HomeMy WebLinkAboutAgenda Bill 4A 06/07/2010`~ A L ~'~?
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DATE: June 7, 2010
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: John Brown, City Manager
SUBJECT: A Resolution of the City Council of the. City of Petaluma approving the
termination of the Joint Use and Maintenance Agreement between the Victoria
Homeowners Association and the West Haven Homeowners Association.
ItEC®IVIIVIENIDA~'I®IV:'
It is recommended that the City Council adopt the attached. resolution approving the termination
of the Joint Use and Maintenance Agreement for park facilities between the Victoria
Homeowners Association and the West Haven Homeowners Association.
~ACI~GIt®UPdD:
Approval of the Rockridge Pointe (now known as West Haven) subdivision's tentative
subdivision map included a condition from the City Council requiring an agreement between the
Victoria Homeowners Association and the West Haven Homeowners Association in which
Victoria would permit members of West Haven to use Victoria's four developed private parks
and in return West Haven would pay to Victoria an annual fee for this park usage and
maintenance. The condition was `met through the creation of a Joint Use and Maintenance
Agreement recorded in the Official Records of Sonoma County. While the City of Petaluma is
not a party to the agreement, the agreement expressly provides that it can be terminated if twelve
months advance written notice is given by West Haven to the Victoria Homeowners Association
and the City gives written approval.
A majority of the West Haven Homeowners Association (HOA) members voted to terminate the
agreement.on May 27, 2009 and provided a notarized Termination Notice to the Victoria HOA
on June 1.3, 2009. On March 1, 2010 the City Council heard testimony from homeowners from
Victoria and West Haven regarding West Haven's request to terminate the joint use and
maintenance agreement. Although West Haven has requested the City's approval, the Victoria
HOA is opposed to the termination of the agreement. At its March 1, 2010 meeting, the City
Council. directed that the two associations meet and attempt to arrive at a mutually agreeable
solution, before bringing the item back to Council for further consideration. The agreement
currently requires West Haven to pay approximately $16,000 per year to Victoria.
Agenda Review: ~ ,/
Div. Manager ~ City Attorney Finance Director~~~+"`.u City Manag~3~~
I~ISCLTSSI®N:
Both homeowners associations have attempted to negotiate an agreement but have not succeeded
in doing so. Based on correspondence from representatives of each association there have been
offers and counteroffers for a reduction in West Haven's costs, but the two sides have not been
able to agree on an acceptable amount of that reduction. West Haven also wants a finite
agreement, with a 5-year term. Victoria seeks a perpetual agreement with termination only for
cause, such as failure to maintain the park facilities, failure to account for use of funds, using
park funds for non-park purposes,'etc. Each party's final offer, based on correspondence provided
to the city, is summarized below:
® West Haven: Payment of $3,000 per year for 5 years, after which time the agreement
shall terminate.
® Victoria: 50% reduction in payment and termination for cause only.
West Haven has expressed concern that they would have to start all over again should the
Council not act on their request prior to June 13`h -the expiration of the one year time period
associated with the notice given last June from West Haven to Victoria. While this could be one
interpretation of the agreement under which it can be argued that a new notice period is required
if the City's written consent is not obtained within.the 12 month notice period, the express terms
of the agreement are not clear enough for the city attorney to conclusively agree with that
interpretation. The city was not involved in the negotiations and cannot offer any insight into the
parties' intent on this point.
Staff has encouraged representatives of both homeowners associations to continue efforts to
reach agreement prior to the meeting. Absent an agreement between the parties, staff
recommends approving the termiiation of the Joint Use and Maintenance Agreement between
the Victoria Homeowners Association and the West Haven Homeowners Association for the
following reasons:
® The joint use agreement was not required either as a specified CEQA mitigation or to
meet City park standards, which were met by funding and construction of the public park
within West Haven.
® When the City approved the final subdivision map, the City accepted the joint use
agreement (signed by and presumably satisfactory to both the West Haven and Victoria
Homeowners Associations) as compliance with the tentative map condition. of approval.
® The joint use agreement contains a termination provision requiring 12-months advance
notice and City Council approval. The basis for the 12-month notice and termination
provision is not defined, but it was agreed to by both parties when the agreement was
executed.
® The joint use agreement places no conditions on West Haven's right to terminate other
than written evidence of the City's approval, which may have been considered necessary
because the agreement was a condition of project approval.
FINANCIAL IMPACTS:
There was $1,914.86 remaining in the Rockridge Pointe (West Haven) cost recovery account
when this matter was raised for Council consideration. City and legal staff time in preparing this
item have been charged against that balance which was insufficient to cover costs. Assuming that
no further staff or legal time is needed to address this matter, it is estimated that approximately
$1,500 of additional costs will be supported by the General Fund.
ATTAC>E1ME1V'I'S
1. Resolution
2. Joint Use and Maintenance Agreement
® Items listed below are large in volume and are not. attached to this report, but maybe viewed in the
City Clerk's office.
1. Correspondence/Petitions Received since January 1, 2010
3
Attachment 1
1SESOI.UTION ®F `TIIE CITE' C®iJNCIL OF TIIE CITY ®F PETAI.gJ1VIA
APPROVING TIIE TERMINATIOI~T` OF TIDE .T®IN`T USE AND MAINTENANCE
_.
AGItEE1VIENT F®R' PAit)K FACILITIES )BETWEEN TIIE. VICTORIA, IIOMEOWNEI~S
ASSOCIATION AND TIIE WEST RAVEN IIOMEOWNERS ASSOCIATION
WIIEREAS, Resolution No. 2003-054 N.C.S'. contained a condition of approval from
the City Council requiring an agreement between the Victoria Homeowners Association and the
Rockridge Pointe project (now, known as West Haven) in which Victoria will permit members of
West Haven to use Victoria's four developed private parks. and. in return West Haven will pay to
Victoria an annual fee for this park usage based on a formula mutually agreed to by West Haven
and Victoria; and
WIIEItEAS; this condition was met through the creation of a Joint Use and Maintenance
Agreement recorded as Document No. 2005-05$742 in the Official Records of Sonoma County;
and,
WIIEREAS, paragraph two of that agreement provides for termination of the agreement
upon twelve months advance written notice to the Victoria Homeowners Association and subject
to the written approval of the City of Petaluma; and,
WHEREAS, on May 27, 2009 a majority of the West Haven Homeowners Association
members voted to terminate said :agreement; and,
VVIIEREA5, on .June 13, 2009; the West Haven Homeowners Association provided_ a
notarized Termination Notice to the Victoria Homeowners Association;
NOW, THEREFORE, BE IT RESOI:,VED that the City Council of the City of
Petaluma hereby approves the termination of the Joint Use and Maintenance Agreement between
the Victoria Homeowners Association and the West Haven Homeowners Association as
recorded in Doc. No 2005-05.8742 in the official records of Sonoma County and in accordance
with the termination clause, Section F2, of that agreement.
Attachment 2
`~ RECORDING REQUESTED BY
-..AND
RETURN TO
Victoria Homeowners Assn
West Haven Homeowners Assn
c/o. Steward Property Services, Inc.
720 Southpoint"Blvd.., 'Suite 210
Petaluma., CA 94954
X005@8~~~4
OFFICIAL RECORDS OF
SONOMA GOUNT.Y
,FiRSF AMER3CAN'T17LE CO.EEVE T. LEWIS
06!20/20@5 08100 AGM ~ $ PGS
RfiCDRDING FEE: 118.00 p
PAID
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ti
DOCUMENT TITLE(s)'
,70INT' T:7SE AND MAINTENANCE AGREEMENT
THE PURPOSE.Ok' THIS RE-RECOR:DING..IS TO CORRECTI;Y REFLECT EXHIBITS
A THRU D ERRONEOUSLY. SHOWN IN DOCUMENT NO. 2005058742 SONOMA COUNTY
RECORDS.
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200~~~8~~2
l11l~ll~ll!l~Illlllll~111111111illllllfll~llllNlll~ll "soNOrciaacaurctTYRQS of
~ ~ ~~I-~N RECORDED IvTA]L TO: GENERfiL PUBLIC EEVE T. LE41I5
04L29/2605 09:57 RGM ~ ~ PGS
PPRD
RECORD:It~G FEE': 58.00
VICTORIA HOIvfEOWNERS ASSOCi;4TION PaloL -
c/o Steward Property Services,. Inc. „~ G
720 Southpoint Blvd., Suite 210
Petaluma, CA 44954
TOTN']C USE AND MAINTENANCE AGREEMENT
THI5 JO1NT USE AND IvIAINTENANCE AGREEIvIENT (this "'Agreement") is made and
entered into this l'st'day of January 2005, by and between°,ROCKRIDGE PQl INVESTORS
LP, a California Iirrii.tedpaltnership, ("Developer.") and VICTORIA HbMEOV1~NER5
ASSOCL4TION, a California nonprof t mt~tua715enef t'corporation {"Association").
. RECITALS:
This Agreement is made with reference to the following factst
A. The Association is the owner of certain real;property"located in the City of
Petaluma, County of Sonoma, State of California,. including the real property described in Exhibit
"A" attached"hereto and incorporated herein by this reference(collectively, the "Park Facilities").
B. The Park Facilities and'.the other real property owned by the Association and/or its
members and which compnses the Victoria eorr~on interest development (the "Victoria
Development"} are subject to the provisions ofthe Declaration of Covenants, Conditions and
Restrictions of Victona Homeowners Association recorded' on November 2, 1988, as Instrument
No. 88094088, in the OfFcial Records of the. County of Sonoma,. State of California ("Official
Records"), as such,,Deelaation fias'been amended by instruments recorded on November 9, 1998
(Instrument No. 88096549), an July 5 1994 (Instrument Nb.,1'994 0082974} and on January 25,
1999 {Tnstru.ment"No. 1999 0009545), and as it has been amended andrestated in its entirety, along
with the above-referenced "amending.instruments, by the Victoria,Homeowners Association
Amended and Restated Covenants, Conditions and Restrictions recorded on "December 22, 2003
(Instrument No. 2003 25$247} ail",in the Offcial Records {as amerided, the "Declaration").
C. Developer is presently developing real, property (,Roclcridge Pointe): is,located-
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:southeast of. and in' prox_irnity, but not contiguous,"to=the Victoria Development which is more
particularly described as set forth.in Exhibit "B" attached hereto and.incorporated herein.by this
reference".
D, 1eveloper intends toincorporate a separate association (West Maven Association )
to be: known; as "West Haven Homeowners Association"'or. such other corporate name which
Developer will desio afe-at the time of incorporation, which. wiI] be incorporated.- as a California
nonprofit mutual `beriefit corporation for the purpose of managing the.Rockridge Pointe Property.
E: Developer intends to develop. the Rochmdge;Pointe Property in phases into 62
residential lots and;coinmon area and to subject the Rockridge Pointe Property, on a phase by
phase basis, to :the,Declaration of .Covenants, Conditions and Restrictions to be recorded with
( ) respect to [he Rockridge Pointe Property (the West Haven Declaration).
F. The' parties .desire to enter into an agreement whereby the Park Facilities are made
available for use. by the Residents (as. that term is defined in Section 1, below) of the Rockridge
Pointe Property iri accordarice with tE1e terms,:covenants and conditions of this Agreement.
NOW, THEREI'ORE, for the 15eneft of the Association, Developer; the.Rockt'idge Pointe
Property and the Residents, from time to time, of the Rockridge Pointe Property, the Association
and theDeve]oper, for itself and on behalf of the West Haven Association when ikis incorporated,
in consideration of the mutuai;promises, covenarits and conditions herein contained and for other
good and valuable consideration the receipt of which is hereby aeknowledged`by the parties hereto
agree as foilows:
1. JOINT`USE: Subject tp the tenns,.:covenants and conditions of this.Agreement, the
Association hereby grants to any persons who reside in a cainpleted residentiai dwelling vrithin the.
Rockridge Pointe,Property (excepting;any lot which is notthen governed by the West Haven
Declaration), either as `Owner~or as'Tenant of such dwelling or as a member of the regular
household of the Owner or the Tenant (the 'Residents"), the°perpetual right. to use and enjoy the
Park Facilities on the same terms aril conditions as the Members of the Association are entitled to
use the Park Facilities.
2. TER1,~7.II~TATION: West Haven Association .shall: have the right, upon twelve (12)
months advance written notice. to the Association, to terminate the Agreement, subject to the
written approval of the City ofPetaluma: Such written notice to~ tiae Association shalt contain a
) Certificate of the Secretary of°the West Haven. Association which cemfes that the termination was
~' approved by a majority of each.class of members of he West Haven ,Association, or if the West
Haven Association then.only has one class of members, by a.majority of the members of the West
Haven Association and a majority of the members of t}ie West Haven~Associatian excluding the
vote of the developer. If within this twelve (12) month period of tirrie,West Haven Association
obtains the written approval of the City of Petaluma`to~this termination and provides to'the
Association a copy of a letter. or otherwriting from the City of..Peta3uma;evidencing its approval of
the termination,.then upon expiration of the twelve (,12)•nionth period (unless the Association and
the West Haven Assocatian~ enter into a written agreement canceling the notice of termination),
the Agreement shall automatically erminate and all parties shall, be released. from any and all
duties and;iiabiltesao one another, except for any such duties or liabilities which are incurred
before the expiration of the twelve (12) month period..Immediately upon the Association's request
.at arty, time after, such automatic~termination, West Haven,Association, Developer (unless
Developer~is.no longer a party)' and the Association shall take. alt actions necessary to expunge
frorn;the D`ffcial'Records any recording;of the Agreement or of any inerriorandum recorded in
connection with the:Agreement ,including, without limitation, the execution and deliuery by West
Haven. Association and the Developer (unless IDeveloper is not Ionger a party) to the Association,
of a qu:itclaim.deed designating the Association as transferee, in recordable form, and/or any other
document required`by the Assocationin order to delete the rights granted bythe Agreement from
such t7fficiai' Records.
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3. NO.OTHER CON'l~t:IBUTION: T_he Association will not be entitled to charge or~
..,
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is ~ assessJ]eveIoper; the "West Haven Association. or the Residents for the right to use the. Park
Facilities, except as set forth'in this. Agreement
4. MAII~l~NANCE AN1ll Iy1~~7AGEMENT OF"PAR:IKFACII~TIES: The
Association shall: maintain, repair, replace, operate-and otherwise manage the Park Facilities, based
solely orr the business judgment and managerial di'scretian:of its Board of Directors. The
Association shall have"no right or pow.er'fo adopt any rule-or regulation which discriminates
between. the IVlembers of. the Association and the Residents. The Association shall provide
Developer {during the period of time"that at owns any real property within the.Rockridge Pointe
Property) and the West Haven Association with prior written notice of the" time and place of any
open meetings of the~Association's Board of`Directors where,the Park Facilities or assessments
concerning the same are agenda items. The.P"resident of West,Haven Association, and. a
repFesentative of Developer shall be "allowed to .attend"such meetings; provided; :however, neither
the President of the West Haven.Association.nor any:representative of Developer, shall have any
right to vote on any decision made by"the Association or its Board of Directors.
S. ALLOCATION OF':COSTS A proportionate.ahare of the budgeted costs of
operation,:maintenanee,,;repair and:replacement of the Park-Facilities, including ancillary costs
.such as liability, casualty and other insurance, shall be assessed to the West Haven Association as
provided in this Section 5.
{a) RESERVE'CONTRIBUTIONS The~total reserue contributions to be used in
the calculation. of'the proportionate share as provided- in (c); below,. shall be'caIcuTated
based upon the Association's'then most currenf reserve study, based only upon the.144 lots
within the Victoria.DeveIopment, as follows:
(i) the sinount of the monthly contribution towards.reseives payable by aII
144.1ots: within the Associationfor thefiscal year in question {to be determined
each year by the.Association), divided 6y
(ii) the total current.cost of all components included within the Association's
most current reservestudy, multiplied by
(iii) the total .current cost of the following components as-ncluded'witlin
the Association's most current reserve study: ieeins 1; 2 3; 4; 25% of 8; 11; 12; 17;
I8; 10% of 19; 25% of 20; 25%n of 2I; 25% of 22; 1$% of_23; 15% of 24,;, 25; and
26. Said iterris are described on the, reserve study for FY 2fl03 attached' hereto as
Exhibit "C" and incorporated herein.
,, As:an example,"based`upon the;reserve study pages attached Hereto as Exhibit "G", and
using fiscal''"year;2003;
,,,
{i) IYlonthly contribution towards reserves: $12;42 (per lot} x-.144 ='
$1,860'A0
(ii) Total current cost of a1L components; $1,117,456:00
(iii) Total current cost~of specified components: $232,530.40
(i}' $1,860.00. (ii') $1,11'7,45;00 x (iu) $232530.OQ= $387.05 per'month (FY 2003)
.) .
The amount derived from the calculation conducted in accordance with this subsection S
{a) ($387:05 per. month in the foregoing example) shall be allocated between the Assocatior and
the West Haven Association in accordance with subsection's (c); below.
(b) OPERATING. CASTS, The total operating costs to be used in -the calculation
of "the proportionate share as provided in subsection S (c), below; shall be the sum of the
follovring items. derived from the Association's budget for the fiscal year in question:
(1) 80% of the expense for water,
{2) .1'S% of°the expense for energy usage {electricity, gas and other forms of
energy);
{3) 60%. of the,expense for contractpayments to the Association's landscape
contractor(s);
{4) 25% bf the expense for landscape improvements;
(S) 25% of the expense for landscape repairs;,
(6} 25% of'~the expense for irrigation repairs;
(7) 25% of the expense far tree: maintenance;
-~ (8) 25.% of`the expense for backflow' devices;
(9).25%.of the expense far weed abatement;
(10) 25% of the expense for lighting repairs;
(11) 75°10 of the expensefor insurance;
{12) 25%,of'the.expenseformanagement;
(13) 25% of the expense for reserve study,.. if any:
The percentages of items (~), (5), (6), (7),.{8),and~;{9); above,'are to be adjusted annuallyby
the Association based upon the actual work budgeted,by the Association foz a particular year: The
parties agree that the percentages of items (1), (2), (3}, (10), (11), (12) and (13) shall not be
adjusted except upon mutual~written agreement of thee-parties.
As an example, based upon the Association's 2003 budget attached hereto'as"Exhibit "D"
and incorporated herein: '
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8Q% Qf $11,OJ:7 _ 12 = $91.8.0$ $734.47 (water)
IS% Of $5,058 =12 = $421.50 $63:23 (energy)
60%n Of $38,201 =12 = $3,183.42 $1,9:10.05. (landscape contract)
25% Of $9,883 =12 ='x$823:58 . $205:90' (landscape improvements)
25% Of $3,577 ~ T2 = $298:08 $74.52 (landscape repairs)
25% Of $3,250 _ 12 = $270:83 $67.71 (rogation repairs)
25%n Of $2,OT4 = 12 = $172.83 $44.9.4 (tree maintenance)
25% Of"$400 -:- 12 = $33.33 $8.33 {baclcflow)
25% Of $7,550 ~ 12 = $629.17 $157:29 (weed abatement]
25% Of $3,991 _ 1Z = $332.58 $83.:15 (lighting repairs)
75% Of $3,917 = 12 = $326.42 $244.81 (insurance)
25% Of $17,371 :- 12 =.$1,447.58. $361:9;0 (management)
25% Of $2,000 -12 = $166.67 $41.67 (reserve study)
TOTAL $3,997,97
The amount of operating costs per month calculated asset forth in subsection 5 (b} above
,!) shall be allocated between the Association and the West-Haven Association in accordance with
subsection 5 (c), below.
(c) PROPORTIONATE SHARE; The West Haven Association shaD pay the
Association a proportionate share.of the reserve contributions and of the operating costs calculated
as set forth in subsections 5 (a).and 5 (b), above. The. proportionate share payable by the West
Haven Association each month shall be equal to the Association's total .reserve contributions and
operating costs budgeted'€or such month, mriltiplied by a fraction where the numerator is equal to
the number of lots then subject to payment of regular assessments to the VTest Maven Association
and the denominator.is equal to the numerator plus 144 (which is the number of lots in the Victoria
Development).
As an example, bases! upon the examples in subsections 5 `(a) and 5 (b), above:
Assuming the Rockric3ge'Pointe Property then includes.l5 Igts subject to the payment of
regular. assessments, and.assunung'the Association's total reserve contribution calculated by the
method setfortti in subparagraph (a) above is equal to $387.05 per rnontfi and .the Association's
.operating costs calculated by the method set forth in subparagraph (b) above.is equal to $3997.97
.per month, the total proportionate share payable by the West Haven Association for'that month
would be calculated as follows:
Reserve Contribution: ($ 387.05 x 15) ~ (15 +.144 + 93} _ $23;04 per month
Operating Costs: ($3,997.97 x I5) _ (15 + 144 + 93) = $237.97 per month
} ~ Total,Proportionate.Share per month payable by Vi~est Haven Association in Chis example =
J . $4'13.68' per month.
5
/D
Assuming the West Haven Association then includes 621ots subject to the payment of
I ) regular assessments and assuming the Association's total reserve contribution calculated by the
.method set forth, in subparagraphi (a) above is equal. to $ 387A5 per-,month and the Association's
operating costs equal $3,99..7.97 per month, the total. proportionate. share payable by the West
Haven Association for that month (and all following months as longs as the number of Iots does
not exceed tit) would be calculated as follovrs:
Reserve Contribution: ($387.05 x 62) :- (62 + 144 +93) = $80.26 per month
Operating Costs: ($3,997.97 x 62) = (62 + 144 + 93} _ $829.01 per month
Total Proportionate Share per month payable by West.I~aven Association in this example
$1,319.76.
(d} RESERVE STUDY: The parties hereby acknowledge and understand that the
Association shall cause'the.reserve study to be updated,from time to time, and that future
improvements and upgrades of the Park Facilities and/or future reserve.studies may result in
added, new or different components in the Park Facilities .and that any such future improvements,
upgrades, new of different components may result.in different calculations, numbering and/or
percentages from those set forth in subparagraph 5 (c), above all ~in the discretionary judgment of
the Board of Directors'of the Association. It is further hereby acknowledged and understood
between the parties that the calculations of the Association's total reserve contributions may
change:in accordance vrth such future reserve studies, upgrades, or improvements. Accordingly,
the parties agree that theresults of stick future.reserve studies, upgrades and improvements shall be
deemed to be incorporated into the formulae set forth in subsection 5 (c) above and that the West
haven Association's proportionate share shall be recalcuIa.ted in accordance with any such future
reserve studies, upgrades and' improvements. Each time a calculation or recalculation is made as
provided in this Agreement;, the reserve contributions shall be calculated'based upon the most
recent reserve study obtained byttie Association and that reserve~study shall be deemed to be
incorporated into the formulae set forth in subsection 5, (c), above. Any recalculation of the
proportionate share payable by the West Haven Association under this Paragraph 5 shall be
effective upon written notice from the Victoria Homeowners Association to the West Haven
Association.
(e) SFECIAL:ASSESSIylENTS: 1Votwithstandng.anything in this Agreement to the
contrary, in the event that he-Association incurs extraordinary expenses in connection with the
ownership, operafi~n, maintenance, management, repair or'replacement of the Park Facilities, the
Association may levy a special. assessment to be paid''by Association members and the 'West Haven
'' Associaton'in accordance with the Victoria Homeowners Association's governing doeurrients and;
'this;Agreement. In such event, the West Haven Association hereby agrees o pay its proportionate
share of such special assessment as calculated in the same manner as'the reserve.contribution.
As an example, assuming a special assessment of $lOQ',000:00 and the Rockridge Pointe
Property then includes 25 lots subject to the payment of regular assessments;
Specia.I AssessmentEontribution: ($100,000 x 25} - (25 + 144+ 93} _ $9,541.98 total
coritribvton payable by West Haven Association.in this example.
6. PAYMENT ~IFORMATION: No Iater than thirty (30) days before the beginning
l of the Association's fiscal year, the Association shall prepare and provide the West Haven
J ~ Association with:
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(a) WRITTEN STATEMENT:. A written statement of the amount (calculated
~ i:ir accordance~with the terms of this Agreement) which the'VJest Haven Association must
" pay to the Association on a monthly basis during the Association's next f scab year. The
written statement shall be,Based upon'the budget described in subsection. 6 {b), below, and.
the Allocations af'Cost described-in Section 5, above. The statement•shall be based upon.
the number of lots then within the lZockridge.Pointe Pzoperty which are subject to the
payment of regularras"sessments to the'Wesf Haven Association, which number the West
Haven Association shat] provdeao~the Association in writing not less than forty five (45)
days before the beginning of~the Association's fecal year and certified by an officer of the
West Haven Association. If this.number changes during, the year, the West Haven
Association shall immediateIynotify the Association in; writing and the Association shall
prepare a revised written statement effective as of the date of the change.
(b), BUDGET: The Association's :budget far°the operation, maintenance, repair
and replacement of•ttePark Facilities shall be prepared in accordance with Section I3d5{a)
of the California Civil Code. The budget shall be prepared consistently with the Operating
Cost Manual published by the California Department.of Real Estate or, in the sole
discretion of the Vietoria;Homeowners Association's $~ard of Directors, based upon the
advice of a qualified°budget consultant retained by that:Association.
7. FUNDING:
(a) No later than the first day of-each month during.the Association's fiscal
year,; the. West Haven Association shall` pay to the Association the gross amount set forth in
the written statement described'in subsection 6 (a); above.
•~ (b) The West Haven Association. acknowledges that late payment to the
Association will cause the.Association to incur costs not:contemplated by this: Agreement,
the exact amount of such costs being extremely difficult and"impracticable'to fix. Such
costs include, with"out limitation, processing and accounting charges, Therefore, if any
payment due the Association by the West Haven Association is not received by the
Association when due,_the.West Haven Association will pay to the Association an
additional sum equal to the greater of Ten Dollars ($10.00} or ten percent (10%) of the
overdue amount as a latecharge. The parties agree that proof of actual damages would be
costly and/or inconvenient and that this late charge. represents areasonable sum considering
all the eircumstances.exsting on.the date ofthis Agreement, and represent a fair and
reasonable estimate of the costs, thatahe Association will incur by reason of late payment.
Acceptance of any late charge will not constitute a waiver.of the default with respect to ;the
overdue amount.and will not prevent the Association 'from exercising any of the.otlier
,..
rights and remedies available to it; provided, however, that acceptance. of-any Late charge
and .all overdue amounts will constitute a waiver~of. he Associat7on's right to terminate
pursuant to~:Section 2 above with respect to such payment delinquency..In ~additi:on, alI
payments not paid:"by the West Haven Association to:the Association when due shall bear
interest from the~date due unfit paid at an annual interest rote of twelve percent {I2%}
(subject to the maximum rate permitted bylaw).
(c) The ;proportionate share of the funds paid o the Association by the West
Haven Association as operation costs shall be deposited into the Association's Current
~~ Operation Account and. the funds paid fo the Association as reserve funds shall be
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_ deposited'into the Association's Reserve Account; Both accounts shall be under the sole
control of the Board of Directors of Victoria Homeowners Association.
(d) The West Haven Association acknowledges that its payment obligations
hereunder are separate and distinct from, .and shall not be contingentupon, the receipt;by
the West Haven Association of assessment payments froffi the VJestHaven Association
members; and' the West Haven Association hereby assumes sole risk of collection, and
noppaynent. of such ,assessments.
8. PAYIYIENT DEFATJLT: The failure by the West Haven Association to pay the
Association any sums under this Agreement when due (plus. all applicable late charges and interest
thereon) shall be deemed a "Payment Default," if either ,(a) thefailure continues for an additional
thirty (30) .days after the. Association has provided. written notice thereof to the West Haven
Association, or (b) the,Assocation provides written notice of such a failure to the West Haven
Association twice within any twelve ('12) month period during;;the term hereof. In the event of a
Payment Default, the Association shall hays the rights set forth in Section 2 hereof in addition to
alI otherrights and remedies available hereunder, at law :or in equity,
9. CONDITIONS PRECEDENT: Notwithstanding;anyprovicion in this Agreement to
.,
.the contrary: (1) the obligation of the West.Haven ,Association to pay to the Association the
amount set forth in the written statement described in subsection 6~ (a), above, shall not continence
until the date that the West Haven Assoc~ati;on_.cgmmences to levy regular assessments against its
members as provided in the West Haven Declaration; and (2) the rights granted, by the Association
to the Residents under section I, above, shall not comrrience until the following have occurred: (i)
the West Haven ,Association;hasibeen incorporated. and duly organized and has'undertaicen 'its
-) responsibilities'under the West Haven Declaration for the management of the Rockridge Pointe
Property; (ii) the Vilest Haven'. Declaration, as recorded, contains language which, in substance
refers to this Agreement and to the obligations. ofthe V1estI=iaven Association under its provisions;
{iii) the West Haven Association has, by means of the signatures. of two of i is .duly authorized
officers, joined as a party to this.Agreement and:has consented to and assumed i:n writing all of its
obligations set forth in this Agreement pursuant to an Assumption Agreement in. the form attached
hereto as Exhibit "E" and'incorporated".herein by thisreference;:and; (iv) the obligation of the West
Haven Association to pay the Association the amount set forth in the written statement described
in subsection b (a) has. commenced pursuant to subsection (1) of this section 9.
1D. ENPORCENIENT The Association, the West Haven Association and the
_.
Developer shall have the right, but not the obligation, to enforce the provisions of this Agreement
in any manner provided bylaw:or in equity, including arbitration; .and in any manner provided~in
this Agreement. After Developer no longer'o.wns any real property within the Itockridge Pointe
Property; this Agreement<shall be.enforceable by and against;Association acid the West Haven
Association only.and Developer°ahall no longer constitute a party to this Agreement; provided,
hou+eyer;;Developer shall not be released from any breach of this Agreement committed by
Developer before: uch date.
1.1. ARBITRATION: If a dispute arises regarding the:interpretation or performance of
this Agreement, at the.request of'any party; the.disputed'issue(s) shall be submitted to binding
arbitration pursuant to Part 3, Title 9 of the California Code of Civil Procedure, Section 1280 et
seq. and.the arbiter's decision shall be final, and.binding. The azbtration shall be.conducted as
J informally as possible. Neither the rules of admissibility of evidence,,nor the Evidence Code of the
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State of California shall be applicable except for Evidence. Code Section 1':152 et seq. which shall
~ - ') be applicable for the purpose of excluding;from evidence offers, compromises-andaettlement
' proposals, unless both parties consent to their admission. The arbitrator shall' be the sole judge of
the. admissibility and of the probative value of all evidence offered. Attorneys are not required and
either partymayelectto be represented.n the arbitration by someone otherthan a licensed
attorney.
12. AMEINDIVIEINT; At anytime'before the date that the West Haven..Association
commences to levyregtilar assessments: against its rnambers as provided:in -the West Haven
Declarafion, this Agreementmay ie.amended by a written.agreement signed by.Developer and the
Association, subject to the requirement under subsection 9 •(a) th"`at the West Haven Association
join as a party to this Ageernent'and consent to and:assume zn writing all of its obligations
hereunder. After the date that the West Haven Association commences to levy regular assessments
against its members as grovidedin,the West Haven Declaration:, but duringtheperiod of timethat
Developer owns any real property within the Roclcridge~PoiiiteProperty, this Agreement maybe
amended by a written agreement. signed by Developer,• the Association and the 'C~irest Haven
Association. After Developer no longer owns any real ;property~within the Rockri:dge Ppinte
Property, this Agreement:mayba,amended by a written agreement signed by the Association and
the West Haven Association.
13. NOTICE: Any notices required or permitted.,to be;given or served hereunder shall
be given in writing..and,shall,beaerved.either personally or delivered by a reputable overnight mail
or delivery service or •LT:S.•Ivlail', postage prepaid and addressed to the following addresses (or any
other address provided in a written.notice served by a partyon al'1 other parties as provided in this
~} Section 13):
ASSOCIATION: Victoria Homeowners Association
Attn. Helen M. Loorya, Manager
Steward:Property Services
720 Southpoint Blvd., Suite 210
Petaluma, CA 94954
DEVELOPER: Rockridge;Pointe'Investors, .LP
Atfn Bob Ragle
13'15°.4irport Blvd.
Santa Rosa, CA 95492
WEST HAVEN Westhaven Homeowners Association
ASSOCIATIOhF c/o RoclcridgePointe Investors, LP Attn: Bob Ragle
13;15 Airppit Blvd.
Santa Rosa, .CA 95492
Notices shall;be deemed.served on the date personalIyserved or.on the date thatthe notice is
deposi ed with a reputable same day or overnight mail or delivery service or in the United States
1vlail, registered,or:certifi'ed,.ond addressed to'the other'parties at the address given above.. If the
last day for service •of any notice-provided for in this Agreement is a Saturday, .Sunday or holiday,
any notice whch;i's served on the next business dayfollowing; the Saturday, Sunday, or holiday
shall-be deemed timely,served on the last°day for service.
_~
9
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14. EN'IZ12E AGREEMENT: This Agreement contains the,entire agreement of the
r -~ parties hereto .with;respect fo the subject matter hereof and supersedes any.and all prior or
contemporary, agreements and understandings, whether`oral or v;%ritten, acid shall not be modified
except by a. document in writing executed by the duly authorized-officers or agents of each party.
I5. St3CCESSORS, AND ASSIGNS: All the terms and provisions of this. Agreement
shall be binding upon and inure to the beneft.of each of the parties hereto, and.the respective
. _
members of the. Victoria Homeowners Association and.of the IvIardel Association, and the
Residents, and aII their respective transferees, successors in interest, successors in .title and assigns.
16. APPLICABLE Li-~W This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California.
17. ATT'ORNEYS' FEES: In the event;any action is filed in relation to this Agreement,
the prevailing party. shall 5e enti[led to recover from the other, reasonable attorneys' fees and other
reasonable court costs.
18. RECORDING: The parties agree that :this Agreement snail be recorded in the
Official Records of Sonoma County, State of California.
IN WITNESS WI3EREOF, the parties hereto have executed this Agreement on the day and
year first above written.
ASSOCIATION:
VICTORIA HOMEOWNERS ASSOCIATION, a California nonprofitmutual benefit corporation
B y: ~ ~ - - By: ~ -~" . a/
N e: Trevor Pitts Name: ~ Yos i'>n e ~
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Tide: President Titler ~~ ~e/~ ~ y
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DEVFZOPER:
Rockridge Pointe Investors,, I=.P, a California limited partnership
By: _ By;
Naive: B ob Ragle ~ 1~~~ ~C_~LJ ~L~"%p~,r~
Name:
Title:
Sate of California
ss
County of ,~QY1 ~ 1'~'~`C )
Title:
On 1- t ~}~~GH o 2 - -2005, beforeme~ ~ ' ~~r 1
personably appeared. - o' ~;
• ~ ~ , personably known to m
(or. proved to, me on the basis of satisfacto evidence) to be the person( whose names) is/~e
subscribed to, the within instn3rnent and acknowledged to me that'he/s~e1€I~ey executed the sarne in
his/1T~r/Ch~ir.authorized capacity, .and that by his/Prarltl't~ signature( on the instrument the
person(sy; or the entity upon behalf of which the person) acts, executed he instrument.
hand and
State of California
ss
County o n~ }
~antrrlission ~ i~,q~`
flofary Public - Ca~fom[a
Sonoma Cou
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State of'Cafffomla
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County of ~Of`1 O rY'L~
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personally appeared ,
fare rne,
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A AtMEtcBEENt,
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Notary pcJtitic • Callfornla
Sonoma courrty
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o' be the persons} whose names} Is/are
subscribed to the within •insirument and
aci:nowledged tq me that ha/she/they executed
the same in', hts/her/their au#horized
capacity(les), and that by his/her/fhelr
signature(s)lonahe insirumentahe person(s), or
the entity upon behat( of ,which the person(s)
acted, executed the Instrument.
WITNESS inyhand and official seal.
6lgnnlure of MnY _. _ ~_
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OPTIONAL
Though !ha info~maDorr below /s nnl,'Tequl~ed by law, 1! may prove valuable to persons n:lying tir~'iha documan! and cnuldpreden!
%raudulenfremovalond raattachmen/ ofldCc form tb another ddcumenC
bescription of Attached Document
Title or Typa of DocumenL•
Document Rafe: ..Number of_!'ages:
i Slgnet•{s) OtherThan.NamedAbove:
Capacify(ies) Claimed 6y'Signer
Signer's Name: '
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^ Corporate t]ffiaer->Ttle{s):>
^ Parine~ - ^ Limited ^ General
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^ OtJer.
Slgner°Is..Rep[esenting:
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On . ~I'~^-1` ~ 1 , 2005, before me, - ;°~:ru ~ .~u r ~
personally appcaied d r~ U ~ ~,. ~ ~ S :personally known. to me
(or provedto me on, the basis of'satisfat;tory evidence) to be the person(s) whose name(s) is/are
subscribed~fo fhe witliin'inStrument and aclaiowIedged to me that he/she/they executed the same in
hs/her/their authorized.eapacity(ies}, and that by his/her/their signatures} on the instrument the
person(s), or the entity upon. behalf of which the person(s)" acts, executed the instrument.
WTI"NESS ruy hand and official seal. '
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TRACY E. 6URNS
Commission ~ 14Q2274•
~_ , ~a _ tJofary-public - Callfomia
..Sonoma County
MtyComm: Expl~ds Feb 2S,$OD7
~~
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State: of California
55
County of~~~-'7C~1`~1. C> )
On ~u~ ~~ Z C~ c~$ . , before me, ~ ~~ t-ti-J ~ ~ ~~ ~ E7
I
personally appeared 1 -~ V ~ r` ~~' i }}~ ,personally known. to me
(or proved to me on the basis.af satisfactory evidence) to be the,personEs~-:whose name(-s~ is,~~
subscribed to the within instrument and acknowledged to nie that he~~ executed fihe same in.
his/herfh>?a authorized capaCity(ies}, and that by hi_s~ signature(-s-} on the instrument the
person(}, or the entity upon behalf of which .:the person( acts; executed the instrument.
VJTINESS m hand and official seal.
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12
1RACXE. BURNS,
Commissfon # 14fJ2274
4
~. , -a+, Notary Pubtlc • CaTllortiJo
Sonoma County
My Comm. Expi{es Feb 25,20D7
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