HomeMy WebLinkAboutPW West End Village (1628 5th Avenue) Final Map 9-Unit Residential Condominium Building____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: August 8, 2022
Disposition: Resolution 15116
Agenda Item No: SM 4.a
Meeting Date: August 8, 2022
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Public Works
Prepared by: April Miller,
Director of Public Works
City Manager Approval: __________
TOPIC: WEST END VILLAGE (1628 5TH AVE) – FINAL MAP 9-UNIT RESIDENTIAL
CONDOMINIUM BUILDING
SUBJECT: RESOLUTION APPROVING THE FINAL SUBDIVISION MAP FOR THE WEST
END VILLAGE FOR CONDOMINIUM PURPOSES
RECOMMENDED ACTION: Adopt a resolution approving the final subdivision map for the West
End Village for Condominium Purposes.
BACKGROUND: The Planning Commission approved this project by Resolution No.19-02 on
February 12, 2019 which granted the following approvals:
•Environmental and Design Review Permit (ED18-058);
•Lot Line Adjustment (LLA18-004); and
•Tentative Subdivision Map for a 9-unit residential condominium building (TS18-
002).
The property owners/developers, Vincent and Joseph O’Flynn, have completed the lot line
adjustment, frontage improvements, stormwater infrastructure, and stormwater treatment and
have now applied for approval of the final subdivision map.
ANALYSIS: The Department of Public Works and BKF, the City’s consultant surveyor, have
reviewed the final subdivision map (Exhibit A to the Resolution) and the installed frontage
improvements and have determined that the final subdivision map and completed improvements
are in substantial conformance with the tentative map approval in Resolution No.19-02 and the
requirements of the Subdivision Map Act.
Resolution No. 19-02 also required the developer to enter into a Stormwater Facilities
Maintenance Agreement. The stormwater maintenance agreement has been reviewed and
approved by the City Engineer and the City Attorney and is ready to be recorded. Section
15.12.050 of the San Rafael Municipal Code (SRMC) also requires recordation of the Articles of
Incorporation, Declaration of Covenants, Conditions and Restrictions (CC&R’s). These
documents have been reviewed and approved by staff of the Community Development
Department.
SAN RAFAEL CITY COUNCIL AGENDA REPORT / Page: 2
Staff has prepared a resolution approving the final subdivision map and authorizing its recordation
by the City Clerk.
FISCAL IMPACT: No fiscal impact is associated with this report. Staff costs for processing the
application are covered by application fees paid by the developer.
OPTIONS: The City Council has the following options to consider in this matter:
1. Adopt the resolution.
2. Adopt the resolution with modifications.
3. Direct staff to return with more information.
4. Take no action.
RECOMMENDED ACTION: Adopt a resolution approving the final subdivision map for the West
End Village for Condominium Purposes.
ATTACHMENTS:
1. Resolution, with Exhibit A - Final Map of West End Village for Condominium Purposes
(TS18-002)
2. Declaration of Covenants, Conditions and Restrictions (CC&R’s)
3. Articles of Incorporation
4. Stormwater Facilities Maintenance Agreement
RESOLUTION NO. 15116
A RESOLUTION OF THE SAN RAFAEL CITY COUNCIL APPROVING THE FINAL
SUBDIVISION MAP FOR THE WEST END VILLAGE FOR CONDOMINIMUM
PURPOSES
WHEREAS, on February 12, 2019 the San Rafael Planning Commission adopted
Resolution No. 19-02 granting the following approvals for development of a nine-unit
residential condominium building at 1628 5th Avenue:
A. Environmental and Design Review Permit (ED18-058);
B. Lot Line Adjustment (LLA18-004); and
C. Tentative Subdivision Map for a 9-unit residential condominium building
(TS18-002).
WHEREAS, the property owners, Vincent O’Flynn and Joseph O’Flynn, have
applied for approval of the final subdivision map for the subdivision, entitled “Final Map
of West End Village for Condominium Purposes”, attached hereto as Exhibit A, and
supporting documents; and
WHEREAS, staff has found that the lot line adjustment, frontage improvements,
storm drainage, stormwater treatment, utilities and all paving for the subdivision are
complete and the City Engineer and the City’s consultant surveyor have determined that
the subdivision map and completed improvements are in substantial conformance with
the approved tentative map and comply with the requirements of the California
Subdivision Map Act, and the City Engineer has provided the appropriate certification on
the final map.
NOW, THEREFORE, BE IT RESOLVED, by the City Council that the final
subdivision map for the subdivision, entitled West End Village for Condominium
Purposes, attached hereto as Exhibit A, is hereby approved and the City Clerk is
authorized to record the map in the Official Records of the County of Marin, conditioned
upon receipt of the fully signed Stormwater Facilities Maintenance Agreement and all
other required documents and fees.
I, LINDSAY LARA, Clerk of the City of San Rafael, hereby certify that the
foregoing resolution was duly and regularly introduced and adopted at a special meeting
of the Council of said City on 8th day of August 2022, by the following vote to wit:
AYES: COUNCILMEMBERS: Bushey, Hill, Llorens Gulati & Mayor Kate
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Kertz
LINDSAY LARA, City Clerk
Exhibit A - Final Map of West End Village for Condominium Purposes
OWNER'S STATEMENT WE THE UNDERSIGNED, HEREBY STATE THAT WE ARE THE OWNERS OF OR HAVE SOME RIGHT, TITLE OR INTEREST IN AND TO THE REAL PROPERTY SHOWN ON THIS MAP ENTITLED "FINAL MAP OF WEST END VILLAGE FOR CONDOMINIUM PURPOSES, TS18-002"; THAT WE ARE THE ONLY PERSONS WHOSE CONSENT IS NECESSARY TO PASS CLEAR TITLE TO SAID PROPERTY, AND THAT WE HEREBY CONSENT TO THE PREPARATION AND RECORDING OF SAID MAP. OWNERS: BY: BY: PRINT NAME: VINCENT O'FL YNN PRINT NAME: JOSEPH O'FL YNN OWNERS' ACKNOWLEDGEMENT A NOTARY PUBLIC OR OTHER OFFICER COMPLETING THIS CERTIFICATE VERIFIES ONLY THE IDENTITY OF THE INDIVIDUAL WHO SIGNED THE DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT. STATE OF CALIFORNIA) COUNTY OF ----------~ ON ___________ 20 BEFORE ME, _____________ _ A NOTARY PUBLIC, PERSONALLY APPEARED VINCENT O'FLYNN AND JOSEPH O'FLYNN 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 PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING PARAGRAPH IS TRUE AND CORRECT. WITNESS MY HAND AND OFFICIAL SEAL NOTARY PUBLIC SIGNATURE MY COMMISSION NO. NOTARY PUBLIC PRINTED NAME MY COMMISSION EXPIRES ---------------COUNTY OF PRINCIPAL PLACE OF BUSINESS TRUSTEE: TRUST DEED INVESTMENTS, INC., A CALIFORNIA CORPORATION BY: BY: PRINT NAME: PRINT NAME: PRINT CAPACITY: PRINT CAPACITY: FIRST AMERICAN TITLE COMPANY ORDER NO. 3821-6520881 DATED APRIL 26, 2022 \ F!Rsr SAN RAFAEL sllr1:1:r SECOND VICINITY MAP NOTTO SCALE TRUSTEE ACKNOWLEDGEMENT A NOTARY PUBLIC OR OTHER OFFICER COMPLETING THIS CERTIFICATE VERIFIES ONLY THE IDENTITY OF THE INDIVIDUAL WHO SIGNED THE DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT. STATE OF CALIFORNIA) COUNTY OF ----------~ ON ___________ 20_BEFORE ME, _____________ _ A NOTARY PUBLIC, PERSONALLY APPEARED _________________ _ WHO PROVED TO ME ON THE BASIS OF SATISFACTORY EVIDENCE TO BE THE PERSON(S) WHOSE NAME(S) IS/ARE SUBSCRIBED TO THE WITHIN INSTRUMENT AND ACKNOWLEDGED TO ME THAT HE/ SHE/THEY EXECUTED THE SAME IN HIS/HER/THEIR AUTHORIZED CAPACITY(IES) AND THAT BY HIS/ HER/THEIR SIGNATURE(S) ON THE INSTRUMENT THE PERSON(S), OR THE ENTITY UPON BEHALF OF WHICH THE PERSON(S) ACTED, EXECUTED THE INSTRUMENT. I CERTIFY UNDER PENAL TY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING PARAGRAPH IS TRUE AND CORRECT. WITNESS MY HAND AND OFFICIAL SEAL NOTARY PUBLIC SIGNATURE NOTARY PUBLIC PRINTED NAME MY COMMISSION NO. _________ _ MY COMMISSION EXPIRES ____ _ COUNTY OF PRINCIPAL PLACE OF BUSINESS CITY ENGINEER'S STATEMENT I, THE UNDERSIGNED, CITY ENGINEER FOR THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, DO HEREBY STATE THAT I HAVE EXAMINED THIS FINAL MAP; THAT THE LAND DIVISION AS SHOWN HEREON IS SUBSTANTIALLY THE SAME AS IT APPEARED ON THE TENTATIVE MAP AND ANY APPROVED ALTERATIONS THEREOF, THAT ALL PROVISIONS OF THE SUBDIVISION MAP ACT AS AMENDED AND ANY LOCAL ORDINANCES APPLICABLE AT THE TIME OF THE APPROVAL OF THE TENTATIVE MAP HAVE BEEN COMPLIED WITH. SIGNED THIS ____ DAY OF ______ , 20_ APRIL MILLER, RCE 70853 CITY ENGINEER, CITY OF SAN RAFAEL STATE OF CALIFORNIA ACTING CITY SURVEYOR'S STATEMENT I, THE UNDERSIGNED, ACTING CITY SURVEYOR FOR THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, DO HEREBY STATE THAT I HAVE EXAMINED THIS MAP AND THAT I AM SATISFIED THAT THIS MAP IS TECHNICALLY CORRECT. SIGNED THIS ____ DAY OF ______ , 20_ JASON KIRCHMANN, PLS 8806 ACTING CITY SURVEYOR, CITY OF SAN RAFAEL SURVEYOR'S STATEMENT THIS MAP WAS PREPARED BY ME OR UNDER MY DIRECTION AND IS BASED UPON A FIELD SURVEY IN CONFORMANCE WITH THE REQUIREMENTS OF THE SUBDIVISION MAP ACT AND LOCAL ORDINANCE AT THE REQUEST OF VINCENT O'FLYNN ON OCTOBER 2017. I HEREBY STATE THAT THIS FINAL MAP SUBSTANTIALLY CONFORMS TO THE CONDITIONALLY APPROVED TENTATIVE MAP, IF ANY, AND THAT ALL MONUMENTS ARE OF THE CHARACTER AND OCCUPY THE POSITIONS INDICATED, AND ARE SUFFICIENT TO ENABLE THE SURVEY TO BE RETRACED. DATED: SIGNED: -------------BARRY A. PIERCE, LS. 6975 RECORDER'S STATEMENT FILED THIS DAY OF , 20 __ , AT M. IN BOOK ------------____ OF MAPS, AT PAGES ___________ _ AT THE REQUEST OF THE CITY OF SAN RAFAEL. SHELLEY SCOTT COUNTY RECORDER FEE PAID --------SERIAL NO. ______ _ DEPUTY FINAL MAP OF WEST END VILLAGE FOR CONDOMINIUM PURPOSES TS18-002 LANDS OF O'FL YNN, DESCRIBED IN THAT CERTAIN DEED RECORDED ON DECEMBER 20, 2019 AS DOCUMENT NUMBER 2019-0048474, OFFICIAL RECORDS OF MARIN COUNTY CITY OF SAN RAFAEL JOB NO: 6664 COUNTY OF MARIN BARRY A. PIERCE TRANSAMERICAN ENGINEERS &ASSOCIATES Fox Plaza, 1390 Market Street Suite 201 San Francisco, CA 94102 tel. no. (415) 553-4092 email: info@transamericanengineers.com STATE OF CALIFORNIA JULY 2022 SHEET 1 OF 3 APN: 011-193-10, ADDRESS: 1628 FIFTH AVENUE
COUNTY CLERK'S STATEMENT I CERTIFY THAT ALL BONDS, MONEY OR NEGOTIABLE BONDS REQUIRED UNDER THE PROVISIONS OF THE SUBDIVISION MAP ACT TO SECURE PAYMENT FOR TAXES AND ASSESSMENTS HAVE BEEN FILED WITH AND APPROVED BY THE COUNTY OF MARIN, NAMELY BOND(S) UNDER GOVERNMENT CODE SECTIONS 66493(a) AND 66493(c) IN THE SUM OF$ ____ AND $ _____ RESPECTIVELY. DATED: SIGNED: ------------------------------------CLERK OF THE BOARD OF SUPERVISORS COUNTY OF MARIN, STATE OF CALIFORNIA CITY CLERK'S STATEMENT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, AT A REGULAR MEETING HELD ON ___ DAY OF _______ , 20_, EXAMINED THIS FINAL MAP, AND THE CITY COUNCIL BY RESOLUTION NO. ______ , DULY PASSED AT THE MEETING AFORESAID, APPROVED THIS FINAL MAP. SIGNED THIS ____ DAY OF ______ , 20_ LINDSAY LARA CITY CLERK OF THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA CLERK OF THE BOARD OF SUPERVISORS STATEMENT I, THE UNDERSIGNED, CLERK OF THE BOARD OF SUPERVISORS OF THE COUNTY OF MARIN, STATE OF CALIFORNIA, DO HEREBY STATE THAT A GOOD AND SUFFICIENT BOND APPROVED BY AND IN THE AMOUNT FIXED BY SAID BOARD OF SUPERVISORS HAS BEEN FILED WITH SAID BOARD AND THAT SAID BOND BY ITS TERMS IS MADE TO INURE TO THE BENEFIT OF SAID COUNTY OF MARIN AND IS CONDITIONED FOR THE PAYMENT OF ALL TAXES, WHICH MAY BE AT THE TIME OF RECORDING OF THIS MAP A LIEN AGAINST THE TRACT OR SUBDIVISION OF LAND SHOWN HEREON OR ANY PART THEREOF, BUT NOT YET PAYABLE. DATE --------CLERK OF THE BOARD OF SUPERVISORS COUNTY OF MARIN STATE OF CALIFORNIA CITY PLANNING COMMISION STATEMENT APPROVED BY THE PLANNING COMMISSION OF THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA, SIGNED THIS ____ DAY OF ______ , 20_ SECRETARY OF THE PLANNING COMMISSION OF THE CITY OF SAN RAFAEL, COUNTY OF MARIN, STATE OF CALIFORNIA TAX COLLECTOR'S STATEMENT ACCORDING TO THE RECORDS IN THE OFFICE OF THE UNDERSIGNED, THERE ARE NO LIENS AGAINST THIS SUBDIVISION, OR ANY PART THEREOF, FOR UNPAID STATE, COUNTY, MUNICIPAL OR LOCAL TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAXES, EXCEPT TAXES OR SPECIAL ASSESSMENTS COLLECTED AS TAXES NOT YET PAYABLE. MY ESTIMATE OF TAXES AND SPECIAL ASSESSMENTS COLLECTED AS TAXES AND NOT YET PAYABLE IS $ ---------THE LAND IN SAID SUBDIVISION IS NOT SUBJECT TO A SPECIAL ASSESSMENT OR BOND WHICH MAY BE PAID IN FULL. SECURITY REQUIRED PURSUANT TO GOVERNMENT CODE SECTIONS 66493(a) AND 66493(c) ARE HEREBY APPROVED AND ACCEPTED. DATE _______ _ TAX COLLECTOR COUNTY OF MARIN STATE OF CALIFORNIA FINAL MAP OF WEST END VILLAGE FOR CONDOMINIUM PURPOSES TS18-002 LANDS OF O'FL YNN, DESCRIBED IN THAT CERTAIN DEED RECORDED ON DECEMBER 20, 2019 AS DOCUMENT NUMBER 2019-0048474, OFFICIAL RECORDS OF MARIN COUNTY CITY OF SAN RAFAEL JOB NO: 6664 COUNTY OF MARIN BARRY A. PIERCE TRANSAMERICAN ENGINEERS &ASSOCIATES Fox Plaza, 1390 Market Street Suite 201 San Francisco, CA 94102 tel. no. (415) 553-4092 email: info@transamericanengineers.com STATE OF CALIFORNIA JULY 2022 SHEET 2 OF 3 APN: 011-193-10, ADDRESS: 1628 FIFTH AVENUE
LUNNY LANE
(12.00' WIDE)
BOUNDARY NOTE
\
I
BASIS OF BEARINGS
THE BEARING OF FIFTH STREET (NOW FIFTH AVENUE) AS SHOWN ON THE "PLAT OF THE TOWN SITE
OF THE TOWN OF SAN RAFAEL" FILED OCTOBER 14, 1873 IN RACK 1, PULL 4, MARIN COUNTY RECORDS
TAKEN AS NORTH 83°15'00" WEST AND WAS DETERMINED BY CURB SPLIT.
f;J~b:'\ ~~&~ ~~c:s~
"'("~
l_____________ 11111 ~~
MISSION A VENUE 3 (50. 00' WIDE)
c::, N 82"54'4_7_" -W-(M-~-N83"15'00"W (1) °t::: 478.64'(M) CL-CL 1----~--
,,,,--------.c::,.i ---------------"'"i -------1---
C\i N82"54'47''W M N82°57'£ 3 428.02' (M) \
136.66' (M) 137.2' (DEED) (M) 292.5' (CALC PER DEEDS)
SKAG DUKKERS S. & $'~ KEVIN MARK
ANNE McCLAIN ~ t-[j JOHNSON ~ tB -8.
REVOCABLE TRUST ~ ~ REVOCABLE
2012-0068495 ~ ~ TRUST
NOVEMBER 1, 2012 ·"1
~ APN 011-193-01
N83"15'00"W
66.99' (M)
65' (DE.
.49' (DEE.
FIRST CHURCH OF
CHRIST SCIENTIST
198 OR 472
FEBRUARY 15, 1917
APN 011-193-03
311.30' (M) 311.8' (CALC PER DEEDS)
POB (4) 464.06' (M)
--
~ BASIS OF BEARINGS N83"15'oo"w (1)(M) 525.40' (M)
169.17' ~ 104.0-3'-.,~--I
·\ c:::i
~ '--~ '----(0
~
2' ~
~
>--CJ 0) 0) ~ <.c
c::, 0) I ~
c:::i'-f-0)") 'i' -s;r::r--._-0)
(.) '-1--c::, ")' I -....::..
'-C c::, C\i ,_ <.c I ,_ < 0) lt.J c::, <.c
ii:~s<= ~
'-C ,_ -s Cl ~
~ "'(
~,---
c3
I
c3
~ '--
FIFTH A VENUE ~I (61.00' WIDE1 Lr)I
~I -------'!~~I ~ (--1----
CONTROL DIAGRAM
......
tt1~ 0-<:::) ~ ~ c:::i~ Ct) le) :::s::
L,t,.'(_
NOTES
(E) TWO STORY BLDG SKAG DUKKERS S. &
ANNE McCLAIN
REVOCABLE TRUST
2012-0068495
NOVEMBER 1, 2012
APN 011-193-01
(E) TWO
STORY
BLDG
N83i5'00"W
11.50'
O'FL YNN, ET AL
2019-0048475
DECEMBER 20, 2019
APN 011-193-09
~ '--
N83"13'45"W (6) gJ
N83"15'00''W Q.
OVH
VINCENT O'FL YNN, ET AL
2019-0048474
DECEMBER 20, 2019
APN 011-193-10
AREA = 10545± SQ FT
0.24± ACRE
LOT 1
(N) THREE STORY BLDG
OVH
<.c Q::
0) -,..J
N83i5'00"W 78.63'
~u
77.99'
CLR
KEVIN MARK
JOHNSON
REVOCABLE
TRUST
2007-0037439
JUNE 18, 2007
APN 011-193-02
~
'-'---70.95'
~ f-CLR -ii,------,-~ ~,
(O''
'-=-
(E) TWO
STORY BLDG
WITH ATTIC
AND
BASEMENT
JAMES BABCOCK,
ET UX
1999-0051011
JULY 9, 1999
APN 011-193-05
14.13' (6) --~~----~-------------~------------
FIFTH A VENUE (61.00 1 WIDE)
SITE DETAIL
GRAPHIC SCALE
20 0 10 20 40
THE SUBJECT BLOCK WAS DETERMINED BY ESTABLISHING
THE SURROUNDING STREET CENTER LINES BY CURB SPLIT. 40
GRAPHIC SCALE
0 20 40
1. ALL DISTANCES AND DIMENSIONS SHOWN HEREON ARE IN FEET AND DECIMALS THEREOF. ---~-llllai-1111111111111.i .. l•_111111111111l---------l1 ~ -I
BO 1 inch = 20 feet
LEGEND
---------
//////////
IZ//////27/1 • •
@
•
PROPERTY LINE
ADJACENT PARCEL LINES
RIGHT OF WAY LINE
CENTERLINE LINE
DIMENSION LINE
(E) FACE OF CURB LINE
(E) BUILDING LINE
SUBJECT PROPERTY
FOUND 3/4" IRON PIPE PER (2)
SET TACK ON FENCE
SET NAIL & 3/4" DIAMETER
BRASS TAG LS 6975
SET 1/2" DIA REBAR &
PLASTIC CAP LS 6975
1 inch = 40 feet
ABBREVIATIONS
APN ASSESSOR'S PARCEL NUMBER
BLDG BUILDING
CALC CALCULATED
CL CENTERLINE
CLR CLEAR
DOC DOCUMENT
(E) EXISTING
LS LAND SURVEYOR
(M) MEASURED
(N) NEW
OVH OVERHEAD
PL PROPERTY LINE
POB POINT OF BEGINNING
( #) REFERENCE NUMBER
SQ FT SQUARE FEET
2. ALL DEFLECTION ANGLES ARE 90 OR 45 DEGREES UNLESS EXPRESSLY OTHERWISE INDICATED.
3. THIS MAP IS FOR THE CONSTRUCTION OF NINE NEW RESIDENTIAL CONDOMINIUM UNITS.
REFERENCES
(1) "PLAT OF THE TOWN SITE OF THE TOWN OF SAN RAFAEL, IN THE COUNTY OF
MARIN, STATE OF CALIFORNIA", FILED OCTOBER 14, 1873 IN RACK 1, PULL 4,
OFFICE OF THE COUNTY RECORDER
(2) RECORD OF SURVEY, FILED DECEMBER 6, 2013
BOOK 2013 OF MAPS AT PAGE 171, OFFICE OF THE COUNTY RECORDER
(3) JOSEPH GRIPPI NO. 285, DATED NOVEMBER 1975, ORIGINAL PLATS AND NOTES ON FILE
WITH THE OGLESBY COLLECTION AT THE MARIN COUNTY LIBRARY (UNRECORDED).
(4) J.C. OGLESBY SURVEY NO. 10084, DATED APRIL 1950, ORIGINAL PLATS AND NOTES ON
FILE WITH THE OGLESBY COLLECTION AT THE MARIN COUNTY LIBRARY (UNRECORDED).
(5) GMD S-78, GEORGE M. DODGE HARD COPY DATES 1889, ORIGINAL PLATS AND NOTES ON
FILE WITH THE OGLESBY COLLECTION AT THE MARIN COUNTY LIBRARY (UNRECORDED).
(6) DOCUMENT NO. 2019-0048474, RECORDED DECEMBER 20, 2019,
OFFICE OF THE COUNTY RECORDER
FINAL MAP OF WEST END VILLAGE
FOR CONDOMINIUM PURPOSES
TS18-002
LANDS OF O'FL YNN, DESCRIBED IN THAT CERTAIN DEED RECORDED
ON DECEMBER 20, 2019 AS DOCUMENT NUMBER 2019-0048474,
OFFICIAL RECORDS OF MARIN COUNTY
CITY OF SAN RAFAEL
SCALE: AS SHOWN
JOB NO: 6664
COUNTY OF MARIN
BARRY A. PIERCE
TRANSAMERICAN ENGINEERS & ASSOCIATES
Fox Plaza, 1390 Market Street Suite 201 San Francisco, CA 94102
tel. no. (415) 553-4092 email: info@transamericanengineers.com
STATE OF CALIFORNIA
JULY 2022
SHEET 3 OF 3
APN: 011-193-10, ADDRESS: 1628 FIFTH AVENUE
Recording Requested By and
When Recorded Return To:
Herzig & Berlese
414 Gough Street, Suite 5
San Francisco, CA 94102
Situs: 1628 Fifth Avenue, San Rafael, CA 94901
APN:011-193-10, formerly 011-193-006 and a portion of 011-193-007
DECLARATION OF RESTRICTIONS
AND CONDOMINIUM PLAN
FOR
1628 Fifth Avenue
San Rafael, California
West End Village
a Condominium Project
Vincent O'Flynn and Joseph O'Flynn
Declarant
IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON AGE, RACE,
COLOR, RELIGION, SEX, GENDER, GENDER IDENTITY, GENDER EXPRESSION,
SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY,
VETERAN OR MILITARY STATUS, GENETIC INFORMATION, NATIONAL
ORIGIN, SOURCE OF INCOME AS DEFINED IN SUBDIVISION (P) OF SECTION
12955, OR ANCESTRY, THAT RESTRICTION VIOLATES STATE AND FEDERAL
FAIR HOUSING LAWS AND IS VOID, AND MAY BE REMOVED PURSUANT TO
SECTION 12956.2 OF THE GOVERNMENT CODE BY SUBMITTING A
"RESTRICTIVE COVENANT MODIFICATION" FORM, TOGETHER WITH A
COPY OF THE ATTACHED DOCUMENT WITH THE UNLAWFUL PROVISION
REDACTED TO THE COUNTY RECORDER'S OFFICE. THE "RESTRICTIVE
COVENANT MODIFICATION" FORM CAN BE OBTAINED FROM THE COUNTY
RECORDER'S OFFICE AND MAY BE AVAILABLE ON ITS INTERNET WEBSITE.
THE FORM MAY ALSO BE AVAILABLE FROM THE PARTY THAT PROVIDED
YOU WITH THIS DOCUMENT. LAWFUL RESTRICTIONS UNDER STATE AND
FEDERAL LAW ON THE AGE OF OCCUPANTS IN SENIOR HOUSING OR
HOUSING FOR OLDER PERSONS SHALL NOT BE CONSTRUED AS
RESTRICTIONS BASED ON FAMILIAL STATUS.
TABLE OF CONTENTS
ARTICLE 1
Definitions..............................................................1
ARTICLE 2
Easements and Property Rights..............................................4
2.1 CONDOMINIUM. ...................................................4
2.2 NO SEPARATE CONVEYANCE OF COMMON AREA.....................4
2.3 EASEMENTS AND USE RIGHTS.......................................5
2.4 PARTITION; POWER OF ATTORNEY...................................7
2.5 FURTHER SUBDIVISION PROHIBITED.................................7
ARTICLE 3
Association, Administration, Membership and Voting Rights ......................7
3.1 ASSOCIATION TO MANAGE PROJECT.................................7
3.2 MEMBERSHIP. .....................................................7
3.3 MEMBERSHIP CLASSES. ............................................8
3.4 VOTING RIGHTS. ...................................................8
ARTICLE 4
Assessments ............................................................8
4.1 CREATION OF THE LIEN AND PERSONAL OBLIGATION OF
ASSESSMENTS......................................................8
4.2 PURPOSE OF ASSESSMENTS.........................................9
4.3 REGULAR ASSESSMENTS............................................9
4.4 SPECIAL ASSESSMENTS. ............................................9
4.5 ASSESSMENTS FOR EMERGENCY PURPOSES..........................9
4.6 REIMBURSEMENT ASSESSMENTS...................................10
4.7 DIVISION OF ASSESSMENTS. .......................................10
4.8 DATE OF COMMENCEMENT AND DUE DATES OF ASSESSMENTS;
NOTICE TO OWNERS. .............................................11
4.9 EFFECT OF NONPAYMENT OF ASSESSMENT. .......................11
4.10 REMEDIES ON DEFAULT. .........................................12
4.11 PRIORITIES.......................................................12
4.12 MORTGAGEE'S LIABILITY FOR UNPAID ASSESSMENTS. .............12
4.13 SEGREGATION OF FUNDS. ........................................12
4.14 WAIVER OF EXEMPTIONS; EXEMPTION FROM EXECUTION...........12
4.15 UNSEGREGATED REAL PROPERTY TAX BILL. ......................13
i
ARTICLE 5
Duties and Powers of the Association .......................................13
5.1 APPLICABILITY OF THE DAVIS-STIRLING COMMON
INTEREST DEVELOPMENT ACT AND THE NONPROFIT MUTUAL
BENEFIT CORPORATION LAW. .....................................13
5.2 DUTIES AND POWERS. ............................................13
5.3 LIMITATION ON POWERS OF THE BOARD - PROHIBITED ACTS. .......16
ARTICLE 6
Architectural Control ....................................................17
6.1 APPROVAL REQUIRED. ............................................17
6.2 PROCEDURES. ....................................................17
6.3 IMPROVEMENTS TO FACILITATE ACCESS FOR PHYSICALLY
DISABLED PERSONS. .............................................17
6.4 ANTENNAS. ......................................................18
6.5 ELECTRIC VEHICLE CHARGING STATIONS ..........................18
6.6 DECLARANT EXEMPT .............................................18
ARTICLE 7
Use Restrictions ........................................................18
7.1 CONDOMINIUM USE...............................................18
7.2 SALES ACTIVITIES. ................................................18
7.3 USE OF PARKING SPACES. .........................................18
7.4 NUISANCE........................................................20
7.5 SIGNS. ...........................................................20
7.6 ANIMALS.........................................................20
7.7 GARBAGE DISPOSAL...............................................21
7.8 RIGHT TO LEASE...................................................21
7.9 CLOTHES LINES...................................................21
7.10 STORAGE. .......................................................21
7.11 WINDOW COVERING. ............................................21
7.12 OUTDOOR COMMON AREA. ......................................21
7.13 SOUND TRANSMISSION. .........................................21
7.14 HAZARDOUS MATERIALS. .......................................22
7.15 SMOKING. . ......................................................22
ARTICLE 8
Maintenance and Repair Obligations ........................................22
8.1 OWNER'S MAINTENANCE AND REPAIR OBLIGATIONS................22
8.2 ASSOCIATION'S MAINTENANCE AND REPAIR OBLIGATIONS. .........23
8.3 MAINTENANCE RESPONSIBILITY LIST. .............................25
ii
ARTICLE 9
Insurance Coverage ......................................................25
9.1 REQUIRED COVERAGE. ............................................25
9.2 INSURANCE REQUIRED BY CERTAIN LENDERS. .....................26
9.3 REVIEW OF POLICIES; ADDITIONAL INSURANCE. ...................27
9.4 OWNER'S INSURANCE. ............................................27
9.5 INSURANCE PREMIUMS. ...........................................27
9.6 NOTICE OF LAPSE, CANCELLATION OR NONRENEWAL OF
INSURANCE POLICIES. ............................................27
9.7 SETTLEMENT OF INSURANCE CLAIMS. .............................27
ARTICLE 10
Damage or Destruction; Condemnation ......................................28
10.1 DAMAGE TO A SINGLE UNIT. .....................................28
10.2 DAMAGE TO TWO OR MORE UNITS OR COMMON AREA. ............28
10.3 CONDEMNATION.................................................29
ARTICLE 11
Mortgage Protection Provisions ............................................30
11.1 "MORTGAGE, MORTGAGEE, MORTGAGOR" DEFINED. ..............30
11.2 MORTGAGE PERMITTED; VALIDITY OF MORTGAGE LIEN. ..........30
11.3 REQUIRED CONSENT OF ELIGIBLE MORTGAGE HOLDERS. ..........30
11.4 NOTICE TO MORTGAGE HOLDERS, INSURERS AND GUARANTORS. ..31
11.5 RIGHTS TO INSPECT, RECEIVE STATEMENTS, ATTEND MEETINGS....31
11.6 LIMITATION ON RIGHT OF FIRST REFUSAL. ........................32
11.7 PRIORITY AS TO PROCEEDS AND AWARDS. .......................32
11.8 SUBORDINATION. ................................................32
11.9 LIEN ON INDIVIDUAL UNIT. ......................................32
11.10 MORTGAGEE RIGHT TO FURNISH INFORMATION. .................32
11.11 FORMER OWNER IN POSSESSION FOLLOWING FORECLOSURE. .....32
ARTICLE 12
General Provisions ......................................................32
12.1 ENFORCEMENT...................................................32
12.2 TERM............................................................33
12.3 AMENDMENTS. .................................................33
12.4 OWNER'S COMPLIANCE. .........................................34
12.5 POWER OF ATTORNEY. ...........................................34
12.6 NOTICES.........................................................34
12.7 INDEMNIFICATION. ..............................................35
12.8 STANDING OF ASSOCIATION.......................................35
12.9 NOTICE OF NEW OWNERSHIP. ....................................35
12.10 CORRECTIONS. .................................................35
12.11 FAIR HOUSING...................................................35
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12.12 SINGULAR AND PLURAL.........................................35
12.13 STATUTORY REFERENCES. ......................................35
12.14 SEVERABILITY OF PROVISIONS...................................36
12.15 CONSTRUCTION OF PROVISIONS. ................................36
12.16 CONFLICTS IN DOCUMENTS......................................36
12.17 NO WAIVER. ...................................................36
ARTICLE 13
Disputes Regarding Defects in Design or Construction or Arising out of Sale,
Including Mandatory Binding Arbitration ....................................36
13.1 NOTICE OF STANDARDS AND PROCEDURES........................36
13.2 APPLICABILITY...................................................37
13.3 NOTICE OF SIGNIFICANT LEGAL PROCEEDINGS.....................37
13.4 INITIATION OF CIVIL CODE SECTIONS 896 AND 897 CLAIMS. .........37
13.5 BOARD MEMBER ATTENDANCE...................................38
13.6 ELECTION TO USE ALTERNATIVE NONADVERSARIAL PROCEDURES..38
13.7 MANDATORY BINDING ARBITRATION..............................38
13.8 WAIVER OF JURY TRIAL AND RIGHT TO APPEAL....................39
13.9 NO AMENDMENT WITHOUT DECLARANT’S CONSENT...............39
13.10 CONFLICTS......................................................39
iv
DECLARATION OF RESTRICTIONS
FOR
1628 FIFTH AVENUE
WEST END VILLAGE
a Condominium Project
Recitals
THIS DECLARATION is made by Vincent O'Flynn and Joseph O'Flynn, "Declarant," with
reference to the following:
A. Declarant is the Owner of a tract of land more particularly described as follows:
All that real property as shown on that certain map entitled "Final Map TS18-002", which
map was filed for record on _________________, Book of Maps ____, pages ____ to _____,
inclusive, Marin County Records.
B. The land has been improved with a building containing nine residential condominiums.
C. ARTICLE 13 OF THIS DECLARATION REFERS TO MANDATORY PROCEDURES FOR
THE RESOLUTION OF CONSTRUCTION DEFECT DISPUTES, INCLUDING THE WAIVER
OF THE RIGHT TO A JURY TRIAL FOR SUCH DISPUTES.
D. By this Declaration, Declarant establishes a condominium project under the provisions of the
Davis-Stirling Common Interest Development Act, Division 4, Part 5 of the Civil Code (beginning
at Section 4000), and imposes upon the real property mutually beneficial restrictions under a general
plan of improvement for the benefit of all the Condominiums and Owners of Condominiums.
Declarant declares that the real property is held, conveyed, encumbered, leased, occupied and
improved subject to the following declarations, limitations, covenants, conditions, restrictions and
easements, all of which are for the purpose of enhancing and protecting the value and attractiveness
of the Project, in accordance with the plan for the improvement of the real property and the division
of it into Condominiums. All of the limitations, covenants, conditions, restrictions and easements
constitute equitable servitudes and covenants that run with the land and are binding upon Declarant
and all parties having or acquiring any right, title or interest in or to any part of the Project.
ARTICLE 1
Definitions
1.1 "Articles" means the Articles of Incorporation of the Association as amended from time to
time.
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1.2 "Association" means the West End Village Homeowners' Association, a California nonprofit
mutual benefit corporation.
1.3 "Board" or "Board of Directors" means the governing body of the Association.
1.4 "Bylaws" means the Bylaws of the Association as amended from time to time.
1.5 "Common Area" means the entire Project except for the Units as defined in this Declaration
and as shown on the Condominium Plan, and includes Exclusive Use Common Area. Common Area
includes, but is not limited to, all of the following elements if located at the Project: the land,
driveway, parking areas, light wells, (except light wells within a Unit), elevator, entrance, bearing
walls, stairways (except stairs within a Unit), columns, girders, subfloors, unfinished floors, roofs
and foundations, central HVAC system, equipment, tanks, pumps, motors, ducts, flues and chutes,
conduits, pipes, plumbing, wires, and other utility installations (except the outlets located within a
Unit), required to provide power, light, telephone, gas, water, sewerage, drainage, and air-
conditioning, sprinkler pipes and sprinkler heads which protrude into the Unit.
1.6 "Condominium" means an estate in real property consisting of an undivided interest in
common in a portion of real property coupled with a separate interest in space called a Unit, the
boundaries of which are described on the Condominium Plan. A Condominium includes a Unit, the
Exclusive Use Common Areas appurtenant to the Unit, if any, and an undivided interest in the
Common Area.
1.7 "Condominium Plan" means the three dimensional description of the Project in sufficient
detail to identify the Common Area and the Units described in Civil Code Section 4285, and any
amendments and corrections to it. The Condominium Plan is attached to this Declaration as Exhibit
A and incorporated into it by this reference.
1.8 "County" means Marin County, California.
1.9 "Declarant" means Vincent O'Flynn and Joseph O'Flynn, and any successors and assigns who
acquire Declarant's interest in the Project and expressly assume the rights and duties of the Declarant
for purposes of this Declaration by a written instrument recorded in the County Recorder's office,
or who is a Mortgagee that acquired Declarant's interest in the Project through foreclosure or deed
in lieu of foreclosure.
1.10 "Declaration" means this Declaration of Restrictions and any amendments and supplements
to it.
1.11 "Exclusive Use Common Areas" mean those portions of the Common Area designated for
the exclusive use of one or more, but fewer than all, of the Owners and which are appurtenant to the
Units.
2
1.12 "Governing Documents" means this Declaration, the Condominium Plan, the Articles,
Bylaws and operating rules of the Association, all as amended from time to time.
1.13 "Map" means the subdivision map referred to in Recital A and any amendments and
corrections to it.
1.14 "May", "Must", "May Not". As used in the Governing Documents, the word "may" means
an action is permitted, but not required, to be taken or performed; the word "must" means that an
action is required to be taken or performed; and the words "may not" mean an action is not permitted
and cannot be taken or performed.
1.15 "Member" means a person who is a member of the Association.
1.16 "Mortgage, Mortgagee, Mortgagor" are defined in Section 11.1.
1.17 "Owner" means the record holder of title to a Condominium in the Project. If a
Condominium is sold under a recorded contract of sale to a purchaser, the purchaser rather than the
seller is considered the Owner. "Owner" does not include a person who has an interest that is merely
security for the performance of an obligation.
1.18 "Person" means a natural person, a corporation, a partnership, a limited liability company, a
trustee, or other legal entity.
1.19 "Project" means the real property described in Recital A, all structures and improvements
erected or to be erected on it, and all easements and rights appurtenant to it.
1.20 "Unit" means the elements of a Condominium that are not owned in common with other
Owners or by the Association. Each Unit as separately shown, numbered and designated on the
Condominium Plan consists of the space bounded by and contained within the interior unfinished
perimeter walls, floors and ceilings, and the windows, window frames, doors and doorframes of the
Unit. Each Unit includes all of the following items, if located within it: electrical, heating and
plumbing fixtures, appliances, wall board, sheet rock, interior nonstructural walls (except for water
and other pipes, electrical wires, conduits, vents and similar improvements within the walls that
serve more than one Unit), staircases connecting levels within a Unit, cabinets, interior doors,
ventilation fans, and wall, floor and ceiling finishes (as, for example, paint, wall paper, paneling,
carpet, hardwood, or tile). Each Unit also includes all of the following items, if any, whether located
within the Unit or the Common Area that serve only the Unit: air heating, air conditioning, water
heating equipment, ventilation systems, alarm systems, and similar fixtures and systems. A Unit does
not include any structural elements.
1.21 "Vote of a Quorum of Members" means a majority of votes cast by Owners entitled to vote
either at a meeting of the Members at which a quorum is present or by written ballot, as provided
in the Bylaws. However, if a vote greater than a majority is required on any matter, a Vote of a
Quorum of Members means that higher percentage of votes.
3
ARTICLE 2
Easements and Property Rights
2.1 CONDOMINIUM. Each Condominium consists of a Unit, the Exclusive Use Common Areas
appurtenant to the Unit, if any, an undivided interest in the Common Area, and any other easements
and rights provided for in this Declaration.
A. Units. Each Unit includes the elements defined in Section 1.20. A Unit does not
include those areas and things defined as Common Area in Section 1.5. Each Unit is subject
to encroachments that now exist or that may be later caused or created in any manner referred
to in Section 2.3D. In interpreting deeds and plans, the then existing physical boundaries of
a Unit, whether in its original state or reconstructed in substantial accordance with the
original plans, are conclusively presumed to be its boundaries rather than the boundaries
expressed in the deed or Condominium Plan, regardless of settling or lateral movement of
the building and regardless of minor variance between boundaries shown on the Plan or deed
and those of the building.
B. Common Area. Each Owner owns, as appurtenant to his or her Unit, an undivided
interest in the Common Area as shown on the Condominium Plan. Each Owner may use the
Common Area in accordance with the purposes for which it is intended without hindering
the exercise of, or encroaching upon the rights of any other Owners.
C. Exclusive Use Common Area. Portions of the Common Area, referred to as Exclusive
Use Common Areas, are set aside and allocated for the exclusive use of one or more, but
fewer than all, of the Owners. The Exclusive Use Common Areas consist of the parking
areas, disabled parking area, rear yard, decks and roof decks as designated on the
Condominium Plan. The common roof deck located on the roof of the Project is an
Exclusive Use Common Area appurtenant to Units 101 and Units 201 through 204, inclusive.
An easement for the use of each of these Exclusive Use Common Areas is assigned to the
correspondingly numbered Unit(s) as shown on the Condominium Plan or, if no
correspondingly numbered Unit is shown on the Condominium Plan, is assigned as provided
in the deeds to the Units. The Exclusive Use Common Areas also consist of internal and
external wiring designed to serve a single Unit, fireplaces, windows, window frames,
window boxes, screens, shutters, awnings, doorsteps, stoops, exterior doors, door frames and
hardware.
2.2 NO SEPARATE CONVEYANCE OF COMMON AREA. The undivided interest in
Common Area appurtenant to each Unit is permanent in character and cannot be altered without the
consent of all the Owners affected and their first Mortgagees as expressed in an amended
Declaration. The undivided interest in Common Area cannot be separated from the Unit to which
it is appurtenant, and is conveyed or encumbered with its respective Unit even though the instrument
of conveyance or encumbrance may refer only to the Unit. The foregoing does not prohibit the
transfer between Owners of Exclusive Use Common Area that does not directly abut the Unit to
which it is appurtenant (as, by way of example, parking spaces).
4
2.3 EASEMENTS AND USE RIGHTS. The following easements, reservations and use rights
affect the Project.
A. Owners' Nonexclusive Easements; Association Rights. Each Owner has the
unrestricted right of ingress and egress to his or her Condominium. Each Owner has,
appurtenant to his or her Unit, nonexclusive easements of use, enjoyment, ingress, egress,
and support in, to, and throughout the Common Area and any improvements or facilities on
the Common Area. The nonexclusive easements are subject to all of the rights and powers
of the Association as described in this Declaration. However, the nonexclusive easements
are subordinate to and may not interfere with the right to use Exclusive Use Common Areas.
B. Entry or Use Rights. Each Condominium is subject to the following rights of entry and
use:
(1) The right of Declarant, or its agents, to enter any portion of the Project to
construct the improvements Declarant intends to construct, to conduct sales
activities, and to make repairs and to remedy construction defects, provided that the
entry does not interfere with the use or occupancy of any occupied Unit unless
authorized by its Owner, which authorization must not be unreasonably withheld.
(2) The right of the Association, or its agents, to enter any Unit or Exclusive Use
Common Area to cure any violation or breach of any of the Governing Documents,
provided that the Owner has been given notice and the opportunity to be heard as
provided in the Bylaws. The Association may levy a reimbursement assessment
against the Owner for its costs in effecting a cure. The rights of entry and cure are
immediate in case of an emergency originating within or threatening any Unit,
whether or not its Owner is present.
(3) The right of the Association, or its agents, to enter any Unit or Exclusive Use
Common Area to perform its responsibilities under this Declaration, including
responsibilities with respect to window washing, construction, maintenance, or repair
of the Common Area, or for the benefit of the Owners in common. The rights are
immediate in case of an emergency originating within or threatening any Unit,
whether or not its Owner is present.
(4) The right of any Owner, or Owner's agents, to enter the Unit or Exclusive Use
Common Area of any other Owner for purposes of performing installations,
alterations or repairs to mechanical, electrical, telecommunication and electronic
communication services that are reasonably necessary for the use and enjoyment of
his or her Unit, provided requests for entry are made in advance and that entry is at
a time convenient to the Owner whose Unit is being entered. In case of emergency,
the right of entry is immediate.
5
C. Power to Grant Easements and Exercise Other Property Rights.
(1) The Association or Declarant (as long as Declarant owns 25% or more of the
Condominiums in the Project) has the authority and power in the name of the
Association and all of the Owners to convey or otherwise transfer to a third party fee
title, easements, leasehold estates, rights-of-way and other interests in the Common
Area for the purposes of (a) constructing, erecting, operating or maintaining lines,
cables, wires, conduits, or other devices for electricity, power, telecommunications,
electronic communications, public sewers, storm water drains and pipes, water
systems, sprinkling systems, heating and gas lines or pipes, and similar public or
quasi-public improvements or facilities, (b) accommodating encroachments that do
not unreasonably interfere with the use and enjoyment of the Common Area, and (c)
accomplishing any other reasonable purpose that the Board or Declarant determines
is in the interest of the Association and the Owners.
(2) The Association or Declarant (as long as Declarant owns 25% or more of the
Condominiums in the Project) has the authority and power in the name of the
Association and all of the Owners to convey or otherwise transfer to any Owner fee
title, easements, Exclusive Use Common Areas, leasehold estates, rights-of-way and
other interests in the Common Area for any of the reasons provided in subsection (1)
above provided that it has first obtained the consent of 51% of the Owners for the
conveyance or transfer. However, the consent of the Owners is not required for a
conveyance or transfer to an Owner for any of the purposes specified in Civil Code
Section 4600(b).
(3) Each Owner, in accepting a deed to a Condominium, expressly consents to the
foregoing actions and authorizes and appoints the Association and Declarant (as long
as Declarant owns 25% or more of the Condominiums in the Project) as attorney-in-
fact of the Owner to execute instruments conveying or creating the easements or
other rights, and to execute subdivision maps, lot line adjustments, condominium
plans, deeds and similar documents in connection with the conveyance.
(4) An easement or other property right may not be granted if it would substantially
interfere with the use, occupancy, or enjoyment by an Owner of his or her Unit or
Exclusive Use Common Area appurtenant to that Unit without the consent of the
affected Owner.
(5) Conveyance of fee title to any portion of the Project is subject to obtaining the
necessary approval of first Mortgagees and Owners as provided in Article 11.
D. Encroachment Easements. Each Unit has an easement over all adjoining Units and the
Common Area for the purpose of accommodating any encroachment due to engineering
errors, errors in original construction, settlement or shifting of the building, or any other
cause as long as the encroachment exists. However, a valid encroachment is not created in
6
favor of an Owner if it occurred due to the Owner's willful misconduct. If a structure is
repaired or rebuilt, minor encroachments over adjoining Units and the Common Area are
permitted and there are valid easements for the maintenance of these encroachments as long
as they exist.
E. Utility Easements. “Utility Easements” means easements for the installation,
maintenance, repair and replacement of utility shafts, vents, ducts, conduit, lines and
equipment. Each Unit is burdened by Utility Easements in favor of each other Unit as
necessary, along with easements for ingress and egress as necessary to maintain and repair
those elements. The location of Utility Easements is the location, when installed as part of
the original construction of the Project or as subsequently installed with the consent of the
Owner of the burdened Unit, of the elements for which the Utility Easements are required.
2.4 PARTITION; POWER OF ATTORNEY. Except as provided by Civil Code Section 4610,
judicial partition of the Project or any part of it is prohibited. Judicial partition by sale of a single
Condominium owned by two or more persons and division of the sale proceeds is not prohibited, but
partition of title to a single Condominium is prohibited.
If partition is authorized under Civil Code Section 4610, and subject to obtaining the necessary
approval of first Mortgagees and Owners as provided in this Declaration, the Association may sell
the entire Project, in one or more transactions, for the benefit of all Owners. Each Owner irrevocably
appoints the Association as his or her attorney-in-fact to sell the Project under this section.
2.5 FURTHER SUBDIVISION PROHIBITED. An Owner may not further subdivide his or her
Condominium except with the approval of the Board. An Owner may not convey time-share interests
in his or her Condominium.
ARTICLE 3
Association, Administration, Membership and Voting Rights
3.1 ASSOCIATION TO MANAGE PROJECT. The Project is managed and operated by the
Association. Before the Association begins operating the Project, Declarant is responsible to operate
the Project.
3.2 MEMBERSHIP. Each Owner of a Condominium is automatically a Member of the Association,
and remains a Member until that Member's ownership of a Condominium ceases, at which time his
or her membership in the Association automatically ceases. If a Condominium is owned by more than
one person, each person is a Member. An Owner may not resign, transfer, pledge or alienate his or
her membership in any way except by sale of the Condominium to which it is appurtenant and then
only to the purchaser. Any prohibited transfer is void.
7
3.3 MEMBERSHIP CLASSES. The Association has two classes of voting membership.
A. CLASS A. Each Owner is a Class A Member. Each Class A Member has one vote for
each Condominium owned. If a Condominium is owned by more than one Member, the vote
for the Condominium will be exercised as those Members determine, but not more than one
vote may be cast for any Condominium. If a Member disputes the vote cast for his or her
Condominium by a co-owner of the Condominium, the vote for that Condominium will not
be counted. Declarant becomes a Class A Member when Class B membership ends.
B. CLASS B. Declarant is the Class B Member. The Class B Member has three votes for
each Condominium owned. Class B membership ends when the total outstanding votes held
by Class A Members equal the total outstanding votes held by the Class B Member or on the
second anniversary date of the first conveyance of a Condominium in the Project, whichever
occurs first.
3.4 VOTING RIGHTS. Unless otherwise provided in the Governing Documents, any action that
requires a Vote of a Quorum of Members requires the prescribed number of votes cast by Owners
entitled to vote either at a meeting of the Owners at which a quorum is present or by written ballot,
as provided in the Bylaws. The prescribed number of votes is a majority of votes, unless a vote
greater than a majority is required elsewhere in the Governing Documents, in which case action on
that matter requires a vote of that prescribed percentage.
Any provision in the Governing Documents that requires a Vote of a Quorum of Members requires:
A. where the two-class voting structure is in effect, a vote of a majority of a quorum of the
Class A Members and a vote of the Class B Member; or
B. after Class B membership has been converted to Class A membership, a vote of a majority
of a quorum of Members and a vote of a majority of a quorum of Members other than
Declarant.
ARTICLE 4
Assessments
4.1 CREATION OF THE LIEN AND PERSONAL OBLIGATION OF ASSESSMENTS. Each
Owner agrees to pay to the Association assessments that are levied under this Declaration.
Assessments are payable without deduction or offset for any claim the Owner may have against the
Association. Each assessment, together with interest, costs and reasonable attorneys' fees, is the
personal obligation of the Owner of the Condominium at the time when the assessment is levied. If
more than one person is the Owner, the personal obligation to pay the assessment is joint and several.
No Owner may exempt himself or herself from liability for payment of assessments by waiver of use
or enjoyment of any of the Common Area or abandonment of his or her Condominium.
8
4.2 PURPOSE OF ASSESSMENTS. The Association must levy regular and special assessments
sufficient to perform its obligations. The Association may not levy an assessment that exceeds the
amount necessary to defray the costs for which is it levied. Assessments levied by the Association
must be used exclusively to promote the health, safety, and welfare of all residents of the Project, for
the improvement and maintenance of the Common Area, and for the common good of the Project.
4.3 REGULAR ASSESSMENTS. The regular assessment is the total amount of funds necessary
to defray the expenses attributable to the ownership and operation of the Common Area for the fiscal
year. It must include adequate reserve funds for contingencies and for maintenance, repairs, and
replacement of Common Area improvements that must be replaced on a periodic basis, sufficient to
satisfy the reasonable requirements of any first Mortgagee and to maintain the Common Area in first-
class condition and repair.
At least 30 days and not more than 90 days before the beginning of each fiscal year, the Board must
establish the regular assessment for that fiscal year. If at any time during the year the Board decides
that the amount of the regular assessment is inadequate or excessive, it may revise the assessment for
the balance of the fiscal year, effective on the first day of the month following the date of the revision.
If the Board fails to establish the regular assessment for any fiscal year, the regular assessment will
be the same as that of the prior fiscal year.
The Board must obtain a Vote of a Quorum of Members (1) to increase the regular assessment in an
amount that is more than 20 percent greater than the regular assessment for the immediately preceding
fiscal year, and (2) to increase the regular assessment in any amount if the Board has not prepared and
distributed to the Owners the annual budget report described in Civil Code Section 5300(b) and
Section 5.2 of the Bylaws. For purposes of this section, the quorum requirement for a Vote of a
Quorum of Members is more than 50 percent.
4.4 SPECIAL ASSESSMENTS. In any fiscal year, the Board may levy a special assessment
applicable to that year only for the purpose of defraying, in whole or in part, the cost of construction,
reconstruction, repair or replacement of Common Area, including fixtures and personal property, and
for extraordinary expenses incurred by the Association. A special assessment in excess of 5 percent
of the budgeted gross expenses of the Association for the fiscal year in which the assessment is levied
requires a Vote of a Quorum of Members. "Budgeted gross expenses of the Association" does not
include any expense paid from the Association's reserve account. For purposes of this section, the
quorum requirement for a Vote of a Quorum of Members is more than 50%.
4.5 ASSESSMENTS FOR EMERGENCY PURPOSES. The Board may increase the regular
assessment and impose special assessments without a Vote of a Quorum of Members if necessary for
emergency situations. For purposes of this section, an emergency situation is any one of the
following:
A. An extraordinary expense required by an order of a court;
9
B. An extraordinary expense necessary to repair or maintain the Common Area where a threat
to personal safety is discovered at the Project; or
C. An extraordinary expense necessary to repair or maintain the Common Area that could
not have been reasonably foreseen by the Board in preparing and distributing the pro forma
operating budget described in the Bylaws. Before imposing or collecting an assessment under
this section, the Board must pass a resolution containing written findings as to why the
extraordinary expense is necessary and why the expense was not or could not have been
reasonably foreseen in the budgeting process.
4.6 REIMBURSEMENT ASSESSMENTS. The Board may impose a reimbursement assessment
to collect a charge levied to reimburse the Association for costs incurred by it on behalf of an Owner,
or in the repair of damage to the Common Area caused by an Owner or occupant of the Owner's Unit,
or to collect a fine or penalty levied to bring an Owner and his or her Condominium into compliance
with the Governing Documents. The Board may impose a reimbursement assessment on an Owner
only after giving the Owner notice and the opportunity to be heard, as provided in the Bylaws. A
reimbursement assessment becomes a lien upon a Unit upon the recording of a Notice of Delinquent
Assessment as provided in Civil Code Section 5675(a); however, the lien created thereby may not be
enforced by sale of the Condominium pursuant to Civil Code Sections 2924, 2924b and 2924c.
4.7 DIVISION OF ASSESSMENTS. The expenses for regular assessments are divided among the
Owners equally.
Declarant has installed one domestic water meter for the Units. Submeters have been installed that
measure hot and cold water use for each Unit and in regard to Unit 101, water used in the yard. There
is a sewer charge for each Unit that is calculated from water usage. There also is a meter charge for
each Unit that is the same as that of the local water company. The Association will be billed for water
by the local water company, and the HOA will bill each Owner for his or her share of the water bill.
Each Owner must timely pay the bill. If an Owner does not pay for his or her water expenses, a late
fee and other charges will be added to the bill. Additionally, if an Owner does not pay for his or her
water expenses, and if the Association pays for the expenses on behalf of an Owner, the Association
may levy a Reimbursement Assessment against the Owner for the expenses paid, and also a late
charge and interest under section 4.9.
Special assessments also are divided among the Owners equally, except where the special assessment
is levied to raise funds for the rebuilding or major repair of structural Common Area that houses the
Units. In that case, the special assessment is divided upon the basis of the ratio of the square footage
of the floor area of the Unit to be assessed to the total square footage of the floor area of all Units. For
purposes of this section, the square footage of the Units is the approximate square footage for the
Units shown on the Condominium Plan.
Each Unit must have appurtenant to it at least one parking space. Each Owner must pay an additional
monthly fee for parking expenses for each parking space appurtenant to his or her Unit, as shown in
the Garage Cost Center Budget. The parking expenses include, but are not limited to: insurance,
10
custodial services for the garage; concrete cleaning and repairs and accounting and administrative
costs for the Garage Cost Center Budget; and reserves for the garage door, garage door operator, light
fixtures and exhaust fan.
Each of Units 301 through 304, inclusive, which have an appurtenant roof deck, must pay an
additional monthly fee for deck expenses as shown in the Deck Cost Center Budget. The deck
expenses include, but are not limited to reserves for flooring, planters and railings.
The Board annually must review the expenses, income and reserves attributable to and follow the
requirements and procedures set forth this Declaration and the Bylaws in regard to the Association’s
operating and reserve accounts in the preparation and distribution of the two Cost Center Budgets.
All provisions of the Declaration and Bylaws which pertain to regular assessments and special
assessment pertain to the components of the two Cost Center Budgets. The Board may increase either
of the Cost Center Budgets, except that a Vote of a Quorum of Members with a parking space (based
on one vote per parking space) or a roof deck (based on one vote for each Owner with an appurtenant
deck) is required to increase the a Cost Center Budget component of the regular assessment under the
circumstances set forth in Section 4.3. Documents prepared by the Board in regard to the Garage Cost
Center Budget must be distributed only to Owners with parking spaces, and documents prepared by
the Board in regard to the Deck Cost Center Budget must be distributed only to Owners with decks,
but the Board may distribute the documents to other Owners if it wishes to do so. Commingling of
either Budget Cost Center funds with other funds of the Association is not permitted. Cost Center
Budget funds may not be used for any purpose other than those for which they are collected.
4.8 DATE OF COMMENCEMENT AND DUE DATES OF ASSESSMENTS; NOTICE TO
OWNERS. Regular assessments begin for all Units on the first day of the month following the
conveyance of the first Condominium from Declarant to an Owner. The regular assessment is
payable in equal monthly installments due on the first day of each month, unless the Board adopts
some other basis for collection or due date. The due date for payment of a special assessment or a
reimbursement assessment is the date specified in the notice of the assessment. The Association must
send each Owner notice of an increase in the regular assessment, any special assessment, and any
reimbursement assessment not less than 30 and not more than 60 days before the due date of the
assessment. If an assessment for emergency purposes is levied under section 4.5, a copy of the
resolution required under that section must be distributed with the notice of assessment.
4.9 EFFECT OF NONPAYMENT OF ASSESSMENT. An assessment or installment that is not
received by the Association within 15 days after its due date is a delinquent payment. A delinquent
payment is subject to a late charge of 10 percent of the delinquent assessment or installment or
$10.00, whichever is greater, on all delinquent payments. A late charge may not be imposed more
than once on any delinquent payment, does not eliminate or supersede any charges imposed on prior
delinquent payments, and constitutes full compensation to the Association for additional
bookkeeping, billing, or other administrative costs resulting from the delinquent payment.
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Interest accrues on a delinquent payment at the rate of 12 percent per annum, beginning 30 days after
the due date of the assessment or installment through and including the date full payment is received
by the Association.
4.10 REMEDIES ON DEFAULT. In the event of a default in payment of any assessment or
installment, and in addition to any other remedies provided by law, the Association may enforce
payment of the assessment or installment in any of the following ways.
A. Personal Obligation. The Association may bring legal action against the delinquent
Owner for the amount of delinquent assessments or installments, the fees and reasonable costs
of collection, reasonable attorney's fees, and late charges and interest, if any. A legal action
may be maintained without foreclosing or waiving lien rights.
B. Judicial Foreclosure or Power of Sale. The Association may bring an action for judicial
or nonjudicial foreclosure provided that the amount of delinquent assessments, the duration
of the delinquency, or both comply with the requirements of Civil Code section 5720.
C. Alternative Dispute Resolution. An assessment dispute may be resolved through
alternative dispute resolution as provided in Civil Code sections 5660(f) and 5705(b), and
according to the procedures set forth in the Bylaws or otherwise adopted by the Association.
4.11 PRIORITIES. A Notice of Delinquent Assessment constitutes a lien on the Condominium
against which it is recorded prior to all other liens except taxes, bonds, assessments and other liens
which by law would be superior to it, and the lien of any first Mortgage of record that was recorded
before the delinquent assessment became due. The lien is not affected by the sale or transfer of the
Condominium against which it is recorded.
4.12 MORTGAGEE'S LIABILITY FOR UNPAID ASSESSMENTS. The holder of a first
Mortgage that obtains title to a Condominium pursuant to a foreclosure proceeding is not liable for
unpaid assessments and charges that accrued prior to its acquisition of the Condominium. A first
Mortgagee is liable for any assessments becoming due after the date of the transfer.
4.13 SEGREGATION OF FUNDS. All proceeds paid for reserves or for any special assessment
must be segregated and deposited in a special account and, except for a transfer made under Section
9.3 of the Bylaws, must be used solely for the purpose for which levied.
4.14 WAIVER OF EXEMPTIONS; EXEMPTION FROM EXECUTION. Each Owner waives
the benefit of any homestead or exemption laws of the State of California as to any assessment lien
created under this Article.
Regular assessments are exempt from execution by a judgment creditor of the Association only to the
extent necessary for the Association to perform essential services, such as paying for utilities and
insurance. In determining the appropriateness of an exemption, a court shall ensure that only essential
services are protected under this section 4.14 and Civil Code section 5620. The exemption shall not
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apply to any consensual pledges, liens or encumbrances that have been approved by a Vote of the
Owners pursuant to Civil Code section 4070, at a Member meeting or election, or to any state tax lien,
or to any lien for labor or materials supplied to the Common Area.
4.15 UNSEGREGATED REAL PROPERTY TAX BILL. If real property taxes have not been
segregated by the County Assessor, each Owner must pay a proportionate share of the unsegregated
tax bill. An Owner's proportionate share of the unsegregated tax bill is calculated by multiplying the
amount of the bill by a fraction, the numerator of which is the approximate square footage of the
Owner's Unit and the denominator of which is the total approximate square footage of all Units in the
Project. Square footage will be determined as shown on the Condominium Plan.
ARTICLE 5
Duties and Powers of the Association
5.1 APPLICABILITY OF THE DAVIS-STIRLING COMMON INTEREST
DEVELOPMENT ACT AND THE NONPROFIT MUTUAL BENEFIT CORPORATION
LAW.
A. Davis-Stirling Common Interest Development Act. The Association must comply
with the requirements of the Davis-Stirling Common Interest Development Act (the "Act").
The Act includes comprehensive regulations concerning the management of the affairs of
the Association including, without limitation, election procedures, conduct of meetings,
enforcement of assessments, resolution of disputes, preparation and distribution of financial
documents, notices required to be sent to Members, calculation and maintenance of reserve
funds, retention and inspection of Association records, adoption of operating rules, and
Board approval of physical improvements to the Project made by Members. The Association
must adopt provisions in the Governing Documents as reasonably necessary to implement
the Act, and each Owner takes his or her interest in the Project subject to the provisions of
the Bylaws, operating rules and policies of the Board in addition to the provisions of this
Declaration.
B. Non-Profit Mutual Benefit Corporation Law. The Association has all of the powers
of a corporation organized under the California Non-Profit Mutual Benefit Corporation law,
subject only to the limitations on those powers set forth in the Act and in the Governing
Documents. The Association has the power to do any lawful thing required or permitted to
be done under the Act and the Governing Documents and necessary, appropriate or incidental
to the exercise of the express powers or duties of the Association for the peace, health,
comfort, safety and general welfare of the Owners. The affairs of the Association must be
conducted by a Board of Directors or committees appointed by the Board, and by the officers
of the Association.
5.2 DUTIES AND POWERS. The duties and powers of the Association include, but are not
limited to, the following.
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A. Maintenance. The Association must maintain the Project as provided in Article 8.
B. Insurance. The Association must maintain the policies of insurance required by Section
9.1 of this Declaration. The Association is authorized to negotiate on behalf of the Owners
with any insurer, and to settle, enforce by legal action, and execute releases on claims filed
with respect to insurance policies obtained by the Association.
C. Discharge of Liens. The Association must discharge any lien against the Common Area
and levy a reimbursement assessment against the Owner responsible for the existence of the
lien, including attorneys' fees and costs incurred by the Association in the payment and
discharge of the lien.
D. Payment of Expenses and Taxes. The Association must promptly pay all expenses and
obligations incurred by it in the conduct of its business. The Association must pay all real
and personal property taxes and assessments levied against the Common Area and any
property owned by the Association that is not included in the annual property tax bills of the
Owners.
E. Enforcement. The Association must enforce the Governing Documents as provided in
this Declaration, the Bylaws and any operating rules adopted by the Association. The right
to enforce the Governing Documents includes, without limitation, the right to impose fines
and penalties, and to suspend voting rights.
Notwithstanding anything to the contrary contained in this Declaration, the Board may not
cause a forfeiture or abridgement of an Owner's rights to the full use and enjoyment of his
or her Unit except where the loss or forfeiture is the result of the judgment of a court or a
decision arising out of arbitration or on account of a foreclosure or sale under power of sale
for failure of the Owner to pay assessments levied by the Association.
F. Assessments. The Association must levy against the Owners and collect assessments
in the amount necessary to pay for the cost of maintaining, improving, repairing, rebuilding,
operating and managing the Project.
G. Utility Service. The Association has the authority to obtain, for the benefit of all of the
Condominiums, utility services such as common water, gas and electric service, telephone,
television and other telecommunications and electronic access and services, and refuse
collection. The Association must maintain all utility installations located in the Common
Area, except those installations maintained by utility companies. The Association must pay
all charges for utilities supplied to the Project except those metered or charged separately to
the Units.
H. Easements. The Association has the authority to grant easements where necessary for
utilities and sewer facilities over the Common Area to serve the Common Area and the
Units, as provided in Article 2.
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I. Manager. The Association has the authority to employ a manager or other persons, and
to contract with independent contractors or managing agents to perform the duties and
responsibilities of the Association. A contract with a firm or person appointed as a manager
or managing agent cannot exceed a one year term, and must provide for the right of the
Association to terminate the contract at the first annual meeting of the Members of the
Association, and to terminate the contract for cause on 30 days' written notice or, without
cause or payment of a termination fee, on 90 days' written notice.
J. Operating Rules. The Association has the authority to adopt reasonable operating rules
consistent with this Declaration relating to the use of the Project by the Owners, their
tenants, guests and invitees. An operating rule is valid and enforceable only if it is
reasonable, in writing, within the authority of the Board conferred by law or by the
Declaration, consistent with the Governing Documents, and adopted, amended, or repealed
in good faith and in substantial compliance with the provisions of Civil Code Sections 4340
through 4370.
K. Access. In order to perform maintenance, repairs, or any other of its responsibilities, the
Association, its agents and employees may enter any Unit or any portion of the Common
Area as provided in Article 2. Entry must be made at reasonable hours and with as little
inconvenience to the occupant as possible, and any damage caused must be repaired at the
expense of the Association. Except in case of an emergency, 24 hours' advance notice must
be given to the occupant prior to entry.
L. Acquisition and Disposition of Property. The Association has the power to acquire,
own, improve, operate, maintain, lease, transfer, dedicate for public use or otherwise dispose
of real or personal property in connection with its affairs.
M. Loans. The Association has the authority to borrow money and, with a vote of a a
majority of Members entitled to vote, other than Declarant, to mortgage, pledge, deed in
trust, or hypothecate any or all of its real or personal property as security for money borrowed
or debts incurred.
N. Contracts. The Association has the authority to contract for goods and services for the
Common Area or the Association.
O. Delegation. The Association has the authority to delegate its authority and powers to
committees, officers, or employees of the Association, except for the powers to:
(1) make a decision to commence proceedings for mediation and arbitration or to file
litigation when permitted under the Governing Documents or applicable law, record
a lien, or foreclose upon a lien for default in payment of assessments;
(2) make a decision to levy assessments;
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(3) make capital expenditures;
(4) impose discipline and levy fines for violations of the Governing Documents; or
(5) hold hearings required under the Governing Documents.
P. Fees. The Association has the authority to impose fees for special costs incurred by the
Association as result of actions taken by Owners, as for example, move-in/move-out fees and
excess costs for garbage collection.
Q. Reporting Requirements. The Association must prepare and distribute the documents
and notices required under the Act, as more fully provided in Articles 5 and 6 of the Bylaws.
5.3 LIMITATION ON POWERS OF THE BOARD - PROHIBITED ACTS. The Board may
not take any of the following actions without a Vote of a Quorum of Members other than Declarant.
For purposes of this section, the quorum requirement for a vote is more than 50% of the Members.
A. enter into a contract with a third person for goods or services for the Common Area or
the Association for a term longer than one year with the following exceptions:
(1) a management contract, the terms of which have been approved by the Federal
Housing Administration or Veterans Administration;
(2) a contract with a public utility company if the rates charged for the materials or
services are regulated by the Public Utilities Commission; provided however, that the
term of the contract cannot exceed the shortest term for which the supplier will
contract at the regulated rate;
(3) prepaid casualty and/or liability insurance policies not to exceed three years
duration provided that the policy permits short rate cancellation by the insured;
(4) lease agreements for laundry room fixtures and equipment not to exceed five
years duration provided that the lessor under the agreement is not an entity in which
Declarant has a direct or indirect ownership interest of 10 percent or more;
(5) agreements for cable television services and equipment or satellite dish television
services and equipment not to exceed five years duration provided that the supplier
is not an entity in which Declarant has a direct or indirect ownership interest of 10
percent or more;
(6) agreements for sale or lease of burglar alarm and fire alarm equipment,
installation and services not to exceed five years duration provided that the supplier
or suppliers are not entities in which Declarant has a direct or indirect ownership
interest of 10 percent or more.
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(7) a contract for a term not to exceed three years that is terminable by the
Association after no longer than one year without cause, penalty or other obligation
upon 90 days' written notice of termination to the other party.
B. incur aggregate expenditures for capital improvements to the Common Area in any fiscal
year in excess of 5 percent of the budgeted gross expenses of the Association for that fiscal
year;
C. sell during any fiscal year property of the Association having an aggregate fair market
value greater than 5 percent of the budgeted gross expenses of the Association for that fiscal
year; or
D. pay compensation to directors or to the officers of the Association for services performed
in the conduct of the Association's business. However, the Board may reimburse a director
or officer for reasonable expenses incurred in carrying on the business of the Association.
ARTICLE 6
Architectural Control
6.1 APPROVAL REQUIRED. The prior written approval of the Board obtained in accordance
with the procedures set forth in the Bylaws is required before an Owner may make any
improvements or modifications ("improvement") to any portion of the Common Area (which
includes Exclusive Use Common Area) appurtenant to the Owner's Unit, or make any improvements
within his or her Unit that may affect structural Common Area, increase the burden on common
building systems, result in an increase in sound transmission between Units, install an antenna or
satellite dish, or otherwise adversely affect the Common Area or other Units.
A decision to grant or deny permission to make an improvement is within the discretion of the
Board, provided that it is made in good faith and is not unreasonable, arbitrary or capricious. In
making its decision, the Board may take into account subjective factors such as the quality of
workmanship, design, harmony of external design with existing structures, and location in relation
to surrounding structures.
6.2 PROCEDURES. The Board must establish procedures that comply with the requirements of
Civil Code Section 4765(a) regarding application for and review of improvements.
6.3 IMPROVEMENTS TO FACILITATE ACCESS FOR PHYSICALLY DISABLED
PERSONS. The Board may not deny approval of any improvement to a Unit to facilitate access for
persons who are blind, visually handicapped, deaf, or physically disabled, or to alter conditions
which could be hazardous to these persons, without good cause. The requested improvement may
include modifications of the route from the public way to the door of the Unit if the Unit is already
accessible by an existing ramp or elevator. The Board may condition its approval of the improvement
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in accordance with the provisions of Civil Code Section 4760. The cost of the improvement must
be paid by the requesting Owner.
6.4 ANTENNAS. Installation and use of a satellite dish, video or television antenna with a
diameter or diagonal measurement of one meter or less is subject to the provisions of federal law,
Civil Code Section 4725 and any standards set forth in the Bylaws or in operating rules. Approval
of the installation or use of any other satellite dish, video or television antenna, or an electric vehicle
charging station is within the discretion of the Board.
6.5 ELECTRIC VEHICLE CHARGING STATIONS; GUEST PARKING. There are two
electric vehicle charging stations (“EVCS”) at the Project. The EVCS are located in the two guest
parking spaces. Each Owner or resident who charges a vehicle must pay for the cost of electricity
to charge his or her vehicle. A vehicle may be parked in a guest/EVCS parking space only for the
time required to charge the vehicle. After that time the vehicle immediately must be moved out of
the guest/EVCS space. Each Owner or resident who uses a guest/EVCS parking space is subject to
any standards set forth in the Bylaws or in operating rules.
6.6 DECLARANT EXEMPT. Declarant is exempt from the approval requirements of this Article
for a period of three years from the date of issuance of the most recent final subdivision public report
for the Project.
ARTICLE 7
Use Restrictions
The Project and the Condominiums are subject to the following restrictions on use. The Board may
promulgate operating rules interpreting the use restrictions set forth in this Article and imposing
additional use restrictions that, in its judgement, are appropriate to providing for the peace, health,
comfort, safety and general welfare of the Owners.
7.1 CONDOMINIUM USE. All Condominiums must be used for residential purposes. No trade
or business may be conducted in any Condominium except for administrative and professional
practices allowed by local ordinance.
7.2 SALES ACTIVITIES. Declarant may use any Units in the Project owned by Declarant to
conduct sales activities and as sales models until all Units have been sold. Declarant may maintain
displays and conduct activities within the Common Area related to sales of Condominiums so long
as the displays and activities do not materially or unreasonably interfere with the use of the Common
Area by the Owners.
7.3 USE OF PARKING SPACES. Use of parking spaces is subject to the following.
A. All parking spaces other than parking space P-13 may be used for parking of
non-commercial passenger motor vehicles -- such as automobiles, moderate sized station
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wagons, pickup trucks and SUVs, motorcycles and light vans -- that fit entirely within the
boundaries of the Owner's designated parking space and allow space to enter and exit the
vehicle and for no other purpose. Each Owner is responsible for determining if his or her
motor vehicle fits within the Owner's assigned parking space. The Association has no
liability to an Owner whose vehicle does not fit within the space.
B. No person may park a motor vehicle anywhere on the Project other than his or her
designated parking space, or in one of the two guest/ EVCS parking spaces solely during the
time it takes to charge a vehicle, as set forth in section 6.5. An Owner may not lease a
parking space to any person who is not an Owner or a resident at the Project.
C. Repair or washing of a motor vehicle is not permitted anywhere on the Project. Each
Owner must keep his or her designated parking space neat and clean and immediately
remove any oil, grease or other waste emitted from his or her vehicle. Vehicles that emit
excessive levels of exhaust pollution, oil, grease or noise, as such levels are determined by
the Board, may not be operated at the Project. The Association may cause any vehicle that
is in violation of this section to be towed and stored at the Owner's expense in compliance
with Vehicle Code Section 22658. Each Owner, on his or her own behalf and on behalf of
each resident in the Owner's Unit and each invitee of Owner, agrees to indemnify, defend and
hold the Association, its Board members, officers, manager and employees harmless for any
damage to person or property that may result from the towing.
D. Parking space P-13 (the "disabled parking space") is a parking space designated for use
by a disabled person. If the Owner of a Unit to which the parking space P-13 is appurtenant
(“the affected Owner”) is not disabled, then, at the written request of a disabled Owner and
provided the disabled Owner can demonstrate, to the reasonable satisfaction of the Board,
that he or she is legally entitled to use the disabled parking space, the Board temporarily must
reassign the disabled parking space to the Owner who becomes disabled or to a new Owner
who is disabled (“the disabled Owner”). The affected Owner will be reassigned the parking
space the disabled Owner has the right to use. The right of the disabled Owner to use the
disabled parking space terminates when the disabled Owner ceases to be disabled or when
the disabled Owner ceases to occupy a Condominium at the Project. In either of these
events, the affected Owner may reoccupy the disabled parking space. Evidence of disabled
status must be by license plate or placard issued by the California Department of Motor
Vehicles and other pertinent evidence.
The Board may adopt rules with respect to the disabled parking space, including such matters
as the right of a disabled Owner to displace a non-disabled Owner from the disabled parking
space, exchange of parking spaces, the right of the affected Owner to a hearing regarding
any fees the disabled Owner should pay the affected Owner, review of the evidence of
disability, and any other relevant issues. The right to exchange a non-disabled parking space
for the disabled parking space is available to any disabled Owner on a first-come, first-served
basis. A van customized for a disabled driver may be parked in the disabled parking space.
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7.4 NUISANCE. No person may interfere with the quiet enjoyment of any other resident of the
Project, or carry on any activity in any part of the Project that is noxious, illegal, seriously annoying
or offensive to a person of reasonable sensibility, that is detrimental to the health, safety or welfare
of the residents, or that interferes with their peaceful possession or proper use of their Units. No
activity may be carried on that increases the rate of insurance for the Project, or causes any insurance
policy to be canceled or not renewed, or that will impair the structural integrity of any building. No
use is allowed which creates conditions that are hazardous, noxious or offensive through the
emission of odor, fumes, smoke, cinders, dust, gas, vibration, glare, refuse, water-carried waste or
excessive noise.
7.5 SIGNS. The following signs may be posted within the Common Area: (1) project identification
signs and other signs approved by the Board, (2) signs maintained by Declarant in connection with
Declarant's sales activities, and (3) "For Sale" or "For Rent" signs provided they do not exceed five
square feet in size. "For Sale" or "For Rent" signs may be posted only on those parts of the Common
Area easily viewed by the general public and designated by the Board. All other signs are prohibited
in the Common Area.
An Owner may post non-commercial signs, posters, flags and banners made of paper, cardboard,
cloth, plastic, or fabric, within his or her Unit. Signs and posters may not exceed 9 square feet in
size and banners and flags may not exceed 15 square feet in size. An Owner may display a flag of
the United States of any size made of fabric, cloth or paper on or in the Owner's Unit or Exclusive
Use Common Area appurtenant to the Unit. All other signs, posters, flags and banners are
prohibited.
7.6 ANIMALS. Animals may not be kept in any Unit or Common Area except for domestic dogs
or cats (not to exceed a total of two per Unit), domestic rodents in cages (for example, hamsters and
mice), and a reasonable number of fish and turtles in aquariums and birds inside bird cages. Pure
or mixed breed dogs from the following breeds may not be kept at the Project: Pit Bull, Presa
Canaria, Rottweiler, Doberman Pinscher, Mastiff, and any other fighting breed. Permitted animals
may not be kept, bred, or raised for commercial purposes.
Any dog in the Common Area (other than an Exclusive Use Common Area deck, roof deck or yard
area appurtenant to its Owner's Unit) must be leashed. After making a reasonable attempt to notify
the dog's owner, the Board or an Owner may cause an unleashed animal found within the Common
Area to be removed to a pound or animal shelter by calling the appropriate authorities. The dog's
owner may, upon payment of all expenses, repossess the animal. Residents must clean up after their
pets immediately.
Owners must comply with all operating rules for the keeping and control of pets in the Units and
Common Area. The Board may prohibit the keeping of any animal that it determines, after notice
to the Owner of the Unit in which the pet is kept and the opportunity to be heard according to the
procedures set forth in the Bylaws, is a nuisance or danger to any other Owner, occupant or person
coming onto the Property, or interferes with the quiet enjoyment of the resident of any
Condominium. Each person bringing or keeping a pet upon the Project is liable for damage to
persons or property proximately caused by the pet.
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7.7 GARBAGE DISPOSAL. All garbage, recycling and other waste must be kept in sanitary
containers and regularly removed from the Project. Equipment for the storage or disposal of waste
must be kept in a clean and sanitary condition and must be kept only on those portions of the Project
designated by the Board.
7.8 RIGHT TO LEASE. An Owner may not rent his or her Unit for transient or hotel purposes,
which are defined as rental for any period less than 30 days, or any rental if the occupants are
provided customary hotel services such as room service for food and beverage, maid service, or or
furnishing laundry and linen. No Owner may rent his or her Unit on AirBNB or any similar website.
Subject to these restrictions, an Owner may lease his or her Unit provided the lease is in writing, is
made subject to the Governing Documents, and a copy of the lease is sent to the Board. An Owner
is responsible for a tenant's compliance with the Governing Documents. An Owner who does not
reside in his or her Unit must provide the Association with the Owner's contact information,
including telephone number, as well as contact information for the tenant occupying the Unit, if any,
including telephone number.
7.9 CLOTHES LINES. Outside laundering or drying of clothes is not permitted except in the
Exclusive Use Common Area RY-101 as provided in operating rules established by the Association
in accordance with the Civil Code.
7.10 STORAGE. Any obstruction of the Common Area is prohibited. Nothing may be kept or
stored in the Common Area without the prior consent of the Board, except in designated storage
areas.
7.11 WINDOW COVERING. All window coverings visible from the street or Common Area
must be in a neutral color, unless otherwise approved by the Board.
7.12 OUTDOOR COMMON AREA. Unless otherwise approved by the Board, the use of
outdoor Common Area (such as decks and the yard) is subject to the following restrictions. Nothing
may be stored in those areas. Clothing, towels and other items may not be left on rails. Sharp
objects and other items that may penetrate or damage any waterproof membrane may not be used or
placed within those areas. Any modification to the surface material or railings of a deck requires the
approval of the Board as provided in Article 6. Charcoal barbecues may not be used in any outdoor
Common Area. Gas barbecues may be used if permitted by the Association's insurance carrier. The
Board may adopt operating rules regulating such items such as the type of furniture, plants and other
items that may be maintained with any outdoor Common Area, the number of people who may use
an area at any given time, and the hours of permitted use of the areas. The rules may vary depending
on the location of the area and its visibility from other Condominiums, Common Area or the street.
7.13 SOUND TRANSMISSION.
A. Floor Covering. Each hallway and room (other than the kitchen and bathrooms) in a Unit
must have carpet and pad or other noise deadening materials approved by the Board in 80
percent of its square footage. Except for replacing existing flooring with materials of equal
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or greater acoustical insulation value as that being removed, an Owner must obtain the prior
approval of the Board, according to the procedures set forth in the Bylaws or otherwise
established by the Board for review of improvements, before removing or replacing carpet
and pad or other existing flooring materials
B. Audio Equipment. Speakers and other audio equipment may not be attached to any wall
or ceiling, or placed on the floor, in a manner that would cause or increase sound
transmission between the Units or cause vibrations to be felt in an adjacent Unit.
C. Wheeled Recreational Vehicles. Wheeled recreational vehicles such as bicycles,
tricycles, scooters, wagons, roller skates and roller blades, may not be used within any Unit
or interior Common Area. The Board may promulgate operating rules limiting or prohibiting
use of those items in exterior Common Areas.
7.14 HAZARDOUS MATERIALS. No flammable or hazardous materials may be stored in the
Common Area or any Unit, except those materials necessary for the maintenance, care and operation
of the Common Area or Unit, and then only in such quantities and containers as allowed by law. To
the extent storage of hazardous materials is permitted, such storage must be in accordance with
building, fire, health and safety requirements as set forth by governmental authorities and insurance
carriers.
7.15 SMOKING. This is a smoke-free Project. No smoking is permitted in any Unit or Common
Area, including Exclusive Use Common Areas.
ARTICLE 8
Maintenance and Repair Obligations
8.1 OWNER'S MAINTENANCE AND REPAIR OBLIGATIONS.
A. Unit. Each Owner must maintain his or her Unit in good condition and repair at his or
her own expense. Each Owner must perform commonly accepted homeowner's maintenance
and repair responsibilities within his or her Unit. Each Owner must comply with
maintenance standards and guidelines provided by the Association or by Declarant upon
initial sale of the Unit, and with manufacturers' instructions for all improvements and fixtures
that are part of the Unit, such as appliances, countertops, cabinets, and wall and floor
coverings. Maintenance and repair obligations also include the obligation to perform regular
inspections for the portions of the Unit and the Common Area for which the Owner is
responsible.
B. Exclusive Use Common Areas. Each Owner must keep all Exclusive Use Common
Areas appurtenant to his or her Unit clean and neat. Each Owner must repair and replace
window glass in the windows of the Owner's Unit. The Owner of Unit 101 to which the yard
area is appurtenant must maintain, irrigate and landscape the area at his or her sole expense.
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Except for plants, all improvements or additions to the yard area that will be more that 18"
above grade are not considered to be landscaping and require prior approval of the
Association according to Section 6.1.
C. Obligation to Inspect and Notify. Each Owner must promptly report to the Association
any evidence of water intrusion and any other defective condition the Association is
responsible to maintain that is evident from within the Owner's Unit or from an Exclusive
Use Common Area appurtenant to the Owner's Unit. An Owner is responsible for the cost
of any work required because of his or her delay in reporting the evidence of water intrusion
or other defective condition. An Owner must reimburse the Association for the cost of work
that is not covered by insurance, or, if repair of the condition is covered by insurance, that
portion of the cost that is not paid by the Association's insurance carrier, including the
insurance deductible. The Association may levy a reimbursement assessment against the
Owner if the Owner fails to reimburse the Association for any amount owed by the Owner
to the Association under this section.
D. Failure to Maintain and Repair. If an Owner fails to maintain his or her Unit or the
Exclusive Use Common Areas appurtenant to his or her Unit as required by the Governing
Documents, the Association may, after notice and the opportunity to be heard according to
the procedures set forth in the Bylaws or otherwise adopted by the Board, enter the Unit and
perform the necessary work. The Owner must reimburse the Association for the cost of work
that is not covered by insurance, or, if repair of the condition is covered by insurance, that
portion of the cost that is not paid by the Association's insurance carrier, including the
insurance deductible. The Association may levy a reimbursement assessment against the
Owner if the Owner fails to reimburse the Association for any amount owed by the Owner
to the Association under this section.
E. Maintenance Recommendations. Each Owner is subject to all maintenance
recommendations provided by Declarant, including all guides and other documents and
maintenance schedules as they pertain to the Owner's Unit and those portions of the Common
Area, if any, that an Owner is required to maintain and repair. Civil Code Sections 907 and
945.5 provide that Owners and the Association have an affirmative duty to maintain the
Project pursuant to written maintenance recommendations.
8.2 ASSOCIATION'S MAINTENANCE AND REPAIR OBLIGATIONS. The Association
must maintain all portions of the Project that are not maintained by the Owners.
A. In General. The Association must maintain in good condition, repair and replace the
Common Area, including all Exclusive Use Common Areas except for those to be
maintained by Owners under Section 8.1B. Specific portions of Common Area that must be
maintained by the Association include the driveway, all landscaping and irrigation systems
(except for those contained in the Exclusive Use Common Area yard and the planters on the
Exclusive Use Common Area roof decks), the fences, storm water and sanitary sewer
facilities, the roof (including the roof underneath decks and planters), exterior painting and
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all exterior building improvements and all lighting in the Common Area. Association
maintenance and repair obligations include the obligation to perform regular inspections of
those portions of the Project for which the Association is responsible. The Association shall
be responsible for center lane modifications that may be required in the future to coordinate
with Caltrans street improvements proposed along the portion of Lincoln Avenue near the
Project.
B. Wood-Destroying Pests. The Association is responsible for the repair and maintenance
of Common Area occasioned by the presence of wood-destroying pests and organisms in
accordance with the procedure set forth in Civil Code Section 4785.
C. Water Intrusion and Defective Conditions. The Association has the authority to
inspect the Common Area and the Units for evidence of water intrusion or other defective
conditions that the Association is required to repair. The Association must repair any water
damage or other defective condition found during an inspection.
D. Utility Installations. The Association must maintain all utility installations except those
maintained by utility companies. If a utility installation exclusively serves one Unit but is
located in the Common Area, the Association is responsible for maintenance, repair and
replacement of the installation, but any portion of the cost of the work not covered by
insurance must be paid by the Owner of the Unit of which that installation is a part. The
Board may require that before it performs the work, the Owner pay to the Association the
cost of the work, or that portion of the cost that will not be paid by the Association's
insurance carrier if the condition is covered by insurance, unless delay in performing the
work would be detrimental to the health, safety or welfare of the Owners or result in damage
to the Common Area or any Unit. The Association may levy a reimbursement assessment
against the Owner if the Owner fails to reimburse the Association for any amount owed by
the Owner to the Association under this section.
E. Common Area Damages Caused by an Owner. If damage to the Common Area is
caused by the willful or negligent act or omission of an Owner, or his or her guests or
tenants, the Association must repair the damage and may levy a reimbursement assessment
against the Owner for the cost of the work that is not covered by insurance, or that is not paid
by the Association's insurance carrier if the condition is covered by insurance, including the
insurance deductible.
F. Maintenance Recommendations. The Association is subject to all maintenance
recommendations provided by Declarant, including all guides and other documents and
maintenance schedules, as they pertain to the Common Area and those portions of the Units,
if any, that the Association is required to maintain and repair. Civil Code Sections 907 and
945.5 provide that Owners and the Association have an affirmative duty to maintain the
Project pursuant to written maintenance recommendations.
G. Inspection Obligations. The Association must perform regular inspections of those
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portions of the Project for which the Association is responsible and to maintain copies of
inspection reports and maintenance and repair recommendations. The Association must
provide copies of inspection reports and maintenance and repair recommendations to
Declarant within 15 days of Declarant’s written request.
8.3 MAINTENANCE RESPONSIBILITY LIST. The types of items to be maintained by the
Association and the individual Owners are set forth on the Maintenance List attached to this
Declaration as Exhibit B. The Board has the sole authority to determine whether the Association or
the Owners are responsible for maintenance of any item not included on the Maintenance List taking
into account whether the item is used by one Owner only, by one but not all of the Owners, or by all
of the Owners. The Board may amend the Maintenance List without the approval of the Owners by
recording an amended Maintenance List in the San Francisco County Records.
.
ARTICLE 9
Insurance Coverage
9.1 REQUIRED COVERAGE. The Association must acquire and maintain the following
insurance coverage:
A. Fire and Casualty. The Association must maintain a master policy of fire and casualty
insurance.
(1) The policy must include coverage for:
a. all Common Area improvements described in Section 1.5 and landscaping located
within the Common Area, but excluding land, foundations, excavations and other
items typically excluded from property insurance coverage, and
b. standard components of the Unit as defined in Section 1.20 that were installed
when the Project was originally constructed, and any equivalent replacements to
them. However, any upgrades installed by an Owner are excluded to the extent the
replacement cost of the upgraded improvements exceeds the insurable replacement
value of the original Unit improvements, as determined on the date that immediately
precedes the date of the damage or destruction. Personal property located in a Unit
is also excluded.
(2) The policy must provide coverage against losses due to fire and other casualties
normally covered by a "special form"policy or its equivalent. Coverage must be in
an amount equal to the full insurable replacement cost of the covered property and
include an agreed amount endorsement or its equivalent and a building laws
endorsement or its equivalent.
(3) The policy must be in a form and from an insurance carrier satisfactory to the
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Board and to any first Mortgagee that inquires of the Association as to the terms of
the policy. The policy must be primary and noncontributing with any other insurance
policy covering the same loss. The policy must waive all subrogation rights against
any Owner or occupant and his or her family members and invitees and provide that
coverage may not be canceled or substantially changed without at least thirty days'
prior written notice to the Association, each Owner, and his or her first Mortgagee.
B. Commercial General Liability. The Association must obtain and maintain commercial
general liability insurance insuring the Association, any managing agent, and the Owners and
occupants of the Condominiums, and their respective family members, guests, invitees, and
the agents and employees of each of them, against any liability incident to the ownership or
use of the Common Area or any other real or personal property owned or maintained by the
Association, and including, if obtainable on commercially reasonable terms, a cross-liability
or severability-of-interest clause or endorsement insuring the liability of each insured against
claims by each other insured. The limits of the insurance may not be less than $2,000,000,
or any greater amount required by Civil Code Section 5805, covering all claims for death,
personal injury, and property damage arising from a single occurrence. This insurance must
include coverage against water damage liability, liability for non-owned and hired
automobiles, liability for the property of others, and any other liability or risk customarily
covered with respect to developments similar in construction, location and use.
C. Director and Officer Liability Insurance. The Association must purchase and maintain
insurance on behalf of any director, officer or member of a committee of the Association
against any liability asserted against or incurred by any of these persons in their capacity or
arising out of their status as agents of the Association, regardless of whether the Association
has the power to indemnify these persons against liability under applicable law. The
insurance must be in an amount of not less than $1,000,000, or any greater amount required
by Civil Code Section 5800 and must include a “duty to defend” provision and a “pay on
behalf of” clause.
D. Fidelity Bond. The Association must purchase and maintain a fidelity bond covering
its directors, officers, and employees in an amount that is equal to or more than the combined
amount of the reserves of the association and total assessments for three months. The bond
coverage also must include computer fraud and funds transfer fraud. If the association uses
a managing agent or management company, the fidelity bond coverage must include
dishonest acts by that person or entity and its employees.
E. Worker's Compensation Insurance. Worker's compensation insurance to the extent
necessary to comply with any applicable law.
9.2 INSURANCE REQUIRED BY CERTAIN LENDERS. When FNMA or FHLMC is a
Mortgagee, an insurer or guarantor of a Mortgage, or an Owner of a Condominium within the
Project, a policy required under this Declaration must satisfy the minimum requirements imposed
for this type of Project by FNMA or FHLMC with respect to amount, term coverage, deductible,
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named insureds, loss payees, standard mortgage clauses, notices of change and cancellation, and
insurance company rating. However, to the extent that coverage is not available upon reasonable
terms and at a reasonable cost, or has been modified or waived in writing by FNMA or FHLMC, it
need not be obtained.
9.3 REVIEW OF POLICIES; ADDITIONAL INSURANCE. All policies of insurance must
be reviewed at least annually and adjusted, if necessary, to provide coverage and protection as the
Board deems prudent or as reasonably required by any first Mortgagee. The Board may obtain
additional policies of insurance other than those required by this article as it deems necessary or
prudent.
9.4 OWNER'S INSURANCE. Each Owner must maintain property insurance insuring against
losses to the Owner's personal property located within the Unit and Exclusive Use Common Area
appurtenant to the Unit, and to upgrades and fixtures installed by the Owner that are part of the Unit
and are not covered by the Association's property insurance described in Section 9.1. Each Owner
must maintain liability insurance insuring against any liability to persons or property arising from
any act or omission occurring within the Owner's Unit. The Board may establish reasonable
minimum liability insurance amounts for the Units.
All individually owned insurance must contain a waiver of subrogation, and all Owners are deemed
to have waived subrogation rights as to the Association and other Owners and occupants and their
family members and invitees whether or not their policies so provide. An Owner may not separately
insure any property covered by the Association's property insurance, and is liable to the Association
to the extent of any diminution in insurance proceeds payable to the Association resulting from doing
so. The Association is not liable for damages incurred by an Owner on account of injuries to person
or property where the Owner fails to carry the required insurance.
9.5 INSURANCE PREMIUMS. The cost of the Association's insurance premiums must be
included in the regular assessment levied by the Association.
9.6 NOTICE OF LAPSE, CANCELLATION OR NONRENEWAL OF INSURANCE
POLICIES. The Association must, as soon as reasonably practical, notify the Owners by first-class
mail if any of the insurance policies required to be maintained by it have lapsed or been canceled and
not immediately replaced, or if there is a significant change in the terms of any insurance policy, such
as a reduction in coverage or limits or an increase in the deductible. If the Association receives any
notice of nonrenewal of an insurance policy, it must immediately notify the Owners if replacement
coverage will not be in effect by the date the existing coverage will lapse.
9.7 SETTLEMENT OF INSURANCE CLAIMS. The Association is authorized to negotiate and
agree on the value and extent of any loss under any policy carried by the Association. The
Association is granted full right and authority to compromise and settle any claim or enforce any
claim by legal action or otherwise, and to execute releases in favor of any insurer on behalf of the
Owners and itself with respect to any policy carried by the Association.
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ARTICLE 10
Damage or Destruction; Condemnation
10.1 DAMAGE TO A SINGLE UNIT. If a single Unit within the Project is damaged by a casualty
that is covered by insurance, the insurance proceeds must be paid to the Owner of the Unit and his
or her Mortgagee according to their respective interests in the Condominium. The insurance proceeds
must be used to rebuild and repair the Unit. If the proceeds are insufficient to complete the work, the
Owner must pay all additional sums necessary to complete the rebuilding and repair. If a single Unit
within the Project is damaged by a casualty that is not covered by insurance, the entire cost of
repairing and rebuilding the Unit must be paid by the Owner.
10.2 DAMAGE TO TWO OR MORE UNITS OR COMMON AREA. If the damage extends to
two or more Units or any part of the Common Area, the following apply:
A. Insurance Proceeds. All insurance proceeds and proceeds from a special assessment
levied to provide sufficient funds to complete the repair and rebuilding of damaged
improvements must be held by the Association for the benefit of the Owners and their
Mortgagees according to their respective interests in the Condominiums, and must be
deposited with a third-party depository that supervises disbursement of funds, such as an
insurance trustee or a commercial lending institution experienced in the disbursement of
construction loan funds. However, if the Board determines that the amount of proceeds
required to complete the repair and rebuilding is so small that the cost of a third-party
depository is excessive in relation to that amount, the proceeds may be deposited into an
Association bank account established for the sole purpose of holding monies for the repair and
rebuilding and disbursed by the Board.
B. Bids for Reconstruction. The Board must retain a construction consultant, who is a
licensed general contractor, architect, or engineer with at least five years' experience in repair
and rebuilding of property damaged through fire or other casualty. In consultation with the
consultant, the Board must obtain firm bids from two or more responsible contractors to
rebuild the Project, and may also obtain an estimate from the insurance carrier of the work it
will perform for the amount of available insurance proceeds. The Board must accept the bid
or insurance estimate it considers most favorable, conditional upon the levy of a special
assessment if funds in excess of available insurance proceeds plus Association reserve funds
are required to complete the reconstruction. If the Board determines that the amount of
proceeds required to complete the repair and rebuilding is so small that the cost of a
construction consultant is excessive in relation to the cost of the work, the Board may waive
the requirement.
C. Obligation to Rebuild; Special Assessment. The Board must contract to repair and
rebuild the damaged portions of all Units and the Common Area if:
(1) the insurance carrier offers the full amount required to repair and restore all of the
damage;
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(2) the difference between (a) total insurance proceeds plus the amount of Association
reserves and (b) the cost of the repairs or rebuilding does not require a special
assessment approved by a Vote of a Quorum of Members under Section 4.4; or,
(3) the difference between (a) total insurance proceeds plus the amount of Association
reserves and (b) the cost of the repairs or rebuilding requires a special assessment
approved by a Vote of a Quorum of Members under Section 4.4 and the Board has
obtained the vote. Failure of the Owners to approve the special assessment will be
deemed an election not to repair and rebuild.
D. Election Not to Rebuild. Upon an election not to rebuild, the Association, as agent for
the Owners, must promptly sell the entire Project, in its then condition, on terms satisfactory
to the Board. For the purpose of effecting a sale under this section, each Owner grants to the
Association an irrevocable power of attorney to sell the entire Project for the benefit of the
Owners, to terminate the Declaration and to dissolve the Association. The net proceeds and
all funds held by the third party depository described in subsection A. must be distributed to
the Owners and their respective Mortgagees proportionately, according to the respective fair
market values of the Units at the time of the destruction as determined by a qualified
independent appraiser, with an M.A.I. certificate or the equivalent, selected by the Board.
The Association must pay the cost of the appraisal. If the Association fails to sell the Project
promptly and subject to the requirements of Civil Code Section 4610, any Owner may bring
an action for judicial partition of the tenancy in common ownership of the Project.
Upon distribution of proceeds from the sale of the Project, this Declaration terminates.
E. Standards for Rebuilding and Repair. The Project must be rebuilt to substantially the
same or better condition than existed immediately prior to the damage, modified to comply
with building codes and construction standards in effect at the time of the rebuilding.
F. Emergency Repairs. Without waiting to obtain insurance settlements or bids, the Board
may undertake emergency repair work as it deems necessary.
G. Notice of Damage or Destruction. Within 60 days after damage or destruction occurs,
the Board must, and if it does not, any Owner, Mortgagee, the insurer or the third party
depository described in subsection A. may record in the County Recorder's Office a sworn
declaration setting forth a description of the damage or destruction, the name of the insurer
against whom the claim is made, the name of the third party depository and a statement that
the sworn declaration is recorded pursuant to this section of the Declaration.
10.3 CONDEMNATION. The Association is the representative of the Owners in any condemnation
proceedings or in negotiations, settlements and agreements with the condemning authority for
acquisition of all or part of the Common Area. In the event of a taking or acquisition of all or part
of the Common Area by a condemning authority, the award or proceeds of settlement is payable to
the Association, or a trustee appointed by the Association, for the use and benefit of the Owners and
29
their mortgagees as their interests may appear. In the event of a taking of any Condominium in the
Project by eminent domain, the Owner is entitled to receive the award. An award for a taking that
extends to two or more Condominiums or the Common Area must be apportioned among the Owners
according to a court judgment or agreement between the condemning authority and each of the
Owners. In the absence of such an apportionment, the award must be distributed among the Owners
and their respective Mortgagees according to the relative values of the Condominiums affected as
determined by independent appraisal in accordance with the procedure set forth in Section 10.2D.
ARTICLE 11
Mortgage Protection Provisions
11.1 "MORTGAGE, MORTGAGEE, MORTGAGOR" DEFINED. "Mortgage" includes a
deed of trust as well as a mortgage, and means a conveyance of a security interest in real property
made in good faith and for value. "Mortgagee" includes a beneficiary or a holder of a deed of trust
as well as a mortgagee. "Mortgagor" includes the trustor of a deed of trust as well as a mortgagor.
11.2 MORTGAGE PERMITTED; VALIDITY OF MORTGAGE LIEN. Any Owner may
encumber his or her Condominium with a Mortgage. A breach of any of the provisions of this
Declaration does not invalidate the lien of a first Mortgage made in good faith and for value. This
Declaration is binding upon and effective against any Owner whose title is derived through
foreclosure or trustee's sale, or otherwise.
11.3 REQUIRED CONSENT OF ELIGIBLE MORTGAGE HOLDERS.
A. Eligible Mortgage Holder. As used in this Section 11.3, "eligible mortgage holder"
means a first Mortgagee, or the insurer or governmental guarantor of a first Mortgage.
B. Amendments of a Material Nature. Amendments to the provisions of the Governing
Documents of a material adverse nature to Mortgagees require the approval of eligible
mortgage holders that represent at least 51% of the votes of Units that are subject to
mortgages held by eligible mortgage holders. Some examples of amendments that are of a
material adverse nature to Mortgagees are:
(1) Except as otherwise provided in this Declaration for cases of major damage, the
use of hazard insurance proceeds for a purpose other than the repair, replacement, or
reconstruction of the Property; to abandon the Property; or to terminate the
Association;
(2) A change the method of determining the obligations, assessments, dues or other
charges that may be levied against an Owner, or to change the pro rata interest or
obligations of any Owner for purposes of levying assessments or charges or allocating
distributions of hazard insurance proceeds or condemnation awards, or for
determining the pro rata share of ownership of each Owner in the Common Area;
30
(3) Any action to terminate the legal status of the Project after substantial destruction
or condemnation occurs or for other reasons;
(4) Any action to abandon, partition, subdivide, encumber, sell or transfer the
Common Area (but the granting of easements for public utilities or for other public
purposes consistent with the intended use of the Common Area by the Association or
the Owners shall not be deemed to be a transfer within the meaning of this clause); or
(5) Failure to maintain fire and any extended coverage insurance on insurable property
owned by the Association, including any Common Area improvements, in an amount
not less than 100% insurable value based on current replacement cost.
C. Implied Consent. An eligible mortgage holder is assumed to have approved a written
proposal to amend a provision of the Governing Documents if it fails to submit a response to
the proposal within 60 days after it has received proper notice of the proposal, provided the
notice was delivered by certified or registered mail, "return receipt" requested.
11.4 NOTICE TO MORTGAGE HOLDERS, INSURERS AND GUARANTORS. A mortgage
holder, insurer or guarantor is entitled to timely written notice of the following:
A. Any condemnation loss or any casualty loss that affects a material portion of the Project
or the Unit securing its mortgage;
B. Any 60 day delinquency in the payment of assessments owed by the Owner of any Unit
on which it holds the mortgage;
C. Any lapse, cancellation or material modification of an insurance policy maintained by the
Association; or
D. Any proposed action that requires the consent of eligible mortgage holders, as specified
in Section 11.3.
11.5 RIGHTS TO INSPECT, RECEIVE STATEMENTS, ATTEND MEETINGS.
A. All Owners and lenders, and all holders, insurers or guarantors of any first Mortgage are
entitled to inspect current copies of the Declaration, Bylaws, the Association rules and any
other rules concerning the Project and the books, records and financial statements of the
Association. Inspection may be made upon request, during normal business hours or under
other reasonable circumstances.
B. If the Association has not prepared an audited financial statement, the holder, insurer or
guarantor of any first Mortgage may have an audited financial statement for the immediately
preceding fiscal year prepared at its own expense.
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C. Upon written request to the Association, a first Mortgagee is entitled to receive written
notice of, and may appear (but not vote) at meetings of the Owners and the Board.
11.6 LIMITATION ON RIGHT OF FIRST REFUSAL. The Governing Documents contain no
provision creating a “right of first refusal,” but if any of these rights is created in the future, they must
not impair the rights of any first Mortgagee to foreclose or take title to a Condominium pursuant to
the remedies provided in the Mortgage, accept a deed (or assignment) in lieu of foreclosure in the
event of a default by the Mortgagor, or sell or lease a Condominium acquired by the Mortgagee.
11.7 PRIORITY AS TO PROCEEDS AND AWARDS. No Owner or other party has priority over
the rights of a Mortgagee pursuant to its Mortgage in the case of a distribution to Owners of insurance
proceeds or condemnation awards for losses to or taking of Units or the Common Area.
11.8 SUBORDINATION. Any lien created or claimed under the provisions of this Declaration is
subject and subordinate to the rights of any first Mortgagee with a first Mortgage that encumbers a
Condominium, and will not defeat, invalidate or impair the obligation or priority of a first Mortgage
unless the Mortgagee expressly subordinates its interest in writing.
11.9 LIEN ON INDIVIDUAL UNIT. All taxes, assessments and charges which may become liens
prior to a first Mortgage under local law relate only to the individual Units and not to the Project as
a whole.
11.10 MORTGAGEE RIGHT TO FURNISH INFORMATION. Any Mortgagee can furnish
information to any Owner concerning the status of any Mortgage.
11.11 FORMER OWNER IN POSSESSION FOLLOWING FORECLOSURE. A former Owner
who loses title by foreclosure but remains in possession shall be bound by the Governing Documents
as long as he or she remains in possession, but shall have no obligation to pay assessments accruing
after the date title is transferred.
ARTICLE 12
General Provisions
12.1 ENFORCEMENT. The Association or any Owner may enforce the Governing Documents.
An Owner may not seek to enforce this Declaration until the Owner has delivered a written request
to the Association for enforcement and the Association fails to respond to the request within 60 days
from the date of delivery of the request. It the Association declines the enforcement request in
response to the Owner's notice, the response must include the reasons that the request is denied.
The parties to a dispute between the Association and an Owner arising under this Declaration must
use good faith efforts to resolve the dispute through alternative dispute resolution according to the
procedures set forth in the Bylaws or operating rules adopted by the Board. The Association may not
file a civil action regarding a dispute in which a Member has requested internal dispute resolution
32
under Section 9.2 of the Bylaws unless the Association has engaged in good faith with those
procedures. In addition, neither the Association nor an Owner may file an action in the superior court
for enforcement of the Governing Documents that includes a request for declaratory, injunctive, or
writ relief, or for that relief in conjunction with a claim for monetary damages not in excess of the
jurisdictional amount of the small claims court unless the parties have endeavored to submit their
dispute to alternative dispute resolution as required by Sections 5925 through 5960 of the Civil Code
and according to the procedures set forth in the Bylaws or operating rules adopted by the Board. The
foregoing does not apply to a small claims action for an assessment dispute.
This section applies to a dispute between the Association or an Owner and Declarant acting in its
capacity as an Owner of a Unit only. Any dispute between the Association or an Owner and
Declarant arising out of defects in design or construction of the Project must be resolved in
accordance with Article 13.
12.2 TERM. The initial term of this Declaration is 50 years from the date it is recorded, unless it
is terminated earlier because of damage and destruction or condemnation as provided in Sections 10.2
and 10.3 or by partition as permitted by Civil Code Section 4610. After that 50 year period, this
Declaration will extend automatically for successive periods of 10 years, unless by a vote of 67% of
all Owners, the Owners vote to terminate it, and an instrument in writing to that effect is recorded
within the year preceding the beginning of the next period of 10 years.
12.3 AMENDMENTS. Prior to close of escrow on the sale of the first Condominium, this
Declaration may be amended by Declarant. Thereafter, this Declaration may be amended by an
instrument in writing signed and acknowledged by the president or the secretary of the Association
certifying under penalty of perjury that the amendment was adopted with the consent of Owners as
provided in this section.
A. The Declaration may be amended only by a vote of more than 50% of all of the Owners
entitled to vote and the vote of more than 50% of all of the Owners entitled to vote other than
Declarant. Where a greater percentage than a majority is required to amend any provision of
this Declaration, amendment of that provision requires the approval of the prescribed
percentage of all of the Owners entitled to vote, and the prescribed percentage of all of the
Owners entitled to vote other than Declarant. This Declaration may also be amended in
accordance with the provisions of Civil Code Section 4275.
B. Any provision of this Declaration that confers rights and benefits on Declarant specifically
may not be amended or rescinded without the prior written consent of Declarant, except as
permitted by Civil Code Section 4230.
C. An amendment must be recorded and becomes effective only upon being recorded in the
County Recorder's Office. An amendment does not adversely affect the rights of the holder
of any Mortgage of record recorded prior to the amendment.
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12.4 OWNER'S COMPLIANCE. Each Owner must comply with the provisions of this
Declaration, the Articles, the Bylaws, the operating rules, and the decisions and resolutions of the
Board. All agreements and determinations lawfully made by the Board in accordance with the voting
percentages established in this Declaration or the Bylaws are binding on Declarant, all Owners, their
successors and assigns.
12.5 POWER OF ATTORNEY. Any power of attorney exercisable by the Board on behalf of the
Owners under this Declaration may be exercised only after the recording with the County Recorder
of a certificate, executed by a majority of the Board, that the power of attorney is being exercised
under the authority of this Declaration. The certificate is conclusive evidence of proper exercise in
favor of any person relying on it in good faith.
12.6 NOTICES. Any notice permitted or required by the Governing Documents must be in writing
and given in compliance with the requirements of the Act.
A. Any notice required to be given to an Owner by the Association must be given by
individual delivery by either of the following means:
(1) first-class mail, postage prepaid, registered or certified mail, express mail, or
overnight delivery by an express service carrier. The document must be addressed to
the recipient at the address last shown on the books of the Association; or
(2) e-mail, facsimile, or other electronic means, if the recipient has consented, in
writing, to that method of delivery. The consent may be revoked, in writing, by the
recipient.
If a document is delivered by mail, delivery is deemed to be complete on deposit into the
United States mail. If a document is delivered by electronic means, delivery is complete at
the time of transmission.
B. At least annually, each Owner must provide the Association with the following
information:
(1) The address or addresses to which notices from the Association are to be
delivered;
(2) An alternate or secondary address to which notices from the Association are to
be delivered;
(3) The name and address of a legal representative who can be contacted in the event
of the Owner's extended absence; and
(4) Whether the Unit is occupied by the Owner, rented , or vacant.
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If the Owner fails to provide above information, the address of the Unit is the address to
which notices are to be delivered.
12.7 INDEMNIFICATION. Each Owner is liable to the Association for damage to the Common
Area caused by the willful misconduct or negligence of the Owner, members of the Owners' family,
and a contract purchaser, tenant, guest or invitee of the Owner, to the extent that the damage is not
covered by insurance. Each Owner must indemnify and defend each other Owner and the
Association against any claim of personal injury or property damage that occurred in the Owner's
Unit (including damage from water leaking from the responsible Owner's Unit) and was caused by
the willful or negligent act or omission of the Owner, his or her family members, contract purchasers,
tenants, guests and invitees to the extent the injury or damage is not covered by insurance.
12.8 STANDING OF ASSOCIATION. The Association has standing to institute, defend, settle,
or intervene in litigation, arbitration, mediation, or administrative proceedings in its own name as
the real party in interest and without joining with it the individual Owners in matters pertaining to
the following: (a) enforcement of the Governing Documents; (b) damage to the Common Area; (c)
damage to a Unit that the Association is obligated to maintain or repair, and (d) damage to a Unit
that arises out of, or is integrally related to, damage to the Common Area or a Unit that the
Association is obligated to maintain or repair.
12.9 NOTICE OF NEW OWNERSHIP. No later than five days after close of escrow on the
purchase of a Condominium, the new Owner must give written notice to the Association of the new
Owner's mailing address, telephone number and email address. Any notice required under the
Governing Documents delivered to the selling Owner constitutes valid notice to an Owner from the
Association until the Association receives notice of new ownership from the new Owner.
12.10 CORRECTIONS. Notwithstanding anything in this Declaration to the contrary, Declarant
reserves the right as the attorney-in-fact for each Owner to record an amendment or appropriate
instrument of correction to correct any errors in this Declaration or any exhibits to it, including the
Condominium Plan, and the consent of neither the Association nor any Owner is required, provided
that if the correction affects the size, location or access or use rights to any Unit or any Exclusive
Use Common Area appurtenant to a Unit, the consent of the affected Owner is required.
12.11 FAIR HOUSING. No Owner may, either directly or indirectly, forbid or restrict the
conveyance, encumbrance, leasing, or occupancy of his or her Unit to any person of a specified race,
color, religion, ancestry, national origin, sex, marital status, sexual orientation or physical disability.
12.12 SINGULAR AND PLURAL. The singular and plural number and masculine, feminine and
neuter gender each include the other where the context requires.
12.13 STATUTORY REFERENCES. References to particular statutes of the State of California
include any amendment of the statute. If a particular statute is repealed, reference to the statute will
include any other statute that thereafter governs the same subject.
35
12.14 SEVERABILITY OF PROVISIONS. The provisions of this Declaration are independent
and severable, and the invalidity or unenforceability of one does not affect the validity or
enforceability of the others.
12.15 CONSTRUCTION OF PROVISIONS. The provisions of this Declaration must be
construed liberally and in conjunction with the Bylaws and operating rules established by the Board
to effect its purpose of creating a uniform plan for the development and operation of a condominium
project pursuant to the provisions of Section 4000 et seq. of the California Civil Code.
12.16 CONFLICTS IN DOCUMENTS. Conflicts between laws and documents that apply to the
Project will be resolved as follows.
A. To the extent of any conflict between the Governing Documents and the law, the law
controls. In the event of a conflict between the Act and the provisions of the Nonprofit
Mutual Benefit Corporation Law (Part 3 (commencing with Section 7110) of Division 2 of
Title 1 of the Corporations Code) relating to elections, the provisions of the Act prevail.
B. To the extent of any conflict between the Articles of Incorporation and the Declaration,
the Declaration controls. To the extent of any conflict between the Bylaws and the Articles
of Incorporation or Declaration, the Articles of Incorporation or Declaration control. To the
extent of any conflict between the operating rules and the Bylaws, Articles of Incorporation,
or Declaration, the Bylaws, Articles of Incorporation, or Declaration control.
C. If there are any conflicts in the definitions contained in the Declaration and any notes on
the Map or the Condominium Plan, the definitions contained in the Declaration control.
12.17 NO WAIVER. The failure of the Association or an Owner to enforce any rights under the
Governing Documents does not constitute a waiver of the right during the term of this Declaration
or the waiver of any other right.
ARTICLE 13
DISPUTES REGARDING DEFECTS IN DESIGN OR CONSTRUCTION OR ARISING
OUT OF SALE, INCLUDING MANDATORY BINDING ARBITRATION
13.1 NOTICE OF STANDARDS AND PROCEDURES. The Association and the Owners are
advised of the existence of standards and procedures codified at Title 7 of Part 2 of Division 2 of the
Civil Code (Civil Code sections 895 through 945.5). These standards and procedures impact the
legal rights of the Association and the Owners with respect to design and construction defect
disputes and related claims arising out of, or related to deficiencies in construction, design, and other
aspects of residential construction, including, in Civil Code Sections 896 and 897, functionality
standards that describe how the improvements and landscaping within the Project should function
during certain applicable time periods (the “Functionality Standards”).
36
13.2 APPLICABILITY. Any claim, dispute or other controversy between (i) the Association
and/or any Owner(s) and (ii) the Declarant or any general contractor or affiliated contractor who is
a “builder” within the meaning of Civil Code Section 911, or any director, officer, member,
shareholder, partner, employee or agent of any of them (individually and collectively the “Declarant”
for purposes of this Article) and/or any non-affiliated general contractor, non-affiliated contractor,
subcontractor, material supplier, individual product manufacturer, design professional or any other
Person that provided materials or services to the Project on behalf of Declarant ("other Responding
Party"), relating to this Declaration, the use, condition, design, specifications, surveying, grading,
construction, installation and/or operation of the Project including any claims made under Civil Code
Sections 896 and 897 (individually and collectively the “Claim”), must be resolved in accordance
with this section.
13.3 NOTICE OF SIGNIFICANT LEGAL PROCEEDINGS. Not later than 30 days prior to the
filing of any civil action against the Declarant or other Responding Party for alleged damage to the
Common Area or portions of the Units that the Association is obligated to maintain or repair, or
alleged damage to the Units that arises out of, or is integrally related to, damage to the Common
Area or portions of the Units the Association is obligated to maintain or repair, the Board must
provide written notice to each Member of the Association. The notice must (1) state the date and
location of the meeting, (2) that the meeting will take place to discuss problems that may lead to the
filing of a civil action and the potential impacts of filing a civil action, including any financial
impacts, and (3) describe the options, including civil actions, that are available to address the
problems. If the Board in good faith determines that there is insufficient time to provide 30 days'
notice to the Members, the Board may take the necessary steps to commence the proceeding to
preserve the rights of the Association, provided that as soon as is reasonably practical thereafter, and
not later than 30 days following the commencement of the proceeding, the Board must provide the
Members with the required notice.
13.4 INITIATION OF CIVIL CODE SECTIONS 896 AND 897 CLAIMS. This section
becomes effective automatically on the date that the first director is elected to the Board without the
vote of Declarant.
A. Meeting. Any director who was not appointed by Declarant or elected by votes cast by
Declarant ("Non-Declarant Director") may at any time request a meeting for the purpose of
discussing, inspecting, investigating and/or initiating any claims under Civil Code Sections
896 or 897. Notice of the meeting must be sent in the same manner as notice for special
meetings of the Board. Any director appointed by Declarant or elected by votes cast by
Declarant is entitled to attend the meeting but may not participate or vote. The meeting
must be open to all Members unless the Non-Declarant Directors adjourn to an executive
session as authorized by the Bylaws. If funds are requested by the Non-Declarant Directors
to inspect, investigate and/or initiate the claim on behalf of the Association, the Board may
levy a special assessment for this purpose in accordance with Section 4.4.
B. Authority of Non-Declarant Directors Only. The Non-Declarant Directors have the
sole and exclusive authority to initiate claims on behalf of the Association in connection with
37
the portions of the Project maintained by the Association for violations of the Functionality
Standards. It is Declarant's intent to relinquish control over the Association's ability to
decide whether to initiate a claim for violation of the Functionality Standards from and after
the date of substantial completion of the Project. Therefore, a director appointed by Declarant
or elected by votes cast by Declarant has no power or authority to participate in or vote on
any action taken by the Association to initiate a claim for violation of the functionality
standards.
13.5 BOARD MEMBER ATTENDANCE. In order to facilitate the resolution of any Claim in the
best interests of the Association, at least one member of the Board with the authority to settle the
Claim must be in attendance at all times to participate in any meeting, conference, proceeding,
hearing or other similar situation in which settlement discussions may occur concerning the Claim.
13.6 ELECTION TO USE ALTERNATIVE NONADVERSARIAL PROCEDURES. Civil
Code Sections 910 through 938 contain prelitigation procedures for resolution of a claim for
violation of the Functionality Standards. As authorized by Civil Code Section 914, Declarant may
elect to use those prelitigation procedures or use alternative procedures. Declarant elects to use the
alternative nonadversarial prelitigation procedures. Declarant’s election is made on behalf of
Declarant and other Responding Parties.
13.7 MANDATORY BINDING ARBITRATION. If the parties are unable to settle a claim
among themselves the matter must be resolved through binding arbitration. The Federal Arbitration
Act governs the interpretation and enforcement of the arbitration provisions of this Article. The
decision of the arbitrator shall be final and binding, except to the extent it may be vacated, modified
or corrected as permitted by the Federal Arbitration Act. The arbitration proceedings must be
conducted by and in accordance with the Streamlined or Comprehensive Rules and Regulations of
the American Arbitration Association (AAA), or any successor to it, subject to the following:
A. Any fee to initiate the arbitration must be paid by Declarant, but the arbitration costs and
fees, including any initiation fee, ultimately must be borne as determined by the arbitrator.
B. The venue of the arbitration proceedings must be in the County, unless the parties agree
to a different location.
C. The arbitrator must be appointed within 60 days of the receipt of a written request to
arbitrate the Claim by AAA. In selecting the arbitrator, the provisions of Section 1297.121
of the Code of Civil Procedure must apply. The arbitrator must be a retired judge or an
attorney with at least ten years' real estate and construction law experience. An arbitrator
may be challenged for any of the grounds listed in that Sections 1297.121 or1297.124 of the
Code of Civil Procedure.
D. The arbitrator is authorized to provide all recognized remedies available in law or equity
in resolution of any Claim between the parties.
38
E. The arbitrator must follow California substantive law (but may receive hearsay evidence).
The arbitrator is authorized to provide all recognized remedies available at law or in equity
for any cause of action.
F. The arbitrator must issue a written decision within thirty (30) days after the hearing is
closed. If any of the parties so requests, the arbitrator must also issue a reasoned award.
G. Each party must bear its own attorneys' fees and costs, including expert witness costs.
H. A petition to confirm an award may be filed in any court of competent jurisdiction in the
County.
13.8 WAIVER OF JURY TRIAL AND RIGHT TO APPEAL. DECLARANT, AND BY
ACCEPTING A DEED FOR ANY PORTION OF PROPERTY, THE ASSOCIATION AND
EACH OWNER, AGREE (a) TO HAVE ANY CONSTRUCTION DISPUTE DECIDED BY
NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE
CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL
ARBITRATION ACT; (b) TO GIVE UP ANY RIGHTS THEY MIGHT POSSESS TO HAVE
THE CONSTRUCTION DISPUTE LITIGATED IN A COURT OR JURY TRIAL; (c) TO
GIVE UP THEIR RESPECTIVE RIGHTS TO APPEAL. IF ANY PARTY REFUSES TO
SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, SUCH PARTY
MAY BE COMPELLED TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT
AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT.
13.9 NO AMENDMENT WITHOUT DECLARANT’S CONSENT. This Article 13 may be
amended only with the written consent of Declarant.
13.10 CONFLICTS. In the event of a conflict between this Article and any other alternative dispute
resolution procedures provided for by the Governing Documents or adopted by the Board, this section
prevails.
39
Execution of Declaration and Consent to Condominium Plan
In executing this Declaration, the undersigned, who constitute all of the record owners of fee title to
the property included in the condominium project subject to this Declaration, give their consent as
required by Civil Code section 4290 to the recording of the Condominium Plan attached as an exhibit
to this Declaration.
Declarant has executed this Declaration on ___________________________, 20__.
___________________________
Vincent O'Flynn
___________________________
Joseph O'Flynn
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF )
COUNTY OF )
On ____________________, 20_____ before me, __________________________, a
Notary Public, personally appeared
_______________________________________________________________________
_______________________________________________________________________
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
______________________________________
This area for official notarial seal.
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.
EXHIBIT A - ATTACH CONDO PLAN
EXHIBIT B
Maintenance Responsibilities
This Exhibit describes the respective maintenance responsibilities of the Owners and the
Association. It may include some improvements not found at the Project, and may omit some
improvements found at the Project. It is the sole responsibility of the Board to determine whether
maintenance of an improvement not mentioned below is the responsibility of the Owner or the
Association.
If there is a conflict between this Exhibit and the Declaration, the provisions of the Declaration
control.
Owner maintenance responsibilities include:
Appliances
Cabinets and other fixtures
Drains in the Exclusive Use Common Area decks, roof decks and yard -- the Owner should
maintain and clean all drains before the beginning of each rainy season.
Drywall and sheet rock
Exclusive Use Common Areas specified in Section 8.1B
Exterior Doors - see below
Exterior light fixtures at entry, deck and yard, and other fixtures and bulbs where fixture is
connected to Unit's electrical system
Heating system
Hot water heater
Interior Doors and hardware
Interior Light fixtures
Outlets and plugs for electrical and telecommunications wiring
Keys and garage door genies required for entry into the Project or the Owner's Unit
Partition walls within a Unit
Plumbing fixtures (sinks, toilets, etc.)
Smoke detectors - battery operated
Wall, floor and ceiling surfaces (e.g. paint, wallpaper, carpet and other flooring materials)
Window coverings
Windows - see below
Owners are reminded that they are obligated to notify the Association of any evidence of leaks or
other defective condition that it is the responsibility of the Association to repair.
Association maintenance responsibilities include:
Drains in the Common Area roof deck - the Association should maintain and clean all drains in
the deck before the beginning of each rainy season.
Electrical fixtures and outlets serving the Common Area (except those maintained by an Owner)
Elevator
Exclusive Use Common Areas specified in Section 8.2A
Fences
Floor, wall and ceiling surfaces in common areas - clean, paint, repair, replace
Irrigation System (other than in yard RY-101)
Landscaping (other than in yard RY-101)
Life Safety Systems - fire sprinkler system, including sprinkler heads within a Unit, hard-wired
smoke alarms, fire alarm
Mailboxes
Retaining walls
Structural elements
Water proofing - roof, exterior paint, siding, waterproof membrane beneath decks
Exterior Doors and Windows: Responsibility for maintenance of exterior doors is assigned as
follows. Exterior doors include front doors, and doors to decks and the yard, screen doors, and
the garage door.
Exterior Doors. The Association is responsible for maintenance, repair and replacement
of the door frame, door casing and door, and repair, refinishing and painting of door
exterior. The Owner is responsible for repair and replacement of those portions of the
door accessible from inside the Unit, including, repairing and painting the interior of the
door, hardware, seals, weather stripping, and any other portion of the door assembly
accessible from inside the Unit. The Association is responsible for maintenance, repair and
replacement of the interior and exterior of the garage door.
Windows. The Association is responsible for maintenance, repair and replacement of the
window frame, exterior trim, and repair, refinishing and painting of the exterior window
frame. The Owner is responsible for repair and replacement of those portions of the
window accessible from inside the Unit, including, repairing and painting the interior of
the window frame and interior window trim, hardware, seals, weather stripping, window
glass and any other portion of the window assembly accessible from inside the Unit.
Window Washing. Each Owner is responsible for washing the interiors of windows and those
exterior windows that are accessible from a deck or yard or the interior of the Unit. The
Association is responsible to wash exterior windows not accessible as just described.
Secretary of State ARTS-CID
Articles of Incorporation of a
Common Interest Development Association
IMPORTANT -Read Instructions before completing this form.
Filing Fee -$30.00
Copy Fees -First page $1.00; each attachment p2ge $0.50 ;
Certification Fee -$5.00
Note: A separate California Franchise Tax Board application is required to obtain
tax exempt status. For more information , go to https:i,'www.ftb.ca.gov. This Space For Office Use Only
1. Corporate Name (Go to www.sos.ca.gov/businessibelname-avai/ability for general corporate name requirements and restrictions.)
The name of the corporation is West End Villa\Je Homeowners' Association
2. Business Addresses (Enter the complete business addresses. Item 2a cannot be a P.O.Box or "in care of' an individual or entity.)
a. Initial Street Address of Corporation -Do not enter a P.O . Box City (no abbreviations) State Zip Code
1628 Fifth Avenue San Rafael CA 94901
b. Initial Mailing Address of Corporation, if different than item 2,3 City (no abbreviations) State Zip Code
c. Business or Corporate Office of Common Interest Development , if any City (no abbreviations) State Zip Code
d. Front street and nearest cross street for the physical location of the common interest development, if Item 2c is not physically on site
Fifth Avenue and G Street
3. Service of Process (Must provide either Individual OR Corporation.)
INDIVIDUAL -Complete Items 3a and 3b only. Must in:lude agent's full name and California street address .
a. California Agent's First Name (if agent is not a corporation) Middle Name I Last Name I Suffix Joseph O'Flynn
b. Street Address (if agent is not a corporation) -Do not enter a P.O. Box City (no abbreviations)
I
State 194t1t 90 Magellan Avenue San Francisco CA
CORPORATION -Complete Item 3c. Only include the name of the registered agent Corporation.
c. Cal ifornia Registered Corporate Agent's Name (if agent is a cc ,rporation) -Do not complete Item 3a or 3b
4 . Managing Agent, if any
a. Fir st Name of Managing Agent Middle Name I Last Name I Suffix
Joseph O'Flynn
b. Address of Managing Agent City (no abbreviations)
I
State I Zip Code
90 Magellan Avenue San Francisco CA 94116
5. Purpose Statement (Check the applicable box . Only one box may be checked.)
------------------------------~
This corporation is a nonprofit Mutual Benefit Corporation organized under the Nonprofit Mutual Benefit Corporation Law. The purpose of
this corporation is to engage in any lawful act or activity, o ther than credit union business, for which a corporation may be organized under
such law. This corporation is an association formed to manage a common interest development under the:
0 DAVIS-STIRLING COMMON INTEREST DEVELOPMENT ACT (CALIFO RNIA CIVIL CODE SECTION 4000 ET SEQ.).
0 COMMERCIAL AND INDUSTRIAL COMMON INTEREST DEVELOPMENT ACT (CALI FORNIA CIVIL CODE SECTION 6500 ET SEQ.).
6. Additional Statements (The following statement:, are for tax-exempt status in California. See Instructions and Filing Tips.)
a. The specific purpose of this corporation is to ____ manage a common interest development.
b. Notwithstanding any of the above statements of purposes and powers , this corporation shall not, except to an in substantial degree, engage
in any activities or exercise any powers that are not in furth erance of the specific purposes of this corporation.
7 . Read and Sign Below (This form must be s ignEd by each incorporator. See I nstruction s. Do not include a title.)
zgz~~
ARTS-CID (REV 06/2019)
Margaret J. Berlese
Type or Print Name
2019 Californ ia Secretary of State
biz/le .sos .ca .g ov
RECORDING REQUESTED, AND
WHEN RECORDED RETURN TO:
Storm water Coordinator/ Administrator
Public Works Department
City of San Rafael
111 Morphew Street
San Rafael, CA 9490 I
COPY of Document Recorded
2:-4-0PM 28-,lul-2022 :i:022-0027973
Has not been cornpared with
original
MARIN COUNW RECORDER
/<._ et!A;J ~1/kivl' fie_ /if k ~ 1-.JB .J SPACE ABOVE THIS LINE FOR RECORDERS USE
STORMWATER MANAGEMENT FACILITIES AGREEMENT
CITY OF SAN RAFAEL
STORMW ATER MANAGEMENT FACILITIES OPERA TIO NS AND
MAINTENANCE AGREEMENT
PROJECT: West End Village
OWNER'S NAME: Joseph O' Flynn and Vincent 0' Flynn
ASSESSOR'S PARCEL NUMBER: 011-193-10
-l -
STORMW ATER MANAGEMENT FACILITIES
OPERATION AND MAINTENANCE AGREEMENT
THIS STORMW ATER MANAGEMENT FACILITIES OPERATION AND MAINTENANCE
AGREEMENT ("A greement") is made and entered into this c9.':L day of trW,/ . 20~by and
b etween Joseph 0' Fly nn an d V i nc ent 0' F l nn (hereinaft er referre d to a~rty Own er") and the
City of San Rafael ("CITY").
RECITALS:
This Agreement is made and entered into with reference to the following facts:
WHEREAS, stormwater management facilities (hereinafter referred to as "Facilities") have been
installed in and must be maintained for the development called West End Village, located at 1628 Fifth
Avenue, San Rafael CA 94901, Marin County, State of California and more particularly described on
Exhibit "A" attached hereto and incorporated herein by reference (the "Property"); and
WHEREAS, the Property Owner is the owner of the Property; and
WHEREAS, the Property Owner remains fully responsible for assuring that the Facilities were
designed, constructed and installed in full compliance with all applicable laws, regulations and
ordinances, all requirements applicable to the development of the Property, and all Best Management
Practices, in accordance with the Erosion and Sediment Control Plan; and
WHEREAS, the CITY U\ban Runoff Pollution Prevention Ordinance, City of San Rafael
Municipal Code chapter 9.30 ("CITY Ordinance") requires proper operation and maintenance of the
Facilities constructed on this Property; and
WHEREAS, the CITY has approved the Stormwater Control Plan prepared by LTD
Engineering, Inc. on the day of September 3, 2021, as this Plan is on file at 111 Morphew Street, San
Rafael 94901 and may be subsequently modified from time to time with CITY approval; and
WHEREAS, the development conditions of approval require that Facilities, as shown on the
approved Stormwater Control Plan, be constructed and properly operated and maintained by the
Property Owner; and
WHEREAS, the Stormwater Control Operation and Maintenance Plan (together with the
Stormwater Control Plan, hereinafter the "Plans") includes an annual inspection form for the Facilities
constructed on this Property, and
WHEREAS, this Agreement memorializes the Property Owner's maintenance, operations, and
inspection obligations under the CITY Ordinance and the approved Plans.
-2 -
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants
contained herein, and the following terms and conditions, the parties hereto agree as follows:
SECTION 1
Responsibility for Operation and Maintenance: The Property Owner will maintain printed copies of
the approved Plans at the Property. The Property Owner must maintain the Facilities in good working
condition acceptable to the CITY for the life of the project, and in compliance with the CITY Ordinance
and the approved Plans. If significant changes to the operation and maintenance of the Facilities are
proposed, the Property Owner is responsible for submitting a revised Stormwater Control Operation and
Maintenance Plan to the CITY for approval. Upon transfer of the Property, the Property Owner shall
provide the new owner with the current Plans and shall set forth in any transfer agreement a requirement
that the new owner assume responsibilities set forth in the Plans and this Agreement.
SECTION2
Inspection by Property Owner: The Property Owner, at its own expense, shall conduct annual
inspections to ensure the Facilities are in good working order. The Property Owner may elect to use a
qualified independent inspector to inspect the Facilities. The Property Owner shall send a report of the
annual inspection to the Department of Public Works Stormwater Division at the addresses shown in
Section 8 below. The annual inspection report shall include completion and certification of the form
described in the approved Storm water Control Operation and Maintenance Plan. If the Property Owner
fails to submit the annual inspection report by December 31st, the CITY or its agents may (but without
any obligation to do so) perform the inspection and invoice the Property Owner for the cost in
accordance with Sections 3 and 4 below. If the inspection reveals that Facilities are not in good working
order, Property Owner, at its own expense, shall undertake necessary action to restore Facilities to good
working order.
SECTION 3
Right of Entry and Facility Inspection: The Property Owner hereby grants permission to the CITY,
its employees and authorized agents to enter the Property, and to inspect the Facilities whenever any of
the CITY or its agents deem it necessary in order to enforce provisions of the CITY Ordinance. The
CITY its employees or authorized agents may enter the Property at any reasonable time to inspect the
premises and Facilities operation, to inspect and copy records related to stormwater compliance, and to
collect samples and take measurements. Whenever possible, these entities will provide notice prior to
entry. The CITY may charge a fee to cover the costs of the inspection.
SECTION 4
Failure to Perform Required Facility Inspections, Repairs or Maintenance by the Property
Owner: If the Property Owner fails to inspect and maintain the Facilities in good working order and in
accordance with the approved Plans and the CITY Ordinance, the CITY, with prior notice and pursuant
to the abatement procedures of San Rafael Municipal Code Chapters 1 .40, 1.42, 1.44, and/or 1.46, may
enter the Property to inspect or to return the Facilities to good working order and thereafter recover its
costs in accordance with the abatement procedures of San Rafael Municipal Code Chapters 1 .40, 1.42,
1.44, and/or 1.46. The CITY is under no obligation to maintain or repair the Facilities, and this
Agreement shall not be construed to impose any such obligation on the CITY. If the CITY under this
section takes any action to inspect the Facilities or to return the Facilities to good working order, the
Property Owner shall reimburse the CITY for all the costs incurred by the CITY. The CITY will
provide the Property Owner with an itemized invoice of the costs and the Property Owner will have 30
days to pay the invoice. If the Property Owner fails to pay the invoice within 30 days, the CITY may
secure a lien against the Property of the Property Owner in the amount of such costs. In addition, the
CITY may make the cost of abatement of the nuisance caused by the failure to maintain the Facilities a
special assessment against the Property that may be collected at the same time and in the same manner
as ordinary taxes are collected as provided in the abatement procedures of San Rafael Municipal Code
Chapters 1 .40, 1.42, 1.44, and/or 1.46. This Section 4 does not prohibit the CITY from pursuing other
legal recourse against the Property Owner.
SECTIONS
Indemnity: The Property Owner shall defend, indemnify and hold harmless the CITY, its officials,
employees and its authorized agents from any and all costs, losses, damages, accidents, casualties,
occurrences or claims which might arise or be asserted against the CITY and which are in any way
connected with the construction, operation, presence, existence or maintenance of the Facilities by the
Property Owner, or from any personal injury or property damage that may result from the CITY or other
public entities entering the Property under Section 3 or 4 herein above.
SECTION 6
Successors and Assigns: This Agreement shall be recorded in the Office of the Recorder, Marin
County, California, at the expense of the Property Owner. This Agreement and the covenants of the
Property Owner set forth in numbered Sections 1 through 5 above shall run with the land, and the
burdens thereof shall be binding upon each and every part of the Property and upon the Property Owner,
its successors and assigns in ownership ( or any interest therein), and said covenants shall inure to the
benefit of and be enforceable by the CITY, its successors and assigns in ownership of each and every
part of the street and storm drains.
SECTION7
Severability: The provisions of this Agreement shall be severable and if any one of the provisions of
this Agreement is adjudicated invalid by a court of competent jurisdiction it shall in no way effect any
other provisions and all other provisions shall remain in full force and effect.
SECTION 8
Notices: All notices and other communications required or permitted to be given under this Agreement,
including any notice of change of ownership, address or significant changes to the Facilities or Stormwater
Control Operations and Maintenance Plan, shall be in writing and given by personal delivery, or deposited
with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified.
Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit
with the United States Postal Service. Notice must be given to the Property Owner, its successors and
-4-
assigns, at the address(es) shown on the records for the Property maintained by the Assessor. Notice to
the CITY must be given by personal delivery or mail to both of the following addresses:
TO CITY:
and,
Public Works Director
Department of Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
Stormwater Coordinator or Administrator
Department of Public Works
City of San Rafael
111 Morphew Street
San Rafael, CA 94901
SECTION9
Recordation: This Agreement shall be recorded by the Property Owner with the County Recorder
within 30 days of the date of execution. Recordation shall be at the expense of the Property Owner.
SECTION 10
Effective Date and Modification: This Agreement is effective upon the date that the final signatory
executes the Agreement. This Agreement shall not be modified except by written consent of both
parties. Such modifications shall also be recorded in accordance with Section 9.
[Signatures are on the following page.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year
first above written. /
CITY OF SAN RAFAEL
JIM SC
APPROVED AS TO CONTENT:
RIL MILLER, Director of Public Works
Attachments: Acknowledgements
Exhibit A
If Property Owner is an entity, Property Owner hereby
represents and warrants that the persons executing this
Agreement on behalf of Property Owner have full authority to
do so and to bind Property Owner to each and every term of
this Agreement.
-6 -
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF California )SS
COUNTY OF -M-a-rin _____________ )
On July 21 , 2022 before me, L. Serchia , Notary Public, personally appeared ------------
Vincent O'Fl y nn and Jose ph O'Fl y nn
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 sea/
Signature /,l"l l.£C£lt.lA )
c=7
This area for official notarial seal.
OPTIONAL SECTION -NOT PART OF NOTARY ACKNOWLEDGEMENT
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the
documents.
W INDIVIDUAL
D CORPORATE OFFICER(S) TITLE(S)
D PARTNER(S) □ LIMITED
D ATTORNEY-IN-FACT
D TRUSTEE(S)
□ GUARDIAN/CONSERVATOR
D OTHER
SIGNER IS REPRESENTING :
Name of Person or Entity
0 GENERAL
Name of Person or Entity
OPTIONAL SECTION -NOT PART OF NOTARY ACKNOWLEDGEMENT
Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form .
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW
TITLE OR TYPE OF DOCUMENT:
NUMBER OF PAGES DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
Reproduced by First American Tltle Company 11/2007
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
valid ity of that document.
State of California
County of Marin
On Ju}
1
v ~ rJ..fbLcJ
)
before me, Brenna Kathleen Nurmi, Notary Public
(insert name and title of the officer)
personally appeared __ U/=----.!..!/~· ....l-"'----"<C.L..jl..lC:::::L......:=--------------.,..__------H...._ __
who proved to me on the basis of satisfactory evidence to be the_ ~son • whose name i e
~~9"ibe9 to the with in instrument and acknowle~d to me tha~ 7thef executed he same in
~,tter/tlffiir authorized capacity(~, and that by~!>'r/tt)elr signature~ on the instrument the
person¢}, or the entity upon behalf of which the person~ acted, executed the instrument.
I certify under PENAL TY 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 __ /j_._/Vv_~ __ -_____ · ___ _ (Seal)
EXHIBIT "A"
Property Description
Nine unit condominium building located at 1628 Fifth Avenue, San Rafael, CA 94901
Real property in the City of San Rafael , County of Marin, State of California, described as follows:
BEING ALL OF PARCEL TWO AND A PORTION OF PARCEL ONE AS SAID PARCELS ARE
DESCRIBED IN THAT CERTAIN GRANT DEED FROM BRIAN TAYLOR PEARCE, AN
UNMARRIED MAN AND BRIAN TAYLOR PEARCE, SUCCESSOR TRUSTEE OF THE
ROBERT PEARCE LIVING TRUST TO VINCENT O'FLYNN, AN UNMARRIED MAN AND
JOSEPH O'FL YNN, A MARRIED MAN, AS HIS SOLE AND SEPARATE PROPERTY, ASJOINT
TENANTS RECORDED AUGUST 8, 2017 AS DOCUMENT 2017-0031709 IN THE OFFICE OF
THE RECORDER OF THE COUNTY OF MARIN, STATE OF CALIFORNIA, PARTICULARLY
DESCRIBED AS FOLLOWS:
BEGINNING AT THE POINT ON THE NORTHERLY LINE OF FIFTH A VENUE, SAID
POINT BEING SOUTH83°13'45" EAST 74.13 FEET FROM THE INTERSECTION OF SAID
NORTHERLY LINE OF FIFTH AVENUE AND THE EASTERLY LINE OF "G" STREET, SAID
POINT ALSO BEING NORTH 83°13'45" WEST 2.25 FEETFROM THE SOUTHEASTERLY
CORNER OF SAID PARCEL ONE; THENCE FROM SAID POINT OF BEGINNING,
LEAVING SAID NORTHERLY LINE, NORTH 06°58'29" EAST 108.44 FEET TO A POINT ON
THE NORTHERLY LINE OF SAID PARCEL ONE, SAID POINT BEING SOUTH 83°15'00"
EAST 55 .49 FEET FROM THE NORTHWESTERLY CORNER OF SAID PARCEL ONE;
THENCE EASTERLY ALONG LAST SAID NORTHERLY LINE SOUTH 83°15'00" EAST
11.50 FEET TO THE NORTHEASTERLY CORNER OF SAID PARCEL ONE, SAID POINT
ALSO BEING ON THE WESTERLY LINE OF SAID PARCEL TWO; THENCE NORTHERLY
ALONG LAST SAID WESTERLY LINE NORTH 11 °50'57" EAST 19.84 FEET TO THE
NORTHWESTERLY CORNER OF SAID PARCEL TWO; THENCE EASTERLY ALONG THE
NORTHERLY LINE OF SAID PARCEL TWO SOUTH 83°15'00" EAST 76.50 FEET TO THE
NORTHEASTERLY CORNER OF SAIDPARCEL TWO; THENCE SOUTHERLY ALONG THE
EASTERLY LINE OF SAID PARCEL TWO SOUTH 11°54'1 l" WEST 128.75 FEET TO THE
SOUTHEASTERLY CORNER OF SAID PARCEL TWO, SAID POINTBEING ON THE SAID
NORTHERLY LINE OF SAID FIFTH AVENUE; THENCE WESTERLY ALONG SAID
NORTHERLY LINE, NORTH 83°13'45" WEST 78.63 FEET TO THE POINT OF BEGINNING.
THIS LEGAL DESCRIPTION IS MADE PURSUANT TO THAT CERTAIN CERTIFICATE
APPROVING A LOT LINE ADJUSTMENT, CERTIFICATE NO. LLAl 8-002, RECORDED
DECEMBER 20, 2019, AS INSTRUMENTNO. 2019-0048474 OF OFFICIAL RECORDS.
APN: 011-193-10
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