notification and Resolution Procedures" or other Governing Documents which
specifically benefit or otherwise relate to the Declarant as developer, shall be made without the
written consent of the Declarant.
(h) Notwithstanding any other portion of this Section, for so long as Declarant owns any portion of the
Property, Declarant may unilaterally amend this Declaration by recording an instrument in writing,
signed by Declarant, without the consent of the Association or any other Owner, provided that
such amendment is made in order to: (1) conform this Declaration to the requirements of the
DRE, VA, FHA, FNMA, FHLMC, or any other governmental entity; (2) amend, replace or
substitute any Exhibit for any purpose to the extent that the Exhibit affects portions of the Project
that have not yet been conveyed to the Association or for which there has been no Close of
Escrow, as applicable, (3) amend, replace or substitute any Exhibit to correct typographical or
engineering errors; (4) include any Exhibit that was inadvertently omitted from the Declaration, or
Declaration of Annexation at the time of recording; and (5) supplement or amend this Declaration
with provisions which pertain to rights and obligations of Declarant, the Association or Owners
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arising under the Right to Repair Act at Division 2, Part 2, Title 7 (commencing with Section 895)
of the California Civil Code.
(i) An amendment for the purpose of correcting technical errors, clerical mistakes or for clarification
shall not be construed as a material change to the Governing Documents and may be made upon
a majority vote of the Board of Directors without vote of the Membership.
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ARTICLE XIV
DISPUTE NOTIFICATION AND RESOLUTION PROCEDURES
Article XIV provides an expedited means of resolving any claims,
Disputes and disagreements relating to either the Governing
Documents or Construction Defects, which may arise between or
among i) Owner, and/or ii) the Association, and/or iii) Declarant. To
the extent permitted by law, all such Disputes shall be resolved
under the "Alternative Dispute Resolution" procedures provided by
this Article.
14.01 Scope and Purpose of Article.
(a) Disputes Subiect to Resolution Under This Article. Any and all claims, controversies, breaches or
Disputes by or between the Association, any Owner or Owners, and/or Declarant arising from or
related to this Declaration, the Property, any Unit and/or any Improvements constructed thereon,
the sale of any Unit or any transaction related hereto, whether such Dispute is based on contract,
tort, statute, or equity, shall be resolved pursuant to the procedures set forth in this Article.
(b) Exclusion of Disputes Relating to Assessments. Notwithstanding paragraph (a) of this Section,
this Article does not apply to Disputes between the Association and Owner relating to the
imposition or collection of Assessments.
(c) The California Civil Code contains various provisions intended to facilitate the resolution of
Disputes arising in common interest developments. These provisions include, but are not limited
to those set forth in Civil Code Sections 895 through 945.5, 1363.810 through 1363.850,
1369.510 through 1369.590, and 1375 through 1375.1. Where required by law, the provisions of
this Article are superseded by contrary provisions of the cited statutes. Nothing in this Article
shall prevent the Parties from agreeing in writing at or after the time a Dispute arises to resolve
their Dispute by procedures other than those set forth in this Article.
14.02 No Right to Trial.
Each of the Parties to any Dispute, claim or disagreement relating to either the Governing
Documents or Construction Defects has waived or shall waive his/her/its right to trial by jury or by
a judge sitting without a jury and shall resolve the Dispute through the Alternative Dispute
Resolution procedures set forth in this Article.
14.03 Procedures Applicable to Resolution of Disputes Between the Association and an Owner.
This Section 14.03 applies to a Dispute between the Association and an Owner involving their
rights, duties, or liabilities under this title, under the Nonprofit Mutual Benefit Corporation Law
(Part 3 (commencing with Section 7110) of Division 2 of Title 1 of the Corporations Code), or
under the Governing Documents.
(a) Obligation to Meet and Confer Before Initiating Formal Claim.
(1) Any Party to a Dispute may request in writing that any other Party meet and confer in an
effort to resolve the Dispute.
(2) If the meet -and -confer procedure is invoked by the Association against an Owner, the
Owner may elect not to participate in the procedure, but must within fifteen (15) days
inform the Association of such election. However, if the meet -and -confer procedure is
invoked among any other Parties, then all Parties shall participate in the procedure.
(3) No fee shall be charged to participate in the meet -and -confer process.
XIV -1
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(4) Within twenty (20) days of the request, all Parties intending to participate in the meet -
and -confer procedure shall meet promptly at a mutually convenient time and place to
meet and confer.
(5) The Parties shall explain their positions to each other, and confer in good faith in an effort
to resolve the Dispute. If the Parties so desire, they may explain their positions to each
other in writing in advance of the meet -and -confer session, but such formality shall not be
required.
(6) Any resolution reached by the Parties upon meeting and conferring shall be binding on
the Parties and judicially enforceable if it satisfies all three of the following conditions: (i)
The agreement is in writing and is signed by all Parties to the Dispute, and (ii) the
agreement is not in conflict with the law or with the Governing Documents, and (iii) the
agreement is either consistent with the authority granted to its designee by the
Association or Declarant, as the case may be, or is ratified by the Board of Directors of
the Association or by Declarant, as the case may be.
(b) Mediation. If the Parties are unable to resolve any Dispute, the matter shall be submitted to
mediation by an unaffiliated mediator.
(1) Selection of Mediator. The mediator shall be selected and paid for by Declarant, if a
Party, or else by the Party initiating the claim. However, the Parties may agree to split the
cost of the mediator among them, and if so, the mediator shall be selected jointly by the
Parties so agreeing. No person with any affiliation with any Party, or with any financial or
personal interest in the mediation's result shall serve as a mediator except by the written
consent of the Parties. Prior to accepting any appointment, the prospective mediator shall
disclose any circumstances likely to create a presumption of bias or prevent a prompt
commencement of the arbitration process. The Parties are encouraged to use the
mediation services of low-cost or free neighborhood mediation or conciliation services if
available.
(2) Location and Timing of Mediation Proceedings. The mediation shall be held in the county
where the Property is located. The mediator shall hold the mediation conference within
15 days after receiving the request to mediate.
(3) Inadmissibility of Mediation Proceedings. Prior to the commencement of the mediation
proceedings, the mediator and all Parties to the mediation shall execute an agreement
pursuant to California Evidence Code Sections 1115 et seq., or pursuant to any similar
successor statute, in order to exclude the use of any testimony or evidence produced at
the mediation at any subsequent proceeding. Pursuant to California Evidence Code
Section 1119(a), "No evidence of anything said or of any admission made for the purpose
of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible
or subject to discovery, and disclosure of the evidence shall not be compelled in any
arbitration, administrative adjudication, civil action or other non -criminal proceeding in
which, pursuant to law, testimony can be compelled to be given".
(4) Own Costs and Attorney's Fees. Except as provided in subparagraph (1) of this
paragraph, each Party shall bear its own costs and attorneys' fees in connection with the
mediation. The Parties are not required to have attorneys participate in the mediation.
(5) Submission to Judicial Reference in Event of Unsuccessful Mediation. In the event that
mediation does not resolve the Dispute, the Parties shall submit the Dispute to judicial
reference, as provided in the next Section.
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14.04 Special Provisions Applicable to Resolution of Construction Defect Disputes; Declarant's
Election to "Opt In" to Statutory Pre -Litigation Procedures.
(a) Notice of Procedures for Actions for Construction Defects. The Property is subject to Title 7 of
Part 2 of Division 2 of the California Civil Code (commencing with Section 895) (the "Right to
Repair Act"). The procedures established by the Right to Repair Act impact the Owners' and
Association's legal rights.
(b) Declarant has elected to engage in the non -adversarial pre -litigation procedures set forth in
Chapter 4 of the Right to Repair Act (California Civil Code §§ 910 through 938, inclusive). If such
non -adversarial pre -litigation procedures fail to resolve a Dispute governed by the Right to Repair
Act, such Dispute shall be resolved in accordance with the binding general judicial reference
procedures set forth in Section 14.06.
14.05 Resolution of Construction Defect Disputes Against Declarant.
(a) The Association shall not initiate any claim against Declarant except with the vote or written
assent of the Members holding more than seventy-five percent (75%) of the voting rights of Class
A Members, if two classes exist, or, if only one class exists, more than seventy-five percent (75%)
of the voting rights of all Members other than Declarant. Declarant, and its representatives on the
Board of the Association, shall have no control over the issue to decide whether to initiate a claim
under such statutory provisions. Prior to voting to pursue such a claim, the Board shall inform the
Members of alternatives to remedy the deficiencies without litigation and of potential adverse
consequences of litigation.
(b) If a Dispute between the Association and Declarant is not resolved despite the proceedings set
forth in Civil Code Section 1375, further litigation shall comply with all of the requirements of
Section 1375.05 of the Civil Code.
(c) Upon resolution of a Dispute subject to Civil Code Section 1375 and/or 1375.05, the Association
shall disclose to its Members all of the matters specified in Section 1375.1 of the Civil Code.
14.06 Submission of Disputes to Judicial Reference,.
(a) If any Party commences a lawsuit for a Dispute, all of the issues in such action, whether of fact or
law, shall be submitted to general judicial reference ("Judicial Reference") pursuant to California
Code of Civil Procedure Sections 638(a), 639(x) and (d), and 641 through 645.1, or any
successor statutes thereto. Any Party to such lawsuit may commence a Judicial Reference
pursuant to Code of Civil Procedure Section 638.
(b) In addition to the above, any Dispute or claim regarding actionable defects as defined in Civil
Code Section 896, meaning any meaning any action seeking recovery of damages arising out of,
or related to deficiencies in, the residential construction, design, specifications, surveying,
planning, supervision, testing, or observation of construction, of a seller, and to the extent set
forth in Chapter 4 (commencing with Section 910), a subcontractor, material supplier, individual
product manufacturer, or design professional, for original construction intended to be sold as an
individual dwelling unit shall be decided by Judicial Reference in accordance with this Section
after the pre -litigation procedures are concluded and such procedures fail to resolve the Dispute.
This Judicial Reference provision shall be binding on and enforceable by every Owner, the
Association, and Declarant Parties.
(c) 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.
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(d) 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:
(1) 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;
(2) The proceedings shall be heard in the County where the Project is located;
(3) The referee must be a neutral and disinterested party who is a retired judge or with at
least ten (10) years' experience in relevant real estate matters;
(4) 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;
(5) The referee may require one or more pre -hearing conferences;
(6) 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;
(7) 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;
(8) The referee's statement of decision shall contain findings of fact and conclusions of law
to the extent applicable;
(9) The referee shall have the authority to rule on all post -hearing motions in the same
manner as a trial judge;
(10) 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
(11) 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.
(e) Standing. Declarant and Declarant Parties shall have the right to enforce the provisions of this
Article regardless of whether Declarant or Declarant Parties hold any right, title or interest in and
to the Property or any portion thereof.
(f) Severability. In the event that any phrase, clause, sentence, section, article or other portion of
this Article shall become illegal, void or against public policy, for any reason, or shall be held by
any court of competent jurisdiction to be illegal, void or against public policy, the remaining
portions of this Article shall not be affected thereby and shall remain in force and effect to the
fullest extent permissible by law.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
Article XV covers miscellaneous issues not addressed elsewhere in
the Declaration.
15.01 Term of Declaration.
(a) This Declaration is binding upon all parties for sixty (60) years after the recording date.
(b) After sixty (60) years, the Declaration will automatically be extended for successive ten (10) year
periods, unless the Owners (heirs, successors, representatives) of a majority of subject
Condominiums record a signed, written instrument:
(1) At least one (1) year before the beginning of any ten (10) year period; and
(2) Agreeing to change or terminate this Declaration.
15.02 Notices.
Any approval, disapproval, demand, document or other notice which Declarant, the Association,
or any Owner may desire to give to another party must be in writing and may be given either by i)
personal delivery; ii) by United States mail which shall be deemed to have been delivered
seventy-two (72) hours after a copy of the same has been deposited in the mail, first class or
registered, postage prepaid, addressed to the person to be notified; or iii) by any other method
provided by Civil Code Section 1350.7.
TO DECLARANT: Glenmont Cal -Coast RPV, LLC
11726 San Vicente Blvd.
Suite 235
Los Angeles CA 90049
Or to any other address Declarant may later designate in writing
TO ASSOCIATION: HIGHRIDGE CONDOMINIUMS, INC.
11726 San Vicente Blvd.
Suite 235
Los Angeles CA 90049
Or to any other address Association may later designate in writing
TO OWNERS: To be later designated in writing and given to the secretary
of the Board. If no address has been given to the secretary
then addressed to the Unit of such person.
15.03 Partial Invalidity.
If any term, condition, provision or other portion of this Declaration is declared invalid or in conflict
with any relevant law, the validity of the remainder of this Declaration will remain in full force and
effect.
15.04 Number.
As required by the context of this Declaration, a singular grammatical reference includes the
plural application.
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15.05 Attorneys' Fees.
In the event of any controversy or claim respecting this Declaration, or in connection with the
enforcement of this Declaration, each Party shall bear its own attorneys' fees.
15.06 Disclosures.
Declarant does not in any manner guarantee or warrant that the Property will be soundproof or
insulated to any particular degree from noise or sound emanating from within or without the
Property, including noise or sound emanating from Units, heating, ventilation air conditioning
systems, plumbing, Common Area(s), garages, etc.
15.07 Declarant's Rights After Sale of All Units in the Proiect.
For a period of ten (10) years after the close of escrow for the sale of the last Unit in the Project
covered by a final subdivision public report, in addition to Declarant's rights as an Owner and a
Member, Declarant shall have the following rights:
(a) Access to and the right to inspect the Association books and financial records;
(b) Access to and the right to inspect the Association's maintenance records;
(c) Right to receive notice of, attend and speak at all regular and special meetings of the Board of
Directors and meetings of the Members;
(d) Right to receive copies of the minutes of the meetings of the Board of Directors and meetings of
the Members, upon request and payment of the actual costs to copy and distribute such records;
and
(e) Right to inspect all Common Areas of the Property upon three (3) days' notice to the Association
and, within its sole discretion, be entitled to cure any defect, whether or not the Association or any
Owner has complained of such defect. During said period, the Board shall use its best efforts to
obtain the consent of all Owners, upon three (3) days' notice, to inspection of Units by Declarant
for the sole purpose of discovering and repairing structural defects. Refusal by an Owner to allow
inspection, or failure of the Board to attempt in good faith to obtain Owner consent for inspection
of Units, may be deemed a failure to mitigate damage in the event of a defect as defined in
Section 896 of the California Civil Code which could have been avoided through preventive
maintenance. The purpose of this right of inspection is to allow Declarant to repair defects at an
early stage before substantial damage has occurred. Nothing set forth herein shall obligate
Declarant to perform any inspection or repair, nor shall this Section be deemed to increase
Declarant's legal obligations to Owner/Association.
15.08 Supremacy of Legislation.
The provisions of this Declaration are automatically supplemented and superseded by any state
or federal enactment, and judicial interpretations of laws, affecting common interest
developments. Any reference to a specific Code section in this Declaration is also a reference to
future amendments thereof and to any successor statutes. The terms of this Declaration shall be
deemed automatically amended to conform to such future changes in Code sections without
necessity for recording any such amendment.
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15.09 No Enhanced Protection Agreement.
In no event shall any of the provisions contained within the Governing Documents, other
documentation, representations or warranties provided by Declarant or its agent to Owner be
construed, interpreted or understood to be an "enhanced protection agreement" ("EPA") under
California Civil Code Section 901 unless Declarant otherwise expressly states that such
document, representation, or warranty constitutes an EPA under said section of the Civil Code.
15.10 Changing the Project Marketing Name.
The Project shall be marketed under the name HIGHRIDGE CONDOMINIUMS. Declarant may
at Declarant's sole discretion, change the marketing name of the Project upon notification to the
DRE.
15.11 Conflict Between Declaration and Condominium Plan.
In the event of any conflict between this Declaration and the Condominium Plan, this Declaration
shall be controlling. Any defined term used in the Condominium Plan and not expressly defined
therein shall have the meaning prescribed for such term in this Declaration.
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IN WITNESS WHEREOF, the undersigned, being the Declarant, has executed this Declaration
for Tract No. 68796 on the day and year first written above.
"Declarant"
GLENMONT CAL -COAST RPV, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
X
By:
its:
Edward J. Miller
Authorized Signatory
STATE OF CALIFORNIA )
COUNTY OF ) ss.
On , 20— before me,
Notary Public, personally appeared:
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
Notary Public
147
SUBORDINATION BY LIENHOLDER
Wells Fargo*, as Beneficiary under the following Deed(s) of Trust which cover(s) the real property
described in the Declaration of Covenants, Conditions, Restrictions and Reservation of Easements for
Tract No. 68796 ("Declaration") to which this instrument is attached, hereby subordinates the lien of said
Deed of Trust to the recording of this Declaration, and agrees that the lien(s) of said Deed(s) of Trust
shall be subordinated to and subject to each and every provision of the Declaration and any future
amendments not affecting the beneficial interest. The signing of this Subordination by Lienholder by
Lienholder shall not constitute said Lienholder's subordination to any future Assessment liens.
Deed of Trust recorded on * as Instrument No. * of the Official Records of the Los Angeles
County Recorder.
Wells Fargo*
X
By:
its:
STATE OF CALIFORNIA }
COUNTY OF } ss.
On
Notary Public, personally appeared:
X
By:
its:
20 , before me,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(SEAL)
Notary Public
•
EXHIBIT "A"
PROPERTY
Lot 1 of Tract No. 68796, in the City of Rancho Palos Verdes, County of
Los Angeles, State of California, as per Map recorded in Book
, Pages , inclusive, of Maps,
in the Office of the County Recorder of Los Angeles County.
149
EXHIBIT "B"
ASSESSMENT ALLOCATION
The following are the square footages for calculating the budget. Any variance from the actual square
footages shall not alter the assessment allocation without an amendment to this Declaration:
Unit No. Square Footage
150
EXHIBIT "C"
BUDGET ITEMS SUBJECT TO VARIABLE ASSESSMENT
The method for calculating the division of assessments between the twenty-eight (28) Units are
shown in the following selected page from the Department of Real Estate reviewed Budget at the time of
the recording of this Declaration. The sample calculations are based the first year's (after the recordation
of this Declaration) monthly variable costs; monthly variable costs are subject to change.
Pursuant to Section 6.03 of this Declaration, certain specially allocated items as set forth on page
14 of the budget shall be prorated based on square footage for all Units. The Assessment schedule as
shown on page 14 of the budget is attached to this exhibit as reference.
151
EXHIBIT "D"
O&M PLAN PROVISIONS
Operation:
Operation of MWS -Linear Hybrid Stormwater Filtration System is automatic and does not require
personnel. Owner is to inspect and maintain the devices at the beginning of rain season or as necessary
when saturated with pollutants. Owner is to contract maintenance plan with manufacturer.
Maintenance:
MWS -Linear Hybrid Stormwater Filtration System recommendations:
(also see htttD.//wvyw.modularwetlands.com/mws-linear/maintenance/)
Stage 1 - Screening Trash & debris are captured in a screening filter just below the grate or curb
opening. To service this, simply remove the grate or manhole and vacuum out the debris. To
service the next stage simply remove the screen filter.
Stage 2 - Hydrodynamic Separation Sediments and TSS are captured in a separation chamber in
the bottom of the catch basin. To service, simply use a vacuum truck to remove captured
sediment.
Stage 3 - Primary Media Filtration Fine TSS, associated pollutants, hydrocarbons, dissolved
metals, and a portion of the nutrients and bacteria are captured by a perimeter filter containing
BioMediaGREEN. To service, simply remove media shields, remove spent media blocks and
replace with new media. To order media call or send us an email.
Stage 4 - Wetland/Bioretention Filter Nutrients, metals, and bacteria are captured in the
wetland/bioretention filter. This is the portion of the media that is vegetated. While the above
stages should be serviced on a annual basis, the wetland/bioretention filter can go 5 to 20 years
before requiring media replacement. The plants should be trimmed annually.
Landscaped Area (Pervious Paver)
Stage 1 - Inspect site on a regular basis, after installation inspect site once a month for about 4-6
months. After this time period inspect site once annually, particularly after there has been heavy
rain or storms, for this is the time when the drainage voids can become clogged with organic
debris.
Stage 2 - Sweeping and vacuuming permeable surface quarterly.
Stage 3 - It is also a good idea to apply high pressure hosing of the site after sweeping and
vacuuming. Check that the voids are still well filled with aggregate, and re -fill them when
necessary. Using clean gravel is the chosen fill material.
Stage 4 - Fix or replace damaged Pervious Pavers when necessary.
152
im
RESOLUTION NO. 2008-102
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO
PALOS VERDES, CONDITIONALLY APPROVING VESTING
TENTATIVE TRACT MAP NO. 68796, GENERAL PLAN AMENDMENT,
ZONE CHANGE, CONDITIONAL USE PERMIT, GRADING PERMIT
AND DENSITY BONUS (PLANNING CASE NOS, SUB2007-00003 AND
ZON2007-00072), IN CONJUNCTION WITH THE ADOPTION OF A
MITIGATED NEGATIVE DECLARATION, TO ALLOW THE
SUBDIVISION OF A 1.25 -ACRE SITE INTO TWENTY-EIGHT (28)
RESIDENTIAL CONDOMINIUM UNITS, LOCATED AT 28220
HIGHRIDGE ROAD.
WHEREAS, on February 14, 2007, applications for Vesting Tentative Tract Map
No. 68796, General Plan Amendment, Zone Change, Conditional Use Permit, Grading
Permit, Variance, Site Plan Review and Environmental Assessment (Planning Case
Nos. SUB2007-00003 and ZON2007-00072) were submitted to the Planning
Department by the applicant, REC Development, Inc., to allow the development of a 27 -
unit residential condominium project on a 1.25 -acre site on Highridge Road; and,
WHEREAS, on December 7, 2007, the applications for Planning Case
Nos. SUB2007-00003 and ZON2007-00072 were deemed complete by Staff; and,
WHEREAS, pursuant to the provision of the California Environmental Quality Act,
Public Resources Code Section 21000 et. seq. ("CEQA"), the State's CEQA Guidelines,
California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA
Guidelines, and Government Code Section 65962.5(F) (Hazardous Waste and
Substances Statement), the City of Rancho Palos Verdes prepared an Initial Study and
determined that, by incorporating mitigation measures into the Negative Declaration,
there is no substantial evidence that the approval of Planning Case Nos. SUB2007-
00003 and ZON2007-00072 would result in a significant adverse effect on the
environment. Accordingly, a Draft Mitigated Negative Declaration was prepared and
circulated for public review for twenty (20) days between March 19, 2008 and April 8,
2008, and notice of that fact was given in the manner required by law; and,
WHEREAS, after issuing notices pursuant to the requirements of the Rancho
Palos Verdes Development Code and the State CEQA Guidelines, the Planning
Commission held a duly noticed public hearing on April 8, 2008, at which time all
interested parties were given the opportunity to be heard and present evidence; and,
WHEREAS, at the April 8, 2008, Planning Commission meeting, the Planning
Commission directed Staff and the applicant to further investigate design alternatives to
address concerns pertaining to portions of the project exceeding the 36 -foot height limit;
the proposed left -turn pocket in the median of Highridge Road; site landscaping; view
impacts to homes on Via La Cima; feasibility of additional grading; Planning
Commission discretion with respect to the conditional use permit findings; and
154
adequacy of the traffic impact analysis; and continued the public hearing to May 13,
2008; and,
WHEREAS, on May 7, 2008, the applicant submitted revised project plans that
eliminated the proposed roof -access stair tower in excess of the 36 -foot -height limit,
thereby eliminating the Site Plan Review component of the proposed project; and,
WHEREAS, at the May 13, 2008, Planning Commission meeting, the Planning
Commission directed the applicant to further explore design alternatives and additional
grading to reduce view impacts to residences on Via La Cima; and asked for additional
information regarding the applicant's cumulative traffic impact analysis; and continued
the public hearing to June 24, 2008; and,
WHEREAS, on June 10, 2008, the applicant submitted revised project plans that
reduced the maximum height of the project by twelve feet six inches (12'-6") and
relocated the entry to the subterranean garage, thereby eliminating the Variance
component of the proposed project; and,
WHEREAS, on June 18, 2008, the applicant requested a Density Bonus of one
(1) additional market -rate unit, for a total of twenty-eight (28) units, pursuant to City and
State density bonus law; and,
WHEREAS, at the June 24, 2008, Planning Commission meeting, the Planning
Commission directed that Staff revise and recirculate the Mitigated Negative Declaration
to reflect the new project description; directed the applicant to further explore the
feasibility of modifying the site plan to reduce view impacts on 7 Via La Cima; directed
Staff to more fully analyze and respond to the applicant's request for a density bonus;
and asked for additional information regarding the revised traffic impact analysis for the
28 -unit project; and continued the public hearing to July 22, 2008; and,
WHEREAS, pursuant to the provision of the California Environmental Quality Act,
Public Resources Code Section 21000 et. seq. ("CEQA"), the State's CEQA Guidelines,
California Code of Regulations, Title 14, Section 15000 et. seq., the City's Local CEQA
Guidelines, and Government Code Section 65962.5(F) (Hazardous Waste and
Substances Statement), the City of Rancho Palos Verdes revised the Initial Study and
determined that, by incorporating mitigation measures into the Negative Declaration,
there is no substantial evidence that the approval of Planning Case Nos. SUB2007-
00003 and ZON2007-00072—as revised—would result in a significant adverse effect on
the environment. Accordingly, a Revised Draft Mitigated Negative Declaration was
prepared and circulated for public review for twenty (20) days between July 2, 2008 and
July 22, 2008, and notice of that fact was given in the manner required by law; and,
Resolution No. 2008-102
Page 2 of 11
155
WHEREAS, at the July 22, 2008, Planning Commission meeting, the Planning
Commission directed Staff to prepare appropriate P.C. Resolutions to recommend
certification of the Mitigated Negative Declaration and conditional approval of the
proposed project to the City Council; and,
WHEREAS, at its August 12, 2008, meeting, after hearing public testimony, the
Planning Commission adopted P.C. Resolution No. 2008-26 making certain findings
related to the requirements of the California Environmental Quality Act (CEQA) and
recommended that the City Council adopt a Mitigation Monitoring Program and
Mitigated Negative Declaration for the proposed project; and,
WHEREAS, at its August 12, 2008, meeting, after hearing public testimony, the
Planning Commission adopted P.C. Resolution No. 2008-27, thereby recommending
that the City Council conditionally approve the proposed project; and,
WHEREAS, after issuing notices pursuant to the requirements of the Rancho
Palos Verdes Development Code and the State CEQA Guidelines, the City Council held
a duly noticed public hearing on September 16, 2008, at which time all interested
parties were given the opportunity to be heard and present evidence; and,
WHEREAS, on September 16, 2008, the City Council considered the Planning
Commission's recommendation; directed the applicant to re -design the project further
by moving the 2nd -floor Unit `K' at the front of the building to the roof of the building at
the rear in order to attempt to address significant view impacts upon the residence at 7
Via La Cima; and continued the public hearing to October 21, 2008; and,
WHEREAS, on October 21, 2008, the City Council considered the modified
project and found that it did not significantly reduce view impacts upon the residence at
7 Via La Cima, and exacerbated view impacts upon other residences in the La Cima
community; and,
WHEREAS, at its October 21, 2008, meeting, after hearing public testimony, the
City Council adopted Resolution No. 2008-101 making certain findings related to the
requirements of the California Environmental Quality Act (CEQA) and adopting a
Mitigation Monitoring Program and Mitigated Negative Declaration for the proposed
project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS
VERDES DOES HEREBY FIND, DETERMINE, AND RESOLVE AS FOLLOWS:
Section 1: The City Council makes the following findings of fact with respect to
the application for Vesting Tentative Tract Map No. 68796 to subdivide the 1.25 -acre
site for a 28 -unit condominium project:
Resolution No. 2008-102
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156
A. The proposed map and the design and improvement of the proposed subdivision
are consistent with the Rancho Palos Verdes General Plan. The General Plan
land use designation for the subject property is Residential, 12-22 DU/acre. With
respect to this land use designation, the 1975 Land Use Plan of the General Plan
states that "[no] vacant land is designated in this density range. It is a reflection
of an area with existing high-density residential uses. No new development is
proposed due to potential extreme environmental impacts." Notwithstanding this
statement, the subject property is designated at this density range on the City's
General Plan land use map and is not vacant (although its former use has been
abandoned). The current Housing Element of the General Plan includes
programs calling upon the City to identify adequate sites for a variety of housing
types (Program Category No. 1); assist in the development of adequate housing
to meet the needs of low- and moderate -income households (Program Category
No. 2); and address and, where appropriate and legally possible, remove
governmental constraints to the maintenance, improvement and development of
housing (Program Category No. 3). The development of condominiums—which
are generally less expensive than detached single-family residences of
comparable size—would serve to implement these programs. In addition, this
project is subject to the inclusionary housing requirements of Chapter 17.11 of
the City's Development Code. Based upon the proposed 28 -unit project, the
applicant shall be obligated to provide three (3) dwelling units (or their
equivalents) that are affordable to households with very low incomes.
B. The site is physically suitable for the type and density of development proposed.
The subject property is more than double the minimum size required for lots in
the RM -22 zoning district. The twenty-eight units (28) proposed are not
consistent with the minimum 2,000 square feet of lot are per unit requirement of
the RM -22 zoning district, but the approval of the additional density of one (1)
unit is warranted under the density bonus provisions of Section 17.11.060(A)(1)
of the Rancho Palos Verdes Development Code because the applicant is
providing two (2) new units on site that will be affordable to very -low-income
households and proposes to pay an in -lieu fee to the City for a third affordable
unit. Furthermore, the project complies with all applicable setbacks, lot coverage
and parking requirements of the RM -22 zoning district.
C. The design of the subdivision and the proposed improvements are not likely to
cause substantial environmental damage or substantially and avoidably injure
fish or wildlife or their habitat, nor are they likely to cause serious public health
problems. The subject property has been developed and used as a telephone
equipment facility for more than fifty (50) years. There are no sensitive plant or
animal species; no known historical, archaeological or paleontological resources;
and no known hazardous materials or conditions on the subject property. In the
event that any of these are encountered prior to or during construction of the
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157
project, the recommended conditions of approval will reduce any potential
impacts upon the environment, fish and wildlife, sensitive habitats or public
health to less -than -significant levels.
D. The design of the subdivision or the type of improvements will not conflict with
easements, acquired by the public at large, for access through or use of, property
within the proposed subdivision. In this connection, the governing body may
approve a map if it finds that alternate easements, for access or for use, will be
provided, and that these will be substantially equivalent to ones previously
acquired by the public. This subsection shall apply only to easements of record
or to easements established by judgment of a court of competent jurisdiction and
no authority is hereby granted to a legislative body to determine that the public at
large has acquired easements for access through or use of property within the
proposed subdivision. There are no known public access easements across the
subject property that should be preserved as a part of this project.
Section 2: The City Council makes the following findings of fact with respect to
the application for a general plan amendment and zone change for the annexation of a
0.01 -acre portion of the subject property from the City of Rolling Hills Estates:
A, A 440 -square -foot portion of the subject property (Assessor's Parcel No. 7589-
007-802) is located in the City of Rolling Hills Estates. This portion of the site is
currently zoned by the City of Rolling Hills Estates for institutional use, consistent
with the adjacent church at 28340 Highridge Road. With the approval of the
proposed project, the applicant will request that the City of Rancho Palos Verdes
pursue the annexation of this area, with the cost of such annexation to be borne
by the applicant. If annexed, it is the City Council's recommendation that the
parcel be assigned a General Plan land use designation of "Residential, 12-22
DU acre" and zoned "Residential Multi -Family, 22 DU/acre" (RM -22) to be
consistent with the remainder of the site. If for some reason the parcel cannot be
annexed within the City of Rancho Palos Verdes, the remaining property is still
large enough to accommodate a condominium project, but it would need to be
modified so as not to encroach upon the 440 -square -foot area of the site that
would remain in the City of Rolling Hills Estates.
Section 3: The City Council makes the following findings of fact with respect to
the application for a conditional use permit to establish a residential condominium
project on the subject property:
A. The site is adequate in size and shape to accommodate the proposed use and
for all of the yards, setbacks, walls, fences, landscaping and other features
required by Title 17 (Zoning) or by conditions imposed under Section 17.60.050
to integrate said use with those on adjacent land and within the neighborhood.
Resolution No. 2008-102
Page 5 of 11
W
The proposed project is consistent with all of the RM -22 district development
standards and the lot is more than double the minimum size required in the RM -
22 district.
B. The site for the proposed use relates to streets and highways sufficient to carry
the type and quantity of traffic generated by the subject use. The project takes
direct access from Highridge Road, a collector roadway connecting Hawthorne
Boulevard and Crest Road. The project plans and traffic study have been
reviewed by the City's traffic engineer. The traffic study identified impacts at the
intersection of Highridge Road and Hawthorne Boulevard that can be mitigated to
less -than -significant levels with changes to roadway striping and signal timing.
The applicant shall be responsible for the project's fair share of the cost of these
modifications. Although the applicant has proposed a left -turn pocket and
median break in Highridge Road to provide access to the subject property, the
City Council finds that it would be imprudent to allow this left -turn pocket to be
constructed due to its close proximity to the intersection of Highridge Road and
Peacock Ridge Road.
C. In approving the subject use at the specific location, there will be no significant
adverse effect on adjacent property or the permitted use thereof. Early in the
review of this application, Staff identified potential view impacts as the most likely
adverse impacts on adjacent properties, particularly for certain units in the La
Cima community. For this reason, the applicant was asked to construct a
certified silhouette of the proposed project. The RM -22 zoning district
establishes a 36 -foot height limit for apartment buildings, which is measured from
the lower of either preconstruction or finished grade at any point within the
building footprint. The revised project has lowered the front portion of the
building from thirty-six feet (36'-0") to twenty-six feet (26'-0") by removing the
former third story in this area. In combination with a further 21/2 -foot lowering of
the site grade, a 121/2 -foot lowering of the overall maximum height of the structure
has been achieved.
As supported by the City Attorney's opinion, the City Council has the authority to
consider view impacts within the scope of this finding because this application is
for a condominium project, which requires the approval of a conditional use
permit. Therefore, the 36 -foot height limit for the RM -22 zoning district does not
have to be treated as a "by right" entitlement for this project. The City Council
considered view analyses conducted by Staff from seven (7) of the ten (10)
residences on Via La Cima, which is located across Highridge Road from the
subject property.
Based upon the view analyses, the City Council found that the revised project still
results in significant view impairment for the residence at 7 Via La Cima. La
Resolution No. 2008-102
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159
Cima residents have enjoyed views over the subject property for many years and
have come to consider these views as a crucial component of the value of their
homes. For several homeowners, these views would be adversely affected by
the loss of Los Angeles basin, mountain and nighttime city -light views. On the
other hand, the subject property has been zoned and designated for multi -family
residential use in the City's zoning and land use regulations since before the La
Cima community was approved by the City in 1979. The applicant has modified
the project to reduce the view impact upon 7 Via La Cima, and has demonstrated
that further modifications will make the project physically and/or fiscally
infeasible. Since the project has been reduced in overall height by twelve feet six
inches (12'-6") by removing the third floor at the front the project, the result of this
design modification has been to reduce the view impact upon all but one (1) of
the La Cima residences to less -than -significant levels. Given the modifications
that have been made to the proposed project, the City Council finds that
significant view impairment for one (1) unit in the La Cima community does not
constitute a "significant adverse effect on adjacent property" that warrants denial
of or further modifications to the proposed project, because this is an impact
upon only one (1) unit out of ten (10) units in the La Cima community.
D. The proposed use is not contrary to the General Plan. The proposed project is
consistent with the goals and policies of the Land Use and Housing elements of
the City's General Plan. It is a goal of the Urban Environment Element of the
General Plan "to preserve and enhance the community's quality living
environment; to enhance the visual character and physical quality of existing
neighborhoods; and to encourage the development of housing in a manner which
adequately serves the needs of all present and future residents of the
community." Furthermore, it is a Housing Activity Policy of the City's General
Plan to "[require] all new housing developed to include suitable and adequate
landscaping, open space, and other design amenities to meet the community
standards of environmental quality." The revised project will improve the
appearance of the abandoned Verizon site, is designed in a manner that is
compatible with the quality and appearance of surrounding multi -family
residential projects, and increases the diversity of the City's housing stock by
providing opportunities for condominium ownership.
E. The required finding that, if the site of the proposed use is within any of the
overlay control districts established by Chapter 17.40 (Overlay Control Districts)
of Title 17 (Zoning), the proposed use complies with all applicable requirements
of that chapter, is not applicable to this project because the subject property is
not located within an overlay control district.
F. Conditions, which the City Council finds to be necessary to protect the health,
safety and general welfare, have been imposed upon this project. These
Resolution No. 2008-102
Page 7 of 11
conditions include all mitigation measures identified in the Mitigated Negative
Declaration for the project. Examples include (but are not limited to) limitations
on the heights of walls and fences; conditions regarding the placement and type
of exterior light fixtures; requirements for marking fire lanes and prohibiting
parking therein; requirements for compliance with the City's attached unit
development standards regarding the transmission of sound and vibration
through common walls and floors; requirements for water -conserving
landscaping and irrigation in the common areas; limitations on the height of
foliage and trees in the common areas; and restrictions on the number and types
of signage for the project.
Section 4: The City Council makes the following findings of fact with respect to
the application for a grading permit for 22,111 cubic yards of grading related to the
development of the proposed condominium project:
A. The grading does not exceed that which is necessary for the permitted primary
use of the lot, as defined in Section 17.96.2210 of the Development Code. The
proposed project encompasses 22,111 cubic yards of earth movement. Most of
this material (i.e., 21,583 cubic yards) would be exported from the site. Most of
the proposed cut would occur within the building footprint for the subterranean
garage and lowest level of condominium units, while most of the proposed fill
would occur within the footprint of the proposed patio deck at the rear of the
property. The excavation of the site and export of material allows the building to
be set lower on the site than could be allowed "by right" without the proposed
grading (or with less grading).
B. The grading and/or related construction does not significantly adversely affect the
visual relationships with, nor the views from, neighboring properties. In cases
where grading is proposed for a new residence or an addition to an existing
residence, this finding shall be satisfied when the proposed grading results in a
lower finished grade under the building footprint such that the height of the
proposed structure, as measured pursuant to Section 17.02.040(B) of this Title,
is lower than a structure that could have been built in the same location on the lot
if measured from preconstruction (existing) grade. The proposed grading results
in a lower structure than would be permitted "by right" without the proposed
grading, with a maximum height of twenty-six feet (26'-0") at the front of the
project site, and the project complies with the 36 -foot height limit for the RM -22
zoning district.
C. The nature of the grading minimizes disturbance to the natural contours, and
finished contours are reasonably natural. The site is generally flat, with a gentle
descending slope at the rear of the property. The proposed grading would
Resolution No. 2008-102
Page 8 of 11
161
generally lower the grade of the property overall, but would maintain the gently -
sloping character of the site.
D. The required finding that the grading takes into account the preservation of
natural topographic features and appearances by means of land sculpting so as
to blend any man-made or manufactured slope into the natural topography, is not
applicable because there are no natural topographic features on the subject
property.
E. The required finding that, for new single-family residences, the grading and/or
related construction is compatible with the immediate neighborhood character, as
defined in Section 17.02.040(A)(6) of the Development Code, is not applicable
because the proposed project is not a new single-family residence.
F. In new residential tracts, the grading includes provisions for the preservation and
introduction of plant materials so as to protect slopes from soil erosion and
slippage, and minimize visual effects of grading and construction on hillside
areas. The proposed project is a new residential tract, although it is not a single-
family subdivision. This intent of this finding is to minimize the visual impacts and
disturbance of existing vegetation that commonly occurs with cut -and -fill grading
of terraced single-family neighborhoods. The existing property is mostly flat, with
a gentle slope descending at the rear, and these basic landforms will be
maintained with the grading of the property.
G. The required finding, that the grading utilizes street designs and improvements
which serve to minimize grading alternatives and harmonize with the natural
contours and character of the hillside, is not applicable because the proposed
project does not involve the construction of new streets.
H. The grading would not cause excessive and unnecessary disturbance of natural
landscape or wildlife habitat through removal of vegetation. There is existing
mature foliage on the site, but no wildlife habitat that supports any sensitive (i.e.,
endangered or threatened) species.
The grading conforms with the minimum standards for finished slope, depth of fill,
retaining wall location and height, and driveway slope established under Section
17.76.040(E)(8) of the Development Code.
Pursuant to Section 17.76.040(E)(9)(c) of the Rancho Palos Verdes
Development Code, the proposed 19 -foot depth of cut is reasonable and
necessary. Grading down the pad within the footprint of the proposed building
allows for a structure that is lower than would otherwise be permitted without the
proposed grading.
Resolution No. 2008-102
Page 9 of 11
MM
Section 5: The City Council makes the following findings of fact with respect to
the application for a density bonus in conjunction with development of the proposed
condominium project:
A. The applicant's density bonus request involves requesting one (1) additional
market -rate unit, for a total of twenty-eight (28) units. Of these, the applicant will
dedicate two (2) units for sale to very -low-income households, which equates to
five percent (5%) of the total number of units. This is consistent with the
requirements of Section 17.11.040 of the Rancho Palos Verdes Development
Code. However, it is the City's position that, in order to qualify for a density
bonus under State law (i.e., Sections 65915-65918 of the Government Code), the
applicant must set aside ten percent (10%) of the total number of units for very -
low -income households. Although the applicant disagrees with the City's
interpretation of State density bonus law, he is amenable to paying the City's in -
lieu affordable housing fee for the third unit, providing that the City is willing to
defer payment of the fee until after sale or occupancy of the twenty-fourth (24th)
unit of the project.
The applicant is entitled to a density bonus of up to twenty percent (20%) under
State law, but is asking for a density bonus of less than four percent (4%). A 20 -
percent bonus would amount to a project of up to thirty-three (33) units. Given
the constraints of the project site, it is likely that the height of the project would
have to be increased to accommodate thirty-three (33) units, possibly to or above
the 36 -foot height limit. Since the City's and State's density bonus regulations
compel local jurisdictions to grant a development concession in conjunction with
the density bonus request, the City would probably not be in a position to deny a
taller project, even if it exceeded the property's height limit.
For the foregoing reasons, the City Council believes that accepting an in -lieu fee
for the third affordable unit is a reasonable compromise in that it upholds the
City's interpretation of State law that three (3) affordable units are needed to
qualify for the density bonus without requiring the applicant to alter the building
design to actually construct a third affordable unit. As such, the City Council
agrees to accept deferred payment of the in -lieu fee for the third affordable unit.
Section 6: The time within which the judicial review of the decision reflected in
this Resolution, if available, must be sought is governed by Section 1094.6 of the
California Code of Civil Procedure and other applicable short periods of limitation.
Section 7: For the foregoing reasons and based on the information and
findings included in the Staff Report, Minutes and other records of proceedings, the City
Council of the City of Rancho Palos Verdes hereby conditionally approves Vesting
Tentative Tract Map No. 68796, General Plan Amendment, Zone Change, Conditional
Resolution No. 2008-102
Page 10 of 11
163
Use Permit, Grading Permit and Density Bonus (Planning Case Nos. SUB2007-00003
and ZON2007-00072), in conjunction with the adoption of a Mitigated Negative
Declaration, to allow the subdivision of a 1.25 -acre site into twenty-eight (28) residential
condominium units, located at 28220 Highridge Road, subject to the recommended
conditions of approval in the attached Exhibit 'A'.
Attest:
PASSED, APPROVED, AND ADOPTED this 21
C.
City Clerk
State of California )
County of Los Angeles ) ss
City of Rancho Palos Verdes )
I, Carla Morreale, City Clerk of the City of Rancho Palos Verdes, hereby certify that the
above Resolution No. 2008-102 was duly and regularly passed and adopted by the said
City Council at a regular meeting thereof held on October 21, 2008.
City Clerk
Resolution No. 2008-102
Page 11 of 11
im
EXHIBIT `A'
CONDITIONS OF APPROVAL
FOR TENTATIVE TRACT MAP NO. 68796, GENERAL PLAN AMENDMENT, ZONE
CHANGE, CONDITIONAL USE PERMIT, GRADING PERMIT AND DENSITY BONUS
(REC Development, 28220 Highridge Road)
General
Within ninety (90) days of this approval, the applicant and/or property owner shall submit to the
City a statement, in writing, that they have read, understand and agree to all conditions of
approval contained in this approval. Failure to provide said written statement within ninety (90)
days following the date of this approval shall render this approval null and void.
2. The developer shall supply the City with one mylar and copies of the map after the final map has
been filed with the Los Angeles County Recorders Office.
3. This approval expires twenty-four (24) months from the date of approval of the vesting tentative
tract map by the City Council, unless extended per Section 66452.6 of the Subdivision Map Act
and Section 16.16.040 of the Development Code. Any request for extension shall be submitted to
the Planning Department in writing prior to the expiration of the map.
4. Permitted hours and days for construction activity are 7:00 AM to 7:00 PM, Monday through
Saturday, with no construction activity permitted on Sundays or on the legal holidays specified in
Section 17.96.920 of the Rancho Palos Verdes Municipal Code without a special construction
permit. [Mitigation Measure NOI-1]
5. Unless specific development standards for the development of the property contained in these
conditions of approval, the development of the lots shall comply with the requirements of Title 17
of the City's Municipal Code.
6. Prior to final tract map recordation, the 440 -square -foot (0.010 acre) portion of the project site that
is located in the City of Rolling Hills Estates (Assessor's Parcel No. 7589-007-802) shall be
annexed to the City of Rancho Palos Verdes, in accordance with the procedures established by
the Los Angeles County Local Agency Formation Commissioner (LAFCO). The applicant shall be
responsible for all City costs associated with processing the annexation request. [Mitigation
Measure LUP-1]
Subdivision Map Act
7. Prior to submitting the Final Map for recordation pursuant to Section 66442 of the Government
Code, the subdivider shall obtain clearances from affected departments and divisions, including a
clearance from the City's Engineer for the following items: mathematical accuracy, survey
analysis, correctness of certificates and signatures, etc.
Resolution No. 2008-102
Exhibit A
Page 1 of 14
165
County Recorder
8. If signatures of record title interests appear on the final map, the developer shall submit a
preliminary guarantee. A final guarantee will be required at the time of filing of the final map with
the County Recorder. If said signatures do not appear on the final map, a preliminary title
report/guarantee is needed that covers the area showing all fee owners and interest holders. The
account for this preliminary title report guarantee shall remain open until the final map is filed with
the County Recorder.
Cultural Resources
9. Prior to the issuance of a grading permit, the applicant shall conduct a Phase 1 archaeological
survey of the property. The survey results shall be provided to the Director of Planning, Building
and Code Enforcement for review prior to grading permit issuance. [Mitigation Measure CUL -1]
10. Prior to the commencement of grading, the applicant shall retain a qualified paleontologist and
archeologist to monitor grading and excavation. In the event undetected buried cultural
resources are encountered during grading and excavation, work shall be halted or diverted
from the resource area and the archeologist and/or paleontologist shall evaluate the remains
and propose appropriate mitigation measures. [Mitigation Measure CUL -21
Sewers
11. A bond, cash deposit, or other City approved security, shall be posted prior to recordation of the
Final Map or start of work, whichever occurs first, to cover costs for construction of and connection
to a sanitary sewer system, in an amount to be determined by the Director of Public Works.
12. Prior to approval of the final map, the subdivider shall submit to the Director of Planning, Building
and Code Enforcement a written statement from the County Sanitation District approving the
design of the tract with regard to the existing trunk line sewer. Said approval shall state all
conditions of approval, if any, and state that the County is willing to maintain all connections to
said trunk lines.
13. Approval of this subdivision of land is contingent upon the installation, dedication and use of local
main line sewer and separate laterals to serve each unit of the land division.
14. Sewer easements may be required, subject to review by the City Engineer, to determine the final
locations and requirements.
15. Prior to construction, the subdivider shall obtain approval of the sewer improvement plans from
the County Engineer Sewer Design and Maintenance Division.
Water
Resolution No. 2008-102
Exhibit A
Page 2 of 14
166
16. Prior to final map approval, the applicant shall provide evidence of confirmation from California
Water Service Company that current water supplies are adequate to serve the proposed project.
[Mitigation Measure UTL-1]
17. Prior to recordation of the Final Map or prior to commencement of work, whichever comes first,
the subdivider must submit a labor and materials bond in addition to either:
a, An agreement and a faithful performance bond in the amount estimated by the City
Engineer and guaranteeing the installation of the water system; or
b. An agreement and other evidence satisfactory to the City Engineer indicating that the
subdivider has entered into a contract with the serving water utility to construct the water
system, as required, and has deposited with such water utility security guaranteeing
payment for the installation of the water system.
18. There shall be filed with the City Engineer a statement from the water purveyor indicating that the
proposed water mains and any other required facilities will be operated by the water purveyor and
that, under normal operating conditions, the system will meet the needs of the developed tract.
19. At the time the final land division map is submitted for checking, plans and specifications for the
water systems facilities shall be submitted to the City Engineer for checking and approval, and
shall comply with the City Engineer's standards. Approval for filing of the land division is
contingent upon approval of plans and specifications mentioned above.
20. The project shall be served by adequately sized water system facilities that shall include fire
hydrants of the size and type and location as determined by the Los Angeles County Fire
Department. The water mains shall be of sufficient size to accommodate the total domestic and
fire flows required for the land division. The City Engineer shall determine domestic flow
requirements. Fire flow requirements shall be determined by the Fire Department and evidence of
approval by the Fire Chief is required.
21. Framing of structures shall not begin until after the Los Angeles County Fire Department has
determined that there is adequate firefighting water and access available to said structures.
22. Prior to building permit issuance, the applicant shall ensure that construction plans and
specifications for the project includes the following interior water -conservation measures for the
following plumbing devices and appliances:
® Reduce water pressure to 50 pounds per square inch or less by means of a pressure -reducing
valve;
® Install water -conserving clothes washers; I
• Install water -conserving dishwashers and/or spray emitters that are retrofitted to reduce flow; and,
a Install one -and -one-half gallon, ultra-low flush toilets. [Mitigation Measure UTL-2]
Resolution No. 2008-102
Exhibit A
Page 3 of 14
167
23. Prior to building permit issuance, the applicant shall submit landscape and irrigation plans for
the common open space areas for the review and approval of the Director of Planning,
Building and Code Enforcement. Said plans shall incorporate, at a minimum, the following
water -conservation measures:
9 Extensive use of native plant materials.
O Low water -demand plants.
• Minimum use of lawn or, when used, installation of warm season grasses.
® Grouped plants of similar water demand to reduce over -irrigation of low water demand
plants.
® Extensive use of mulch in all landscaped areas to improve the soil's water -holding capacity.
Drip irrigation, soil moisture sensors, and automatic irrigation systems.
Use of reclaimed wastewater, stored rainwater or grey water for irrigation. [Mitigation
Measure UTL-3]
24. A bond, cash deposit, or combination thereof shall be posted to cover costs of construction in an
amount to be determined by the City Engineer.
25. Prior to filing of the Final Map, the developer shall submit a hydrology study to the City Engineer to
determine any adverse impacts to existing flood control facilities generated by this project. Should
the City Engineer determine that adverse impacts will result, the developer will be required to post
a cash deposit or bond or combination thereof in an amount to be determined by the Director of
Public Works, which will be based on the project's share of the necessary improvements.
26. Drainage plans and necessary support documents to comply with the following requirements must
be approved prior to the recordation of the Final Map or commencement of work, whichever
comes first:
a. Provide drainage facilities to remove the flood hazard to the satisfaction of the City
Engineer and dedicate and show easements on the final map.
b. Eliminate the sheet overflow and ponding or elevate the floors of the buildings with no
openings in the foundation walls to at least twelve inches above the finished pad grade.
C. Provide drainage facilities to protect the lots from high velocity scouring action.
d. Provide for contributory drainage from adjoining properties.
27. In accordance with Section 1601 and 1602 of the California Fish and Game Code, the State
Department of Fish and Game, 350 Golden Shore, Long Beach, California 90802, (562) 435-
7741, shall be notified prior to commencement of work within any natural drainage courses
affected by this project.
28. All drainage swales and any other on -grade drainage facilities, including gunite, shall be of an
earth tone color and shall be reviewed and approved by the Director of Planning, Building and
Code Enforcement.
29. Site surface drainage measures included in the project's geology and soils report shall be
Resolution No. 2008-102
Exhibit A
Page 4 of 14
M19 901
implemented by the project developer during project construction.
30. Subject to review and approval of the City Public Works and Building and Safety Department and
prior to issuance of grading permits, the project proponent shall submit a stormwater management
plan which shows the on-site and off-site stormwater conveyance system that will be constructed
by the project proponent for the purpose of safely conveying stormwater off of the project site.
These drainage structures shall be designed in accordance with the most current standards and
criteria of the Director of Public Works and Los Angeles County Department of Public Works to
ensure that default drainage capacity is maintained. The plan shall also show whether existing
stormwater facilities off the site are adequate to convey storm flows.
31. In accordance with the Clean Water Act, coordinate with the Regional Water Quality Control
Board (RWQCB) regarding the required National Pollutant Discharge Elimination System
(NPDES) permit for the project. The developer shall obtain this permit and provide the City with
proof of the permit before construction activities begin on the project site.
32. Appropriate Best Management Practices (BMPs), including sandbags, shall be used to help
control runoff from the project site during project construction activities.
33, In accordance with the Clean WaterAct, the project proponent shall coordinate with the Regional
Water Quality Control Board (RWQCB) on the preparation of a Stormwater Pollution Prevention
Plan (SWPPP) for the proposed project.
Streets
34. Prior to recordation of the final tract map, the applicant shall post a bond or other security
acceptable to the Director of Public Works for any approved improvements within the public right-
of-way of Highridge Road. [Mitigation Measure TRA -6]
35. The contractor shall be responsible for repairs to any neighboring streets (those streets to be
determined by the Director of Public Works) which may be damaged during development of the
tract. Prior to issuance of grading permits, the developer shall post a bond, cash deposit or City
approved security, in an amount determined by the Director of Public Works to be sufficient to
cover the costs to repair any damage to streets or appurtenant structures as a result of this
development.
36. The applicant shall obtain any necessary approvals from the City of Rolling Hills Estates to allow
the use of public streets for project -related construction vehicles.
37. In order to reduce the traffic impacts of the proposed project to less -than -significant levels, the
intersection of Highridge Road and Hawthorne Boulevard shall be modified as follows:
• Convert the existing northbound left turn lane to a shared left -plus -through lane; and the
existing northbound through lane to a dedicated right -turn lane;
• Keep the existing dedicated right -turn lane so there will be two (2) northbound right -turn
lanes;
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Modify the existing traffic signal phases for the northbound and southbound approaches to
split -phasing (from protected left -turn phasing);
Set the cycle length to one hundred twenty (120) seconds or optimize the cycle length to
allow for additional green time on all movements; and,
Provide "cat -track" striping for the two (2) northbound right -turn lanes for their transition to
the eastbound through lanes on Hawthorne Boulevard. [Mitigation Measure TRA -1]
38. Prior to building permit final, the applicant shall be responsible for contributing the project's fair
share of the cost of the recommended improvements at Highridge Road and Hawthorne
Boulevard (estimated at 15.5%) to the City of Rancho Palos Verdes; and shall contribute the
project fair share of the cost of future improvements at Hawthorne Boulevard and Silver Spur
Road (estimated at 2.5%) to the City of Rolling Hills Estates. [Mitigation Measure TRA -2] Said
improvements are described in Condition No. 37 above.
39. On -street parking shall be prohibited within fifty feet (50'-0") of either side of the proposed
driveway.
UtiIitiP.S
40. All utilities to and on the property shall be provided underground, including cable television,
telephone, electrical, gas and water. All necessary permits shall be obtained for their installation.
Cable television shall connect to the nearest trunk line at the developer's expense.
Geology
41. Prior to the issuance of a building permit by the City's Building Official, the applicant shall obtain
final approval of the grading and construction plans from the City's geotechnical consultant. The
applicant shall be responsible for the preparation and submittal of all soil engineering and/or
geology reports required by the City's geotechnical consultant in order to grant such final approval.
[Mitigation Measure GEO-1]
42, Prior to recordation of the Final Map or commencement of work, whichever occurs first, a
bond, cash deposit, or combination thereof shall be posted to cover costs for any geologic
hazard abatement in an amount to be determined by the City Engineer.
43. All geologic hazards associated with this proposed development shall be eliminated or the City
Geologist shall designate a restricted use area in which the erection of buildings or other
structures shall be prohibited.
44. Prior to issuance of grading or building permits, the developer shall submit a Geology and/or Soils
Engineer's report on the expansive properties of soils on all building sites in the proposed
subdivision. Such soils are defined by Building Code Section 2904 (b).
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45. An as -built geological report shall be submitted for structures founded on bedrock. An as -built
soils and compaction report shall be submitted for structures founded on fill as well as for all
engineered fill areas.
Easements
46. Easements shall not be granted or recorded within areas proposed to be granted, dedicated, or
offered for dedication for public streets or highway access rights, building restriction rights, or
other easements until after the final tract map is filed with the County Recorder, unless such
easements are subordinated to the proposed grant or dedication. If easements are granted after
the date of tentative approval, a subordination agreement must be executed by the easement
holder prior to the filing of the Final Tract Map.
Survey Monumentation
47. Prior to recordation of the Final Map, a bond, cash deposit, or combination thereof shall be posted
to cover costs to establish survey monumentation in an amount to be determined by the City
Engineer.
48. Within twenty-four (24) months from the date of filing the Final Map, the developer shall set survey
monuments and tie points and furnish the tie notes to the City Engineer.
49. All lot corners shall be referenced with permanent survey markers in accordance with the City's
Municipal Code.
50. All tract corners shall be referenced with permanent survey markers in accordance with the
Subdivision Map Act.
Street Names and Numbering
51. Any street names and/or house numbering by the developer must be approved by the City
Engineer.
Park, Open Space and Other Dedications
52. Prior to final tract map recordation, the applicant shall pay to the City a fee equal to the value of
0.3136 acre of parkland in lieu of the dedication of such land to the City, pursuant to the provision
of Section 16.20.100 of the Rancho Palos Verdes Municipal Code. [Mitigation Measure REC-1]
Affordable Housing
53. Prior to approval of the final map, the subdivider shall agree to participate in the City's
affordable housing program, as codified in Chapter 17.11 of the City's Municipal Code. Said
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participation shall include construction within the project of two (2) units affordable to
households with very low incomes and payment of an affordable housing in -lieu fee for a third
very -low-income unit. The two (2) affordable units shall be similar in exterior appearance,
interior appointments, configuration and basic amenities (such as storage space and outdoor
living areas) to the market rate units in the proposed project, as demonstrated to the
satisfaction of the Director of Planning, Building and Code Enforcement prior to building permit
final. Agreeing to the requirements of Chapter 17.11 also means that the covenants and
agreements required by that chapter must be recorded against the two (2) affordable units,
which shall be specifically designated, concurrently with the recordation of the final map or the
issuance of the certificate of occupancy for the building, whichever occurs first.
54. Payment of the affordable housing in -lieu fee for the third very -low-income unit shall occur
prior to the sale or occupancy, whichever occurs first, of the twenty-fifth (25"') unit in the
project.
Gradin and Demolition
55. Prior to recordation of the final map or the commencement of work, whichever occurs first, a bond,
cash deposit, or combination thereof, shall be posted to cover the costs of grading in an amount to
be determined by the City Engineer.
56. Prior to issuance of a grading permit by Building and Safety, the applicant shall submit to the City
a Certificate of Insurance demonstrating that the applicant has obtained a general liability
insurance policy in an amount not less than 5 million dollars per occurrence and in the aggregate
to cover awards for any death, injury, loss or damage, arising out of the grading or construction of
this project by the applicant. Said insurance policy must be issued by an insurer admitted to do
business in the State of California with a minimum rating of A -VII by Best's Insurance Guide. Said
insurance shall not be canceled or reduced during the grading or construction work and shall be
maintained in effect for a minimum period of one (1) year following the final inspection and
approval of said work by the City, and without providing at least thirty (30) days prior written notice
to the City.
57. Approval of the project shall allow a total of 22,111 cubic yards of earth movement, consisting of
21,847 cubic yards of cut and 264 cubic yards of fill, of which 21,583 cubic yards will be exported
from the site. The maximum depth of cut is nineteen feet (19'-0") and the maximum height of fill is
five feet (5'-0"). Any revisions that result in a substantial increase to the aforementioned grading
quantities shall be reviewed and approved by the Planning Commission as a revision to the
grading application.
58. The maximum height of the combined retaining wall and safety railing along the rear property line
shall not exceed eight feet (8'-0") as measured from finished grade on adjacent properties to the
north and east.
59. A construction plan shall be submitted to the Director of Planning, Building and Code Enforcement
prior to issuance of grading permits. Said pian shall include but not be limited to: limits of
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grading, estimated length of time for rough grading and improvements, location of construction
trailer, location and type of temporary utilities. The use of rock crushers shall be prohibited.
60. Prior to filing the Final Map, a grading plan shall be reviewed and approved by the City Engineer
and City Geologist. This grading plan shall include a detailed engineering, geology and/or soils
engineering report and shall specifically be approved by the geologist and/or soils engineer and
show all recommendations submitted by them. It shall also be consistent with the tentative map
and conditions, as approved by the City.
61. Grading shall conform to Chapter 29, "Excavations, Foundations, and Retaining Walls", and
Chapter 70, "Excavation and Grading of the Uniform Building Code".
62. Prior to the issuance of grading permits, the applicant shall demonstrate to the Director of
Planning, Building and Code Enforcement that dust generated by grading activities shall comply
with the South Coast Air Quality Management District Rule 403 and the City Municipal Code
requirements that require regular watering for the control of dust. [Mitigation Measure AIR -1]
63. During construction, all grading activities shall cease during periods of high winds (i.e., greater
than 30 mph). To assure compliance with this measure, grading activities are subject to periodic
inspections by City staff. [Mitigation Measure AIR -2]
64. Construction equipment shall be kept in proper operating condition, including proper engine tuning
and exhaust control systems. [Mitigation Measure AIR -3]
65. Graded slope tops shall be rounded, slope gradients shall be varied, and no significant abrupt
changes between natural and graded slopes will be permitted. All created slopes shall not be
greater than 3:1.
66. Trucks and other construction vehicles shall not park, queue and/or idle at the project site or in the
adjoining public rights-of-way before 7:00 AM, Monday through Saturday, in accordance with the
permitted hours of construction stated in Section 17.56.020(B) of the Rancho Palos Verdes
Municipal Code. [Mitigation Measure AIR -4]
67. Prior to grading permit issuance, the applicant shall obtain approval of a haul route from the
Director of Public Works. The applicant shall ensure that loaded trucks are appropriately covered
to prevent soil from spilling on the roadway along the haul route. [Mitigation Measure TRA -31
68. Prior to approval of grading permits, the applicant shall conduct a soil investigation to determine
whether site conditions pose any significant health or environmental risks associated with the past
use of the site, and the nature and extent of any associated contamination. The investigation
shall also include sampling and analysis to determine the PCB status of the site and building. The
results of these investigations shall be presented in a report prepared in accordance with
applicable law and standard practice. [Mitigation Measure HAZ-1 ]
69. No grading associated with the project shall occur until the soils investigation report is reviewed
and approved by the City. If the soils investigation report requires remedial actions to address
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contamination, no grading activities shall occur in identified areas until appropriate response
actions have been completed in accordance with applicable law and standard practice to the
satisfaction of the City. [Mitigation Measure HAZ-2]
70. During grading or other soil disturbing activities, if malodorous or discolored soils or soils thought
to contain significant levels of contaminants are encountered; the applicant or his contractors shall
enlist the services of a qualified environmental consultant to recommend methods of handling
and/or removal from the site. The need for and methods of any required response actions shall
be coordinated with, and subject to, approval by the City. [Mitigation Measure HAZ-3]
71. Prior to disturbing the suspected asbestos and/or lead containing materials identified in the Phase
I report for the property, a consultant qualified in sampling and analysis of said materials shall be
retained by the applicant. If samples test positive, specifications shall be prepared for the removal
of identified asbestos and/or lead materials as necessary. A licensed asbestos contractor and
Certified Asbestos Consultant, pursuant to EPA/AHERA Section 206 and CCR Title 8, Article 2.6
shall be retained by the applicant to properly document, inspect, monitor, remove, and
encapsulate the asbestos materials prior to disposal. Prior to demolition, precautionary steps
shall be taken to reduce worker exposure to lead, according to occupational health standards.
Removal of lead-based paint, if necessary, shall be subject to applicable state and federal
regulatory guidelines. [Mitigation Measure HAZ-4] Notwithstanding the foregoing language of this
condition, any other hazardous materials (i.e., besides lead or asbestos) that are discovered on
the subject property shall be similarly abated in accordance with applicable local, state and federal
regulations.
72. The project shall utilize construction equipment equipped with standard noise insulating features
during construction to reduce source noise levels. [Mitigation Measure NOI-2]
73. All project construction equipment shall be properly maintained to assure that no additional noise,
due to worn or improperly maintained parts is generated. [Mitigation Measure NOI-3]
74. Haul routes used to transport soil exported from the project site shall be approved by the Director
of Public Works to minimize exposure of sensitive receptors to potential adverse noise levels from
hauling operations. [Mitigation Measure N0I-4]
75. The applicant shall not use the parking lot of the adjacent church for parking or staging of
equipment or storage of materials without the express authorization of the property owner.
Public Services
76. The project proponent will coordinate with the County of Los Angeles Fire Department to
determine any appropriate mitigation to compensate for the increase in the demand for fire
protection services due to the proposed project and any special site design considerations that
would minimize fire hazards. The driveway to be constructed as part of this project shall be
constructed to Fire Department standards.
77. The project proponent will coordinate with the County of Los Angeles, Office of the Sheriff, to
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determine any appropriate mitigation to compensate for the increase in the demand for police
protection services due to the proposed project. Appropriate police service fees shall be paid
before a Use and Occupancy Permit is issued for the project.
Common Area Improvements and CC&R's
78. Prior to building permit issuance, the applicant shall submit a site landscape plan for the review
and approval of the Director of Planning, Building and Code Enforcement. [Mitigation Measure
AES -2]
79. Common area landscaping shall be maintained so as not to result in significant view impairment
from the viewing area of another property, as defined in Section 17.02.040 of the Rancho Palos
Verdes Municipal Code. [Mitigation Measure AES -3] Said landscaping shall also be maintained
so as not to result in significant view impairment from the viewing areas of dwelling units within the
project.
80. Any temporary or permanent project signage shall require the approval of a sign permit by the
Director of Planning, Building and Code Enforcement, and shall be consistent with the provisions
of Section 17.76.050(E)(2). [Mitigation Measure AES -4]
81. Prior to building permit issuance, the applicant shall submit a site lighting plan for the review and
approval of the Director of Planning, Building and Code Enforcement. The plans shall
demonstrate that lighting fixtures on the building and grounds shall be designed and installed so
as to contain light on the subject property and not spill over onto adjacent private properties or
public rights-of-way. [Mitigation Measure AES -5]
82. Exterior lighting fixtures on the grounds shall be low, bollard -type fixtures, not to exceed forty-two
inches (42") in height. [Mitigation Measure AES -6]
83. Exterior lighting fixtures on private balconies and common exterior walkways shall be energy-
efficient fixtures, such as compact fluorescents. Said fixtures shall be equipped with light sensors
so that they will only be illuminated during hours of darkness. [Mitigation Measure AES -7]
84. No internally -illuminated signage may be used on the project site. [Mitigation Measure AES -8]
85. Vegetation, walls or other site improvements located on the south side of the driveway shall be
limited to no more than thirty inches (30") in height so as to preserve sight distance in accordance
with Section 17.48.070 of the Rancho Palos Verdes Municipal Code. [Mitigation Measure TRA -7]
85. Prior to approval of the Final Map, copies of the Covenants, Conditions and Restrictions (CC&R's)
shall be submitted for the review of the Director and the City Attorney. Said CC&R's shall reflect
the applicable development standards contained in this Resolution. All necessary legal
agreements, including homeowners' association, deed restrictions, covenant, dedication of
development rights, public easements and proposed methods of maintenance and perpetuation of
drainage facilities and any other hydrological improvements shall be submitted for review and
approval prior to the approval of the Final Map.
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87. The approved landscape plan shall include a pesticide management plan to control the
introduction of pesticides into site runoff.
Development Standards
88. The Final Map shall be in conformance with the lot size and configuration shown on the Vesting
Tentative Map for the RM -22 zoning district.
89. Prior to building permit issuance, the building elevations shall be revised to provide architectural
trim and detailing on any blank 2 -story facades of the facing wings of the building. [Mitigation
Measure AES -1]
90. Prior to the issuance of building permits, the applicant shall demonstrate the project's compliance
with the South Coast Air Quality Management District Rule 445 and the City Municipal Code
requirements regarding wood -burning devices. [Mitigation Measure AIR -5]
91. The approved structure shall maintain minimum setbacks of twenty-five feet (25'-0") front for
above -ground portions of the structure; twelve feet six inches (12'-6") front for below ground
portions of the structure; ten feet (10'-0") on each side; and twenty feet (20'-0") on the rear.
BUILDING SETBACK CERTIFICATION REQUIRED, prior to foundation forms inspection.
92. The approved project shall maintain minimum open space area of thirty-five percent (35%),
including private outdoor living areas of the individual units. Wherever they are practicable and
not prohibited by some other agency or authority (such as the Fire Department), the project shall
employ permeable paving surfaces in hardscape areas.
93. Driveway slopes shall conform to the maximum 20 -percent standard set forth in the Development
Code.
94. The private driveway shall meet Fire Department standards, including any painting or stenciling of
curbs denoting its existence as a Fire Lane and turn-arounds.
95. Final building and site plans, including but not limited to grading, setbacks, elevations, lot
coverage calculations, landscaping, and lighting shall be submitted to the Director of Planning,
Building and Code Enforcement for review and approval to determine conformance with the
Development Code. Said plans shall be in substantial compliance with the plans stamped
APPROVED with the effective date of this Resolution, as presented to the Planning Commission on
July 22, 2008.
96. The maximum building shall be 484.0'. BUILDING HEIGHT CERTIFICATION REQUIRED, prior
to roof sheathing inspection.
97. The approved project shall consist of three (3) 1 -bedroom units and twenty-five (25) 2- to 3 -
bedroom units, for a total of twenty eight (28) dwelling units.
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98. The approved project shall provide and maintain sixty-seven (67) off-street parking spaces,
consisting of fifty-three (53) assigned resident spaces and fourteen (14) un -assigned guest
spaces. All parking spaces shall be in the subterranean garage.
99. Each 1 -bedroom unit shall have at least one hundred thirty square feet (130 SF) of private outdoor
living area (i.e., patios, decks or balconies). Each unit with two (2) or more bedrooms shall have
at least one hundred fifty square feet (150 SF) of private outdoor living area. No side of the
private outdoor living area for any unit shall be less than seven feet (7'-0") in length. The private
outdoor living area for each unit shall have at least one (1) electrical outlet.
100. Each unit shall have at least four hundred cubic feet (400 CF) of enclosed, weather -proofed and
lockable storage space for the sole use of the unit resident, in addition to customary storage
space within the unit.
101. Chimneys, vents and other similar features may only exceed the height of the building by the
minimum height necessary to comply with Building Code requirements.
102. The following attached unit development standards from Chapter 17.06 of the Rancho Palos
Verdes Development Code shall apply to all units in the building:
a. No plumbing fixture or other such permanent device which generates noise or vibration
shall be attached to a common wall adjacent to a living room, family room, dining room,
den or bedroom of an adjoining unit. All plumbing fixtures or similar devices shall be
located on exterior walls, on interior walls within the unit or on common walls, if adjacent to
a similar fixture or device.
L All water supply lines within common walls and/or floors/ceilings shall be isolated from
wood or metal framing with pipe isolators specifically manufactured for that purpose and
approved by the city's building official. In multistory residential structures, all vertical
drainage pipes shall be surrounded by three -quarter -inch thick dense insulation board or
full thick fiberglass or wool blanket insulation for their entire length, excluding the sections
that pass through wood or metal framing. The building official may approve other methods
of isolating sound transmission through plumbing lines where their effectiveness can be
demonstrated.
C. All common wall assemblies which separate attached single-family units shall be of a
cavity -type construction.
d. All common wall assemblies which separate all other attached dwelling units (multiple -
family condominiums, stock cooperatives, community apartment houses) or a dwelling unit
and a public or quasi -public space shall be of a staggered -stud construction.
e, All common wall assemblies which separate dwelling units from each other or from public
or quasi -public spaces (interior corridors, laundry rooms, recreation rooms and garages)
shall be constructed with a minimum rating of fifty-five STC (sound transmission class).
f. All common floor/ceiling assemblies which separate dwelling units from each other or from
public or quasi -public spaces (interior corridors, laundry rooms, recreation rooms and
garages) shall be constructed with a minimum rating of fifty STC (sound transmission
class) and a minimum rating of fifty-five IIC (impact insulation class). Floor coverings may
be included in the assembly to obtain the required ratings, but must be retained as a
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permanent part of the assembly and may only be replaced by another insulation.
g. STC and IIC ratings shall be based on the result of laboratory measurements and will not
be subjected to field testing. The STC rating shall be based on the American Society for
Testing and Materials system specified in ASTM number 90-66t or equivalent. The IIC
rating shall be based on the system in use at the National Bureau of Standards or
equivalent. Ratings obtained from other testing procedures will require adjustment to the
above rating systems. In documenting wall and floor/ceiling compliance with the required
sound ratings, the applicant shall either furnish the city's building official with data based
upon tests performed by a recognized and approved testing laboratory, or furnish the
building official with verified manufacturer's data on the ratings of the various wall and
floor/ceiling assemblies utilized.
103. Fences and walls located within the 25 -foot front -yard setback area shall not exceed forty-
two inches (42") in height, with the exception of the intersection visibility triangle at the
driveway, where they shall not exceed thirty inches (30") in height as measured from the
curb elevation at Highridge Road. Fences and walls located elsewhere on the property
shall not exceed six feet (6'-0") in height as measured from the grade on the high side and
eight feet (8'-0") in height as measured from grade on the low side.
104. With the exception of solar panels, roof -mounted mechanical equipment is not permitted.
Mechanical equipment may encroach upon the rear- and side -yard setback areas, provided
that such equipment does not generate noise levels in excess of 65 dBA at the property
line.
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Exhibit A
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