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Home My WebLink About10-01-09 PC Packet WELCOME CITY OF SOUTH SAN FRANCISCO REGULAR MEETING OF THE PLANNING COMMISSION MUNICIPAL SERVICES BUILDING 33 ARROYO DRIVE October 1, 2009 7:30 PM If this is the first time you have been to a Commission meeting, perhaps you'd like to know a little about our procedure. Under Oral Communications, at the beginning of the meeting, persons wishing to speak on any subject not on the Agenda will have 3 minutes to discuss their item. The Clerk will read the name and type of application to be heard in the order in which it appears on the Agenda. A staff person will then explain the proposal. The first person allowed to speak will be the applicant, followed by persons in favor of the application. Then persons who oppose the project or who wish to ask questions will have their turn. If you wish to speak, please fill out a card (which is available near the entrance door) and give it, as soon as possible, to the Clerk at the front of the room. When it is your turn, she will announce your name for the record. The Commission has adopted a policy that applicants and their representatives have a maximum time limit of 20 minutes to make a presentation on their project. Non-applicants may speak a maximum of 3 minutes on any case. Questions from Commissioners to applicants or non-applicants may be answered by using additional time. When the Commission is not in session, we'll be pleased to answer your questions if you will go to the Planning Division, City Hall, 315 Maple Avenue or telephone (650) 877-8535 or bye-mail at web- ecd@ssf.net. Wallace M. Moore Chairperson Roberto Bernardo Commissioner Mary Giusti Commissioner Rick Ochsenhirt Commissioner John Prouty Vice Chairperson Pradeep C. Gupta Commissioner William Zemke Commissioner Susy Kalkin, Chief Planner Secretary to the Planning Commission Steve Carlson Gerry Beaudin Senior Planner Senior Planner Linda Ajello Associate Planner Bertha Aguilar Clerk Billy Gross Associate Planner Please Turn Cellular Phones And Pagers Off. Individuals with disabilities who require auxiliary aids or services to attend and participate in this meeting should contact the ADA Coordinator at (650) 829-3800, five working days before the meeting. In accordance with California Government Code Section 54957.5, any writing or document that is a public record, relates to an open session agenda item, and is distributed less than 72 hours prior to a regular meeting will be made available for public inspection at the Planning Division counter in the Ci Hall Annex. If, however, the document or writing is not distributed until the regular meeting to which it relates, then the docume t or writing will be made available to the public at the location of the meeting, as listed on this agenda. The address of t e City Hall Annex is 315 Maple Avenue, South San Francisco, California 94080. PLANNING COMMISSION AGENDA MUNICIPAL SERVICES BUILDING 33 ARROYO DRIVE October 1, 2009 Time 7:30 P.M. CALL TO ORDER I PLEDGE OF ALLEGIANCE ROLL CALL / CHAIR COMMENTS AGENDA REVIEW ORAL COMMUNICATIONS CONSENT CALENDAR 1. Approval of regular meeting minutes of September 17, 2009. 2. Andre Boudin Bakeries, Inc/applicant CJ Holdings LLC/owner 428 N Canal St P09-0069: UP09-0020 Use Permit to allow retail sales of alcoholic beverages for off-site consumption at 428 N. Canal in the Planned Industrial Zone (P-I) District in accordance with SSFMC Chapters 20.32 & 20.81. PUBLIC HEARING 3. Leonid Malamud/applicant Munson, Helen B TRlowner 173 Utah Ave P09-0059: UP09-0016 Use Permit to allow a Medical Marijuana Collective at 173 Utah Ave in the Planned Industrial Zone (P-I) District in accordance with SSFMC Chapters 20.32, 20.65 and 20.81. 4. Edmund B. Normandy/applicant Jason Remolona/owner 152 Utah Ave. UPM09-0004: P05-0036 Use Permit Modification allowing an expansion of the office, training and retail areas of an existing indoor sports and recreation hand gun range, situated at 152 Utah Avenue in the Planned Industrial (P-I) Zone District in accordance with SSFMC Chapters 20.32 & 20.85. Planning Commission Agenda - Cont'd October 1 , 2009 Page 3 5. LEE, ALFRED TR ET AUapplicant LEE, ALFRED TR ET AUowner 465 GRAND AVE P08-0065: SA08-0001, UP08-0010, DR08-0031 & AHA08-0001 (Continued from October 1, 2009) Subdivision Map establishing a 7 unit mixed-use commercial and residential condominium and common area, Use Permit and Design Review allowing a 24,927 square feet 3-story mixed-use development comprised of 5,442 square feet of ground floor retail and 6 dwelling units on the upper two floors, with on- site garage parking for 12 vehicles, an Affordable Housing Agreement allowing 20% of the 6 dwellings to be restricted to moderate income households, and a Parking Exception for 13 parking spaces in the Downtown Parking District, at 465-467 Grand Avenue, in the Downtown Commercial (D-C-L) Zone District in accordance with SSFMC Title 19 and Chapters 20.26,20.74,20.81 & 20.85 6. Jesus Gomez/applicant Equity Growth Asset Management/owner 809 Circle Ct P09-0053: VAR-9-0003 & DR09-0031 Variance allowing the legalization of a 1,172 square foot existing two-story addition to a single-family residential dwelling, including the restoration of a one-car garage instead of the minimum required two parking spaces serving a 2,106 square foot dwelling, a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback, and Design Review of a new roll-up garage door, situated at 809 circle Court (APN 014-021-140), in the (R-1-E) Single Family Residential Zone District, in accordance with SSFMC Chapters 20.71, 20.72, 20.74, 20.82 & 20.85. ADMINISTRATIVE BUSINESS ITEMS FROM STAFF ITEMS FROM COMMISSION ITEMS FROM THE PUBLIC ADJOURNMENT ~6 Su y Kal n - Secretary to the Planning Commission City of South San Francisco NEXT MEETING: October 1, 2009 Staff Reports can now be accessed online at: http://www.ssf.net/media/ or via http://weblink.ssf.net SKlbla Planning Commission Staff Report DATE: October 1,2009 TO: Planning Commission SUBJECT: Use Permit allowing sales of mailed ordered alcoholic beverages in packaged gift baskets situated in the Planned Industrial (P-I) Zone District in accordance with SSFMC Section 20.32.070(a). Site Address: 428 N Canal St Owner: CJ Holdings LLC Applicant: Andre-Boudin Bakeries, Inc., Case No.: P09-0069 - UP09-0020 RECOMMENDATION: Staff recommends that the Planning Commission approve a Use Permit allowing sales of mailed ordered alcoholic beverages in packaged gift baskets, subject to making the required Findings and adopting the recommended Conditions of Approval. BACKGROUND / DISCUSSION The applicants are currently located within a multi-tenant building at 428 N Canal St. As part of their business, Boudin intends to sell gift baskets containing alcoholic beverages. The applicant does not intend to sell alcoholic beverages to the public for off-sale consumption. The State of California Department of Alcoholic Beverages Control [ABC] requires a Type 20 license that is intended for businesses that engage in the sale of beer and wine for off-site consumption and the license requires that the beverages be available for on-site purchase. The ABC does not have a license specifically intended for firms engaged in mail order of gift baskets with no on-site sales. In 2003, the Planning Commission approved a use permit (UP03-0 1 0 1) for this business at 161 Starlite Dr. Subsequently, the use has operated without any complaints. The applicant has relocated to a new tenant space ,at 428 N Canal St, and therefore a new Use Permit approval is required for this location. Even though Boudin has no intention of operating a Type 20 off-sale retail business that is open to the public, Rule 27 ofthe ABC requires that anyone with a Type 20 license must operate a retail store, which means the following: . Alcoholic beverages sold only in original containers Staff Report To: Planning Commission Subject: P09-0069 October I, 2009 Page 2 of 3 . Alcoholic beverages displayed and available for convenient inspection and purchase by the general public . Alcoholic beverages delivered from the licensed premises . Accepting telephone orders only when the retail store is open to the general public. In order to comply with these rules the applicant intends to display a gift basket or two on a table in the office that would be available for sale. However, there will be no signs, advertising, display cases or anything else that would indicate to the general public that alcoholic beverages area available for sale and take-out. A copy of the rule and applicant's narrative are attached. Under the previous application, the Police Department was concerned over the possibility for over- saturation of liquor licenses in a the project vicinity in such close proximity to a residential neighborhood, but supported the application provided that alcohol was only to be distributed as part of a packaged gift basket that is delivered by mail. Under the previous agreement, the applicant agreed to abide by and the ABC agreed to incorporate the following Conditions of Approval in the Type 20 License issued to Boudin: 1. At all times when the premises are open for business, the sale of alcoholic beverages shall be made only in conjunction with the sale of gift baskets. 2. There shall be no exterior ad vertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages, interior displays of alcoholic beverages or signs that are clearly visible to the exterior, shall constitute a violation of this condition. 3. No wine shall be sold with an alcoholic content greater than 15% by volume except for "Dinner wines" that have been aged two years or more and maintained in corked bottles. 4. Beer, malt beverages an d wine coolers in containers of 16 ounces or less cannot be sold by single containers, but must be sold in manufactured pre-packaged multi-quantity units. 5. The sale of beer or malt beverages in quantities of quarts, 22 ounces, 32 ounces, 40 ounces and/or similar size quantities is prohibited. 6. The petitioner shall be responsible for maintaining free of litter that area in front of and adjacent to the premises over which they have control. 7. Alcohol shall not be refrigerated. Staff Report To: Planning Commission Subject: P09-0069 October 1,2009 Page 3 of 3 Staff is recommending that the Planning Commission approve the application with the condition that alcoholic beverages are sold in accordance with the ABC license and conditions. It is staff s belief that a mail order business with the suggested restrictions near residential neighborhoods is not likely to generate any adverse effects. ZONING CONSISTENCY The site is located in the P-I Planned Industrial Zone District. Pursuant to SSFMC Section 20.32.070(a), on-site alcohol sales is allowed in the zone subject to approval of a Use Permit. GENERAL PLAN CONSISTENCY The proposed project is consistent with the City's General Plan, which designates the site as Mixed Industrial. This land use designation promotes a broad range of industrial land uses, including distribution activities. The sale of gift packages that include beer or wine would be an ancillary use. CEQA The proposed project has been determined to be categorically exempt under the provisions of CEQA, Class 1, Section 15301, Existing Facilities. CONCLUSION: City Staff, including the Police Department, supports allowing the sale of beer and wine when packaged in a mailed order gift basket and intended for mail delivery. The Department of Alcoholic Beverage Control (ABC) is aware of the applicant's desire for a Type 20 liquor license and is prepared to approve this application subject to approval of the Use Permit by the Planning Commission. Bil~f~;~-;lanner SKlghblbg ATTACHMENTS: Draft Findings of Approval Draft Conditions of Approval Applicant Narrative Plan FINDINGS OF APPROV AL P09-0069/ UP09-0020 428 N CANAL ST (BOUDIN BAKERY) (As recommended by City Staff on October 1, 2009) As required by the Use Permit Procedures (SSFMC Section 20.81.050), the following findings can be made in support of Use Permit allowing sales of mailed ordered alcoholic beverages in packaged gift baskets situated in the Planned Industrial (P-I) Zone District in accordance with SSFMC Section 20.32.070 (a), based on public testimony and the materials submitted to the South San Francisco Planning Commission which include, but are not limited to: Plans prepared by Perfect Design and Engineering, Inc, dated August 27,2009; Planning Commission staff report dated October 1,2009; and Planning Commission meeting of October 1,2009: 1. The proposed mail order business will not be adverse to the public health, safety, or general welfare of the community, nor detrimental to surrounding properties or improvements in that the Conditions of Approval have been imposed by all affected City departments and the applicant will be required to obtain the applicable liquor license from the Department of Alcoholic Beverage Control. 2. The proposed mail order business is consistent with the City's General Plan in that the Planned Industrial land use designation permits alcoholic sales at the subject site. 3. The proposed mail order business complies with all applicable standards and requirements of the Zoning Ordinance in that Section 20.32.070 allows for on-site sales of alcoholic beverages subject to approved Use Permit by the Planning Commission. CONDITIONS OF APPROVAL UP09-0020 (As recommended by City Staff on October 1, 2009) A) Planning Division requirements shall be as follows: 1. The applicant shall comply with the Planning Divisions standard Conditions and Limitations for Commercial Industrial and Multi-Family Residential Projects. 2. The applicant shall comply with all provisions ofthe ABC Type 20 liquor license, which includes the following conditions of approval: a. At all times when the premises are open for business, the sale of alcoholic beverages shall be made only in conjunction with the sale of gift baskets. b. There shall be no exterior advertising or sign of any kind or type, including advertising directed to the exterior from within, promoting or indicating the availability of alcoholic beverages, interior displays of alcoholic beverages or signs that are clearly visible to the exterior, shall constitute a violation of this condition. c. No wine shall be sold with an alcoholic content greater than 15% by volume except for "Dinner wines" that have been aged two years or more and maintained in corked bottles. d. Beer, malt beverages and wine coolers in containers of 16 ounces or less cannot be sold by single containers, but must be sold in manufactured pre-packaged multi- quantity units. e. The sale of beer or malt beverages in quantities of quarts, 22 ounces, 32 ounces, 40 ounces and/or similar size quantities is prohibited. f. The petitioner shall be responsible for maintaining free of litter that area in front of and adjacent to the premises over which they have control. g. Alcohol shall not be refrigerated. 3. The floor area devoted to the proposed business shall substantially comply with the Planning Commission approved plans, as amended by the Conditions of Approval including the plans prepared by Perfect Design and Engineering, Inc dated August 27, 2009 in association with Use Permit 09-0020 [P09-0069]. (Planning Contact Person: Billy Gross, Associate Planner, (650) 877-8535) B) Police Department requirements shall be as follows: 1. Municipal Code Compliance . The applicant shall comply with the provisions of Chapter 15.48 of the Municipal Code "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed/revised building plans. August 2~, 2009 Site Address: 4288 N. Canal St., South San Francisco 94080 Part V Project Description One-page narrative describing the project Andre Boudin Bakeries, Inc. ("Boudin") plans to use the premises (an 8,250 sq. ft. warehouse space, with an 800 sq. ft. office, a 4,950 sq. ft assembly area, and a 2,500 sq. ft. storage area) as a fulfillment center for a mail-order and internet-order catalog business. The catalog will include foodstuffs and related items, often in a gift basket format, and some of the gift baskets will include wine. In order to include wine, Boudin needs to obtain a Type 20 off-sale beer and wine license (even though only wine is included in the gift baskets shipped to persons who order from the catalog). Between 10 and 18 employees will be employed at the business. Hours will be from 7:00 AM to 5:00 PM, every day of the week, particularly during holiday rush season. This business was formerly focated a few blocks away at 161 Starlite Street, #B and has been operating there since late 2003. Even though Boudin will not operate a typical Type 20 off-sale retail business that is open to .the public, such as a convenience store, Rule 27 of the ABC requires that anyone with a Type 20 license must operate a "retail store," which means: . Alcoholic beverages sold only in original containers . Alcoholic beverages displayed and available for convenient inspection and purchase by the general publiC . Alcoholic beverages delivered from the licensed premises . Accepting telephone orders only when the retail store is open to the general public. Boudin intends to comply with these requirements by displaying a bottle of wine on a table in the office, and only accepting checks for payment, There is no requirement for signs, advertising, display cases or anything else that would indicate to the general public that alcoholic beverages are available for sale and take-out. ~ ~~6" ~cop.. rto:;l'i ::r '(t) Z en- 0:; ~ 0 t:S CJ ~ ~ p.. ~ t:S t-'. I'i ~ ::s ~ I-' ::s 0:; n Cf.) ~ ~. rt ~ t'I.l - (t) n I'i o ~. 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CA tl&O) ~oI, (i241 m._ g..)tdl:J'P.1C'C'","8Jol.~o:n. ht; ,~) m~~"a - ~'t\\ 8:1# ii ~ . ~~\ (0 n :>-0 >-< ~ ~ v 0 (>4I.IFO?-'~\~ - Planning Commission Staff Report DATE: October 1,2009 TO: Planning Commission SUBJECT: Use Permit application to allow a Medical Marijuana Collective at 173 Utah Ave in the Planned Industrial Zone (P-I) District in accordance with SSFMC Chapters 20.32, 20.65 and 20.81. Owner: Applicant: Case Nos.: Helen B Munson Trust Leonid Malamud P09-0059, UP09-00l6 RECOMMENDATION It is recommended that the Planning Commission approve Use Permit UP09-0016 based on the attached Findings and subject to the attached Conditions of Approval. BACKGROUND 173-175 Utah Ave is an existing multi-tenant building within the Planned Industrial Zone District, previously consisting of two warehouse/office uses. The applicant proposes to establish a medical marijuana collective within the 6,050 SF tenant space at 173 Utah Avenue. The tenant space would be divided to include approximately 1,000 SF of operating area at the front of the building, while the remaining 5,050 SF at the rear of the building would remain empty. MEDICAL MARIJUANA COLLECTIVE REGULATIONS Medical marijuana collectives are regulated by SSFMC Chapter 20.65, "Medical Marijuana Regulations". This chapter was adopted by the City Council in March 2006, with the intent to properly secure medical marijuana and to identify appropriate locations where such uses may be permitted. In addition, the ordinance addresses the following: - Clarifies and ensures a true "responsible" relationship between the Primary Caregiver and his or her patients as to their "health, safety and housing". - Requires approval of a Conditional Use Permit for non-residential collectives. - Requires amounts of Medical Marijuana on the Premises comply with established State standards. - Limits the number of patients to no more than 10 individuals per Primary Caregiver. - The Primary Caregiver is required to keep a list of all ten of his or her assigned qualified patients. - All persons with Identification Cards must obtain those cards pursuant to written recommendation, after an actual examination from their licensed, attending physician. STAFF REPORT SUBJECT: Medical Marijuana Collective - 173 Utah Avenue DATE: October 1,2009 Page 2 - The location of the collective shall be at least 500 feet from any residential zoning districts. In addition, SSFMC Section 20.65.050 stipulates 14 operating restrictions that are also required to be included as conditions of approval as part of the use permit. These operating restrictions regulate: - The amount and type of medical marijuana that may be stored on site. - Security measures, including video monitoring systems, alarm systems, lighting and building opemngs. - Advertising and signage. Security Measures The applicant has worked in conjunction with the Police Department to design security measures that exceed the minimum requirements of the ordinance. The applicant's attached "Project Description" includes a narrative of the basic security measures, which are intended to provide a secure environment in which to distribute medical marijuana: "The front door will lead to a waiting area, where identification will be checked and medical recommendations verified. There will also be a metal detector onsite. Once it has been verified that a patient is a legitimate medical marijuana user in accordance with state law, they will be permitted through another "buzz-in" door that leads to the patient room. From this room, the patient will communicate to staff through a security window the amount and type of medicine they require, and will be able to acquire their medicine. The collective will have a minimum of one manager and one security guard on the premises at all times to ensure a pleasant and safe experience for the patients, and to enforce all regulations of the collective." The proposed security measures, including the number and location of interior and exterior dome cameras, metal detector, storage safe, door hardware and window security, were reviewed by SSF Police Department staff. Specific security measure requirements have been drafted by the Police Department and are included as Conditions of Approval. PARKING For parking purposes, the medical marijuana collective is considered a general commercial use, and therefore one parking space is required for each 200 square feet of floor area of the retail space. The empty warehouse space at the rear of the building has a parking requirement of one space per each 1,500 square feet. The other tenant in the building is a warehouse use, which is considered a general industrial use. The parking requirements for an industrial use are one space for each 1,500 gross square feet of floor area (enclosed and open storage areas), plus one space for each 300 square feet of office area. Based on these requirements, staff has calculated the parking requirements for the building as follows: 173 Utah (Medical Marijuana Collective) . Retail Area . Empty Warehouse Area . Sub-Total 5 spaces (1,000 SF / 200 SF) 3.37 spaces (5,050 SF /1,500 SF) 9 spaces STAFF REPORT SUBJECT: Medical Marijuana Collective - 173 Utah Avenue DATE: October 1,2009 Page.3 175 Utah (Warehouse Use) . Office Area . Warehouse Area . Sub-Total 3.33 spaces (1,000 SF /300 SF) 3.37 spaces (5,050 SF /1,500 SF) 7 spaces Building Total 16 spaces The existing parking configuration for the building consists of angled parking spaces along the east side of the building, accessed from Utah Ave. To exit from the property, vehicles drive onto the adjacent property to the north and exit onto Harbor Way. The applicant is proposing to restripe the parking to provide 16 total spaces, including one accessible parking space closest to the front of the building. Subject to these changes, the parking needs for the proposed use will meet the SSFMC parking requirements. Therefore, staff supports the proposed parking arrangement. LANDSCAPING The property currently has 1,965 SF of landscaping, which constitutes 8.0% of the total site. The existing landscape areas are located at the front of the property, fronting onto Utah Avenue. The landscaping requirement for a commercial site is 10% of the total site area. A total of 485 SF of additional landscaping would need to be created to meet the landscaping requirement. It would be possible to provide the required landscaping amount at the rear of the building, and therefore a Condition of Approval is included that requires the applicant to install the additional 485 SF of landscaping on the property prior to issuance of a business license for the use. ZONING CONSISTENCY Pursuant to SSFMC Section 20.65.010, medical marijuana collectives may not be operated or located within 500 feet of any residential district. The site is located in the P-I Planned Industrial Zone District in the East of 101 area and is located more than 0.5 miles from any residential district, which exceeds the minimum separation. Pursuant to SSFMC Section 20.65.050, medical marijuana collectives are allowed within the city limits subject to approval of a Use Permit. GENERAL PLAN CONSISTENCY The proposed project is consistent with the City's General Plan, which designates the site as Mixed Industrial. This land use designation promotes a broad range of industrial uses, including service commercial uses. STAFF REPORT SUBJECT: Medical Marijuana Collective - 173 Utah Avenue DATE: October 1,2009 Page 4 CEQA The proposed project has been determined to be categorically exempt under the provisions of CEQA, Class 1, Section 15301, Existing Facilities. CONCLUSION Subject to the Conditions of Approval, the proposed medical marijuana collective is consistent with SSFMC Section 20.65, "Medical Marijuana Regulations". The project site is located in the P-I Planned Industrial Zone District and is more than 500 feet from any residential district. The current operating restrictions have been incorporated into the project to ensure that the collective will be a safe and secure facility. Consequently, staff recommends that the Planning Commission approve Use Permit UP09-00 16 based on the attached findings and subject to the attached Conditions of Approval. By: ,i\) Gr'l)..--- . Bm Gross, Associate Planner SK/ghb/bg Attachments: Draft Findings of Approval- Use Permit Draft Conditions of Approval Applicant Narrative Plans FINDINGS OF APPROVAL P09-0059/ UP09-0016 173 Utah Ave (As recommended by City Staff on October 1, 2009) As required by the "Use Permit Procedures" (SSFMC Section 20.81), the following findings are made in support of a Use Permit to allow a medical marijuana collective at 173 Utah Avenue, in the P-I Planned Industrial Zoning District in accordance with SSFMC 20.32, 20.65 & 20.81, based on public testimony and materials submitted to the South San Francisco Planning Commission which include, but are not limited to: Application materials prepared by applicant, dated July 30, 2009; Planning Commission staff report dated October 1,2009; and Planning Commission meeting of October 1,2009. 1. The proposed project is consistent with the City's General Plan which designates the site Mixed Industrial. This land use designation promotes manufacturing, industrial processing, general service, warehousing, storage and distribution, and service commercial uses. The proposed use is well suited to this location, as medical marijuana collectives are required to be located at least 500 feet from residential districts. The use also involves no structural changes to the building which would preclude it from other mixed industrial uses in the future. 2. The proposed project is consistent with the City's Ordinance, specifically Chapter 20.65, "Medical Marijuana Regulations". Medical marijuana collectives are permitted in a location at least 500 feet from a residential district subject to approval of a Use Permit. Police Department Conditions of Approval Nos. 1-14 address conditions required by SSFMC 20.65. 050(c) related to the operating restrictions required for a medical marijuana collective. 3. The project is categorically exempt under the provisions of the California Environmental Quality Act (Class 1, Section 15301 - existing facility). 4. The proposed use will not be adverse to the public health, safety or general welfare of the community nor detrimental to surrounding properties or improvements. The proposed use incorporates the security measures and other operating restrictions as required by the Zoning Ordinance. The site is located more than the minimum required distance from residential areas so as not to produce any adverse effects on the surrounding area. CONDITIONS OF APPROVAL UP09-00 16 (As recommended by City Staff on October 1, 2009) A) Planning Division requirements shall be as follows: 1. The applicant shall comply with the Planning Divisions standard Conditions and Limitations for Commercial Industrial and Multi-Family Residential Projects. 2. Hours of operation shall be limited to 8:00 AM to 6:00 PM. 3. The business shall be operated substantially as outlined in the project description provided by the applicants as part of the application dated July 30, 2009. 4. Prior to issuance of a business license, the applicant shall submit a final landscape plan for review and complete installation of 485 square feet of on-site landscaping at the rear of the building. The final landscape plan shall be subject to review and approval by the City's Chief Planner. (Planning Division contact: Billy Gross, 650/877-8535) B) Building Division requirements shall be as follows: 1. Emergency lighting will be required for exiting the space. 2. Show accessible parking and accessible path to the space. 3. Additional comments at plan review. (Building Division contact: Jim Kirkman, 650/829-6670) C) Fire Department requirements shall be as follows: 1. Provide adequate premise identification (address) on the building per the City of South San Francisco Municipal Code, Section 15.24.100. 2. Project must meet all applicable Local (SSF Municipal Code, Chapter 15.24 Fire Code), State and Federal Codes (Fire Department contact: Luis Da Silva, 650/829-6645) D) Police Department requirements shall be as follows: 1. The applicant shall comply with the provisions of Chapter 15.48 of the Municipal Code; "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed/revised building plans. Conditions of Approval UP09-00 16 Page 2 of6 2. No advertising of marijuana is allowed at any time. 3. Exterior signage is limited to site addressing only. 4. Prior to occupancy, the applicant shall install web-based closed circuit television for security purposes to allow the collective site to be monitored at all times. The camera and recording system must be of adequate quality, color rendition and resolution, as to allow the ready identification of any individual committing a crime anywhere on the site. 5. Prior to occupancy, the applicant shall install a centrally monitored alarm system. 6. Prior to occupancy, the applicant shall provide proof satisfactory to the South San Francisoc Police Department and the Chief Planner that interior building lighting, exterior building lighting and parking area lighting will be of sufficient foot-candles and color rendition, so as to allow the ready identification of any individual committing a crime on site at a distance of no less than forty feet. Forty feet allows a person reasonable reaction time upon recognition of a viable threat. 7. Prior to occupancy, the applicant shall verify to the satisfaction of the Chief Planner that windows and roof hatches will be secured with bars on the windows so as to prevent unauthorized entry, and be equipped with latches that may be released quickly from the inside to allow exit in the event of an emergency. 8. Absolutely no cultivated marijuana or dried marijuana product may be visible from the building exterior. 9. Only cultivation will be allowed. No further refinement of marijuana, or the preparation of marijuana products, such as but not limited to hashish, "hash oil" or marijuana butter is allowed. 10. No cooking, sale, preparation or manufacturing of marijuana enhanced or edible products is allowed. 11. No sales of cultivated marijuana are allowed on site. 12. No persons under the age of eighteen are allowed on site, unless such individual is a qualified patient and accompanied by their licensed attending physician, parent or documented legal guardian. 13. The amount of marijuana allowed must conform to the California Health and Safety Code Section 11362.77, divided by the number of participants in the collective. 14. The Police Chief may inspect the collective at any reasonable time to ensure that the amounts of medical marijuana on site conform to California Health and Safety Code Section 11362.77. 15. Building Security a. Doors Conditions of Approval UP09-00 16 Page 3 of6 1. The jamb on all aluminum frame-swinging doors shall be so constructed or protected to withstand 1600 lbs. of pressure in both a vertical distance of three (3) inches and a horizontal distance of one (1) inch each side ofthe strike. 2. Glass doors shall be secured with a deadbolt lock! with minimum throw of one (1) inch. The outside ring should be free moving and case hardened. 3. Employee/pedestrian doors shall be of solid core wood or hollow sheet metal with a minimum thickness of 1-3/4 inches and shall be secured by a deadbolt lock! with minimum throw of one (1) inch. Locking hardware shall be installed so that both deadbolt and deadlocking latch can be retracted by a single action of the inside knob, handle, or turn piece. 4. Outside hinges on all exterior doors shall be provided with non-removable pins when pin-type hinges are used or shall be provided with hinge studs, to prevent removal of the door. 5. Doors with glass panels and doors with glass panels adjacent to the doorframe shall be secured with burglary-resistant glazing2 or the equivalent, if double-cylinder deadbolt locks are not installed. 6. Doors with panic bars will have vertical rod panic hardware with top and bottom latch bolts. No secondary locks should be installed on panic-equipped doors, and no exterior surface-mounted hardware should be used. A 2" wide and 6" long steel astragal shall be installed on the door exterior to protect the latch. No surface- mounted exterior hardware need be used on panic-equipped doors. 7. On pairs of doors, the active leaf shall be secured with the type of lock required for single doors in this section. The inactive leaf shall be equipped with automatic flush extension bolts protected by hardened material with a minimum throw of three- fourths inch at head and foot and shall have no doorknob or surface-mounted hardware. Multiple point locks, cylinder activated from the active leaf and satisfying the requirements, may be used instead of flush bolts. 8. Any single or pair of doors requiring locking at the bottom or top rail shall have locks with a minimum of one throw bolt at both the top and bottom rails. 9. The doors of each individual karaoke studio shall not have any type of locking mechanism(s), and shall remain unlocked at all times. 1 The locks shall be so constructed that both the deadboIt and deadlocking latch can be retracted by a single action of the inside door knob/lever/tumpiece. A double-cylinder deadbolt lock or a single-cylinder deadbolt lock without a tumpiece may be used in "Group B" occupancies as defined by the Uniform Building Code. When used, there must be a readily visible durable sign on or adjacent to the door stating "This door to remain unlocked during business hours", employing letters not less than one inch high on a contrasting background. The locking device must be of type that will be readily distinguishable as locked, and its use may be revoked by the Building Official for due cause. 25/16" security laminate, 1/4" polycarbonate, or approved security film treatment, minimum. Conditions of Approval UP09-00 16 Page 4 of6 b. Windows 1. Louvered windows shall not be used as they pose a significant security problem. 2. Accessible rear and side windows not viewable from the street shall consist of rated burglary resistant glazing or its equivalent. Such windows that are capable of being opened shall be secured on the inside with a locking device capable of withstanding a force of two hundred- (200) lbs. applied in any direction. 3. Secondary locking devices are recommended on all accessible windows that open. c. Roof Openings 1. All glass skylights on the roof of any building shall be provided with: a) Rated burglary-resistant glass or glass-like acrylic material.2 or: b) Iron bars of at least 1/2" round or one by one-fourth inch flat steel material spaced no more than five inches apart under the skylight and securely fastened. or: c) A steel grill of at least 118" material or two inch mesh under skylight and securely fastened. 2. All hatchway openings on the roof of any building shall be secured as follows: a) If the hatchway is of wooden material, it shall be covered on the outside with at least 16 gauge sheet steel or its equivalent attached with screws. b) The hatchway shall be secured from the inside with a slide bar or slide bolts. The use of crossbar or padlock must be approved by the Fire Marshal. c) Outside hinges on all hatchway openings shall be provided with non- removable pins when using pin-type hinges. 3. All air duct or air vent openings exceeding 8" x 12" on the roof or exterior walls of any building shall be secured by covering the same with either ofthe following: a) or: b) c) d. Lighting Iron bars of at least 112" round or one by one-fourth inch flat steel material, spaced no more than five inches apart and securely fastened. A steel grill of at least 1/8" material or two inch mesh and securely fastened and If the barrier is on the outside, it shall be secured with galvanized rounded head flush bolts of at least 3/8" diameter on the outside. Conditions of Approval UP09-00 16 Page 5 of6 1. All exterior doors shall be provided with their own light source and shall be adequately illuminated at all hours to make clearly visible the presence of any person on or about the premises and provide adequate illumination for persons exiting the building. 2. Exterior door, perimeter, parking area, and canopy lights shall be controlled by photocell and shall be left on during hours of darkness or diminished lighting. e. Landscaping All shrubbery shall be trimmed down in such a manner so as not to obscure natural surveillance. All trees adjacent to the business shall be trimmed in such a manner so as not to provide a natural ladder for unauthorized roof access. f. Numbering of Buildings 1. The address number of every commercial building shall be illuminated during the hours of darkness so that it shall be easily visible from the street. The numerals in these numbers shall be no less than four to six inches in height and of a color contrasting with the background. 2 In addition, any business, which affords vehicular access to the rear through any driveway, alleyway, or parking lot, shall also display the same numbers on the rear of the building. g. Alarms 1. The business shall be protected by a central station silent robbery alarm, with "panic" buttons in areas designated by the Police Department. 2. The business shall also be equipped with a central station silent intrusion alarm system. NOTE: To avoid delays in occupancy, alarm installation steps should be taken well in advance of the final inspection. h. Traffic, Parking, and Site Plan 1. Handicapped parking spaces shall be clearly marked and properly sign posted. NOTE: For additional details, contact the Traffic Bureau Sergeant at (650) 829- 3934. 1. Security Camera System Building entrance(s), cashier/reception area and/or dining area, and parking areas must be monitored by a closed circuit television camera system. Recordings must be maintained for a period of no less than 30 days. Conditions of Approval UP09-00 16 Page 6 of6 These cameras will be part of a digital surveillance system, which will be monitored on-site and accessible on the World Wide Web. This system must be of adequate resolution and color rendition to readily identify any person or vehicle in the event a crime is committed, anywhere on the premises. J. Misc. Security Measures 1. Hours of Operation: 10:00 a.m. to 8:00 p.m. 2. Commercial establishments having one hundred dollars or more in cash on the premises after closing hours shall lock such money in an approved type of money safe with a minimum rating of TL-15. 3. Beer, malt beverages, wine coolers, and other similar types of beverages in containers of 16 ounces or less cannot be sold by single units, and must be sold only in manufactured pre-packaged multi-quantity units. 4. The sale of beer and/or malt beverages in single unit quantities of 16 ounces to 40 ounces is prohibited. 5. An Age Verifier Scanner must be used to check a patron's driver's license for age verification. 6. No payphone on the exterior of premises. 7. "No Loitering" signs will be posted conspicuously throughout the parking area in locations designated by the Police Department. 8. No additional conversion of premises for the purpose of modifying business usage, without proper city approval. Police Department contact, Sgt. Ron Carlino (650) 877-8927 Proiect Description The Island of Health is a non-profit California corporation whose purpose is to provide medicinal marijuana to its members in a manner consistent with California Law. The Island of Health will operate as a collective, as defined and recommended in the August 2008 document issued by California Attorney General Edmund J. Brown "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use," and as dictated by California Penal Code sections 11362.765 and 11362.775. The Collective will abide by all requirements of the State of California, including by not limited to verifying each potential member's status as a legitimate medical marijuana patient, not providing medicine to non-members, and strictly enforcing each and everyone of our rules to ensure that marijuana is not diverted for non-medical purposes. We will also be enforcing regulations prohibiting members from using medicine on or around the premises, prohibiting loitering, and prohibiting disturbing neighboring businesses in any way. The Island of Health Collective will distribute medicinal marijuana to its members from the proposed locale. The operating area will consist of 1012 ft2 of space divided between a member sign- up/waiting area, and office/storage space, as well as a security entrance. There is a 5050 ft2 area that will lie fallow directly behind the Collective. The Island of Health Collective will operate within the rules and guidelines set forth in South San Francisco Municipal Code 9920.65.010 - 20.65.070, in addition to all other pertaining city code. Membership Process A patient that would like to join our collective must go through a rigorous confirmation process. The patient must present a written doctor recommendation for the medical use of marijuana. We then verify this written recommendation by both calling the doctor to get verbal confirmation of the recommendation, and then verifying that the doctor is a practicing physician in good standing. We then require a the patient to provide a California Driver's License or California State ID card so that we can verify that the patient is the samE' person as the name on the recommendation, and that the patient is a California resident over 18 years of age. Once the aforementioned information is verified, the patient will be given a contract to sign in order to join the collective. The contract will inform the patient of the rules of the collective, and notify the patient that a violation of any rule of the collective will be cause to terminate their membership in the collective. Once a patient is a member, each time they return to the collective, they will be required to show their medical recommendation and California State ID in order to obtain their medicine. Participation in the voluntary Medical Marijuana Identification Card program run by the State of California will be recommended for members but not required. At all times of operation, a manager shall be on-site to monitor each transaction and transfer of medicine. Security Security concerns are taken very seriously. The front door will lead to a waiting area, where identification will be checked and medical recommendations verified. There will also be a metal detector onsite. Once it has been verified that a patient is a legitimate medical marijuana user in accordance with state law, they will be permitted through another "buzz-in" door that leads to the patient room. From this room, the patient will communicate to staff through a security window the amount and type of medicine they require, and will be able to acquire their medicine. 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'"Tj Q :;:DUl)> N)>O OZO"lJ 00 0 lDUiz:;:O nO:=l oeO . en Z 0--1 0:;:00 cp='l zrr (J]-1"lJO 0-<)>--1 pO:;:00< r:;:; ''1 ^ . "(1)C~ ".,.)>Zo ~Z=io i1s:zA ,,)>O()l ,~ -j' 0.8-- - ~ o-t> )>0l ~s: O()l ::0 '-' 2 )> ~.'" -",~;;,'" .sf: \ ~.OO' N17'3Z'OO"W 21,00' 130.80' 130.80' - -0 r- )> -I o -r'I r'1 )> (J) rT1 ~ fTI Z -i HARBOR (60' WIDE) WAY ......... ~ 1!5 Planning Commission Staff Report DATE: October 1, 2009 TO: Planning Commission SUBJECT: Use Permit Modification allowing an expansion of the office, training and retail areas of an existing indoor sports and recreation hand gun range, situated at 152 Utah Avenue (APN 015-142-010) in the Planned Industrial (P-I) Zone District, in accordance with SSFMC Chapters 20.32 and 20.85. Owner: Jason Remolona Applicant: Jackson Arms Case No.: UPM09-0004 [P05-0036] RECOMMENDATION: That the Planning Commission approve UPM09-0004, subject to making the required fmdings and adopting the conditions of approval. BACKGROUNDIDISCUSSION: The site was approved by the Planning Commission in November 2005 (P05-0036) to be used as a two tenant commercial facility, including the commercial indoor hand gun range. The applicant proposes to expand the commercial recreational use into the vacant 4,000 square foot tenant space fronting on Utah Avenue. The new uses include office, retail and hand gun and security training facilities - services already provided in the existing facility. The additional room will allow the business to provide the same training and retail operations and office support services, but in larger, less crowded and more convenient area. Minor interior upgrades are the only anticipated improvements. The new space will remain physically separated from the adjacent hand gun range. Retail products offered will include readiness and emergency supplies and safety clothing and equipment. Class size will be limited to approximately 10 students. The range currently employs 2 employees per day. The new area will require as many as 1 to 2 new employees. The current hours of operation are not proposed to change and are as follows: Monday through Saturday Sunday 10AMto 9PM 10AMto 7PM Staff Report To: Planning Commission Subject: UPM09-0004 152 Utah Avenue October 1,2009 Page 2 of3 GENERAL PLAN CONSISTENCY & ZONING COMPLIANCE The project site's General Plan land use designation is Business Commercial, which allows commercial recreation uses. Commercial recreation uses are allowed in the (P-I) Planned Industrial Zoning District with an approved Use Permit SSFMC Section 20.32.030(c)). The building complies with current City development standards as displayed in the table in Exhibit #A - Development Standards. The most active use of the site, including classes, occurs on weekends. The existing on-site parking area containing 37 vehicles should be adequate for the existing proposed expansion. As described in the applicant's project narrative, demand for parking has been averaging 8 to 10 spaces during the weekdays and 18 to 20 spaces on the weekend. City staffhas not observed any parking spillovers nor received any parking complaints from adjacent businesses regarding the use of the site or parking spillovers. ENVIRONMENTAL REVIEW The City staffhas determined that the proposed use expansion is Categorically Exempt from the provisions ofthe California Environmental Quality Act in accordance with Section 15303, Class 3 New Construction or Conversion of Small Structures. Because the project has been determined to be exempt, the Planning Commission need take no further action regarding the environmental reVIew. CONCLUSION: The proposed development complies with the General Plan and the South San Francisco Municipal Code Zoning regulations and development standards. Conditions of approval are required to ensure that the facility will be constructed in accordance with City standards. Therefore, staff recommends that the Planning Commission approve UPMO-9-0004 subject to making the required findings and adopting the conditions of approval. ~d~ St ve Carlson, Senior Planner ATTACHMENTS: Exhibit #A - Development Standards Draft Use Permit Findings of Approval Draft Conditions of Approval Planning Commission Staff Report To: Planning Commission Subject: UPM09-0004 152 Utah Avenue October 1,2009 Page 3 of3 Staff Report November 17,2005 (including original approved conditions of approval) Minutes November 17,2005 Applicant's Project Narrative Plans EXHIBIT #A DEVELOPMENT STANDARDS Site Area: 0.905 acres [39,422 SF] Floor Area: 14,980 SF Floor Area Ratio: Maximum: 0.5 to 1.0 Existing: 0.38 LotCoverage: Maximum: 60% Existing: 38% Landscaping: Minimum: 10% Existing: 12% Automobile Parking Minimum: 37 Existing: 37 Setbacks Minimum Existing Front 20FT 20FT Side 6FT 7 -61 FT Rear 6FT 48 FT Notes: Six (6) foot landscaped side setback required of parking lots. FINDINGS OF APPROVAL UPM09-0004 152 UT AH AVENUE (As recommended by City Staff October 1, 2009) As required by the Use Permit Procedures [SSFMC Chapter 20.81], the following findings are made in approval of Use Permit Modification allowing expansion of the office, training and retail areas of an existing indoor sports and recreation hand gun range, based on public testimony and the materials submitted to the City of South San Francisco Planning Commission which include, but are not limited to: Plans submitted in association with UPM09-0004; Planning Commission staff report, dated October 1, 2009; and Planning Commission meeting of October 1,2009: 1. The expansion of the existing indoor hand gun range and associated uses will not be adverse to the public health, safety or general welfare of the community, or detrimental to surrounding properties or improvements. The building and site improvements are maintained in conjunction with plans previously approved by the city. The expansion ofthe floor plan will improve the operation of the facility and no exterior changes are proposed. Adequate on-site parking is available to accommodate the expansion. Conditions of approval are included to require conformance with the Planning Commission approved plans. 2. The indoor hand gun range and associated uses complies with the General Plan Land Use Element designation of the site of Business Commercial and plan policies that encourage productive use and maintenance of existing properties. 3. The indoor hand gun range and associated uses located in the Planned Industrial Zone District complies with all applicable standards and requirements of South San Francisco Municipal Code Title 20 and the adopted conditions of approval will ensure compliance with city standards. * * * DRAFT CONDITIONS OF APPROVAL UPM09-0004 152 UTAH AVENUE (As recommended by the City Staff on October 1, 2009) A. PLANNING DIVISION: 1. The applicant shall comply with the City's Standard Conditions and with all the requirements of all affected City Divisions and Departments as contained in the attached conditions, except as amended by the conditions of approval. 2. The hours of operation shall be limited to 8 AM to 10 PM. The class size shall be limited to ten (10) students. Changes to the facility to expand the hours of operation and/or increase the number of students per training session shall be allowed only with prior approval by the South San Francisco Planning Commission. 4. The conditions of approval associated with UPM09-0004 shall remain in effect. Any conflict between the conditions of approval associated with UP05-0036 and UPM09-0004 shall be resolved by the City's Chief Planner in favor of the city. (Planning Contact Person: Steve Carlson, 650/877-8353, Fax 650/829-6639) B. POLICE DEPARTMENT: A. Municipal Code Compliance The applicant shall comply with the provisions of Chapter 15.48 of the Municipal Code, "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed/revised building plans. (Police Department: Sgt. Ron Carlino (650) 877-8927) Planning Commission Staff Report DATE: November 17, 2005 TO: Planning Commission SUBJECT: 1. Use Permit Modification allowing an indoor sports and recreation use for an indoor hand gun range with exterior building fayade modifications. 2. Design Review of the exterior building modifications. Project Location: 0.905 acre site situated at 152 Utah Avenue (APN 015-142-010) in the Planned Industrial (P-I) Zone District. SSFMC Chapters: 20.32 and 20.85. Owner: Sharon E. Williams Applicant: Jackson Arms Case No.: P05-0036 (UPM05-0003 & DR05-00) RECOMMENDATION: That the Planning Commission approve 1) Use Permit allowing an indoor sports and recreation use for an indoor hand gun range with exterior building fa~ade modifications, and 2.) Design Review of the exterior building modifications, subject to making the required findings and adopting the conditions of approval. BACKGROUNDIDISCUSSION: The project includes the conversion of the existing four tenant office warehouse complex, into a three (3) tenant facility and the construction of an indoor hand gun range with associated exterior building fayade modifications. The hand gun range currently operates at Dubuque A venue (Project 101) and would relocate to152 Utah Avenue. In June 2005, the Planning Commission approved the conversion of the same building into a four tenant office warehouse complex with exterior improvements, landscaping a new parking area. The project includes the retention of the landscaping, parking and entry plaza area. The existing building has been reconstructed over the course of the last year after a fire destroyed much of the building. Staff Report To: Planning Commission Subject: P05-0036 152 Utah Avenue November 17, 2005 Page 2 of 4 The facility will provide 10 to 12 firing lanes. The range will employ 4 full-time and 8 part-time employees. The hours of operation are proposed as follows: Monday through Friday Saturday Sunday 11 AM to 10 PM lOAM to 10 PM lOAM to 8 PM The range is operated 7 days a week and closed only on Thanksgiving and Christmas. Weekends are the most congested as classes are also conducted. GENERAL PLAN CONSISTENCY & ZONING COMPLIANCE The project site's General Plan land use designation is Business Commercial, which allows office and warehouse uses that were in such use as of July 10, 1997 and have continued to be used as such are considered conforming uses (SSF General Plan Resolution # 84-97). Office and warehouse are currently allowed uses in a Planned Industrial (P-I) District (SSFMC Section 20.32.020). Commercial recreation uses are allowed in the P-I District with an approved Use Permit SSFMC Section 20.32.030(c)). The building complies with current City development standards as displayed in the following table: DEVELOPMENT STANDARDS Site Area: 0.905 acres [39,422 SF] Floor Area: Tenant #A 4,795 SF Tenant #B 2,910 SF Jackson Arms 7,275 SF Total: 14,980 SF Floor Area Ratio: Maximum: 0.5 to 1.0 Lot Coverage Maximum: 60% Landscaping Minimum: 10% Automobile Parking Minimum: 37 Setbacks Minimum Front 20 FT Side 6 FT Rear 6 FT Existing: 0.38 Existing: 38% Existing: 12% Existing: 37 Existing 20FT 7 -61 FT 48 FT Staff Report To: Planning Commission Subject: P05-0036 152 Utah Avenue November 17,2005 Page 3 of 4 Notes: 1. 6 foot landscaped side setback required of parking lots. 2. Parking based on the following rates: Office 1/300 SF; Warehouse 1/1500 SF; Range 2/Firing Lane. The proposed 37 parking meets the minimum required 37 parking spaces set forth in SSFMC Chapter 20.74 for all the uses. Because office space is not shown on the plans, as provided in the SSFMC Section 20.74.070 (e), 40% of each tenant area is assumed as office area. The 60% remaining floor area is assumed as warehouse space. The hand guan range is based on the applicant's information associated with the existing range situated on Dubuque Avenue. Weekend demand for more parking is not an issue in that the other two tenants are closed on the weekend. The existing landscaping 12% exceeds the City's minimum requirement of 10% of the total site area. DESIGN REVIEW BOARD The project design was reviewed by the Design Review Board at its meeting of October 18, 2005. The Board offered the following comment: 1. The applicant should be required to plant and maintain the proposed trees. The minutes of the Design Review Board are attached to this staff report. The Board's comment has been made into a condition of approval. ENVIRONMENTAL REVIEW The City staff has determined that the proposed development is Categorically Exempt from the provisions of the California Environmental Quality Act in accordance with Section 15303, Class 3 New Construction or Conversion of Small Structures. Because the project has been determined to be exempt, the Planning Commission need take no further action regarding the environmental reVIew. RECOMMENDATION: The proposed development complies with the General Plan the SSFMC Zoning regulations and development standards. Therefore, the Planning Commission should approve 1) Use Permit allowing an indoor sports and recreation use for an indoor hand gun range with exterior building fac;:ade modifications, and 2.) Design Review of the exterior building modifications. Staff Report To: Planning Commission Subject: P05-0036 152 Utah Avenue November 17,2005 Page 4 of 4 ATTACHMENTS: Draft Use Permit Findings of Approval Draft Conditions of Approval Design Review Board Minutes October 18, 2005 Applicant's Letter Plans CONDITIONS OF APPROVAL P05-0036: UPM05-0003 Use Permit - Jackson Arms 152 Utah Ave. (As approved by the Planning Commission on November 22, 2005) A. PLANNING DIVISION: 1. The applicant shall comply with the City's Standard Conditions and with all the requirements of all affected City Divisions and Departments as contained in the attached conditions, except as amended by the conditions of approval. 2. The construction drawings shall substantially comply with the Planning Commission approved plans, as amended by the conditions of approval including the plans submitted in association with UPM05-0003. 3. The hours of operation shall be limited to 8 AM to 10 PM. The number of firing lanes shall be limited to 12 lanes. Changes to the facility to expand the hours of operation and/or increase the number of firing lanes shall be allowed only with prior approval by the SSF Planning Commission. 4. Prior to the issuance of the Building Permit, the landscape plan shall be revised to incorporate the Design Review Board suggestions made at their October 18, 2005 meeting. Any new trees shall have a minimum size of 24 inch box and 15% of the total number of proposed trees shall have a minimum size of 36 inch box. The landscape plan shall be subject to the review and approval by the City's Chief Planner. 5. Prior to the issuance of the Building Permit the applicant shall pay the Child Care Impact Fees. The Child Care Impact Fee is estimated to be $945.75 [(7,275 SF x $0.60/SF)- (7,275 SF x $0.47/SF = $945.75)). (planning Contact Person: Steve Carlson, 650/877-8353, Fax 650/829-6639) B. ENGINEERING DIVISION: 1. The applicants shall submit a plan showing the existing drainage system within the parking lot site and shall prepare a report verifying that the drainage system is in good condition and will accommodate the storm water runoff from a 1 a-year design storm without the runoff entering Utah Avenue or the adjacent private property. This plan and report shall be submitted to the Engineering Division for review and approval. Any improvements needed to accommodate the runoff shall be shown on the parking lot improvement plan and accomplished by the applicant prior to using the site as a parking lot. 2. New storm water pollution catch basin insert filters shall be installed within the existing and any new site drainage inlets, as required to prevent pollutants deposited on the impervious surfaces within the site by the parked trucks from entering City Conditions of Approval Page 2 of7 streets or public storm drains. This work shall be shown on the applicant's parking lot improvement plans and submitted to the Engineering Division and to the City's Environmental Compliance Coordinator, for review and approval. 3. The applicant shall submit a fencing, striping, signing, traffic control and site lighting plan for the parking lot, conforming to the requirements ofthe Municipal Code, for the review and approval of the Engineering Division. 4. Portions ofthe existing curb, gutter, driveway approach and sidewalk along Utah Avenue frontage of the subject development are broken, displaced and in despair. The applicant shall replace or reconstruct the existing curb, gutter, driveway approach and sidewalk along Utah Avenue as required by the Engineering Division to conform to City standards. The sidewalk shall have sufficient width to conform to ADA requirements. 5. Prior to the issuance of a Building Permit for the project, the applicant shall pay the Sewer System Capacity Study and Improvement fee, detailed below: The City of South San Francisco has identified the need to investigate the condition and capacity of the sewer system within the East of I 01 area, downstream of the proposed office!R&D development. The existing sewer collection system was originally designed many years ago to accommodate warehouse and industrial use and is now proposed to accommodate uses, such as offices and biotech facilities, with a much greater sewage flow. These additional flows, plus groundwater infiltration into the existing sewers, due to ground settlement and the age of the system, have resulted in pumping and collection capacity constraints downstream of the subject site. In order to fund these improvements the City Council has adopted a fee on October 22, 2002, which applies to all new development within the area East of 10 1. The applicant shall pay the East of 101 Sewer Facility Development Impact Fee, as adopted by the City Council at their meeting of October 22, 2002. The adopted fee is $3.19 per gallon of discharge per day. The Carollo Study,. which forms the basis for the system upgrades, calculated OfficelR&D uses to require a capacity of 400 gallons per day per 1000 square feet of development. Based upon this calculation, the potential fee would be, if paid this year (the fee is subject to an inflation factor, as determined by the Engineering News Record San Francisco Construction Cost Index): 0.4 gallons per square foot (400 gpdllOOO sq. ft.) x $3.19 per gallon x 7,275 sq. ft. = $9,283.00. The sewer contribution shall be due and payable prior to receiving a building permit. (Engineering Division: Michelle Bocalan (650) 829-6652) Conditions of Approval Page 3 of7 C. POLICE DEPARTMENT: A. Municipal Code Compliance The applicant shall comply with the provisions of Chapter 15.48 of the Municipal Code, "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed/revised building plans. B. Building Security 1. Doors a. The jamb on all aluminum frame-swinging doors shall be so constructed or protected to withstand a minim of 1600 Ibs. of pressure in both a vertical distance of three (3) inches and a horizontal distance of one (1) inch each side of the strike. b. Employee/pedestrian doors shall be made of hollow sheet metal with a minimum thickness of 1-3/4 inches and shall be secured by a deadbolt lock] with minimum throw of one (1) inch. Locking hardware shall be installed so that both deadbolt and deadlocking latch can be retracted by a single action of the inside knob, handle, or turn piece. c. Outside hinges on all exterior doors shall be provided with non-removable pins when pin-type hinges are used or shall be provided with hinge studs, to prevent removal of the door. d. Doors with glass panels and doors with glass panels adjacent to the doorframe shall be secured with burglary-resistant glazing] or the equivalent. All glass panels will have security bars or grill grating affixed to their exteriors. 1) Iron bars of at least 1/2" round or one by one-fourth inch flat steel material, spaced no more than five inches apart and securely fastened. or: 2) A steel grill of at least 1/8" material or two inch mesh and securely fastened and 3) The barrier shall be secured with galvanized rounded head flush bolts of at least 3/8" diameter on the outside. e. Doors with panic bars will have vertical rod panic hardware with top and bottom latch bolts. No secondary locks should be installed on panic-equipped doors, and no exterior surface-mounted hardware should be used. A 2" wide ] 5/16" security laminate, 1/4" poly carbonate, or approved security film treatment, minimum. Conditions of Approval Page 4 of7 and 6" long steel astragal shall be installed on the door exterior to protect the latch. No surface-mounted exterior hardware need be used on panic-equipped doors. f. On pairs of doors, the active leaf shall be secured with the type of lock required for single doors in this section. The inactive leaf shall be equipped with automatic flush extension bolts protected by hardened material with a minimum throw of three-fourths inch at head and foot and shall have no doorknob or surface-mounted hardware. Multiple point locks, cylinder activated from the active leaf and satisfying the requirements, may be used instead of flush bolts. g. Any single or pair of doors requiring locking at the bottom or top rail shall have locks with a minimum of one throw bolt at both the top and bottom rails. 2. Windows a. Louvered windows shall not be used as they pose a significant security problem. b. Accessible rear and side windows not viewable from the street shall consist of rated burglary resistant glazing or its equivalent. Such windows that are capable of being opened shall be secured on the inside with a locking device capable of withstanding a force of two hundred- (200) Ibs. applied in any direction. c. Secondary locking devices are recommended on all accessible windows that open. d. All windows will have security bars or grill grating on the exterior to mitigate burglary potential. Security bar or grating systems will have quick release systems accessible only from the interior so as not to hinder building exist or escape: 1) Iron bars of at least 1/2" round or one by one-fourth inch flat steel material, spaced no more than five inches apart and securely fastened. or: 2) A steel grill of at least 1/8" material or two inch mesh and securely fastened and 3) If the barrier is on the outside, it shall be secured with galvanized rounded head flush bolts of at least 3/8" diameter on the outside. 3. Roof Openings a. All glass skylights on the roof of any building shall be provided with: Conditions of Approval Page 5 of7 1) Iron bars of at least 1/2" round or one by one-fourth inch flat steel material spaced no more than five inches apart under the skylight and securely fastened.. or: 2) A steel grill of at least 1/811 material or two inch mesh under skylight and securely fastened. b. All hatchway openings on the roof of any building shall be secured as follows: 1) If the hatchway is of wooden material, it shall be covered on the outside with at least 16 gauge sheet steel or its equivalent attached with screws. 2) The hatchway shall be secured from the inside with a slide bar or slide bolts. The use of crossbar or padlock must be approved by the Fire Marshal. 3) Outside hinges on all hatchway openings shall be provided with non- removable pins when using pin-type hinges. c. All air duct or air vent openings exceeding 8" x 12" on the roof or exterior walls of any building shall be secured by covering the same with either of the following: 1) Iron bars of at least 1/2" round or one by one-fourth inch flat steel material, spaced no more than five inches apart and securely fastened. or: 2) A steel grill of at least 1/8" material or two inch mesh and securely fastened and 3) If the barrier is on the outside, it shall be secured with galvanized rounded head flush bolts of at least 3/8" diameter on the outside. 4. Lighting a. All exterior doors shall be provided with their own light source and shall be adequately illuminated at all hours to make clearly visible the presence of any person on or about the premises and provide adequate illumination for persons exiting the building. b. The premises, while closed for business after dark, must be sufficiently lighted by use of interior night-lights. c. Exterior door, perimeter, parking area, and canopy lights shall be controlled by photocell and shall be left on during hours of darkness or diminished lighting. Conditions of Approval Page 6 of7 5. Numbering of Buildings a. The address number of every commercial building shall be illuminated during the hours of darkness so that it shall be easily visible from the street. The numerals in these numbers shall be no less than four to six inches in height and of a color contrasting with the background. b. In addition, any business, which affords vehicular access to the rear through any driveway, alleyway, or parking lot, shall also display the same numbers on the rear of the building. 6. Ala11lls a. The business shall be equipped with both a central station silent intrusion ala11ll system and a robbery/panic ala11ll. NOTE: To avoid delays in occupancy, ala11ll installation steps should be taken well in advance of the final inspection. 7. Traffic, Parking, and Site Plan a. Handicapped parking spaces shall be clearly marked and properly sign posted. NOTE: For additional details, contact the Traffic Bureau at 829-3934. 8. Misc. Security Measures a. Commercial establishments having one hundred dollars or more in cash on the premises after closing hours shall lock such money in an approved type money safe with a minimum rating of TL-15. b. All sidea11lls on site will be secured in a theft and fire resistant safe with a minimum rating of TL-15 when the business is closed, or only one employee is on site. c. All rifles and shotguns on site will be secured to the display wall using a chain or cable system when the business is closed, or when only one employee is on site. d. A closed circuit television and video recording system will be installed to capture images of subjects inside the shooting range, at the cashier and manager stations, all areas within the storefront, as well as the at the front entrance. Recordings will be saved for a minimum of 30 days, and/or may be accessible on the World Wide Web. Conditions of Approval Page 7 of7 9. Signage / Exterior Displays a. At no time \\Till the applicant place targets or other media representing persons using firearms in the windows or for other exterior display. b. All signage plans must be submitted to the Planning Division via permit, and approved via the Design Review Process. c. All exterior signage \\Till be maintained in good repair. (police Department: Sgt. E. Alan Normandy (650) 877-8927) C. FIRE DEPARTMENT I. All current fire and building codes shall apply as related to the above occupancies (Fire Marshall: Bryan Niswonger (650) 829-6645) E. WATER QUALITY CONTROL PLANT 1. The applicant must submit a signed maintenance schedule for the stormwater pollution prevention devices installed. 2. Fire sprinkler system test/drainage valve should be plumbed into the sanitary sewer system. This must be shoWn on the plans prior to issuance of a permit. Fire sprinklers are required, so the test/drainage valve must drain into the sanitary sewer. This item was discussed \\Tith the City of South San Francisco Fire Marshall on 5-16-05 and must be met. 3. Applicant may be required to pay an additional sewer connection fee at a later time based on anticipated flow, BOD and TSS calculations. Please provide estimate of annual water usage or number of existing fixtures units and new fixture units, to the Environmental Compliance Coordinator at 650-829-3840. (Water Quality: Cassie Prudhel (650) 829-3840 ) Planning Commission Meeting of November 17 3. Type "C" Sign (Shell) Peter Tobin/applicant Equilon Enterprises, C/owner 123 Linden Ave. P05-0072: SI 505-0025 Ty "C" Sign Permit to install new signage at a gas station situated at 123 Linden in the Planned mmercial (P-C-L) Zoning Distri in accordance with SSFMC Chapters 20.24, 20.76 & 20.86. 4. Type "C" Sign (Shell) Peter Tobin/appli t Shell Oil Co./o er 248 So. Ai rt Blvd. P05-001 : SIGNS05-0026 Type "C" Sign Permit to install new signage at a gas station situated at 248 So. Airport Blvd in the Planned Commercial (P-C-L) Zoning District in accordance with SSFMC Chapters 20.24, 20.76 & 20.86. 5. Type "C" Sign (Shell) ARC Architects, Inc./appli Derenzi, Marie G/own 140 Produce Ave. P05-0111: SIGN Type \\ f1 Sign Permit allowing a master sign program including building facade signs, canopy signs, m ument sign, and a pylon signs exceeding 10 feet in height and signs exceeding 100 square feet in rea, situated at 140 Produce Avenue, in the Planned Commercial (P-C) Zoning District, in accordance with SSFMC Chapters 20.81 & 20.86 Senior Planner Carlson noted that this is the second or third continuance being requested by the applicant. He also pointed out that the unauthorized signs have not been removed and is inclined to work with Code Enforcement to get these removed. continue the Public Hearin to December J5. 2005. 6. Krieger, Clarence/O er Double Day Offi rvices, Inc./ Applicant 340 Shaw Rd P03-0137 03-0026 and Categorical Exemption Class 1 Section 15301 Existing Facilities of Use Permit to allow outdoor storage of trucks and extended hours of operation from 6 AM to 2 Indust . I eM-1) Zoning District in accordance with SSFMC 20.30.040 (a) and 20.30.040 (b). PClge:2 ofT Planning Commission Meeting of November 17 Sharon E. Williams/owner 152 Utah Ave. P05-0036: UPM05-0003 Use Permit Modification allowing an indoor sports and recreation use for an indoor hand gun range with exterior building facade modifications, situated at 152 Utah Avenue in the Planned Industrial (P-1) Zone District in accordance with SSFMC Chapters 20.32 & 20.85. Senior Planner Carlson presented the staff report. The owner noted he was available for questions. Commissioner Sim questioned weather there was an acoustical report for noise during hours of operations. Senior Planner Carlson noted that the units are noise controlled. Commissioner Giusti questioned what the age limit was. The owner noted that the age limit is 21 years of age and children under age 12 must be accompanied by an adult. Motion Honan I Second Romero to approve P05-0036 & UPM05-0003. Approved by unanimous voice vote. Type "C" Sign Permit allowing r cation of a building fa<;ade sign to the west fa<;ade situated at 341 Oyster Point Blvd in the Pia ed Industrial (P-I) Zone District in accordance with SSFMC Chapters 20.32 & 20.85 Carlson presented the staff report. Marco uirre, VKK Sign Makers, noted that sign follows the format of the other signs and is less lit and ot visible from 101. Motion Romero I Second Giusti to deny P. -0146 j SIGNS05-0045. Approved by unanimous voice vote. 9. Park Station Lofts SummerHill Homes/appli t Harmonious Holdings ner 1410 EI Camino Re P03-0092: AHA -0001, GPA03-0001, ND03-0001, , RZ03-0001, SA03-0001, UP03-0016 .. ZA03-0003 Use Pe it to construct a 99-unit condominium complex over a podium garage on a site located in the SSF T Transit Village Zoning District in accordance with the SSFMC 20.27 and 20.81; General Plan a ndment to change the designation of the lot owned by BartjSamTrans from "Public" to mixed "High ensity Residential and Commercial"; Rezoning request amend land use map(TV-01) and height zone map (TV-02) to reclassify a portion of the lot owned by BARTjSamTrans and located in the Planned S:\Mlv\'VLtes\Flv\'iOillzecl Mlv\'VLteS\2005\1.1.-rr-OS RPC Mlv\'VLtes.c1oc PiOige 3 ofT APPLICANT'S NARRATIVE TITLE CONTINUED South San Francisco Planning Application Request to Obtain Use Permit September 10, 2009 Site Address: Property Owner: Current Business: Proposed Site 152 Utah Avenue, SSF, Ca 94080 Jason Remolona (650) 588-4209 Jackson Arms Shooting Range Location: Front End of Building (Vacant) Applicant: E. Brian Normandy (415) 298-1433, Training Manager of Jackson Arms Shooting Range Current Customer Parking and Training Space Accommodations / Proposal for Minimal Employee Staffing Expansion The Jackson Arms site currently accommodates 36 parking spaces. Typical parking usage on an average day (Monday trough Friday) is approximately 8 to 10 parking spaces. Peak business along with training classes in session, are usually on weekends. These days typically use an approximate 18 to 20 spaces. This would allow a minimum of 16 additional parking spaces to remain available for the business proposal expansion. The proposed site location would require 2-3 possibly 4 employees per day. 2 employees, including me, currently work at Jackson Arms and are merely seeking additional office and training space at the proposed location. The additional 1 to 2 employees would be proposed for the current business expansion proposal. The staffing expansion would be minimal and will be used to fulfill the retail needs of the current business. Our current classroom is approximately 15 x 15 Ft. With tables, chairs and other learning materials on site, student space can sometimes be cumbersome. The proposed site allows for a more spacious environment allowing more comfort room as well as audio-visual aids for our student customers. Our current proposal may need approximately 5 additional parking spaces for the 800-900 square feet of additional retail space. Since the property has a leeway of 16 spaces, the proposed parking spaces should have no negative impact on parking since available space is sufficient. The rest of the proposed business space will be used for office/administrative purposes that again will not affect customer parking. This proposal is essentially a request for expansion on current business operations with Jackson Arms. Since the clientele is basically the same, customers can park anywhere on the site as designated, unless the City of SSF requires specifically designated spaces for the proposed site much like our former tenant, Old Masters. If so, then these spaces will be marked and painted in accordance with SSF City regulations. Although additional 2 hour street parking is always available in front of our building, it has been our experience that this parking is rarely ever used and that overflow parking is never an issue. Respectfully Submitted, E. Brian Normandy TITLE South San Francisco Planning Application Request to Obtain Use Permit June 25, 2009 Site Address: Property Owner: Current Business: Proposed Site 152 Utah Avenue, SSF, Ca 94080 Jason Remolona (650) 588-4209 Jackson Arms Shooting Range Location: Front End of Building (Vacant) /")I~ l" / f .'.~' .. E. Brian Normandy (415) 298-1433, /~) Training Manager of Jackson Arms Shooting Range Applicant: Proposal Description: PURPOSE As the permit applicant for the above location, I would like to propose that the above vacant site be utilized to expand current but partial business operations for Jackson Arms Shooting Range, which currently owns and occupies the middle section of the proposed building's address. The available space is imperative for the improvement of our sales and training related operations. PROPERTY SITE The proposed 4,000 square foot site in its current condition is a fully operational warehouse, as left recently by our former tenant and lessee, Old Masters Inc. The building space is in tact and fully functional, to include a front entrance door, rear emergency exit, windows, loading dock with roll-up gate, electrical panel & outlets, fire sprinklers, as well as interior and exterior lighting, and fully operational men's & women's restrooms. FLOOR PLAN PROPOSAL The proposed expansion of current Jackson Arms business operations would be limited to: A) An open office and waiting area (approx 1,000 Sq Ft), B) Some retail sales and product display space (900 Sq Ft), C) An open training area (approx 800 Sq Ft) as depicted in the conceptual floor plan (attached). Note: There will be no shooting operations required for this proposed site location. Any firearms training will involve "dry" demonstrations only as well inert training simulations. Any remaining space will be commonly used for the delivery and loading dock area as well as training & classroom equipment storage. NO CONSTRUCTION REQUIRED The site is currently separated from Jackson Arms by a full adjoining wall and there are no plans to cut through this wall for any reason, nor to add or build additional walls. The designated training area in this proposal will be divided from the rest of the site with the use of rolling conference room type folding panels. These panels are approximately 8 feet high and come in various lengths for easy subdividing of areas and are simply rolled into position by its wheels. The designated office space will be separated from the waiting and common areas via moveable office cubicle type partitions. The concierge / info area will consist of a common desk and shelving unit, and the retail area will utilize standard display cases and racks as well as a moveable cashier counter. BUSINESS HOURS Hours of operation will be the same since the business operations are basically identical with the exception of shooting. The proposed hours are from 10am to 9pm, with the exception of Sundays, closing at 7pm. OPERATIONS Training and Retail Operations will be consistent with that already in use by Jackson Arms but with an emphasis on "Safety" for our customers and emergency service workers. The additional space will allow us to better serve current clientele, First Responder communities as well as our local voluntary Fire Dept. CERT programs. Retail will include readiness and emergency supplies and safety clothing and equipment. Since we already provide personal protection training for civilians, security officers, as well as law enforcement personnel, I am proposing that we utilize the available open training area to help facilitate our certified baton and handcuffing courses. The extra space will also allow us to accommodate the additional room to perform these physical activities, as well as facilitate future life-saving training courses such as First Aid, CPR, and AED. These classes may be able to accommodate up to 10 or more students depending on code restrictions. These proposed business operations would stand to benefit all our local residents and communities with greater awareness, education and training, as well as access to essential safety gear and supplies. STAFFING The proposed site location would require 2-3 employees per shift with a morning and evening shift available. PARKING Because the property already facilitates 36 available off street parking spaces, public parking should be sufficient, and if need be, 5 or more designated spaces are reserved specifically for this site at the front end of our parking lot. SECURITY The proposed site will have security cameras as well as an alarm system installed, consistent with the current Jackson Arms business facility. ENVIRONMENTAL There are no foreseen negative impacts. 1 l D , I , . I 0 \ ~ " J c t iJI 1 " , . I) j >. , \ :.(~,' ., ~.. j' ., ',,", ; ::.f ~4 l~ i p; rJ D '.. ,. D "",, t'}" I ' ),:~~1,;:~,7~, ,', ,'_ . , '~~~:JJ I " " ," J: ,;{""r ~~ ." . .I~' r ',~~:\ "'1i~~' D r[& if D " I~ ! i , ~1.1i3:' I" I Iii' I" . 1 . . D "I", ~O~._ I~ ~ II r , f. ' III I t IJ. " '\ ~ , 1 . ~, 0 I; . ,~ " ,'. " . , . \ V - "; ~ , . , , " ':1'. 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CAUFORNIA 9.w80-6713 Planning Commission Staff Report DATE: October 1, 2009 TO: Planning Commission SUBJECT: Variance allowing the legalization of aI, 172 square foot existing two-story addition to a single-family residential dwelling, including the restoration of a one- car garage instead of the minimum required two parking spaces serving a 2,106 square foot dwelling, a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback, and Design Review of a new roll-up garage door, situated at 809 Circle Court (APN 014-021-280), in the (R-1-E) Single Family Residential Zone District, in accordance with SSFMC Chapters 20.71, 20.74,20.82 & 20.85. Owner: Equity Growth Asset Management Applicant: Jesus Gomez Case Numbers: P09-0053 (V AR09-0003 & DR09-0031) RECOMMENDATION: That the Planning Commission approve P09-0053, subject to making the fmdings and adopting the conditions of approval. BACKGROUNDIDISCUSSION: The 3,767 square foot site has been utilized as a single-family residence since its development. In the 1950's the South San Francisco Land and Improvement Company and the Southern Pacific Railroad owned a strip ofland approximately 50 feet in width between Tennis Drive and the rear property lines of the dwellings fronting on Circle Court. In 1950-1951, the owners sold portions ofthe property to all of the abutting property owners. Nearly all the owners ofthe dwellings purchased the property; however, the owners of741 (APN 014-021-460) and 809 Circle Court (APN 014-021-280) apparently did not purchase this adjacent lots (APNs 014-021-470 and APN 014-021-290, respectively). The City apparently purchased the two unimproved lots in 1971 through a tax deed because of non-payment oftaxes by Utah Construction Company, successor in interest to South San Francisco Land and Improvement Company. In 1965 Building Permit (BP# 07444) was issued to the then property owner of 809 Circle Court, Mr. Meidinger, to construct aI, 172 square foot two-story addition to the rear of the dwelling and another Building Permit (BP# 07445) was issued to construct a 200 square foot tool shed at the rear of the dwelling. It turns out that the tool shed was constructed on property owned by Utah Construction Company APN 014-021-290. The Building Permits were issued based on a representation that the lot extended from Circle Court to Tennis Drive. In 1978, the owner tried Staff Report To: Planning Commission Subject: P09-0053 809 Circle Court October 1,2009 Page 2 of 6 to sell the property to another party, but the title report identified that Mr. Meidinger was not the owner of APN 014-021-290 and the prospective sale did not occur. Mr. Meidinger approached the City and advised staff that he was interested in the city conveying the land in question to him. The City explored the possibility of selling the lot to the owner of 809 Circle Court, and was advised by the City Attorney's office at that time to quitclaim the lot to the owner of 809 Circle Court, but there are no records indicating that the sale of the lot in question to Mr. Meidinger ever occurred. No city records between 1978 and the present time related to this matter were discovered. A copy of a summary of the 1978 City review of Mr. Meidinger's request, conducted by the city attorney, is attached. Successive owners of 809 Circle Court have apparently continued to use the city owned lot without any apparent approval or lease agreement. The current owner, Equity Growth Asset Management, recently purchased the site. A Code Enforcement Investigation (CE08-0848) was initiated in November 2008 based on an anonymous complaint. The investigation determined that a second dwelling unit had been created within the dwelling, without apparent city approval, and up to 8 vehicles were parking on the front lawn area. The then-owner, Mrs. Gutierrez, had the cars removed and the unit was vacated. In May 2009, a second Code Enforcement Case was opened (CE09-0404) involving high growth of weeds, discovery of the unauthorized tool shed and expansion of the tool shed beyond that originally approved with the Building Permit, unauthorized use of city owned property and unpermitted conversion of the garage into living space. In association with the Code Enforcement Case, CE09-0404, the new owner, Equity Growth Asset Management, has accomplished or agreed to the following: . Mowed the weeds. . Ceased all use ofthe city owned property. . Constructed a fence between the two lots. . Property has remained vacant since purchase. . Applied for pertinent city approvals to restore and legalize the dwelling addition approved in 1965. To legalize the dwelling additions, both authorized and unauthorized, the owners have at least two options: Staff Report To: Planning Commission Subject: P09-0053 809 Circle Court October 1, 2009 Page 3 of 6 . Purchase the city owned site and merge the lots. This process would likely take a few months and require a lot survey and lot merger to be recorded. City protocols would require several months for the property to be appraised (as a developable lot), the appraisal certified by the City Council at a public meeting, property negotiations to be conducted, and on conclusion of negotiations, accepted by City Council at a public meeting. . Request Variances to legalize the 1965 addition and restore the garage. Due to time and budget considerations the owner has chosen the second option requesting to legalize the improvements. The applicant is proposing to restore the garage, and reduce the number of bedrooms to three bedrooms. The city has made no determination of the ultimate disposition or use of the city owned site. Any development or use of the site would require an approval of the City Council and that the public be notified in advance of the public meeting. DISCUSSION The project site's General Plan land use designation, Low Density Residential, encourages retention and improvement of residential dwellings. The reuse of the property as a single family dwelling complies with the General Plan. The site zoning is Single Family Residential (R-I-E) which allows single family residential dwellings and allows reduction in setbacks and parking only with approved Variances [SSFMC Section 20.71.030 and 20.74.040(a)(1)]. DEVELOPMENT STANDARDS The building generally complies with current City residential development standards, with the exception of the rear setback and parking. The existing rear setback of 11 feet 7 inches is less than the minimum required rear yard setback of20 feet. The existing lot coverage of 47% (15t Floor Dwelling Area 1,774 SF/Lot Area 3,767 SF = 47%) is less than the maximum permitted lot coverage of 50% of the total site area. The proposed restoration of a one car garage is less than the minimum requirement of two on-site parking spaces. Staff Report To: Planning Commission Subject: P09-0053 809 Circle Court October 1, 2009 Page 4 of 6 VARIANCES REAR YARD SETBACK The original dwelling was provided with a rear yard setback of 30 feet. The 1965 addition resulted in a rear setback of 11 feet 7 inches instead of the minimum required 20 foot setback. The dwelling could be modified, at a substantial cost, to achieve the minimum rear setback. The resulting design would likely be less functional, but would provide a greater usable yard area. PARKING Compliance with city codes requires that dwellings with a floor area in excess of 1,800 square feet and less than 2,500 square feet provide a minimum of 2 on-site parking spaces with at least one parking space in a garage (SSFMC Section 20.74.040(a)(1)). The original Circle Court development (City Park Addition subdivision tract of 1938), only included one car garages. A portion of the ground floor could be converted to garage area, but this would be expensive and result in a much different street image as seen in the attached photos. A more practical area where another parking space could be provided would be adjacent to the existing entry porch parallel to the building. In staffs view, and the view of the Design Review Board, this would be inconsistent with the character of the neighborhood, and in this case not a very positive aesthetic solution. The owner is seeking a Variance to reduce the parking to one space, and in conjunction with the restoration ofthe garage, is proposing to reduce the number of bedrooms to a total of three bedrooms. This approach would be closer in keeping with the pattern of the original development and appearance of the streetscape and in closer keeping with the zoning requirements for additions to older dwellings. The zoning code, SSFMC Section 20.74.030(b)(2), allows existing dwellings with one parking space to have additions with a maximum of 3 bedrooms and 1,800 square feet of habitable floor area (the dwelling would have a habitable floor area of 2, 1 02 SF, or 302 SF in excess of the maximum permitted 1,800 SF for dwellings with a one car garage). Lots fronting on the north side of the street, with few exceptions, still have one car garages. Many ofthe dwellings on the south side (that also front on Tennis Drive) have either converted the garage to living area and/or added garages or parking accessed from Tennis Drive. FAR The existing floor area ratio (FAR) of the residence is 0.62. While this exceeds the maximum FAR of 0.5 allowed in the current General Plan Land Use Element, at the time of construction, there was not maximum FAR for the district in which the residence is located. Furthermore, had Staff Repart To: Planning Commission Subject: P09-0053 809 Circle Court October 1, 2009 Page 5 .of 6 the City quitclaimed the adjaining parcel in 1978, as the recard indicates it intended to do, the FAR for the residence wauld be less than 0.5. While an FAR in excess .of that permitted in the existing General Plan wauld usually require a General Plan Amendment, the unique circumstances .of this matter, as described herein, allew the Planning Cemmissien te appreve the structure with .only a variance. DESIGN REVIEW BOARD The propased develapment was reviewed by the Design Review Board at their meeting of July 21, 2009. At their meeting the Board recammended approval .of the prapesed garage doer and offered the fallawing comments: 1. Change the garage do .or windaw pattern to the "clear" pattern. The Board alsa was nat supportive of adding an .open parking space in the front yard area as it would nat be aesthetically desirable nor in keeping with the small scale .of the streetscape. The applicant revised the plans ta incarparate the Board's comments. ENVIRONMENTAL REVIEW The propased develapment was determined by City staff ta be Categorically Exempt fram the provisions of the Califernia Enviranmental Quality Act [CEQA] pursuant to the general exemptian in Sections 15061(b)(3), since the project will not result in a significant adverse direct .or indirect change in the physical environment. The minar construction ta an existing structure appraved by this variance is also categarically exemption under CEQA Guidelines Sectian 1530 I ( e). Pursuant to these provisians the project was judged nat to have the potential for causing a significant effect an the environment. Because the project is exempt, in accordance with the CEQA, the Planning C.ommission need take na further action. NEIGHBORHOOD MEETING The applicant canducted a neighbarhaad meeting an August 26, 2009. Seven neighbars attended the meeting. The project architect provided an .overview of the propasal te legalize the 1965 additian, carrectian of several code violations, including the removal of the unautharized in-law unit, and conversian of the unauthorized bedraam and kitchen expansion back inta a .one car garage. The neighbars asked questions regarding the project history and why the city had not dealt with the matter in 1978 and expressed support of the prapasal. A petitian in suppart of the prapasal was received by city staff an September 23,2009 and is attached. Staff Report To: Planning Commission Subject: P09-0053 809 Circle Court October 1, 2009 Page 6 of 6 CONCLUSION: The legalization of aI, 172 SF two-story addition and restoration of a one car parking garage is consistent with the applicable provisions of the City's General Plan and with all applicable requirements of the City's Zoning Ordinances. The proposed development has been favorably reviewed by the Design Review Board. Conditions of approval will ensure that the proposed development complies with city requirements and standards. Therefore, the Planning Commission should approve P09-0053. Attachments: Draft Variance Findings of Approval Draft Conditions of Approval 1978 City Attorney Summary Design Review Board Minutes - July 21,2009 Applicant's Letter of September 22,2009 Petition of Support Applicant's Photos & Site Information Plans DRAFT FINDINGS OF APPROVAL VARIANCE 09-0003 809 CIRCLE COURT (As recommended by City Staff October 1, 2009) As required by the Variance Procedure [SSFMC Chapter 20.82], the following findings are made in support of a Variance allowing the legalization of an 1,172 square foot existing two-story addition to a single-family residential dwelling, including the restoration of a one-car garage instead of the minimum required two parking spaces serving a 2,106 square foot dwelling, a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback, subject to making the findings of approval and, based on public testimony and the materials submitted to the City of South San Francisco Planning Commission which include, but are not limited to: Site and Building Plans , prepared by Jesus Gomez, dated June 2009; Design Review Board meeting and minutes of July 21, 2009; Planning Commission staff report, dated October 1, 2009; and Planning Commission meeting of October 1, 2009: 1. The proposed Variance allowing the legalization of an addition to a single- family residential dwelling, a one-car garage instead of the minimum required two parking spaces, and a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback, is necessary to allow continued use of the site. The size and configuration ofthe project site, as well as its historical development, make it impractical to add parking without redeveloping the site. The parcel is uniquely undersized, in part due to the fact that the adjacent land, identified as APN 014-021-290, is not in fact part of the property, as originally though. This fact makes it unusually difficult for the residence to provide the minimum parking or meet the rear-yard setback standards that would generally be required of such a residence. The site was developed with a one car garage and in part has relied on street parking to meet parking demand. Parking is not available for use by the proposed project on other nearby properties. The use will not be detrimental to the surrounding properties in that the use ofthe dwelling is consistent with the City's zoning standards, will not conflict with the neighboring residences, and parking is available on-street that can accommodate visitors. 2. Granting the Variance allowing the legalization of an addition to a single- family residential dwelling, a one-car garage instead of the minimum required two parking spaces, and a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback would not constitute a special privilege to the owner inconsistent with the limitations on other properties in the vicinity, and (R-I-E) Single Family Residential Zone District, since this property site is uniquely undersized, and because other residences in the immediate project vicinity, which were all developed prior to the adoption of current City parking requirements, are already similarly deficient in parking. Out of necessity, properties in the area, including the project site, have relied in part on street parking to meet parking demand. The residential area, including the project site, has small lot sizes and limited options to expand parking. By granting this variance, the project site would essentially be in the same position as its neighbors with respect to parking, and therefore, would not have any special privilege. * * * DRAFT CONDITIONS OF APPROVAL P09-0053 VARIANCE 809 CIRCLE COURT (As recommended by City Staff October 1, 2009) A. PLANNING DIVISION 1. The applicant shall comply with the City's Standard Conditions and with all the requirements of all affected City Divisions and Departments as contained in the attached conditions, except as amended by the conditions of approval. 2. The construction drawings shall substantially comply with the approved plans, as amended by the conditions of approval including the site plan, floor plans and plan elevations, prepared by Jesus Gomez, dated June 2009, as approved by the Planning Commission in association with P09- 0053, as amended by the conditions of approval. The final plans shall be subject to the review and approval ofthe City's Chief Planner. 3. Prior to the issuance of the Building Permit, thee owner shall submit a landscape plan including a planting plan comprised of a combination of trees, shrubs and ground cover, a soli amendment plan, and irrigation plan. The final plans shall be subject to the review and approval of the City's Chief Planner. The landscaping shall be installed prior to the final inspection. 4. Prior to the issuance ofthe Building Permit, the final construction plans shall incorporate the South San Francisco Design Review Board recommendations. The final construction plans shall be subject to the review and approval of the City's Chief Planner. 5. The dwelling shall be limited to a total floor area of square feet and a maximum of three bedrooms. Any modification of the approved plans shall be subject to conformance with city zoning requirements in effect at the time of the proposed modification. (Planning Division: Steve Carlson (650) 877-8535) B. ENGINEERING DIVISION 1. The owner shall, at hislher expense, repair any broken sidewalk, driveway approaches, curb and gutter along the entire frontage of the property, prior to requesting a final inspection for the subject home renovation. 2. The owner shall install a City Standard "property line" sewer cleanout on the existing building sewer lateral (if one does not already exist) in accordance with City Standard Drawings No. SS-l and No. SS-2, so that the building sewer lateral can be properly cleaned. All work shall be accomplished at the applicant's cost and in accordance with an encroachment permit. 3. Any work performed in the City's right-of-way shall require an encroachment from the Engineering Division. The owner shall apply and pay all fees and deposits for the encroachment permit prior to receiving a building permit for the subject home renovation. (Engineering Division: Sam Bautista (650) 829-6652) 1 f f . 1 , i. f _. ",lTY OF SOUTH SAN FRANCISC,,,, INTER-OFFICE MEMORANDUM Date May 23~ 1978 Ci ty Manager Quitclaim Deed to August Meidenger of 0.05 Acres MOL Adjacent to Lot 28~Block 2~City Park Addition--Tennis Drive COPIES TO: C; ty Council Director of Public Services City Planner City Clerk TO: SUBJECT: FROM: City Attorney Tentative Parcel Map dated March 1978; IOM.dated 4/10/78~' to. City Attorney from City Planner~ with City Attorney's endorsed reply dated April 12~ 1978; 10M daten 4/17/78 to A1l Departments and Divisions from City Planner~ Subject: Abandonment of Lot on Tennis Drive; 10M dated 4/13/78 to City Planner from Building Division~ .Subject: Request for Abandonment Assessor's Parcel 14':"D21,:29~rear of 809 Circle Court; . 10M dated 4/15/78 to City Planner from City Engineer~ Subject: Request for Abandonment; Resolution No. 5558 adopted May 3~ 1971~ Accepting a Tax Deed to Lot 28~ Block 2~ City Park Addition; and Letter dated 4/23/71 to City Manager from County Tax Collector. Ref. #1: #2: #3: #4: #5: #6: #7: The purpose of this memorandum is to request that the Council favorably consider a resolution authorizing execution of a quitclaim deed to August Meidenger for Lot 29~ Block 2~ City Park Addition. The quitclaim deed re- serves a 20 foot easement for street and highway purposes. The following sets forth the sequence of events related to this parcel and a discussion of the reasons for this recommendation. CHRONOLOGY 1. 1950 - 51 The South San Franci sco Land and Improvement Company and the Southern Pacific Railroad Company owned a strip of land approximately 50 feet in width between Tennis Drive and the rear property lines of the single family parcels fronting on Circle Court. :In the 1950-51 time period, the owners began to transfer portions of the property to the adjacent property owners. The adjacent property owners improved the parcels conveyed to them by erecting garages and other structures. The title reports do not reflect the recorda- tion of a deed to the prior owners of 809 Circle Court for 1. TO: SUBJECT: FROM: 2. 1962 3. 1965, 4. 1971 5. 1978. City Manager Quitclaim Deed - Tennis Drive Ci ty Attorney 5/23/78 the 40! x 50t foot parcel known as Lot 29. The present owner of 809 Circle Court (Lot 28), August Meidenger, acquired it in 1962. In accordance with his best recollection, the previous owner represented to him that the rear parcel (Lot 29) was part of the transaction. and he also recalls that the two parcels were enclosed by a single fence. The title report dated February 21, 1978. does not show title to Lot 29 in August Meidenger. In 1965 Mr. Meidinger obtained a building permit from the City's Building Department to erect a storage and tool shed on Lot 29. We are informed that he so constructed the tool shed at a cost of approximately $1,000. Utah Construction Company had succeeded to the rights of the SSF Land and Improvement Company, and apparently Lot 29 had been carried on the Assessor's records as said Company's property. In 1971. because of nonpayment of taxes~ the Court took title and conveyed same to the City by way of a tax deed. City apparently paid County $51.72. County records indicated at that time that the fair market value of the parcel was $200.00. August Meidenger, owner of Lot 28 and claimant to lot 29, contracted to sell 809 Circle Court, and the closing of es- crow is now pending. The Planning Division has requested the completion of a tentative parcel map to merge the par- cels, and has requested advice from all Departments regarding the abandonment' of City's interest in the parcel. If City desires to abandon its interest, same should be done by way of a quitclaim deed rather than an abandonment proceeding. An abandonment proceeding is used to vacate the City's inter- est in easements and right of ways. The City has fee title by way of a tax deed. The reasons for City's acquisition of the parcel are obscure. Some of the reasons recalled or noted are as follows: (1) to prevent any application for another single family structure on the lot, (2) to complement the Orange Park development, and (3) to accommodate a widen- ing of Tennis Drive. City's position as fee owner could probably be sustained against Meidenger's claim, but may involve some lengthy litigation. It seems advisable in view 2. TO: City Manager SUBJECT:Quitclaim Deed - Tennis Drive FROM: Ci ty Attorney 5/23/7R of the facts recited above, that some compromise and settlement be reached. I propose that City quitclaim Parcel 29 to Mr. Meidenger with the following provisions: (1) the quitclaim contain a reservation of a 20 foot easement for street and highway purposes, (2) Mr. Meidenger pay the City of South San Francisco a reasonable value set by the City Council, not to exceed $1,000 .and (3) Mr. Meidenger complete the parcel map proceeding to merge the parcels as proposed by the City Planner. A copy of the resolution and quitclaim deed is attached. The resolution will be forwarded to the City Clerk if the City Council approves and auth- orizes execution of the deed. John Noonan IN:dh Attach. 3. The Board had the following comments: 1. Increase trenching area around existing trees to avoid damage to the root system. 2. Add trees on the school side of the enclosure to better screen the enclosure and the monopole. Consider Cypress, Canary Island Pine or an equivalent as the tree species. 3. Provide a color sample for the new monopole. The proposed color should blend in with existing tree colors. 4. Reduce the height of the enclosure as much as possible. 5. Add trim around the soffit that is adjacent to the building. OWNER APPLICANT ADDRESS PROJECT NUMBER PROJECT NAME Equity Growth Asset Mgmt Jesus Gomez 809 Circle Ct P09-0053, DR09-0031 & V AR09-0003 Variance - Single Family Dwelling (Case Planner: Steve Carlson) DESCRIPTION Variance allowing the legalization of an 1,172 square foot existing two-story addition to a single-family residential dwelling, including the restoration of a one-car garage instead of the minimum required two parking spaces serving a 2,106 square foot dwelling, a rear yard setback of 11 feet 7 inches instead of the minimum required 20 foot setback, and Design Review of a new roll-up garage door, situated at 809 circle Court (APN 014-021-140), in the (R- I-E) Single Family Residential Zone District, in accordance with SSFMC Chapters 20.71, 20.72, 20.74, 20.82 & 20.85 The Board had the following comments: 1. Incorporate a landscaping concept for the front yard, instead of paving the entire front yard. 2. Use the "Clear" style of windows on the new garage door. 3. Cap the plumbing and remove the cabinets that were used for the illegal kitchen from the family room. 4. Redesign the floor plan to move the laundry area outside of the family room. Recommend Approval with Conditions. '---::-" , DRB .~ ...July 21, 2W9 September 22, 2009 Planning Commission City of South San Francisco 33 Arroyo Dr South San Francisco, CA Our proposal went before The Design Review Board On Tuesday, July 21, 2009 and the recommendations were mailed to us August 6,2009. We agree with the findings and have added landscaping, changed the style of the garage door to "clear", and modified the plans to include a laundry/mudroom by reducing the size of the family room. The water heater will be located next to the furnace keeping the mechanicals together and the illegal plumbing and cabinets installed by a previous owner will be removed. A neighborhood meeting was held August 26th at 809 Circle at 6:30 pm. Senior Planner Steve Carlson was there representing the Planning Department. It was attended by 11 people, 8 of which signed in. A copy of the sign-up sheet is included. The overwhelming sentiment was that we should be granted the variances we are requesting and be allowed to complete our proposal. A petition in favor of our proposal was signed by the neighbors of 809 Circle Ct. and is also included. Everyone on the block that was home September 17th in the morning and evening hours signed our petition. Please consider these additional documents along with the packet submitted June 26th. Thank you Jesus Gomez RESIDENTS AND NEIGHBORS OF BLOCK 2, CITY PARK SUBDIVISION IN SUPPORT OF GRANTING THE THREE VARIANCES NESSESSARY FOR THE PROPOSAL TO RESTORE THE ONE -CAR GARAGE AND KEEP THE ADDmON AT THE REAR OF 809 CIRCLE CT. ! ~L_ /~-:L::-~I:i: L::7 ')/ ,..;~........,,.-..- '-',-.- ~ NAME: v)/~</~jt~ c=~ '-~s~4 ADDRESS: \s:)z~...~. ':1 {/~j/t} d/ L:';. /?/ (~--~ ~/. . / ,- r.. /;"7 ,,--" .0', / /,7/-, r-"" PHONE' i<,"'-: /,C,/ ':r,<-';j 47-";./. ;.' . ",.," -.:? -. .~ ......".-,. --....' ,- ~- ....-- "", .;- e-mail NAME: ADDRESS: PHONE: e-mail NAME: e-mail ADDRESS: PHONE: e-mail NAME: ADDRESS: PHONE: e-mail NAME: ADDRESS: PHONE: e-mail RESIDENTS AND NEIGHBORS OF BLOCK 2, CITY PARK SUBDIVISION IN SUPPORT OF GRANTING THE THREE VARIANCES NESSESSARY FOR THE PROPOSAL TO RESTORE THE ONE -CAR GARAGE AND KEEP THE ADDITION AT THE REAR OF 809 CmCLE CT. NAME: ~ //', /~ /' .I /'V'" f t.-, , A-- .r 1..-_ < . ~ A" -'1--..---- /:1';//// ADDRESS: ~~l ~~. Cl /1r/{:{'.iz [~'l:.~.r/'Z.r ,....~ c:: -f",r ~:-/-I'r-: c./~.- PHONE: i ,f""-"r.-. " t,.}~ ' /15/ >.. IlP5-t:;'r:-)~' e-mail NAME: -"'r~ ,Ii / .>-" j-:':':"': '1ff ;/';;(-l /e' J~:c-' C'.J I / / {I / ---..1--- / , / ,.;:..-" 1--1' -~ ,:::-- / '., ADDRESS: S.~/ ';7 c: /'/~-' ('... ) /~. ~~.--- fl. \ t"....._._ . /" - - L '.-/ _A I <_ /' - ~~i ~:-. ,I ,~~,- PHONE:?" ::?c;--:]'L~r;.. / 3?- e-mail NAME: r~ ( S (o1\/{1.1 e-mail ADDRESS: (~J.-? (~ -; .,'"' -. - ',,)/ ,J C ( [CL-"I.-t> i~ --r ,-. , PHONE: 4::5,tJ ,- fl.'! S ,-/i~ :52) e-mail /""'\:', / 1,. r" ,,"'~ NAME: L ("'i( jiG! 1::: ~LJ1, ADDRESS' g'\f) C'\>CI c L '\ . . .. .:7'"-~ ~......... ~~ PHONE: f~;" <'I'C- (!'!~ {..-.'--( / .-' ! \ ",... ""i llY;. V'~-- {~. 1. ,~~ e-mail .{~ 'I ...... ,/- -.' aC',A..,. :_:~!<~?.':'r.. ". ~ r -" .~,,' _ _ __,' . .__ . NAME: ,C~j~-L,;'-::L.-' I.. ~"-"'v-~,-,,- ADDRESS: :-7 r-r 0 i J , ~ /" C/~-;..-L;"/C(.- PHONE: e-mail RESIDENTS AND NEIGHBORS OF BLOCK 2, CITY PARK SUBDIVISION IN SUPPORT OF GRANTING THE THREE VARIANCES NESSESSARY FOR THE PROPOSAL TO RESTORE THE ONE -CAR GARAGE AND KEEP THE ADDmON AT THE REAR OF 809 CIRCLE CT. NAME: r'-', .';-"- L_,-t~~....J2-' ADDRESS: <5;.:.' (.~) { ,./ PHONE: [p,) ~) ',J---<?/-fi!_L--a---~-?-:~c- - (~~C--"(~_-~~!--~~__' .~~i.~~__~,?: S ~5'S~' ~ -"",. ~' !:;) ::~ e-mail NAME: 03:J:J~~ , .' ADDRESS: C,L '~ ~t.-:> '/I A""/ '; j. L/ ,,' .", ,,' r,,--,' , ~...' --,.,. {=z<_I2"L:?f(:_,,~/{;!:J/i' PHONE: e-mail 1---, /'" f--;' _-~'~.I'c.",.J )~./,".~-~,,//' "-.,/~..t;?,;i{ ,!..t~_., (G'2~; &.- ! - ' / - NAME: r-,.. ......... ~ '- .1' fi.....-.--" ,:'.."',. <_.j~ n.f. ' N\6~~" e-mail '? ~),;JC1;~;~ cx=-\--lO~Jf~~~\ :-"Y-':"7i, ADDRESS." \\ Ii J '1JV' C\!r(.:.~ PHONE: ............. ~. ","', \~U 'U~~~~J --t-- (~'-,-. '~)~J~VAI. '~ ~"""'-- r_........ ,_ -\-\{().,J\, - \. ':J, l) -L-...,_ (_.. J -~ _; '-"" e-mail NAME: .- \. i~ 1"\ ~~I---'L;jl( " ~ ,l/L ,-"I" ADDRESS: '(f( ~):L PHONE: . . ;' f if \--q~JI '....-.., ;,"""- ~> NAME: ,~ r i1--4l )"~~ i\ J-,'/ ;- f {, if ~ r/liiJ. i ! ~,~! \_l { \ i f\;.-;:-1\, ~..' /; ,Jj: I /\ r 1/ i;, '" , of: f /\ f 0,!t // It i, / l '/ /.[ i:~\ '1';' ! ,. , " , 'J F .~ ' ..'.' ,.~, G' , .....l ~ _-r If' - . L.'//_"\, ,"""'.... -, ~/ ./7 A / ~/l,,~i~ _ ! ....-- y __I - /... -- ( ..--- / '~ 1"1 '- (~ e-mail ~\ {'(?/1 t){ - {,LY'[,"C Lj ,?! ( - i/[T0iLf/( I C. ""'--""""""t ~j! )1\ \ ,"") ADDRESS: 4/-'--~~~~ j,..I1, \_' L '\ \'f,-"le~ / '~, i' C cr',! i \.?~ c't, t, PHONE: (3~) sr7.-~:-;i:.:,l e-mail RESIDENTS AND NEIGHBORS OF BLOCK 2, CITY PARK SUBDIVISION IN SUPPORT OF GRANTING THE THREE VARIANCES NESSESSARY FOR THE PROPOSAL TO RESTORE THE ONE -CAR GARAGE AND KEEP THE ADDmON AT THE REAR OF 809 CIRCLE CT. NAME: /'.1 Llttrn't/l t~~~;'n~€~(.~,' ADDRESS: ,>"~~:)i~-'~' " v ( .A' ,",./0' U. { _~ ~ \.<(:J~~ PHONE: (j~Sr) ,"':;'3q ~ e-mail L::~,t:L'b~iY$-~C\fY\~ -{"'i t'7{~?~S" h_' \((:Lt;lL~~> NAME: .r--......... / ,,-' f /.1 (4, ~ ~ /) ;' .- ., ! ---;--- ;;r., . , {, ""1 ,/t.'LL_c::-1L.. 61 Lc(-~'-~"": L/ A-~'-""-'- .; ADDRESS: "-:..? '?-, oil _.j-~(,," .~ (~/~!:JJL (&}/' PHONE: ;/~-) ? .- i /1 --~7y ,-~ ( ~ .r e-mail NAME: , \f~\ f7 /"\==' . '- '{\ ~ \ i\, \r::...., \_1 \.J \ ~-$ L.... -)~~\.,>.; '.'-.\"1;\:"_.C-- e-mail rn 0" " , ~~\C--C (j \ (/ PHONE: c:'" ~ ~::..(:=.\- C~ ...---. -- ...-.- . -:::;. Sf::- .:y <~ q C)2):) ADDRESS: e-mail NAME: i ! ! /.') fe::) ./"..~:,..__A __ i"-'" ~7:iK) )-'."'. ( /iQ. f i"" f I . ADDRESS: >5 /3 C ;' /~ (: // <._( / r' I :/'-/ -:;> I /:. / / PHONE: ,i 7 \.:':-: "7> I _? /:; Ct> . /' ' (/ e-mail .--" F--;> ,//:-) ,/' ,- /' '?:J~; -" NAME- !/-;j 1/11 f-" f' . (,,--/ / '1 J t' /I' I, I '/.. ' _ .. ~ ......,. .'1....,.......,.-. _.' l,..-" t E .....,.". _.~ ..;..._.--..... ~/ ADDRESS: () --,-- _/~': ,.; L ( / I,} f: J~;. (.rt j? r -__.) '-- t,. : _'\.._. I ~- '-__' {I\,. { /~ !~, i--J~! ) r----;r:: ,.:/..--- .r----7. -;-----_:~} PHOJ.. Tri (1. i::J..... /" ., \/,>, --..') (, ~ ,..t '1 "iD~-- ... - {j'~ '~, v --..-/ :,_! e-mail Neighborhood Meeting 809 Circle Ct, So. San Francisco ~ e ~ Name ,-~E7L(S I t;;;()k Address ~Dd- 7(/<L-.L-E L-7: Phone 4 I ) - 957/- <fr I ') '5 e-mail Name rArK/CiA iJ/ATSCJAJ Address t~.;L ~ (I<-C-t-/:::.. C T Phone Lf 1'Yg- - ~ 3- 8- r I ~ I.f 1 e-mail r-:~ r::l/ ~fZBc- C ~> e-mail ~ g~~ C81PtXT e-mail Name Address Phone Name Address Phone Name ~#i'c!-G ~.y-r"EIC Address e ? / '7 c. ;- Rc!.- L E s:-- ~I> .;C-- Phone . e-mail Name cq/ 0/2-/ /7 6/9 L E c::rf-l- i Address ;;jO/J ..- e../ 12CJ;(2 ~ -r e:[t? 6, .P. Phone (;.st?,.. 9'6'/:2-b:5) 9 e-mail ~~.tP...rV -9'.:rc9-~61 $- Name C-Ls;/E ~ //A ~!J<<./~ i Address '9 () I C I ~ r'../ ;;;: C CJ U It!. T Phone 10.01.)- 52"g' - ~'6""":s <) e-mail -- Name JPn /' 41/.pfl ~ Address ~~ ~llfe~R Phone (P~l) Cf;}.,;) -(0& 0/ CrJlJJ2;( e-mail -raP.l!.en-t:nyzi e: aolLtJJ11.-.- Name Address Phone e-mail Name Address Phone e-mail June 18, 2009 Design Review Board City Hall Annex 315 Maple Avenue South San Francisco, CA 94080 APN: 014-021-280 Block 2, Lot 28 Property address: 809 Circle Ct, So. San Francisco, CA 94080 We are submitting our application for Design Review of our plans to restore a front bedroom to a one-car garage as was the original condition. Included in our package are: site, floor and elevation plans of existing condition and proposed restoration; photo of subject property (Exhibit A) ; collage of homes on south- facing side of the 800 block of Circle Ct (Exhibit B) , including subject property; collage of homes on north-facing side of the 800 block of Circle Ct (Exhibit C) , and a brochure from Wayne Dalton Garage Doors (Exhibit D), the manufacturer of the garage door we plan to use. The door model is #9100, style is Cathedral 1, and color will be Grey (no color # is given by the manufacturer) to match the existing exterior siding. Jesus Gomez p.1 i Exhibit A .... u G) ] U 0'1 o 00 ~ 0.. 8 ~ .... u G) ,= ..g r.n i' e -- s:: o .- .... :.a ~ o .9 r.n I ~ F-< e G) 0.. 8 ~ '0 G) .= ..g r.n C'\I ci PlL Exhibit B ';)1 () 0, iIil 0' ~I '-1 Nl :;;, ~II CO ~ OJ ..21 .r~1 ul 4-< OJ gj osl ;..., :5! ~I r I ! i ) i I ! ! I , i I I I I I I I j l I ! l. I I ''3f.v siU.:iAl'i02 ~ ~ i , , ! I 1 j I IJ ~ z(O/ f ! L ~ i~-i '} Wi ~ i g j 4 i " ~ Ii ,. ~ - (0) Exhibit C i :$/ g 00 '3ilv SlUcu"1'V:)(n LJ ~ -lei o o :$ d <!.\ ~ J >-,' <.> w <j f!r; <J ~ r# is ro; ~<O u' ~ U 1'1 o CO o 11) ~ (.) o N "'. Exhibit D '."n.,! .c' "( ~ ii' '..>.: i'_ ,C,'-, ", POiVUff.3thUt10 ~n~H~I~.1(~~JP pn:.J'.tl(h:H:i :;1qV~:H'!€)1" In;:~u~a;:l()n V~~h,l(1 nnd ~)rWlr~.tl f~HiGit:lIVYY' G:_J!"flPf\i'fid !:{~ pr.llYf~t.vren~l f''";f:tf~CT trnrn i'tl n~~e \/\,frnr10\f>./ S?':;} r~ns t(> ~ ~our h()n1.f:: ~;:~ VV~t}"'l ':'.'; _, n,)r~v .~'~;r~r)fGeS~ i:t's e;a:S\l to cn:;2;l;,t.:} ,:"; $,~~f.HYrrdDSS ,;~"T,vL~~'; fei" venr ht:';'l."ne. '';>',P,'!".. \1 ,~ I.; ~ \:"'/n...(.~(}v'f"; "1\"_; ~D\)~" i!": ~,;' ''';';\i;:i.:~,. Chi'~;:::lt \.'i..<t~i ': ,( V;j..';\ff';:' D{;!~ ),'~ (1!::~..;;:r:r ,<,.., f;,.:.~tB}i":'.~. ~. /\!SCl H<!i:'i!!;.:-!bir:: wit!':!; \ :\/JCl(jb: 9500 (.::)k)n;(~l,. 'i /:.);;:~\ ;avaii:;~)t~~ "r.,:':~!';)i') j\i!.OG~:i ~}'j 00 ~:':'~un(Jn'h':i pdn~~! leol;'A"va1jab-le ani)' on 96-OD. ~. ; Clew ii .:dsri nv~}il;-!.hil,1 {'f:!, CuhHt;;,:d ~n.d Contf.'m~ptH:i:H""'i'9600 doors. ~.. 11_. .,' , , ".. "~"'---'. ,,'~~~ "-"""p,,._~' Stockbridno Arch Stockton Watorton III Stocktonltl DCH.JbkH..'Vl:(t~h doon~ t'HI:lV tw r,H'demd v":1ith An,;j'j S-roei<:ton and StoQkto!1 l!! r,:'omhinod. .th~fn II l:'iI~';{l ~Ptnd.ilb!l;~ fu! .::;>~nor;~~l W1nuuw opth:ms, an.3- not inb~l'{,Jimngunble b.atwOf;'Jr\ p~n(~fQPtiQns, Coloniai Ranch Cont€:tnporarv SOr!orna Sonoma Cathedra! we are proposIng ..J; White /-1..irnond Taupe Brown GrilV Green Mn<i',d PoOG "nly (1,.10d(d 9100 onlv h)(Jte:' Brown, on:r,/ Hnd nr~:;en (:U!r)f'-ti are n,)l ;:jvail;:l!)le With H1t: Sononw CBi.hHi.lr;,~l PWi4;;~j ri!yle. June 24, 2009 Planning Commission City of South San Francisco 33 Arroyo Dr South San Francisco, CA Explanation of request for variances Permit history Before this property was purchased, the permit file was requested and permit history was reviewed. Relying on the approved permits (exhibit E), we believed the lot stretched from Circle Ct in front to Tennis Ave at the rear. The two-story addition and tool house were fully permitted and approved. When we first discovered the back lot was not ours, we proposed purchasing Lot 29. The City's position that a single family home can be built on Lot 29 and the expectation of value unfortunately makes the acquisition unfeasible. Steve Carlson, Head Planner, explained that if we could not go forward with the purchase of Lot 29, variances would be required. We are applying for three variances: two for the existing addition, and a third for the restoration of the one-car garage (two off- street parking spaces are currently required). Request For Variance Under Special Circumstance Request for variance of the FAR .5 (50%) ratio. The existing FAR is .626 ( 62.6% ) Request for variance of the rear-yard setback requirement (20 feet) The existing rear-yard setback is 12 feet 1 inch. There are special circumstances. The back piece ofland (Lot 29, Block 2) has been openly used and maintained by the owners of 809 Circle Ct since at least 1962. The rear addition was built with permits in 1965 by then-owner A. Meidinger who believed the land was his, as stated in his letter dated March 10, 1978 to the City of South San Francisco. Also included are two inter-office memos (exhibit F). Since then, there has never been a request on record by the City to change or mitigate any existing violations. Additionally, neighbors have expressed their support for our proposal. The home maintains the character and the scale of many of the homes in this neighborhood (exhibit G); note the house across the street, 804 Circle Ct, is a two-story, 2400 Sq. Ft. home on a 3720 Sq. Ft. Lot !p.6 I Request for variance of the requirement for two-car off-street parkin!! We are proposing to restore the original one-car garage that was converted to living space many years prior to our ownership. In order to accomplish this, we will have to reduce and re-design the existing kitchen. There is a potential to put an outdoor, off-street parking space on the east side of the property, but this would require a new curb-cut and the removal of a mature tree. We believe these actions will be more disruptive to the surrounding neighbors than the granting of the variance. Most of the homes on the Southside of the 800 block of Circle Ct have an additional benefit: rear-access parking via Tennis Drive. This decreases the demand for on-street parking on Circle Ct. Off-street parking is not a problem as our parking survey shows (exhibit H). The parking survey, which was preformed Monday, 6/22 between 6:50 A.M. and 7:15 A.M,. shows there were a total of 11 spaces available on the 800 block of Circle Ct and 3 spaces around the comer on the fenced off section of Eucalyptus Ave. All are within 200 feet of 809 Circle Ct, the subject property. Since 1962, Lot 29 of Block 2 has been openly used by the owners of 809 Circle Ct for their sole benefit. The City had not maintained nor taken physical possession of this property until recently. Additionally, it had not required any of the previous owners to correct the existing non-compliant issues, even though there has been both notice and opportunity. We are now engaged in this endeavor. We wish to complete our project as proposed and humbly ask you consider these facts and the special circumstances of this particular property, and grant us the three variances we are requesting. :F-~ !p.7 I Exhibit E , .q- ~ ~ f'o. o .~ ~~ ~ t\J"; f"1 t r~ ~...; v, -EIJ--tA>"'.f:Ao<El9o -M- ~ UJ W = : u.. !:: 2 ~ : : w a.. ul .... ul .... ...1 w .... ..J w I- . o :z: Jo- - :% . lClIC ~ A. : '" w w U. ...J ~ o .... $U~ .2 D2 @ 902v> ::l ~ 3 <: "" w a.. $ S([J ~ ...J t3 Q2 I- c.) V) LU.c( u:I<D '-' f; ~ 6 .'~ ~ " ~.c ~ .~ ~ ~ ~ ~. .~ ~ V) Ul .W o! o o -( tI) tI) w '" o o <: Ii) v>'tn Ii) VI VI W W W '" '" '" 000 000 <: <: < '.... ~ J' \; w Z o N ~ a:> u: Q 6 z ~ , , ~ '..~ :t <; .~ t I- U t ~ z VI o a 6 Vi $ ti:i z :> z ~ f- ~ z In 9 ~ 2 0)0) ZZ - a:a 9~ -.=> :::> .~ a:a 0.. 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Q7.444 LOT NO. 29 BLOCK NO. 2 SUBDIVISION City Park Addn DATE COMPLETED v v / 1,/ - Duct Clearance Draining & Drain Tile ROUGH PLUMBING - Arrangement Size Cleahouts Test v. ~/. 1/' ./ .1> .. J Floor Joists FRAME Joist Bridging Girders t/ t/ v/ Clearance v' Crawl Space Vents Garage Vents Crawl Space Access J Drain Tile ./ r/ Roo l' Rafters Collar Ties c/ Pur lins Ceiling Joists STRONG BACKS t/ C<. -/ Attic Access J Sway Braces ~ Headers "J Firestops Cripple"s y' ~ Window Frame' & Sizes _,~./' Weather Protection ,.r/ ,/ Roof Stucco Wire ~ FLUES ./ Furnace Flue Combustion Vents Water Heater Uue Kitchen Vent or Fan FIREPLACE Chimney Heights ROUGH PLUMBING - Topping Shower Pan Water Pipes Gas Pipe ROUGH . / ELECTRIC - Outlets per Circui~ L/ Washing Machine Circuit -.'-- Furnace Circuit i/ Ip.9 I U\ 'Il:t' ..-.;r r-- o . ~' I I 'I I I ~ I I I ~,I I~! I '- : --- - ~I I I I T \11 ~ ~ ~ I = = I ",I rrll ~! rrl E!,. -'1-"':11/, gl ::Vl~l I ml ~I g fl ;-.1 ~ I- . 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O'"~ ~ z < g:E.!: ~ 'a,li. u.. :5 ~ "=~ E 8,"ji CD ...J LL ~ '-E CI .. ..c < 11. 1..-o..E..5 I:: ~ 0 -' J!.! 5 0>0>0 Z o:i ~<)"=o.~ o ~ ~~ i;t~;g.E. CI : .!!-5~.io ItlltL aavlllJ~"~~ID:lnll .. V> 00: UJ I- ~ J: r= z a a < o ~ z 0::: II) W t:i !:( -' w ~ J: o ffi tl) ~ ~ ~ Exhibit F March 10, 1978 City of South San Francisco 400 Grand Avenue South San Francisco, Ca. 94080 Attention: Mr. William Costanzo, City Planner Subject: Lot 29, Block Z Dear Sir: The above mentioned lot is directly behind Lot 28, Block 2 also known as 809 Circle Court. I, August Meidinger, owner of lot 28 am requesting the City of South San Francisco to consider abandonment of Lot 29 and conveying'same to me for the following reasons: 1) I have owned 809 Circle Court since 1962 and I have always been under the impression that Lot 29 was mine. 2) I have maintained said lot and have kept it free of weeds, etc. over the past sixteen years, as' was r.equested of me by the' South'San Francisco Fire Department. I have a chain link fence with gate at the rear of Lot 29 for car access, etc. to my property. 3) On October 1, 1965, the City of South San Francisco issued me a building permit no. 07444 to erect an addition on Lot 29 which was done and approved by your department. 4) I have a deposit receipt selling my property,' The new Buyers are also expecting the whole property as I conveyed to them it was mine. How- ever, since revealing the discrepancy to them, they do not wish to proceed with the purchase' unless they receive the whole property including Lot 29. I hope you will be able to expedite this request as soon as possible. AJ Sincerely"._ ,,~ ',./)hA#d~~ ,,~ /1 f,-' f . ~t Meidinger' O~"7 I) I , ~ ".... fJ~ Pt"';fl (7' ,it b , t.I ~J-- 1 '?/ I') e'y.,., , 7 .~,. 01 t../V"/ , "" ! I." I I I ro/l.. fl I () X;"O d/~ f J 0&-7/) 1'1(.~ F~ /t. I:;; '~io) /bH, j 7,' (.l N '7"~ /(;! ,~}f i~ ::.) '!Itl ,,~~~. ~;;.j ~ !P.11l ------ CITY OF soum SAN FRANCISCO INTER-OmCE :MEMORANDUM Date March 13. 1978 COPIES TO: TO: All Departments and Divisions SUBJECT: FROM:' REQUEST FOR ABANDONMENT City Planner Attached is a formal request for the abandonment of a City owned parcel fronting Tennis Drive adjacent to'Orange Avenue. Conta i nedon- thi s property is a garage used and constructed by the occupants of 809 Circle Court. The Planning Office will request the Planning Commission on March 28. 1978, to forward th~.somatterto the City Council ';for formal abandonment proceed-: ings. ,- , ' , '-":<, r, ;... .;. Pl ease rev; ewthi s ie'quest and forward your comments to thi s offi ce on or before March 20~ 1978~ : ' , ",,' If you have any objections to this abandonment proceeding. please f~rward these as .soon as pOs~;'iblE~;;< ': . - ':=>' .~, r-.~~~:-... "'.: ~.~.. .,.F't!., .-,_.~ ", There also appear to be oth-erlots along Tennis 'Drive which the City ap.:.. ' pears to own. Your comments' on: these lots would also be appreciated. ' ....; ,. ~-; , . . , ~ (' '~WGC~ City Pl anner r, Attachment s~~ .f"' ILI- C1 ~J - ;.18 hc~ 1/),/;..;<: ~-(.1 "/...orJJ 11.f... 011 - 1.~ .'~' t'~.~'" .'.... C C!'77::?f.' ,";'O'...\. ,'. !p.12! CITY OF SOUTH SAN FRANCISCO 'INTER-OFFICE MEMORANDUM Date Ma:rch 19, 1978 COPIES TO: TO: l'!TTY PI.ANN"ER SUBJECT: REQUEST FOR AM..NDONMENT - Assessor Paroel 14-021-29' Re~ of B09 Cirole Cou~t FRO~: BUILDINQ DIVISION On October 1.1965 this Division !ssuedBuilding Permit 107445 to Mr. Meidinger to construct ,_ lO'x20' accessory building on the rear portion of his lot. assuming that he had &.oq,uired 'this portion, the abandonment of the Southern Pacific Company right- of-way, as the othe property owners along Tennis D%'ive have done. Unfortunately, fo~ some reason this did not ooour and the City assumed ownership of said parcel. For the benefit of the owner, and the records in the Building Division,the ~equested abandonment be approved. Roy 1\.. Ghi1ardi Chief Building Inspector RRSfSp [p.131 Exhibit G Subiect property 809 Circle Ct. is in scale with other surrounding homes There are three homes that are of similar square footage as the subject property on the 800 Block of Circle Ct. Two houses on larger lots: 817 Circle Ct. at 1530 Sq. Ft. and 831 Circle Ct. 1580 Sq. Ft. One house across the street, 804 Circle Ct. at 2400 Sq. Ft. sits on a 3720 Sq. Ft. lot. This lot is similar in scale to the subject property and would have required aFAR variance as well 1i>.14! Exhibit H 1:: = 8 ~ 'E u eo. Q .:c 2! is = = go '0 ". G:-.oOuu~...;...; " '-) " " "u C,) u (3~eeE~~~ D ;.~ Cj 0 <J .= ;.~ J~ o '-'''''I'>Q> u.....u ~a~~~~~8 4...o0C)c....;"'tp.,OOCdoo 2~2~~~~s s.a5s5C=c~ :l::Ci~;::tl::g~1tl .~ ~.~ "Is"; ,'5:$ ~ 8 ~ 8- 8 ~_ ~__ ~ [~~ !~a~ en- Q.,v.l ~ _ tn, a.. c.. ~ >----{I]~~;>-,v.lv.lo. o..::-act'5.i::>.::-S,; SC.SSE;C.o..,,. 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()t;,..~ , ::. 7~ 'l,25 > > c';,.4: 7,\ \f 6'_ pi~ ~ I r-' ..L~nO.J 3\J~\') 0 -< 0 -0 -i 0 C V' ~ m ,,)\5' - .. ~ -- ( -- ---- --- .... 1 \ --- @ ---- - ] Planning Commission Staff Report DATE: October 1, 2009 TO: Planning Commission SUBJECT: Tentative Subdivision Map establishing a mixed use condominium development comprised of six residential dwellings, a commercial unit and common area, Use Permit and Design Review allowing the construction of a three-story 24,927 square foot mixed use development comprised of ground floor commercial unit and six dwellings on the second and third floors, and an underground residential parking garage, and an Affordable Housing Agreement restricting twenty percent of the six units as affordable dwellings, situated at 465 Grand Avenue (APN 012-305-050) in the Downtown Commercial (D-C) Zone District, in accordance with SSFMC Title 19 and Chapters 2.58,20.26,20.81 20.85& 20.125. Owner: Alfred Lee Applicant: Antonio M. Brandi Case Numbers: P08-0065 (SA08-0001, UP08-0010, DR08-0031 & AHA08- 0001) RECOMMENDATION: That the Planning Commission adopt a resolution, including fmdings and conditions of approval, recommending that the City Council approve P08-0065. BACKGROUND: The proposed project was continued from the Planning Commission meeting of September 3, 2009 to allow the applicant to complete and revise the Tentative Parcel Map. The 7,000 square foot site has been occupied by three separate dwellings for many years and is adjacent to other commercial uses and dwellings. The proposed development includes the demolition of the dwellings and the construction of a three-story 24,927 square foot mixed-use building comprised of ground floor commercial unit and six two-story dwellings on the second and third floors. The six 3-bedroom dwellings will each contain approximately 2,000 square feet and have private decks on the upper floor. The 5,442 square foot ground floor commercial unit and will have a height of approximately 13 feet. Two of the dwellings will be restricted as affordable units. Parking for the dwellings will be provided on-site in a subterranean garage. Parking for the commercial uses and visitors ofthe future residents will be provided vis-a.-vis the on-street metered parking provided by the City's Parking District. The owners intend to incorporate a cool roof, energy efficient heating and cooling units and appliances, and finishes of sustainable materials. Staff Report To: Planning Commission Subject: P08-0065 465 Grand Avenue October 1, 2009 Page 2 of 5 The project has been favorably reviewed by the Design Review Board, the Historic Preservation Commission and the Downtown Parking Place Commission. HISTORIC PRESERVATION COMMISSION The project will necessitate the demolition of three single family dwellings. None of the dwellings are listed in, or have been determined eligible for listing in any State or local register of historical resources. Nor have any of the dwellings been deemed significant pursuant to the criteria set forth in Public Resources Code, Section 5024.1(g). However, according to a City Historic Survey conducted in the 1980s, at least one of the dwellings is identified as a "Potential Historic resource." The "Potential Historic Resource" designation is not an eligibility determination by the Historic Preservation Commission [SSFMC Section 2.58.020(h)]. The project and proposal for demolition were reviewed by the Historic Preservation Commission at their meeting of April 9, 2009. After a staff presentation and discussion, the Commission declined to designate any of the dwellings as "historic resources" under the criteria listed in SSFMC Section 2.58.110. Instead the Commission unanimously voted to require that the owner photo document the site and structures, a requirement that has been made into a condition of approval. As provided in SSFMC, Section 2.58.170, demolition of a Potential Historic Structure requires review by the Director of Economic and Community Development Department. The Director can grant a stay of the issuance of a demolition permit up to 60 days from the date of application to allow the efforts be made to investigate, document, and photograph the structure and explore possible alternatives to demolition. DOWNTOWN PARKING PLACE COMMISSION At the Parking Place Commission's meeting of April 14, 2009, a Parking Exception was granted allowing thirteen spaces associated with the proposed commercial uses and residential visitor parking to be provided through the City's metered parking spaces (SSFMC Section 2.64). DISCUSSION The project site's General Plan land use designation, Downtown Commercial, encourages mixed- use developments consisting of commercial businesses and residential dwellings. The. project complies with the General Plan goal of mixed-use. The site zoning is Downtown Commercial (D-C) which allows both commercial uses and residential dwellings with an approved Use Permit [SSFMC Section 20.26.050]. DEVELOPMENT STANDARDS The building generally complies with current City residential development standards as displayed in Exhibit #A - Development Standards. The parking oftwo and one-quarter spaces Staff Report To: Planning Commission Subject: P08-0065 465 Grand Avenue October 1,2009 Page 3 of 5 per dwelling and of one space for each 500 square feet of floor area for the commercial space are consistent with the City's multi-family and commercial requirements, respectively. While landscaping is not required of development in the Downtown Commercial District, all of the residential dwelling units will be provided with private balconies and park and recreation in-lieu fees will be required in accordance with the South San Francisco Municipal Code Title 19 Subdivisions. The proposed development meets or exceeds all other development requirements. TENTATIVE SUBDIVISION MAP The proposed development includes the establishment of a mixed-use condominium comprised of six residential dwellings, a ground floor commercial unit, common area and an underground residential parking garage. In accordance with SSFMC Title 19 Subdivision Regulations the proposed Tentative Subdivision Map requires approval by the City Council. The proposed map complies with SSFMC Title 19 requirements. The City Engineer and city staff have reviewed the proposed map and the associated covenants, conditions and restrictions (CC&Rs) and determined that they comply with SSFMC Title 19 requirements and standards. AFFORDABLE HOUSING AGREEMENT The SSFMC Chapter 20.125 requires that any development with four dwelling units or more restrict twenty percent of the proposed units as affordable to lower income households, or provide a payment of an in-lieu fee, or provide an equal number of similar dwelling units at another location within South San Francisco. The owner has worked with City staff to develop the Draft Affordable Housing Agreement (AHA). The agreement meets all of the requirements set forth in SSFMC Section 20.125.140. The Draft AHA does not include any offsets or incentives and is subject to the review and approval by the City Manager. The Draft AHA is attached to this staff report as a matter of courtesy to the Planning Commission. No action is required by the Planning Commission. A condition of approval requires that the owner agree to an AHA. DESIGN REVIEW BOARD The proposed development was reviewed by the Design Review Board at their meeting of August 19,2008. At their meeting the Board offered the following comments: 1. The renderings should closely match the plan elevations. 2. The belly bands should be consistent on the plans. 3. Reduce the size ofthe entry element to be consistent with the scale of the building. 4. Change the color of the roof to a terracotta color (reddish tone), to blend in the brick. Staff Report To: Planning Commission Subject: P08-0065 465 Grand Avenue October 1, 2009 Page 4 of 5 The applicant revised the plans to incorporate the Board's comments. The Board reviewed the proposed revisions at their meeting of September 15, 2009 and recommended approval of the proposed development. The Board's comments have been made as conditions of approval. ENVIRONMENTAL REVIEW City staff determined that the proposed development is categorically exempt from the Section 15332, Class 32 In-fill Development Projects of the California Environmental Quality Act (CEQA). (See CEQA Guidelines Section 15332.) For reasons stated above, none of the dwellings proposed for demolition pursuant to this project are considered "historic resources" for CEQA purposes. [See Public Resources Code Section 21084.1; CEQA Guidelines Section 15064.5, 15300.2(f).] Accordingly, the project will not have any substantial adverse change in the significance of any historic resource. Because the project has been determined to be exempt, the Planning Commission need take no further action regarding the environmental review. RECOMMENDATION: The construction of a three-story mixed-use condominium development providing 24,927 square foot comprised of six residential dwellings, a ground floor commercial unit, common area and an underground residential parking garage is consistent with the City's General Plan and with all applicable requirements of the City's Zoning and Subdivision Ordinances. The proposed development has been favorably reviewed by the Design Review Board, the Historic Preservation Commission and the Downtown Parking Place Commission. Conditions of approval will ensure that the proposed development complies with city requirements and standards and that the owner provides two affordable dwellings. Therefore, city staff recommends the Planning Commission adopt a resolution, including findings and conditions of approval, recommending that the City Council approve P08-0065. Attachments: Exhibit #A - Development Standards Draft Resolution Recommending Approval (including Findings and Conditions of Approval) Historic Preservation Commission Meeting Minutes - April 9, 2009 Downtown Parking Place Commission Meeting Minutes - April 14, 2009 Design Review Board Staff Report To: Planning Commission Subject: P08-0065 465 Grand Avenue October 1, 2009 Page 5 of 5 Minutes - August 19,2008 Draft Affordable Housing Agreement (Planning Commission only. Copies are available at the Permit Center at 315 Maple Avenue) Draft Covenants, Conditions & Restrictions (Planning Commission only. Copies are available at the Permit Center at 315 Maple Avenue) Plans EXHIBIT #A - DEVELOPMENT STANDARDS Total Site .Area: 0.16 acres [7,000 SF] Height Maximum: 4-5 Stories - 50 FT Proposed: 3 Stories- 45 FT Floor Area Commercial Residential Garage Total SF 9,427 SF 6 DDs 9,214 SF 6,286 SF 24,927 SF Floor Area Ratio: Maximum: No Max. Lot Coverage Maximum: 100% Proposed: 100% Landscaping: Minimum: 0% Proposed: 0% Automobile Parking Minimum: 14 Proposed: 14 Setbacks Front Side Rear Minimum: OFT OFT OFT Proposed: OFT OFT OFT - 1..; RESOLUTION NO. PLANNING COMMISSION CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA A RESOLUTION RECOMMENDING APPROVAL OF ENTITLEMENTS, INCLUDING A TENTATIVE SUBDIVISION MAP, USE PERMIT, AND DESIGN REVIEW FOR AN APPROXIMATEL Y 24,927 SQUARE FOOT MIXED USE COMMERCIAL AND RESIDENTIAL CONDOMINIUM, SITUATED AT 465 GRAND AVENUE. WHEREAS, the property owner of 465 Grand Avenue has applied to demolish three existing residential dwellings and create a mixed-use condominium development consisting of allowing six residential dwellings, a groilnd floor commercial unit, and an underground parking garage, and consisting of the construction of a three-story building; and WHEREAS, the entitlements proposed would provide for (1) construction of the Project; (2) a Tentative Subdivision Map establishing a mixed-use condominium development comprised of six residential dwellings, a commercial unit and common area situated at 465 Grand Avenue (APN 012-305-050) with an area of 0.16 acres; (3) a Use Permit and Design Review allowing the construction of a three-story 24,927 square foot mixed-use development comprised of ground floor commercial use, and six residential dwellings on the second and third floors with an underground residential parking garage; and (4) an Affordable Housing Agreement restricting twenty percent ofthe six residential dwellings as affordable dwelling units; and WHEREAS, City staff has determined that the proposed development is Categorically Exempt Class 32 In-fill Development Section 15332 from the California Environmental Quality Act; and NOW, THEREFORE, BE IT RESOLVED that the foregoing recitals are true and correct and made a part of this resolution, and that the Planning Commission of the City of South San Francisco hereby adopts the following findings based upon the entire record for the 465 Grand Avenue development, including without limitation, the South San Francisco General Plan; site plans, floor plans and elevations dated July 25,2008 prepared by Antonio M. Brandi, Architect; Mixed-Use Condominium Plan prepared by Transamerican Engineers & Associates, Inc. submitted in association with P08-0065; Design Review Board meeting and minutes of August 19,2008; Design Review Board meeting and minutes of September 15,2008; Historic Preservation Commission meeting and minutes of April 9, 2009 including minutes and all staff reports and other testimony received; Downtown Parking Place District Commission meeting and minutes of April 14, 2009 including minutes and all staff reports and other testimony received; Planning Commission meeting of October 1, 2009, including minutes and all staff reports and other testimony received: -2- 1. Tentative Subdivision Map. As required by the Tentative Subdivision Map Procedures [SSFMC Title 19J, the following findings are made in approval of a Tentative Subdivision Map (SA08-0001) establishing a mixed-use condominium development comprised of six residential dwellings, a commercial unit, common area, and an underground residential parking garage, situated at 465 Grand Avenue (APNOI2-305-050) with an area of 0.16 acres, in the Downtown Commercial Zoning District, subject to making the fmdings of approval and, based on public testimony and the materials submitted to the City of South San Francisco Planning Commission which include, but are not limited to: Site plans, floor plans and elevations prepared by Antonio M. Brandi, Architect, dated July 25,2008; Mixed Use Condominium Plan, prepared by Transarnerican Engineers, submitted in association with P08-0065; Design Review Board meeting and minutes of August 19,2008; Design Review Board meeting and minutes of September 15,2008; Planning Commission staff report of October 1, 2009 and Planning Commission meeting of October 1, 2009: (a) The proposed subdivision creating condominiums conforms with the requirements of the State Subdivision Map Act and to the requirements of the City of South San Francisco Title 19 Subdivision Code. The Tentative Subdivision Map conforms to City standards with regards to design, drainage, utilities, and improvements. Dedications are not required. The lot meets the City's minimum lot size requirements. Conditions of approval will ensure that the development complies with City development standards. (b) The proposed mixed-use condominium complies with the General Plan Land Use Element designation of the site of Downtown Commercial and the minimum lot size requirements delineated in SSFMC Title 20 Zoning Regulations. 2. Use Permit. As required by the "Use Permit Procedure" (SSFMC Chapter 20.81), the Planning Commission makes the following findings in support of the request to approve a Use Permit (UP08-001 0) allowing the construction of a mixed use condominium comprised of six residential dwellings, a ground floor commercial unit, and an underground residential parking garage, based on public testimony and the materials submitted to the City of South San Francisco Planning Commission which include, but are not limited to: Site plans, floor plans and elevations prepared by Antonio Brandi, Architect, dated July 25,2008; Design Review Board meeting and minutes of August 19,2008; Design Review Board meeting and minutes of September 15, 2008; Planning Commission staff report of October 1, 2009 and Planning Commission meeting of October 1, 2009: (a) The proposed mixed-use development allowing six residential dwellings, a ground floor commercial unit and an underground residential parking garage will not be adverse to the public health, safety, or general welfare ~ - 3 - of the community, or unreasonably detrimental to surrounding properties or improvements. The site is physically suitable for the type and intensity of the land use being proposed, and the compatibility with adjacent developments was thoroughly analyzed in the staff report. Conditions of approval are required to ensure protection of public safety, reduce traffic, reduce parking demand and ensure compliance with Federal, State and City development and environmental standards. (b) The proposed mixed-use development allowing six residential dwellings, a ground floor commercial unit, and an underground parking garage is consistent with the General Plan which designates the property Downtown Commercial and which specifically encourages mixed-use developments. (c) The proposed mixed-use development allowing six residential dwellings, a ground floor commercial unit, and an underground parking garage meets or exceeds the minimum standards and requirements of the City's Zoning Ordinance which designates the site Downtown Commercial. The proposed development complies with the City's design standards, including setback, parking, floor area ratio and landscaping requirements. The number of on-site parking spaces is adequate to serve the residential dwellings. The Downtown Parking Place Commission has granted a waiver for the parking spaces required for the commercial use and visitor parking for the residential dwellings. Conditions of approval are required to ensure compliance with the City's development standards, provide security and ensure that the site is well maintained. NOW, THEREFORE, BE IT FURTHER RESOLVED that the Planning Commission of the City of South San Francisco does hereby Recommend that the City Council take the following actions: A. Approve the Tentative Subdivision Map, situated at 465 Grand A venue in the Downtown Commercial District. B. Approve the Use Permit allowing mixed-use development, situated at 465 Grand A venue in the Downtown Commercial District. I hereby certify that the foregoing resolution was adopted by the Planning Commission of the City of South San Francisco at the regular meeting held on the _ day of 2009, by the following vote: AYES: NOES: ABSTENTIONS: : - 4- ABSENT: Attest: Planning Commission Secretary .::I, - 5- EXHIBIT A CONDITIONS OF APPROVAL 1273147.1 -6- PROPOSED CONDITIONS OF APPROVAL 465 GRAND AVENUE CONDOMINIUMS P08-0065 (As recommended by City Staff on October 1, 2009) A. PLANNING DIVISION: 1. The applicant shall comply with the City's Standard Conditions and with all the requirements of all affected City Divisions and Departments as contained in the attached conditions, except as amended by the conditions of approval. 2. The construction drawings shall substantially comply with the Planning Commission approved plans, as amended by the conditions of approval including the Site Plans and Building Plans prepared Antonio M. Brandi Architect, dated July 25, 2008, and Mixed Use Condominium Plans, prepared by Transamerican Engineers & Associates, Inc., dated September 2009, submitted in association with P08-0065 and shall include the recommendations by the South San Francisco Design Review Board. 3. Prior to the final inspection, the owner shall install a street tree in front of the proposed development within the public right of way. The tree shall be a minimum size of24 inch box. The landscape plan shall be subject to the review and approval by the City's Chief Planner. 4. Prior to the issuance of the Building Permit, the Final Subdivision Map including the CC&R's shall be recorded with the San Mateo County Recorder's Office. The applicant shall provide a record with the City Engineer. 5. The owner shall pay the Childcare Impact Fee estimated to be $ 11,106.00 [6 Dwellings x $ 1,851.00IDwelling = $ 11,106.00 (SSFMC Chapter 20.115 & City Council Resolution 77-2006)]. 6. Prior to the issuance of the Building Permit the owner shall meet with the City's Park and Recreation Director and develop a Parks and Recreation Fee Plan in-lieu of parkland dedication in accordance with SSFMC Chapter 19.24. Prior to the Final Inspection the owner shall pay the Parks and Recreation Fees in-lieu of park land dedication [SSFMC Chapter 19.24]. The plan shall be subject to the review and approval ofthe City's Park and Recreation Director. 7. Prior to completion of the building or sale of the property, the applicant shall complete the Affordable Housing Agreement (AHA). The Final -7- AHA shall be subject to the review and approval of the City's Housing Manager and City Attorney. 8. Prior to the installation of any sign visible from the exterior of the building, the owner shall first obtain a city approved sign permit. 9. Prior to operation all businesses in the condominium shall obtain, and thereafter for the duration of the business, maintain a valid city business license. 10. Prior to the issuance of a demolition permit, the owner shall have a qualified architectural photographer photo-document the site and both the interior and exterior of the dwellings. The owner shall provide three sets of the 8 xl0 glossies and an electronic copy to the Planning Division. The owner shall also offer the dwellings for sale for a nominal fee for period of 90 days through advertisement in a local paper, city website and/or on the internet. 11. Prior to the issuance of the Building Permit, the owner shall provide a letter for the South San Francisco Scavengers confirming the plans include adequate trash and recycling facilities. (Planning Contact: Steve Carlson 650/877-8353 Fax 650/829-6639) B. ENGINEERING DIVISION: 1. The developer shall comply with all of the applicable conditions of approval detailed in the Engineering Division's "Standard Subdivision and Use Permit Conditions for Townhouse, Condominium and Apartment Developments with Private Streets and Utilities", contained in our "Standard Conditions for Subdivisions and Private Developments" booklet dated January 1998. This booklet is available in our office at no cost to the applicant. The building permit application plans shall conform to the standards of the Engineering Division's "Building Permit Typical Plan Check Submittals" requirements, copies of which are available from the Engineering Division. 2. The owner shall, at his/her expense, repair any broken sidewalk, curb and gutter along the Grand A venue frontage of the property, prior to requesting a final inspection for the new building. 3. The owner shall install a City Standard "property line" sewer cleanout on the existing building sewer lateral, in accordance with City Standard Drawings No.4 and No.5, so that the building sewer lateral can be properly cleaned. The existing sewer lateral for the site shall either be -8- replaced with a new lateral to the City main, or the existing lateral shall be thoroughly tested and TV inspected to the satisfaction of the City's Public Works Inspector in order to verify that it is in good condition and will be adequate to serve the proposed project. All work shall be accomplished at the applicant's cost. 4. The owner shall, at his/her expense, design and construct a drainage system that will route storm water run-off from the building's roof areas towards Third Lane, so that storm water will not flow into adjacent private property. Storm water runoff from the site shall not be discharged on to the Grand Avenue public sidewalk. 5. The owner shall, at his/her expense, install an Rl "STOP" sign and an R3- 2 No Left Turn symbol sign at the driveway exit on to Third Lane. The signs shall be mounted on a 2" diameter galvanized steel pole 7 feet above the ground. 6. During construction, the Grand Avenue sidewalk shall remain open to pedestrian traffic and the parking spaces in front of the building shall not be closed. Grand Avenue shall be protected by a sturdy and enclosed safety barricade that will accommodate two-way wheelchair access. The pedestrian protection structure shall conform to all Building Code requirements and both a building permit and an encroachment permit shall be obtained prior to installation of the structure. 7. All work performed in the City's right-of-way shall require an encroachment from the Engineering Division. The owner shall apply and pay all fees and deposits for the encroachment permit prior to receiving a building permit for the new building. (Engineering Contact: Sam Bautista 650/829-6652) C. POLICE DEPARTMENT: 1. Municipal Code Compliance The applicant shall comply with the provisions of Chapter 15.48 ofthe Municipal Code, "Minimum Building Security Standards" Ordinance revised May 1995. The Police Department reserves the right to make additional security and safety conditions, if necessary, upon receipt of detailed/revised building plans. 2. Landscaping Landscaping shall be of the type and situated in locations to maximize - 9- observation while providing the desired degree of aesthetics. Security planting materials are encouraged along fence and property lines and under vulnerable windows. 3. Building / Area Security a. Lighting 1. Parking lots, (including parking lots with carports) driveways, circulation areas, aisles, passageways, recesses, and grounds contiguous to buildings shall be provided with high intensity discharge lighting with sufficient wattage to provide adequate illumination to make clearly visible the presence of any person on or about the premises during the hours of business darkness and provide a safe, secure environment for all persons, property, and vehicles on site. Such lighting shall be equipped with vandal-resistant covers. A lighting level of .50 to 1 foot-candles minimum, maintained at ground level is required. 2. All exterior doors shall be provided with their own light source and shall be adequately illuminated at all hours to make clearly visible the presence of any person on or about the premises and provide adequate illumination for persons exiting the building. 3. Exterior door, perimeter, parking area, and canopy lights shall be controlled by photocell and shall be left on during hours of darkness or diminished lighting. 4. The applicant shall submit a lighting plan to be reviewed and approved by the Police Department. Lighting plans shall include photometric and distribution data attesting to the required illumination level. 5. Fencing should be of an open design (e.g. bars and columns), to aid in natural surveillance. b. Traffic, Parking, and Site Plan 1. Handicapped parking spaces shall be clearly marked and properly sign posted. NOTE: For additional details, contact the Traffic Bureau at 829-3934. -10- (Police contact: Sergeant Ron Carlino 650/877-8927) D. FIRE DEPARTMENT 1. All buildings require fire sprinklers. Please submit separate plans. 2. Plans shall conform to NFP A 13 and City of South San Francisco Municipal Code, Section 15.24.110. 3. Exterior canopies and overhangs require fire sprinklers. 4. All fire sprinklers piping in the parking garage shall be corrosion resistant, either painted or galvanized. 5. All buildings require fire alarms. Please submit separate plans. 6. Provide a horn/strobe at the front of the building, which will activate upon fire sprinkler or alarm notification. Plans shall conform to NFP A 72 and City of South San Francisco Municipal Code, Section 15.24.150. 7. All buildings require fire extinguishers. 8. Provide adequate premise identification (address) on the building per the City of South San Francisco Municipal Code, Section 15.24.100. 9. Provide standpipe system for this building in accordance with NFP A 14 and the City of South San Francisco Municipal Code, Section 15.24.110. 10. These buildings will be equipped with a fire communication system. Due to the nature of the construction most parking structure type buildings communications between fire crews, incident commanders and county communication is difficult and sometimes even non-existent. 11. The access at the sides and interior of property is very limited or completely non-existent, provide an Alternate Means and Methods of Construction (AMMC) to mitigate this requirement. The AMMC shall be submitted and approved by the Fire Chief prior to the issuance of a building permit. (Fire Contact: Luis DaSilva, Fire Marshal 650/829-6645) E. WATER QUALITY DIVISION: - 11- 1. A plan showing the location of all storm drains and sanitary sewers must be submitted. 2. The onsite catch basins are to be stenciled with the approved San Mateo Countywide Stormwater Logo (No Dumping! Flows to Bay). 3. Roof condensate must be routed to sanitary sewer. This must be shown on plans prior to issuance of a permit. 4. Install separate water meters for retail and residential units. 5. Fire sprinkler system test/drainage valve should be plumbed into the sanitary sewer system. This must be shown on the plans prior to issuance of a permit. 6. Plans must include location of concrete wash out area and location of entrance/outlet of tire wash. 7. A Grading and Drainage Plan must be submitted. 8. An Erosion and Sediment Control Plan must be submitted. 9. Owner shall pay the sewer connection fee at a later time based on anticipated flow, BOD and TSS calculations. (Water Quality contact: Cassie Prudhel 650/877-8634) -12- CITY OF SOUTH SAN FRANCISCO HISTORIC PRESERVATION COMMISSION MINUTES OF APRIL 9,2009 REGULAR MEETING CALL TO ORDER: 7:30 PM ROLL CALL: Members Present: Chairperson Kon, Commissioner De Tomasi, Commissioner Iskra, Commissioner Nicolas Commissioner Acosta Gerry Beaudin, Senior Planner Steve Carlson, Senior Planner Billy Gross, Associate Planner Members Absent: Staff Present: CHAIRMAN'S COMMENTS: Chairperson Kon noted that this would be his last meeting as Chairperson and that the position had been a great learning experience. He believes that the Commission still has work to do to improve historic resources within South San Francisco, and he would like to have increased communications with all historic resources owners. REORGANIZATION: Commissioner Iskra nominated Commissioner Acosta as Chairperson, Commissioner Nicolas seconded. Commissioner Acosta was approved as Chairperson unanimously (4-0). Commissioner Kon nominated Commissioner Nicolas as Vice-Chairperson, Commissioner Iskra seconded. Commissioner Nicolas was approved as Vice-Chairperson unanimously (4-0). ORAL COMMUNICATIONS: Mayor Karyl Matsumoto talked briefly about the City Council's attendance procedure. Mayor Matsumoto also asked that the Historic Preservation CO!l1..mission discuss what expanded tasks the Commission would like to see for themselves in the future, and that this information be forwarded to the City Council at a future meeting. Commissioner Iskra commented on her desire that all project applications involving potential or designated historic resources be brought before the Historic Preservation Commission in the future. AGENDA ITEMS: 1. ITEMS FROM STAFF a) Demolition of Potential Historic Resources at 465 Grand Avenue. -13- HPC Commission Meeting April 9, 2009 Page 2 Senior Planner Carlson presented the Staff Report and answered the Commission's general questions regarding the item. Mr. Kwak, representative of the owners, stated that the owners continued to be willing to donate the historic resources to any interested parties. The Commission discussed the item. The Commission had concerns regarding traffic, which will be conveyed to the Parking Place Commission. The Commission was generally in favor of the project as long as the previously stipulated conditions of approval remained, including: 1. Donate and allow relocation of the building at no cost; or, 2. If relocation is not feasible, photo documentation for archival purposes prior to demolition. Commissioner De Tomasi made a motion to direct the Historic Preservation Commissions comments on to the Parking Place Commission and Planning Commission. Commissioner Iskra seconded. The motion was approved 4-0. b) Certificate of Alteration to Demolish the Designated Historic Resource at 323 Miller Avenue. Associate Planner Gross presented the Status Report and answered the Commissions general questions. The Commission discussed the item. Chairperson Kon was of the opinion that the Commission had exhausted all efforts to save the building. Commissioner Iskra reiterated her concern that the Miller Avenue Garage project was not brought before the HPC in its initial phase in 2007. Chairperson Kon agreed with Commissioner Iskra's comments, and stated that he was proud of the Commissions' efforts to try to save the historic structure, Chairperson made a motion to approve the Certificate of Alteration to demolish the designated historic structure at 323 Miller Ave, Commissioner De Tomasi seconded. The motion was approved 3-1 (Iskra dissenting). c) Subcommittee Requestfor 323 Miller Ave The Commission was asked to form a subcommittee of two commissioners to assist the city in determining what materials would be salvaged from the duplex at 323 Miller Ave prior to demolition. -14- HPC Commission Meeting April 9, 2009 Page 3 Chairperson Kon and Commissioner De Tomasi volunteered to serve on the subcommittee. Staff will contact them with the proposed date of the salvage walkthrough. 2. ITEMS FROM COMMISSION 3, ADJOURNMENT Meeting adjourned at 8:32 PM Is/Cyrus Kon Cyrus Kon, Chairperson Historic Preservation Commission City of S?uth Francisco Is/Gerry Beaudin Gerry Beaudin Commission Secretary City of South Francisco -15- CITY OF SOUTH SAN FRANCISCO PARKING PLACE COMMISSION MEETING MINUTES TUESDAY, April 14, 2009 LARGE CONFERENCE ROOM, CITY HALL 400 Grand Avenue 1. CALL TO ORDER: The meeting was called to order at 5:00 pm by Chair Faria. 2. ROLL CALL: Present: Chair Faria Vice Chair Luster Commissioner Irli Also Present: Susy Kalkin, Commission Secretary Laura Iskra, Secretary Pro Tern Sergeant Keith Wall Steve Carlson, Senior Planner Antonio Brandi, Architect Maria Martinucci, Executive Director SSF Chamber of Commerce 3. MINUTES APPROVAL: Approval of March 10, 2009 Meeting Minutes Motion: Chair Faria/Second: Vice Chair Luster: To approve the minutes of March 10,2009, with correction to page one, Agenda Items, paragraph 2. Unanimously approved. 4. AGENDA REVIEW: None 5. AGENDA ITEMS: Parking Exception for 13 parking spaces in the Downtown Parking District, at 465-467 Grand Avenue, in the Downtown Commercial (D-C-L) Zone District for a mixed-use 3- story development comprised of 5,442 square feet of ground floor retail and 6 dwelling units on the upper two floors, with on-site garage parking for 12 vehicles in accordance with SSFMC Chapter 20.74. Use Permit - Mixed Use Development Lee, Alfred Tr Et AI/Owner Lee, Alfred Tr Et AI/Applicant 465-467 Gra.."1d },~venue P08-0065: PE08-0003 Page 1 Parking Place Commission Meeting 04/14/09 -16- Senior Planner Steve Carlson informed the Parking Place Commission that this project had come before them a few years ago and that it was essentially the same project, but a little different configuration of the floor plan. He told them the applicant's were asking for fewer parking spaces than before; it will be mixed use with commercial on the ground floor and residential on the upper floors so they will provide 12 parking spaces for residential use. He explained the parking exception for 13 parking spaces will be for the commercial use and there are several parking lots in the vicinity of the building, which should meet the demand this project has on it. Chair Faria 'asked if the 12 parking spaces were per dwelling unit. Senior Planner Steve Carlson explained there will be 2.25 spaces per dwelling unit, 2 for residents and .25 per unit for guest parking. Chair Faria stated his concern that if parking spaces were vacant can anyone not authorized park in those spaces. Senior Planner Steve Carlson answered no; there will be roll up doors to prevent that. Chair Faria stated that was good and ifthey didn't have the roll up doors than anyone could go in there. The Parking Place Commission reviewed the drawings again and Commission Irli stated it was a nice improvement and Vice Chair Luster agreed it was very nice looking. Commission Irli asked if they had any ides who will be going into the commercial area. Senior Planner Steve Carlson answered not yet. Chair Faria commented he was concerned that ifthere's an overflow for resident and guest parking that they might park in the surrounding businesses parking areas. Senior Planner Steve Carlson informed the Commissioners there will be an association and if there are issues the businesses can take their concerns to the association who will take care of the problem. Sergeant Keith Wall asked if there will be one establishment in the commercial unit and not multiple units. Mr. Brandi, Architect answered that it's more likely to be one. Secretary Susy Kalkin informed the Parking Place Commission that if the applicant wanted to provide any type of food service they would have to come back and request an allowance for additional parking spaces. Page 2 Parking Place Commission Meeting 04/14/09 -17- Motion: Commissioner Irli/Second: Vice Chair Luster: To approve a 13 space parking exception in the Downtown Parking District, at 465-467 Grand A venue, in the Downtown Commercial (D-C-L) Zone District for a mixed-use 3-story development comprised of 5,442 square feet of ground floor retail and 6 dwelling units on the upper two floors, with on-site garage parking for 12 vehicles in accordance with SSFMC Chapter 20.74. Unanimously approved. 6. CORRESPONDENCE: None 7. ORAL COMMUNICATIONS: None 8. ADJOURNMENT: Motion: Chair Faria to adjourn the meeting at 5:15 pm Unanimously approved. Respectfully submitted, Susy K:alkin, Commission Secretary Norm Faria, Chair Page 3 Parking Place Commission Meeting 04/14/09 -18- MINUTES SOUTH SAN FRANCISCO DESIGN REVIEW BOARD Meeting of August 19, 2008 TIME: 4:00 P.M. MEMBERS PRESENT: Harris, Nilmeyer, Nelson, Ruiz and Williams MEMBERS ABSENT: None STAFF PRESENT: Steve Carlson, Senior Planner Gerry Beaudin, Senior Planner Linda Ajello, Associate Planner Sean Flanagan, Associate Planner Patricia Cotla, Planning Technician 1. ADMINISTRATIVE BUSINESS . New Associate Planner Linda Ajello was introduced. · 648 Commerical - Revised Front & Side Elevation Plans were submitted for review: Add horizontal banding across the front of the bay element to connect the left and right sides of the front elevation Add trim around the openings of the bay element Add a railing in the bottom of the central arch to integrate the bay element. OWNER APPLICANT ADDRESS PROJECT NUMBER PROJECT NAME Kathleen A Tr/Owner Chas Jones 91 Westborough Blvd P08-0064, UP08-0009 & DR08-0028 UP - Medical Services (Case Planner: Linda Ajello) DESCRIPTION Use Permit and Design Review allowing a nephrology surgical center and an outdoor emergency generator, situated at 91 Westborough Boulevard in the Planned Commercial Zoning District (P-C-L), in accordance with SSFMC Chapters 20.24,20.81 & 20.85. -19- 3. OWNER APPLICANT ADDRESS PROJECT NUMBER PROJECT NAME DESCRIPTION Lee, Alfred TR ET AL Brandi, Tony 465 Grand Avenue P08-0065, UP08-00l0, DR08-003l, AHA08-000l & PE08-0003 Use Permit - Mixed Use Development (Case Planner: Steve Carlson) Use Permit and Design Review allowing a mixed-use 3- story development comprised of 5,442 square feet of ground floor retail and 6 dwelling units on the upper two floors, with on-site garage parking for 12 vehicles, an Affordable Housing Agreement allowing 20% of the 6 dwellings to be restricted to moderate income households, and a Parking Exception for 13 parking spaces in the Downtown Parking District, at 465-467 Grand Avenue, in t he Downtown Commercial (D-C- L) Zone District in accordance with SSFMC Chapters 20.26,20.74,20.81 & 20.85. The Board had the following comments: 1. The renderings submitted at the DRB meeting should more closely match the details in the plan elevations. 2. The belly bands should be consistent on the plans. 3. Reduce the size of the entry element to be consistent with scale of the buidlng. 4. Change the roof color to a Terracotta color (reddish tone), to blend in with the brick. Recommend Approval with Conditions. 4. OWNER APPLICANT ADDRESS PROJECT NUMBER PROJECT NAME DESCRIPTION Richard Lee Wing Lee 319 A Street P07-0083 & DR07-0052 Use Permit - Mixed Use Development (Case Planner: Steve Carlson) "Re-Submittal" - Design Review of a new 3-story single family dwelling at 319 A Street in the Medium Density Residential (R-2-H) Zone District in accordance with SSFMC Chapters 20.18 & 20.85. -20- Pages 21-93 Draft Affordable Housing Agreement & Draft Covenants, Conditions & Restrictions Copies are available at: Planning Division 315 Maple Avenue South San Francisco or online h!!P:/ /www.ssf.net/media/ h!!P:/ /we blink. ssf.net RECORDING REQUESTED BY: COMMUNITY DEVELOPMENT DEPARTMENT CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94080 WHEN RECORDED MAIL TO: ECONOMIC AND COMMUNITY DEVELOPMENT CITY OF SOUTH SAN FRANCISCO 400 GRAND AVENUE SOUTH SAN FRANCISCO, CA 94080 Documentary Transfer Tax $ EXEMPT County of San Mateo City of South San Francisco ~ Right of Way Agent AFFORDABLE HOUSING AGREEMENT FOR BELOW MARKET RATE PROPERTY RECITALS WHEREAS, Chapter 20.125 of the South San Francisco Municipal Code sets forth the requirements for Inclusionary Housing ("Inc1usionary Housing Ordinance"); and WHEREAS, the Developer is the fee simple owner of that certain real property ("Property") located in the City of South San Francisco, State of California, and more particularly described in Exhibit A attached hereto. WHEREAS, the Developer intends to construct six (6) housing units on the Property (the "Project") and has submitted site development plans for the Project; and Affordable Housing Agreement 465 Grand Avenue 1 -21- WHEREAS, the Property is within the Downtown Central Redevelopment Project Area ("Project Area") in the City and is subject to the provisions of the Downtown Central Redevelopment Plan ("Redevelopment Plan") for the Project Area adopted by the City Council of the City of South San Francisco on July 12, 1989. The Redevelopment Plan as it now exists and as it may be subsequently amended, is incorporated herein by reference and made a part hereof as though fully set forth herein. WHEREAS, as a condition of development of the Project, Developer must comply with the City of South San Francisco Redevelopment Agency's housing policies and programs as set forth in the Redevelopment Plan and the City's Inc1usionary Housing Ordinance adopted by the City Council on December 12, 2001, as it applies to the provision of affordable housing destroyed or removed from the Project Area. WHEREAS, the Developer proposes meeting these requirements by selling the required number of Below Market Rate Units; and NOW THEREFORE, the CITY and the Developer agree as follows: AGREEMENT 1. As a condition of developing and constructing the Project on the Property, Developer shall sell one (1) three-bedroom housing unit in the Project ("Below Market Rate Unit") to a household whose annual gross income does not exceed ninety percent (90%) of unadjusted median income for a San Mateo County household in the San Francisco Primary Metropolitan Statistical Area, published annually by the Department of Housing and Urban Development ("Low-Income Household"). CITY and Developer agree that selling a three- bedroom Below Market Rate Unit affordable to a Low-Income Household incorporates the value of a fractional unit. 2. Developer shall sell the Below Market Rate Unit at a price that will result in an allowable housing expense (as defined in Section 20.125.020 of the Inclusionary Housing Ordinance) that does not exceed thirty percent (30%) of the gross montWy income for Low- Income Households, adjusted for household size. 3. The Below Market Rate Unit shall be located in close proximity to the Downtown, a major commercial and transportation conidor. The Developer and the City acknowledge this is an ideal area for such Below Market Rate Unit as it is in close proximity to and has access to employment opportunities, urban services and transportation facilities. 4. Occupancy of the Below Market Rate Unit shall be established concurrently with occupancy of the market rate units located on the Property. This requirement shall be effective as of the date the first unit is occupied on the Property: TIus requirement for the Below Market Rate Units shall remain in effect even in the event all market rate units on the Property become unoccupied. Affordable Housing Agreement 465 Grand Avenue 2 -22- 5. Developer shall require the buyer of the Below Market Rate Unit to execute a Resale Restriction and Right of First Refusal Agreement substantially in the form attached hereto as Exhibit B ("Resale Restriction Agreement"). The Resale Restriction Agreement shall be recorded against the parcel containing the Below Market Rate Unit upon close of escrow of sale for such Below Market Rate Unit. The Below Market Rate Unit shall remain restricted and affordable to Low-Income Households for a term of fifty-five (55) years, commencing on the date each Below Market Rate Unit is sold. The restrictions shall apply to all subsequent buyers. 6. Developer shall sell the Below Market Rate Unit to an eligible Low-Income Household pursuant to Section 2. Developer shall work with the City and/or the City's First Time Homebuyer Administrator to identify and qualify an eligible buyer for said unit. At the time of sale Developer shall pay an administrative fee to reimburse the City for all administrative /processing costs and fees incurred in processing the sale of the Below Market Rate Unit, which may include First Time Homebuyer Administrator fees and costs and processing fees for First Time Homebuyer loans by the City to an eligible buyer. 7. The Below Market Rate Unit shall remain an owner-occupied unit. In the event that the entire Project changes from for sale units to rental units or the Below Market Rate Unit is offered as a rental unit, the Property's Below Market Rate Unit shall be bound by a Rent Regulatory Agreement, which agreement is subject to City Council approval. 8. Developer shall indemnify, defend with counsel selected by the City, and hold harmless the City and its officials, officers, employees, agents, and volunteers from and against any and all losses, liability, claims, suits, actiop.s, damages, and causes of action arising or allegedly arising out of or relating in any manner to the Project, the Property, or Developer's performance or nonperformance under this Agreement, except to the extent arising from the gross negligence or willful misconduct of the City. The provisions of this section shall survive the expiration or other termination of this Agreement or any release of part or all of the Property from the burdens of this Agreement. 9. Developer shall pay an administrative fee to reimburse the City for all administrative /processing costs and fees incurred in processing the affordable housing plan, which may include reasonable attorney's fees and cost, and implementing the requirements of the Inclusionary Housing Ordinance. 10. Developer hereby subjects the Property to the covenants, conditions and restrictions set forth in this Agreement. The Parties hereby declare their express intent that all such covenants, conditions and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon Developer's successors in title to the Property. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City. Each and every contract, deed or other instrument hereafter executed applicable to or conveying the Property or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covena..l1ts, conditions and restrictions, regardless of whether such covenants, conditions and restrictions are set forth in such contract, deed or other instrument. This Agreement shall begrecorded on the Property upon final map recordation or, if a map is not being processed, prior to the issuance of building permits for the Property. Affordable Housing Agreement 465 Grand Avenue 3 -23- 11. Intentionally omitted. 12. All obligations relating to a Below Market Rate Unit shall transfer from Developer to the buyer of such unit and its assigns upon sale of such Below Market Rate Unit. Upon the sale by Developer of the Below Market Rate Unit, Developer shall be released from, and shall have no further obligations under this Agreement. Such release shall be effective upon the sale and shall not require any further action or documentation by any party to this Agreement. 13. Any amendments to this Agreement shall be processed in the same manner as an original application for approval pursuant to Section 20.125.150 of the South San Francisco Municipal Code. Nothing, however, shall prevent the body granting final approval of the project development, from modifying the location and phasing of the Below Market Rate Units as a condition of approval for the project. 14. The laws of the State of California shall govern this Agreement without regard to principles of conflicts of laws. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of San Mateo or in the United States District Court for the Northern District of California. 15. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any o.ther reliefto which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 16. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 17. Any notice or demand shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below: Developer: City: City of South San Francisco - City Clerk 400 Grand Avenue South San Francisco, CA 94080 18. Notwithstanding any previous provision of this Agreement, the terms of this Agreement shall be interpreted in accordance with the provisions of Chapter 20.125 ofthe South San Francisco Municipal Code. Affordable Housing Agreement 465 Grand Avenue 4 -24- IN WITNESS THEREOF, the parties have executed this Agreement as of the date first written above. DEVELOPER: CITY: CITY OF SOUTH SAN FRANCISCO By: Name Printed: Title: By: Barry M. Nagel City Manager APPROVED AS TO FORM: Steven T. Mattas, City Attorney SIGNATURES MUST BE NOTARIZED. Exhibit A Legal Description Exhibit B Form of Resale Restriction and Right of First Refusal Agreement for Below Market Rate Property Affordable Housing Agreement 465 Grand Avenue 5 -25- EXHmIT A Property (attach legal description) -26- EXHmIT B Form of Resale Restriction and Option to Purchase Recording requested by and when recorded mail to: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attention: City Manager EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 996103, 27383 Space above this line for Recorder's use. RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE Owner: Property Address: South San Francisco, CA 94080 Name of Development: 465 Grand Avenue NOTICE: THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU ARE BUYING. EXCEPT FOR A TRANSFER TO CITY OF SOUTH SAN FRANCISCO FOLLOWING EXERCISE OF ITS OPTION TO PURCHASE, THE PROPERTY .MAY ONLY BE SOLD TO AN ELIGIBLE HOUSEHOLD AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN AFFORDABLE HOUSING COST. ALL IMPROVEMENTS TO THE PROPERTY AND ALL LOANS SECURED BY THE PROPERTY REQUIRE PRIOR WRITTEN APPROVAL FROM' THE CITY OF SOUTH SAN FRANCISCO. This Resale Restriction Agreement and Option to Purchase ("Agreement") is entered into as of this ,20_ (the "Effective Date"), by and between the City of South San Francisco, a municipal corporation ("City") and [an individual/a married couple] ("Owner"). City and Owner are collectively referred to hereinafter as the "Parties." Form of Resale Restriction and Option to Purchase 1 -27- RECITALS A. Owner intends to purchase the property located at in the City of South San Francisco and more particularly described in Exhibit A attached hereto and incorporated herein by reference (the "Property"). B. The Property was constructed pursuant to Chapter 20.125 of the South San Francisco Municipal Code ("Inclusionary Ordinance"), which requires developers to set aside 20% of new housing as housing affordable to low- and moderate-income households, and the Affordable Housing Agreement ("AHA") dated as of , 20_ by and between the City and (the "Developer"). C. Pursuant to the AHA, Developer is required to sell the Property to an Eligible Household (defmed below) at a price that will result in an Affordable Housing Cost for the Eligible Household and to record this Agreement against the Property. D. The purpose of this Agreement is to maintain and preserve the Property as housing affordable to Eligible Households for the longest feasible time and to prevent initial and subsequent purchasers from using the Property for purposes incompatible with the Inclusionary Ordinance and realizing unwarranted gains from sales of the Property at unrestricted prices. E. In consideration of the economic benefits to Owner resulting from the purchase of the Property at a below market price, this Agreement restricts the resale price of the Property and specifies, among other requirements, that the Property may only be transferred to Eligible Households. This Agreement also provides the City an option to purchase the Property at a restricted price. NOW THEREFORE, in consideration of the benefits received by the Owner and the City hereunder, Owner and City agree as follows: 1. Definitions. The following terms shall have the meanings set forth in this Section. Additional terms are defined in the Recitals and text of this Agreement. (a) "Adjusted Resale Price" is defined in Section 15. (D) "Aifordable Housing Cost" shall have the meaning ascribed to such term in California Health and Safety Code Section 50052.5 or successor provision and the regulations promulgated pursuant thereto. ( c) "Area Median Income" or "AMI" means the area median income for San Mateo County, California, adjusted for household size, published by the U.S. Department of Housing and Urban Development ("HOO") pursuant to the United States Housing Act of 1937, as amended. If HUD ceases to make such determination, Area Median Income shall be the median income calculated pursuant to reasonable methods of median income calculation developed by the City. Form of Resale Restriction and Option to Purchase - -28- (d) "Base Resale Price" is defined in Section 15. (e) "City Option" is defined in Section 8. (f) "Eligible Household" means a household whose Gross Income does not exceed ninety percent (90%) of the unadjusted Area Median Income. (g) "Gross Income" shall have the meaning ascribed to such term in Section 6914 of Title 25 of the California Code of Regulations or any successor thereto. (h) "Notice of Intent to Transfer" is defmed in Section 10. (i) "Principal Residence" means the place where a person resides on a substantially full-time basis during not less than ten (10) months per year. G) "Term" means a period of fifty-five (55) years from the Effective Date. (k) "Transfer" as defined in Section 6. 2. Principal Residence Requirement. The Owner covenants and agrees that Owner (i) shall occupy the Property as the Owner's Principal Residence throughout the period of time that Owner owns the Property, and (ii) shall not rent or lease the Property or portion thereof during the Term of this Agreement without the prior written consent ofthe City. Any lease or rental in violation of the provisions of this Agreement shall be prohibited and void. Upon request of the City made from time to time, Owner shall provide a written certification to the City, in form provided by the City, that Owner is occupying the Property as Owner's Principal Residence and that Owner is not renting or leasing the Property to another party, and shall provide such documents and other evidence as City may reasonably request to verify compliance with this Section. 3. Affordabilitv Restrictions. Owner, by and for itself and any successors in interest, hereby covenants and agrees that the Property shall be sold only to Eligible Households at a price not to exceed the Adjusted Resale Price (as defined in Section 15) and that during the Term of this Agreement all of the requirements and restrictions of this Agreement shall apply. 4. Maintenance. a. The Owner shall mamtain the Property, including landscaping, in good repair and in a neat, clean and orderly condition (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials. Owner shall not commit waste or permit deterioration ofthe Property, and shall make all repairs and replacements necessary to keep the Property in good condition and repair. Failure by the Owner to maintain the Property shall constitute a default under this Agreement for which the City may exercise the Form of Resale Restriction and Option to Purchase - -29- remedies provided to City hereunder, including without limitation, the City Option to purchase the Property pursuant to Section 8 below. b. In the event that the Owner breaches any of the covenants contained in this Section 4 and such default continues for a period of ten (10) days after written notice from the City with respect to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice from the City with respect to landscaping and building improvements, then in addition to any other remedy City may have at law or in equity, City shall have the right to enter the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but is not required) to enter the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, which amount shall be promptly paid by the Owner to the City, plus an administrative charge equal to fifteen percent (15%) of the cost of such work upon demand. 5. Insurance. The Owner shall maintain a standard all risk property insurance policy equal to the replacement value of the Property naming the City and its elected and appointed officers, officials, employees, representatives and agents as additional insureds. The Owner shall provide the City with evidence of required insurance coverage upon City's request. 6. Transfer. a. Restrictions on Transfer. Except as provided in Section 6(b ), throughout the Term of this Agreement, the Property may only be sold or otherwise conveyed to Eligible Households at a price not to exceed the Adjusted Resale Price defined in Section 15 below. There shall be no Transfer of the Property without the City's certification that the transferee is an Eligible Household and that the Property is being transferred at a price not to exceed the Adjusted Resale Price. "Transfer" means any sale, assignment or transfer, voluntary or involuntary, of any interest in the Property, including, but not limited to, a fee simple interest, a joint tenancy interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which possession of the Property is transferred and Owner retains title, or a deed of trust. Any Transfer without satisfaction of the provisions of this Agreement is prohibited and shall constitute a default by Owner for which the City may exercise any of the remedies provided herein, including without limitation, the exercise of the City Option pursuant to Section 8 below. b. Permitted Transfers. Provided that the transferee assumes, within 30 days following written request by the City, all of Owner's duties and obligations under this Agreement pursuant to a written assumption agreement in a form acceptable to City, or at City's election, execution of an agreement substantially similar to this Agreement, the following transfers ("Permitted Transfers") of title to the Property or of any estate or interest therein, shall not be subject to the City's prior approval, shall not trigger the exercise ofthe City Option, and shall not be considered Option Events: (i) a transfer to an existing spouse or domestic partner; (ii) a transfer by an Owner to a spouse or domestic partner where the spouse or domestic partner becomes the co-owner of the Property; (iii) a court-ordered transfer oftitle to a Form of Resale Restriction and Option to Purchase -30- spouse as part of a divorce or dissolution proceeding; (iv) a transfer to an existing spouse or domestic partner of Owner or to Owner's issue by devise or inheritance following the death of Owner; or (v) a transfer by Owner into an inter vivos trust in which the Owner is a beneficiary and the Owner continues to occupy the property as his/her Principal Residence. For purposes of this section, "domestic partner" shall mean two unmarried people, at least eighteen (18) years of age, who have lived together continuously for at least one (1) year and who are jointly responsible for basic living expenses incurred during their domestic partnership. Domestic partners may not be persons related to each other by blood or adoption such that their marriage would be barred in the state of California. For purposes of this section, an individual shall be considered a domestic partner of Owner upon presentation of an affidavit or other acceptable evidence by Owner to the City. . c. Inheritance. In the event a Transfer occurs by devise or inheritance due to death ofthe Owner, the administrator of the Owner's estate or the person inheriting the Property shall provide written notice to the City of the Owner's death within thirty (30) days of the date of death and the following procedures shall apply: (i) If the person inheriting the Property (the "Inheriting Owner") is the child or stepchild of the deceased Owner (an "Inheriting Child"), he or she shall provide the City with documentation that he or she is the child or stepchild of the deceased Owner and with income information, to be verified by the City, so that the City may determine if the Inheriting Child is an Eligible Household. If the Inheriting Child fails to provide required documentation of his or her relationship to the Owner, or financial information, he or she shall be deemed not to qualify as an Inheriting Child and/or Eligible Household, as applicable. If the Inheriting Child qualifies as an Eligible Household, he or she shall succeed to the Owner's interest and obligations under this Agreement and new documents shall be executed between the Inheriting Owner and the City and recorded against the Property. If the Inheriting Child fails to qualify as an Eligible Household, he or she shall be required to Transfer the Property to an Eligible Household at a price not exceeding the Adjusted Resale Price, pursuant to the procedures set forth in Section 10 below and the City may exercise the City Option pursuant to Section 8 below; provided, however that the Inheriting Child may own and occupy the Property for up to a maximum of twelve (12) months provided that the Inheriting Child remains in compliance with the requirements of this Agreement. The Inheriting Child shall not be required to occupy the Property during such twelve (l2)-month time period, but shall not rent the Property. (ii) If the Inheriting Owner is not the child or stepchild of the deceased Owner, except as permitted pursuant to Section 6(a), the Inheriting Owner shall Transfer the Property to an Eligible Household at a price not exceeding the Adjusted Resale Price, pursuant to the procedures set forth in Section 10 below and the City may exercise the City Option pursuant to Section 8 below. In this event; the Inheriting Owner shall provide the City with a Notice of Intent to Transfer within sixty (60) days of the date of death of the Owner. (iii) Failure of an Inheriting Owner to follow the procedures and file the notices described in this Section 6 shall constitute a default under this Agreement and the City may then exercise any of the remedies set forth in Section 22 below, including, without limitation, exercise of the City Option. Form of Resale Restriction and Option to Purchase - -31- 7. Misrepresentation of F act as a Material Breach. Owner hereby declares and agrees that the financial and other information previously provided to the City for the purpose of qualifying to purchase the Property was true and correct at the time it was given and remains true and correct as of the date of this Agreement, or, in the alternative, the financial and other information has been updated to be true and correct today. Owner further understands that any material misstatement or misrepresentation shall be deemed to be a material breach of this Agreement and shall be grounds for declaring a default, terminating the Agreement, or seeking other such relief and remedies as are appropriate under the circumstances. 8. Grant of City Option to Purchase; Assignment of Option. Owner hereby grants to the City an option ("City Option") to purchase the Property at the Adjusted Resale Price upon the occurrence of an Option Event (defined in Section 9) subject to the terms and conditions contained herein. The City may assign the City Option to another government entity, a non- profit affordable housing provider or an Eligible Household. The City's assignment of the City Option shall not extend any time limits contained herein with respect to the exercise period of the City Option or the period within which the Property must be purchased following exercise of the City Option. In no event shall City become in any way liable to Owner, nor become obligated in any manner, by reason of the assignment of the City Option, nor shall City be in any way obligated or liable to Owner for any failure of City's assignee to consummate a purchase of the premises or to comply with the terms of any purchase and sale agreement. 9. Events Giving Rise to Right to Exercise Option. City shall have the right to exercise the City Option upon the occurrence of any of the following events (each, an "Option Event"): a. Receipt of a Notice ofIntent to Transfer (defined in Section 10 below); b. Any actual, attempted or pending Transfer of the Property or of any estate or interest therein, except as provided in Section 6(b ); c. Any actual, attempted or pending encumbrance of the Property, including without limitation by way of mortgage or deed of trust, or by judgment, mechanics, tax or other lien, except as provided in Section 19 below; d. Recordation of a notice of default and/or notice of sale pursuant to California Civil Code section 2924 (or successor provisions) under any deed of trust or mortgage with a power of sale encumbering the Property; e. Commencement of a judicial foreclosure proceeding regarding the Property or execution by Owner of any deed in lieu of foreclosure transferring ownership of the Property; f. The occurrence of an Event of Default as described in Section 21; or Form of Resale Restriction and Option to Purchase -32- g. Any violation by Owner of any provision of this Agreement. 10. Notice of Intent to Transfer: Exercise of Option. a. Notice ofIntent to Transfer. If Owner desires to Transfer the Property or of any estate or interest therein, Owner shall notify City in writing to that effect (the "Notice of Intent to Transfer"). The Notice ofIntent to Transfer shall state the street address of the Property; Owner's full name or names; the address and telephone number at which Owner shall be contacted if not at the Property; and shall be delivered personally or deposited in the United States mail, postage prepaid, certified-return receipt requested, addressed to the City of South San Francisco, 400 Grand Avenue, South San Francisco, CA 94080, Attn: City Manager. The Notice of Intent to Transfer shall be in substantially the form attached hereto as Exhibit B. In the case of a proposed sale of the Property to a prospective purchaser, the Owner shall submit to the City, together with the Notice of Intent to Transfer, a copy of the prospective purchaser's income certification, a list of all assets owned by the prospective purchaser, and other fmancial information reasonably requested by City, in a form approved by the City, along with the income certification to be provided to any lender making a loan to the prospective purchaser. The City may require the prospective purchaser to provide documentation evidencing and supporting the income and other financial information contained in the certifications. b. Notice of Exercise. Upon the occurrence of any Option Event, the City may exercise the City Option by delivering notice ("Notice of Exercise") to Owner of its intent to exercise such City Option pursuant to the terms of this Agreement. The Notice of Exercise may be in the form attached hereto and incorporated herein as Exhibit C, or in such other form as the City may from time to time adopt. The Notice of Exercise shall be delivered by deposit in the United States mail, postage prepaid, first-class, addressed to Owner at the Property, or at such other address as may be indicated on the Notice of Intent to Transfer, and delivery shall be deemed effective five (5) calendar days following the date of deposit. If the Option Event relates to the potential foreclosure of a mortgage under Sections 9( d) or (e), then the City shall also deliver the Notice of Exercise to the mortgagee or beneficiary under such mortgage, at such mortgagee's or beneficiary's address of record in the Office of the Recorder of San Mateo County. c. Notice of Consent to Transfer. If the City decides not to exercise the City Option, the City may give its consent to the occurrence ofthe Option Event cnConsent to Transfer"). If the Option Event involves a proposed sale of the Property to a prospective purchaser, the City's consent shall be conditioned upon (i) the proposed purchaser's qualification as an Eligible Household; (ii) the sale of the Property at a price not to exceed the Adjusted Resale Price; (iii) the proposed purchaser's execution of a Disclosure Statement in the form attached hereto as Exhibit D or such other form or forms as may be promulgated by the City; and (iv) the proposed purchaser's assumption of Owner's duties and obligations under this Agreement pursuant to a written assumption agreement in a form acceptable to City, or execution of an agreement substantially similar to this Agreement, in a form acceptable to City, within thirty (30) days after the Consent to Transfer has been delivered to Owner. If the prospective purchaser (i) fails to qualify as an Eligible Household, (ii) fails to execute and Form of Resale Restriction and Option to Purchase - -33- deliver the Disclosure Statement to the City, or (iii) fails to execute and deliver to the City an assumption agreement or an agreement substantially similar to this Agreement within such thirty (30) day period, then the Consent to Transfer shall expire and the City may, at its option, either notify Owner of the disqualification, thereby entitling Owner to locate another purchaser who qualifies as an Eligible Household, or exercise the City Option, as if no Consent to Transfer had been delivered. d. Time Period for Notice. City shall deliver a Consent to Transfer, if applicable, no later than thirty (30) days after the date it receives notification of an Option Event. City shall deliver a Notice of Exercise, if applicable, no later than sixty (60) days after the date that City receives notification of an Option Event. For purposes of computing commencement of the delivery periods, the City shall be deemed to have notification of an Option Event on the date that it actually receives written Notice ofIntent to Transfer, notice of default, summons and complaint or other pleading, or other writing specifically stating that an Option Event has occurred. The City shall have no obligation to deliver a Notice of Exercise or Consent to Transfer, and the applicable time period for exercise of the City Option shall not commence to run, unless and until the City has received notification of an Option Event in the manner specified in this subsection. If there is a stay or injunction imposed by court order precluding the City from delivering its Consent to Transfer or Notice of Exercise within the applicable time period, then the running of such period shall cease until such time as the stay is lifted or the injunction is dissolved and the City has been given written notice thereof, at which time the period for delivery of a Consent to Transfer or Notice of Exercise shall again begin to run. e. No Waiver. If the City in its sole discretion determines not to exercise the City Option in any particular instance, or fails to deliver a Notice of Exercise or Consent to Transfer within the time periods set forth in this Section 10, such determination or failure shall not affect City's right to exercise the City Option upon the occurrence of any future Option Event. 11. Right to Reinstatement. If the Option Event is the recordation of a notice of default, then the City shall be deemed to be Owner's successor in interest under California Civil Code Section 2924c (or successor section) solely for purposes of reinstatement of any mortgage on the Property that has led to the recordation of the notice of default. As Owner's deemed successor in interest, the City shall be entitled to pay all amounts of principal, interest, taxes, assessments, homeowners' association fees, insurance premiums, advances, costs, attorneys' fees and expenses required to cure the default. If the City exercises the City Option, then any and all amounts paid by the City pursuant to this Section shall be treated as Adjustments to the Base Resale Price for the Property, as defined in Section 15, below. 12. Inspection ofPropertv. After receiving a Notice of Intent to Transfer or delivering a Notice of Exercise, the City shall be entitled to inspect the Property one or more times prior to the close of escrow to determine the amount of any Adjustments (defined below) to the Base Resale Price (defined below). Before inspecting the Property, the City shall give Owner not less than forty-eight (48) hours written notice of the date, time and expected duration of the inspection. The inspection shall be conducted between the hours of9:00 a.m. and 5:00 p.m., Monday through Friday, excluding court holidays, unless the parties mutually Form of Resale Restriction and Option to Purchase ,-., -34- agree in writing to another date and time. Owner shall make the Property available for inspection on the date and at the time specified in the City's request for inspection. 13. Escrow. Promptly after delivering a Notice of Exercise, the City shall open an escrow account for its purchase of the Property. Close of escrow shall take place on the date that is the later of (i) sixty (60) days after a Notice of Exercise has been delivered; or (ii) ten (10) days after Owner has performed all acts and executed all documents required for close of escrow, provided, however, that close of escrow shall not occur later than ninety (90) days after the date that City receives notification of an Option Event unless the Parties mutually agree in writing to extend the close of escrow, or if for any reason, the time periods herein are tolled. Prior to the close of escrow, the City shall deposit the Adjusted Resale Price as defined in Section 15 below and all escrow fees and closing costs to be paid by City. Closing costs and title insurance shall be paid pursuant to the custom and practice in the County of San Mateo at the time of the opening of escrow, or as may otherwise be provided by mutual agreement. Owner agrees to perform all acts and execute all documents reasonably necessary to effectuate the close of escrow and transfer of the Property to the City. 14. Proceeds of Escrow; Removal of Exceptions to Title. Prior to close of escrow, Owner shall cause the removal of all exceptions to title to the Property that were recorded after the Effective Date with the exception of (i) nondelinquent taxes for the fiscal year in which the escrow closes, which taxes shall be prorated as between Owner and City as of the date of close of escrow, (ii) quasi-public utility, public alley, public street easements, sidewalks, and rights of way of record, and (iii) such other liens, encumbrances, reservations and restrictions as may be approved in writing by the City (collectively, "Permitted Exceptions"). All amounts required to be deposited into escrow by the City shall be applied first to the payment of any and all liens and encumbrances recorded against the Property in order of lien priority, and thereafter to the payment of escrow fees and closing costs. Any amounts remaining after the amounts deposited into escrow by the City have been so applied, if any, shall be paid to Owner upon the close of escrow. If the amounts deposited into escrow by the City are insufficient to satisfy all liens and encumbrances recorded against the Property, the Owner shall deposit into escrow such additional sums as may be required to remove said liens and encumbrances. In the event that the City agrees to proceed with close of escrow prior to the date that Owner has caused all exceptions to title other than the Permitted Exceptions to be removed, then Owner shall indemnify, defend and hold City harmless from any and all costs expenses or liabilities (including attorneys' fees) incurred or suffered by City that relate to such exceptions and their removal as exceptions to title to the Property. 15. Determination of Adiusted Resale Price. If the City (or its assignee) exercises the City Option, or if the Owner sells to an Eligible Household, the maximum sales price that the Owner shall receive from the City or the Eligible Household shall be the Base Resale Price, as adjusted pursuant to subsection (b) below (the "Adjusted Resale Price"). Notwithstanding any other provision hereof to the contrary, in no event shall the Adjusted Resale Price be a price that will result in greater than Affordable Housing Cost for the Eligible Household. Form of Resale Restriction and Option to Purchase ~ -35- a. Base Resale Price. Prior to adjustment pursuant to subsection (b) below the base resale price ("Base Resale Price") ofthe Property shall be the lesser of: i. Indexed Value. The Indexed Value of the Property means the original price paid by the Owner for acquisition of the Property which the Parties agree is the sum of Dollars ($ ) (the "Base Price"), increased (but not decreased) by an amount, if any, equal to the Base Price multiplied by the percentage increase in the AMI between the Effective Date and the date that the City receives notification of an Option Event. ii. Fair Market Value. The Fair Market Value of the Property means the value of the Property as determined by a qualified appraiser, certified by the State of California, selected and paid for by the Owner and approved by the City in writing. Nothing in this Section shall preclude the Owner and the City from establishing the Fair Market Value by mutual agreement instead of by appraisal. b. Adiustments to Base Resale Price. Subject to the Affordable Housing Cost restriction, the Base Resale Price shall be increased or decreased, as applicable, by the following adjustment factors ("Adjustment"): i. Capital Improvements. An increase for capital improvements made to the Property by Owner, but only if the purpose and amount of said improvements have been previously approved by the City in writing and evidence of the cost is provided to the City for verification ("Eligible Capital Improvements"). The amount of the Adjustment shall equal the original cost of any Eligible Capital Improvements depreciated on a straight-line basis based upon the estimated useful life of the improvement stated in the City's prior written acceptance of said improvement. ii. Damages. A decrease by the amount necessary to repair damages to the Property, if any, and to place the Property into saleable condition as reasonably determined by the City, including, without limitation, amounts attributed to cleaning; painting; replacing worn carpeting and draperies; making necessary structural, mechanical, electrical and plumbing repairs; and repairing or replacing built-in appliances and fixtures. 111. Advances by the City. A decrease in an amount equal to the sum of all costs advanced by the City for the payment of mortgages, taxes, assessments, insurance premiums, homeowner's association fees and/or associated late fees, costs, penalties, interest, attorneys' fees, pest inspections, resale inspections, fixing violations of applicable building, plumbing, electric, fire, or other codes, and other expenses related to the Property, which Owner has failed to payor has permitted to become delinquent. 16. Priority and Effectiveness of the Option. a. Recordation. This Agreement shall be recorded in the Official Records on or as soon as practicable after the Effective Date. The City Option shall have priority over Form of Resale Restriction and Option to Purchase -36- any subsequent Transfer or encumbrance of the Property, or of any estate or interest therein, and in the event of exercise of the City Option by City, the City shall take the Property subject only to Permitted Exceptions. Except as otherwise provided in Section 17(b ), the exercise of the City Option by the City at any time and from time to time shall not extinguish the City Option or cause a merger of the City Option into any estate or other interest in the Property, and the City Option shall continue to exist and be effective with respect to the Property against any and all subsequent owners in accordance with the terms and conditions hereof. b. Request for Notice of Default. The City shall file a Request for Notice of Default for recordation in the Official Records promptly upon execution of this Agreement. c. Subordination. The City agrees that if required in order to assist Owner to secure purchase money financing for the acquisition of the Property, the City will enter into a subordination agreement with a purchase money lender to subordinate this Agreement under such terms as the City and the purchase money lender shall negotiate provided that City is granted reasonable notice and cure rights under the first mortgage. 17. Survival of Option Upon Transfer. a. In General. Except as provided in paragraphs (b) and (c) below, the City's right to exercise the City Option shall survive any Transfer of the Property by Owner. The City Option may be exercised against the Property whether owned, possessed or occupied by (i) an Eligible Household, (ii) any successor, transferee, assignee, heir, executor, or administrator of an Eligible Household, including a debtor-in-possession, debtor or trustee pursuant to Title 11 of the United States Code, or (iii) any person owning, possessing or occupying the Property who does not qualify as an Eligible Household (collectively all referred to and defined herein as "Owner"). b. Exceptions. The City Option shall not survive (i) the sale and transfer of the Property to a senior lender or other third party purchaser pursuant to a judicial or non-judicial foreclosure or a deed-in-lieu of foreclosure under a power of sale contained in a mortgage or deed of trust recorded against the Property in the Office of the Recorder of the County of San Mateo on or prior to the date of this Agreement, provided that the City has received timely notice of such Option Event and has failed to either reinstate said mortgage or deed of trust or exercise the City Option, or (ii) the recording of an instrument conveying Owner's interest in the Property to the City, or its assignee, provided the conveyance is in accordance with the terms of this Agreement. c. CalHF A Mortgages. If Owner has acquired the Property using financing secured by a mortgage in the name of or held by the California Housing Finance Agency ("CalHFA"), then the restrictions contained herein and the Option shall automatically terminate if title to the Property is transferred by a foreclosure conducted on behalf of CalHF A or by a deed-in-lieu of such foreclosure, or ifthe insured mortgage is assigned to CalHF A, provided that the City has received timely notice of such Option Event (which notice may include a notice of default recorded pursuant to California Civil Code Section 2924 or successor provision). Form of Resale Restriction and Option to Purchase -37- 18. V oidable Transfers. Any actual or attempted Transfer of the Property or of any estate or interest therein, in violation of the terms and conditions of this Agreement, shall be voidable at the election ofthe City. 19. Refinancing: Junior Loans. The City Option shall not become exercisable as the result of Owner's encumbering the Property for the purpose of securing financing to purchase the Property, or to refinance existing indebtedness incurred to purchase the Property provided such refinance does not result in Owner receiving any cash from the refinance other than for Eligible Capital Improvements (as defined in Section 15(b)(i)). The maximum amount (the "Permitted Encumbrance Amount") of any refinancing permitted by this section shall not exceed an amount equal to ninety percent (90%) of the Adjusted Resale Price calculated as provided in Section 15. The Permitted Encumbrance Amount shall be calculated as if the City has received notification of an Option Event on the earlier of (a) the date on which the deed of trust or mortgage securing the refinancing indebtedness is filed for record in the Official Records, or (b) the date the City receives Notice ofIntent to Transfer pursuant to Section 10(a) above. Mortgage loans or equity lines of credit junior in lien priority to this Agreement are not permitted, except as when expressly approved by the City in writing. 20. Insurance Proceeds and Condemnation Award. In the event the Property is destroyed and insurance proceeds are distributed to Owner instead of being used to rebuild the Property, or, in the event of condemnation, if the proceeds thereof are distributed to Owner, any surplus of proceeds remaining after payment of the senior liens and encumbrances on the Property shall be distributed as follows: that portion ofthe surplus up to, but not to exceed, the net amount Owner would have received pursuant to Section 14 had the City exercised the City Option on the date of the destruction of condemnation valuation date shall be distributed to Owner, and the balance of such surplus, if any, shall be distributed to the City. 21. Events of Default. The following shall constitute the occurrence of an event of default ("Event of Default") hereunder, and shall entitle the City to exercise the City Option or to pursue any other remedy provided herein or at law or in equity: a. Owner fails to use the Property as Owner's Principal Residence. b. Owner Transfers the Property in violation of this Agreement. c. Owner refinances the Property in violation of this Agreement; d. Property . Commencement of a judicial foreclosure proceeding regarding the e. Execution by Owner of any deed in lieu of foreclosure transferring ownership of the Property. f. Commencement of a proceeding or action in bankruptcy, whether voluntary or involuntary, pursuant to Title 11 of the United States Code or other bankruptcy Form of Resale Restriction and Option to Purchase -38- statute, or any other insolvency, reorganization, arrangement, assignment for the benefit of creditors, receivership or trusteeship, concerning the Owner; g. Owner otherwise fails to comply with the requirements of this Agreement and such violation is not corrected to the satisfaction of the City within thirty (30) days after the date of written notice by the City to the Owner of such violation. 22. Remedies. a. Specific Performance. Owner acknowledges that any breach in the performance of its obligations under this Agreement shall cause irreparable harm to the City. Owner agrees that the City is entitled to equitable relief in the form of specific performance, including without limitation, upon City's exercise of the City Option, and that an award of damages shall not be adequate to compensate the City for Owner's failure to perform according to the terms of this Agreement. b. Other Remedies. City shall be entitled to pursue any other remedy provided for at law or equity, all of which shall be cumulative. 23. Covenants Running with the Land. Owner hereby subjects the Property to the covenants, conditions and restrictions set forth in this Agreement. The Parties hereby declare their express intent that all such covenants, conditions and restrictions shall be deemed covenants running with the land and shall pass to and be binding upon Owner's successors in title to the Property. All covenants without regard to technical classification or designation shall be binding for the benefit of the City, and such covenants shall run in favor of the City and its successors for the Term of this Agreement. Each and every contract, deed or other instrument hereafter executed applicable to or conveying the Property or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, conditions and restrictions, regardless of whether such covenants, conditions and restrictions are set forth in such contract, deed or other instrument. 24. Owner's Acknowledgement of Resale Restriction. Owner hereby acknowledges and agrees that: A. Owner hereby subjects the Property to certain restrictions, and limits the price for which Owner may sell the Property and the persons to whom Owner may sell the Property. The resale price limitation, and other provisions contained in this Agreement restrict the full benefits of owning the Property. Owner may not enjoy the same economic or other benefits from owning the Property that Owner would enjoy if this Agreement did not exist. B. Absent the provisions of the AHA, the Inclusionary Ordinance and the provisions of this Agreement, the Property could not be made available to Eligible Households, including Owner, at an affordable price. Form of Resale Restriction and Option to Purchase -39- C. Owner has read and understands all of the provisions of this Agreement. Owner accepts and agrees to the provisions of this Agreement and understands that this Agreement (including without limitation the effectiveness of the resale restrictions and the City Option) will remain in full force and effect throughout the Term ofthis Agreement despite any Transfer of the Property. D. OWNER UNDERSTANDS THAT THE DETERMINATION OF THE ADJUSTED RESALE PRICE OF THE PROPERTY TO AN ELIGIBLE HOUSEHOLD CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INCREASES IN MEDIAN INCOME, MORTGAGE INTEREST RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALES PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BYTHIS AGREEMENT. OWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF THE PROPERTY THE PRIMARY OBJECTIVE OF THE CITY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE HOUSEHOLDS AT AFFORDABLE HOUSING COST. THE ADJUSTED RESALE PRICE WILL ALMOST CERTAINLY BE LESS THAN OTHER SIMILAR PROPERTIES THAT HA VB NO RESTRICTIONS. [initialed by Owner(s)] 25. Notices. Except as otherwise specified in this Agreement, all notices required to be sent pursuant to this Agreement shall be made by personal delivery or by deposit in the United States mail, first-class, postage prepaid, and shall be deemed to have been delivered and received on the date of personal delivery or five (5) days after deposit in the mail, if sent to the following address: City: City of South San Francisco 400 Grand Avenue South San Francisco, California 94080 Attn: City Manager Owner: South San Francisco, California 94080 6. Attorneys' Fees. If either party initiates legal proceedings to interpret or enforce its rights under this Agreement, the prevailing party in such action shall be entitled to an award of reasonable attorneys' fees and costs in additions to any other recovery to which it is entitled under this Agreement. 27. Waivers: Modification. No waiver of any breach of any covenant or provision of this Agreement shall be.deemed a waiver of any other covenant or provision hereof, and no Form of Resale Restriction and Option to Purchase . - 40- waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension ofthe time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties and duly recorded in the Official Records of San Mateo County. 28. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall continue in full force and effect. 29. Interpretation of Agreement. This Agreement shall be interpreted so as to avoid speculation on the Property and to ensure to the extent possible that its sales price and mortgage payments remain affordable to Eligible Households. 30. Action or Approval. Whenever action and/or approval by City is required under this Agreement, the City Manager or his or her designee may act on and/or approve such matter unless specifically provided otherwise, or unless the City Manager determines in his or her discretion that such action or approval requires referral to the City Council for consideration. 31. Entire Agreement. This Agreement, including Exhibits A through D attached hereto and incorporated herein by this reference, contains the entire agreement of the Parties with respect to the subject matter hereof, and supersedes all prior written or oral agreements, understandings, representations or statements with respect to the subject matter hereof. 32. Governing Law; Venue. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to principles of conflict of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of San Mateo County, California or in the Federal District Court for the Northern District of California. SIGNATURES ON FOLLOWING PAGE. Form of Resale Restriction and Option to Purchase -41- IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. OWNER(S), [an individual/a married couple]: By: Print name: By: Print name: THE CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Its: City Manager ATTEST: By: City Clerk APPROVED AS TO FORM: By: City Attorney SIGNATURES MUST BE NOTARIZED. Form of Resale Restriction and Option to Purchase -42- CERTIFICATE OF ACCEPTANCE (Pursuant to Government Code 927281) This is to certify that the interest in real property conveyed by the Resale Restriction Agreement and Option to Purchase dated from to the City of South San Francisco ("City"), a municipal corporation, is hereby accepted by the undersigned office or agent on behalf of the City pursuant to authority conferred by the Resolution No. dated ; and the grantee consents to recordation thereofby its duly authorized officer. Dated: By: Its: ATTEST: City Clerk Form of Resale Restriction and Option to Purchase -43- EXHIBIT A PROPERTY (attach legal description) Form of Resale Restriction and Option to Purchase P , -44- EXHIBIT B VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED To: City of South San Francisco 400 Grand Avenue South San Francisco, CA 94080 Attn: City Manager Date: Re: Notice of Intent to Transfer The undersigned Owner(s) , hereby give(s) notice of his/her/their intent to transfer the property located at , South San Francisco, California (the "Property"). Owner may be contacted at the Property or at the following address: Owner's daytime telephone number is ( ) The proposed transfer of the Property is to the following person(s): Name: Address: Telephone: () The proposed transfer is (check one): Sale Lease Other Specify: Owner(s) signature(s): Form of Resale Restriction and Option to Purchase L45- EXHIBIT C Date: To: (Owner or Transferree) (Address) Re: Notice of Exercise The City of South San Francisco ("City") hereby gives notice that it is exercising its option to purchase the real property located at , South San Francisco, California. The option has been granted to the City pursuant to the Resale Restriction Agreement and Option to Purchase between Owner and the City dated and recorded on as Instrument No. (The City has assigned its option to purchase the real property to .) An escrow for the purchase will be opened with the Title Company. CITY OF SOUTH SAN FRANCISCO, a municipal corporation By: Its: Form of Resale Restriction and Option to Purchase c - -46 - EXHIBIT D Disclosure Statement THERE ARE RESTRICTIONS ON THE SALE OF THE PROPERTY YOU ARE BUYING. EXCEPT FOR A TRANSFER TO THE CITY OF SOUTH SAN FRANCISCO FOLLOWING EXERCISE OF ITS OPTION TO PURCHASE, THIS PROPERTY MAY ONLY BE SOLD TO AN "ELIGIBLE HOUSEHOLD" AT A PRICE NOT TO EXCEED THE ADJUSTED RESALE PRICE WHICH IS CAPPED AT AN "AFFORDABLE HOUSING COST." THE PRICE FOR WHICH THIS PROPERTY MAY BE SOLD IS RESTRICTED. THIS MEANS THAT YOU MAY NOT SELL THE PROPERTY FOR MARKET VALUE UNLESS APPROVED BY THE CITY OF SOUTH SAN FRANCISCO. ALL IMPROVEMENTS TO THE PROPERTY AND ALL LOANS SECURED BY THE PROPERTY REQUIRE PRIOR WRITTEN APPROVAL FROM THE CITY OF SOUTH SAN FRANCISCO. THESE RESTRICTIONS WILL BE IN EFFECT UNTIL , 20 . ANY SALE OF THE PROPERTY IN VIOLATION OF THE RESTRICTIONS SHALL BE VOID. TO DETERMINE WHO AN ELIGIBLE HOUSEHOLD IS, AND WHAT THE ADJUSTED RESALE PRICE AND AFFORDABLE HOUSING COST ARE, YOU SHOULD CONTACT THE CITY OF SOUTH SAN FRANCISCO. YOU SHOULD ALSO READ THE RESALE RESTRICTION AND OPTION TO PURCHASE AGREEMENT RECORDED AGAINST THE PROPERTY. YOU MAY OBTAIN A COpy FROM THE CITY OF SOUTH SAN FRANCISCO OR FROM THE ESCROW COMPANY. I HAVE READ THE FOREGOING AND I UNDERSTAND WHAT IT MEANS: Owner Print Name: Owner Print Name: 1271810.2 A Form of Resale Restriction and Option to Purchase r _ 47- When Recorded Return To: Herzig & Berlese 414 Gough Street, Suite 5 San Francisco, CA 94102 APN: Block Lot DECLARATION OF RESTRICTIONS AND CONDOl\flNIUM PLAN FOR 465 GRAND AVENUE SOUTH SAN FRANCISCO, CALIFORNIA a Condominium Project IF TIDS DOCUMENT CONTAINS ANY RESTRICTIONS BASED ON RACE, COLOR, RELIGION, SEX, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, NATIONAL ORIGIN, OR ANCESTRY, THAT RESTRICTION VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS AND IS VOID, AND MAY BE REMOVED PURSUANT TO SECTION 12956.1 OF THE GOVERNMENT CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON THE AGE OF OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS SHALL NOT BE CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS. Alfred Chung To Lee, Allen Yun Ling Lee, Albert Chiu Yeung Kwok, and Hoi Por Kwok Declarant -48- TABLE OF CONTENTS -49- DECLARATION OF RESTRICTIONS FOR 465 GRAND AVENUE SOUTH SAN FRANCISCO, CALIFORNIA a Condominium Project Recitals TIDS DECLARATION is made by Alfred Chung To Lee, AlIen Yun Ling Lee, Albert Chiu Yeung Kwok, and Hoi Por Kwok, "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 No. which map was filed for record on __________, , San Mateo County Records. " , 20__, B. The land has been improved with a building containing six Residential Units and one Commercial Unit. C. By this Declaration, Declarant establishes a condominium project under the provisions of the Davis-Stirling Common Interest Development Act, Division 2, Part 4, Title 6 of the Civil Code (beginning at section 1350), and imposes upon the real property mutually beneficial restrictions under a general pIan 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. 1.2 "Association fI means the 465 Grand Avenue Owners' Associaiion, a California non-profit 1 -50- 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 "Commercial Unit" means a Unit designated for commercial use as described in Article 8. The Commercial Unit is labeled Comm'll on the Condominium PIan. 1.6 "Common Area" means the entire Project except for the Units as defined in this Declaration and as shown on the Condominium PIan. Common Area includes, but is not limited to, all of the following elements if located at the Project: the land, parking areas, storage areas, light wells, (except light wells within a Unit), elevator, entrance, garden area, bearing walls, stairways (except stairs within a Unit), columns, girders, subfloors, unfinished floors, roofs and foundations, central television antennae, reservoirs, 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. 1.7 "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. 1.8 "Condominium Plan" means the three dimensional description of the Project in sufficient detail to identify the Common Area and the Units pursuant to California Civil Code section 1351 ( e), and any amendments and corrections to it. The Condominium PIan is attached to this Declaration as Exhibit A and incorporated into it by this reference. 1.9 "County" means South San Francisco County, California. 1.10 "Declarant" means Alfred Chung To Lee, AlIen Yun Ling Lee, Albert Chiu Yeung K wok, and Hoi Por Kwok and any successors and assigns who acquire Declarant's interest in the Project and expressly assume the rights and duties of the Declarant for plli-poses oftbis Declaration by a W.1~tten 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 offoreclosure. 1.11 "Declaration" means this Declaration of Restrictions and any amendments and supplements to it. 1.12 "Exclusive Use Common Areas" mean those portions of the Common Area designated for the exclusive use of the Owners and which are appurtenant to the Units. 2 -51- 1.13 "Governing Documents" means this Declaration, the Condominium Plan, the Articles, Bylaws and operating rules of the Association, all as amended from time to time. 1.14 "Map" means the subdivision map referred to in Recital A and any amendments and corrections to it. 1.15 "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. 1.16 "Member" means a person who is a member of the Association. 1.17 "Mortgage, Mortgagee, Mortgagor" are defined in section 12.1. 1.18 "Owner" means the record holder of title to a Condominium in the Project. If a Condominium is sold UIider 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 a security for the performance of an obligation. 1.19 "Person" means a natural person, a corporation, a partnership, a limited liability company, a trustee, or other legal entity. 1.20 "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. 1.21 "Residential Unit" means each of the Units designated for residential use as described in Article 7. The Residential Units are labeled Unit 1 through Unit 6 on the Condominium Plan. 1.22 "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, ceilings, windows, window frames, doors anddoorframes of the Unit. Each Unit includes all of the following items, if any, 10cated within it: electrical, heating and plumbing fixtures, appliances, wall board, sheet rock, interior non-structural walls (except for water and other pipes, electrical wires, conduits, vents and similar improvements within the walls), 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 10cated 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. 1.23 nVote of the Owners" means a majority of votes cast by Owners entitled to vote either at a 3 -52- meeting of the Owners at which a quorum is present or by written consent, as provided in the Bylaws. However, if a vote greater than a majority is required on any matter, a Vote of the Owners means that higher percentage of votes. 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 1.22. A Unit does not include those areas and things defined as Common Area in section 1.6. 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 PIan, 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 PIan. 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 the Owners. The Exclusive Use Common Areas consist of the parking spaces, decks, and patios as designated on the Condominium Plan. An easement for the use of each of these Exclusive Use Common Areas, including two parking spaces, will be granted as appurtenant to a Unit in the first deed for each Condominium. 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. Tne foregomg aoes not pron1Dlt tne 4 -53- transfer between Owners of Exclusive Use Common Area parking spaces as long as two parking spaces remain appurtenant to each Unit. 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 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 to perform its responsibilities under this Declaration, including responsibilities with respect to 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 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 -54- C. Power to Grant Easements and Exercise Other Property Rights. (1) The Association or Declarant (as 10ng 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 conveyor 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 10ng 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 conveyor 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 a Vote of the Owners for the conveyance or transfer. However, a Vote of the Owners is not required for a conveyance or transfer to an Owner for any of the purposes specified in Civil Code section 1363.07. (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 OV\.'D.er. (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 12. 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 10ng as the encroachment exists. However, a valid encroachment is not created in 6 -55- 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. 2.4 PARTITION; POWER OF ATTORNEY. Except as provided by Civil Code section 1359 or by sections 11.2 and 11.3 of this Declaration, judicial partition of the Proj ect 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 1359 or under sections 11.2 and 11.3 of this Declaration, and subject to obtaining the necessary approval of first Mortgagees and Owners as provided in Article 12, 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 attomey-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 Proj ect, 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. 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 7 -56- 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 the Owners 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 consent, 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 the Owners requires: A. where the two class voting structure is in effect, a vote 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 the Owners and a Vote of the Owners, 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 ofllie Common~'\rea or abandonment ofms or her Condominium. 4.2 PURPOSE OF ASSESSMENTS. 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. The Association may not levy an assessment that exceeds the amount necessary to defray the costs for which is it levied. 4.3 REGULAR ASSESSrviEl'i'TS. Tne regular assessment is the total amount of funds necessary 8 -57- 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. The Board must obtain a Vote of the Owners (1) to increase the regular assessment in an amount that is more than 20 percent greater than the regular assessment for the immediatelypreceding fiscal year, and (2) to increase the regular assessment in any amount if the Board has not prepared and distributed to the Owners a pro forma operating budget as provided in the Bylaws. For purposes of this section, the quorum requirement for a Vote of the Owners is more than 50 percent. 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. 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 the Owners. "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 the Owners is more than 50% of the Owners. 4.5 ASSESSMENTS FOR EMERGENCY PURPOSES. The Board may increase the regular assessment and impose special assessments without a Vote of the Owners if necessary for emergency situations. For purposes of this section, an emergency situation is anyone of the following: A. An extraordinary expense required by an order of a court; B. A..n extraordina..ry expense necessa..ry 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. 9 -58- 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 section 15 of the Bylaws; 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. Expenses will be allocated as follows: A. Regular Annual Expenses. Expenses included in the Regular Annual Assessment will be divided as follows. . (1) Equally - All Units: corporate franchise tax, locallicense and inspection fees, reserve study, fire monitor service, fire service water meter, pest control, minor repairs, management, all administrative expenses, contingency; reserves for (2) Equally - Residential Units: custodial, elevator maintenance, access control, refuse disposal, gas, exterior window washing; reserves for interior paint, carpet, deck rails, elevator, sump pump, light fixtures, garage door, garage door motor, entry systems, and recirculating pump. (3) Prorata - All Units: insurance; reserves for roof and exterior paint. (4) Commercial Units Only: The following costs attributable to the Commercial Units are not Association expenses: trash removal, commercial unit door replacement, commercial unit window washing. The Owner of a Commercial Unit must pay for such items at the Owner's expense. (5) Special Allocation to Commercial Units. If a Commercial Unit is used in a manner that increases the .A.ssociation's operating, maintenance, reserve, insurance or administrative costs, the Board may specially allocate the amount of the increase to that Unit after notice to the Owner, including a reasonable description of the proposed special allocation and the reasons, and the opportunity to be heard according to the procedures set forth in the Bylaws or otherwise adopted by the Board. If the special allocation is approved, the Owner must pay the Association the amount of the special allocation beginning with the date the cost was actually incurred by the Association, but not more than one year from the date of notice to the Owner of the proposed special allocation. 10 -59- (6) Other Items. The Board must allocate assessments for items and costs other than those set forth above as it deems appropriate and fair, taking into account the relative benefits to the Residential and Commercial Units. B. Special Assessments. Special assessments are divided among the Owners on the same basis as regular assessments, 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. C. Square Footage. For purposes of this section, the square footage of the Units is the approximate square footage for the Units shown on the Condominium PIan or, ifnot shown on the Condominium Plan, provided to the Association by Declarant. If the square footage of the Units is not shown on the Condominium PIan or provided to the Association by Declarant, then the square footage of the Units will be determined by reference to the final approved architectural plans for the Project. 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 ofthe 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. 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. 11 -60- 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 1367.4. Any action by the Association to enforce payment of the assessment or installment by sale of the Condominium through judicial foreclosure or private sale must be conducted according to the notice and sale procedures set forth in section 15 of the Bylaws and section 1367.1 of the Civil Code. C. Alternative Dispute Resolution. An assessment dispute may be resolved through alternative dispute resolution as provided in Civil Code sections 1367.1 and 1367.4, 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. 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. 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 12 -61- 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 described in section 4.7. ARTICLE 5 Duties and Powers of the Association 5.1 APPLICABILITY OF THE DAVIS-STIRLING COMMON INTEREST DEVELOPMENT ACT AND THE NON-PROFIT 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 nUTIES AND POWERS. The duties and powers of the Association include, but are not limited to, the following. A. Maintenance. The Association must maintain the Project as provided in Article 9. B. Insurance. The Association must maintain the policies of insurance required by section 10.1 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 mSUFdIlce policies obtained by the Association. 13 -62- 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. D. Payment of Expenses and Taxes. The Association mustpromptIypay 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. 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 fu11 use and enjoyment of his or her Unit except where the 10ss 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 Proj ect. 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 Proj ect 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 p.Jtic1e 2. 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. 14 -63- 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, if applicable, adopted, amended, or repealed in good faith and in substantial compliance with the provisions of Civil Code sections 1357.100 through 1357.150. 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 the Owners 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 GoverningDocuments or applicable law, record a lien, or foreclose upon a lien for default in payment of assessments; (2) make a decision to levy assessments; (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. 15 -64- 5.3 LIMITATION ON POWERS OF THE BOARD - PROHIBITED ACTS. The Board may not take any of the following actions without a Vote of the Owners other than Declarant. For purposes of this section, the quorum requirement for a vote is more than 50% of the Owners. A. enter into a contract with a third person for goods or services for the Common Area or the Association for a term 10nger 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 ten 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 ten 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 ten percent or more. (7) a contract for a term not to exceed three years that is terminable by the Association after no 10nger than one year without cause, penalty or other obligation upon 90 days' written notice oftermmation to the other party. B. incur aggregate expenditures for capital improvements to the Common Area in any fiscal year in excess of five 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 five percent of the budgeted gross expenses of the Association for that fiscal year; or 16 -65- 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 is required before an Owner may make any improvements or modifications ("improvement") to any portion of the Common Area, including 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, 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 extemal design with existing structures, and 10cation in relation to surrounding structures. 6.2 PROCEDURES. The Board must establish procedures that comply with the requirements of Civil Code section 1378 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 in accordance with the provisions of Civil Code section 1360. The cost of the improvement must be paid by the requesting Owner. 6.4 ANTENNAS. 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 1376 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 is within the discretion of the Board. 6.5 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. 17 -66- ARTICLE 7 Use Restrictions for Residential Units The Common Area and each Residential Unit is 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 Residential Units must be used for residential purposes. No trade or business may be conducted in any Residential Unit except for administrative and professional practice allowed by 10cal ordinance. 7.2 SALES ACTIVITIES. Declarant may use any Units in the Project owned by Declarant to conduct sales activities and as sales models untii 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. Parking spaces may be used solely for parking ofbicycles and non-commercial passenger motor vehicles -- such as automobiles, station wagons, pickup trucks, SUV s, 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. Each person who makes an offer to purchase a Unit with an appurtenant parking space (in a parking stacker or independent) is responsible for determining that his motor vehicle fits in the parking space or parking stacker within five days of the date the agreement of sale is executed by Declarant or a subsequent seller of a Condominium. No person may park a motor vehicle anywhere on the Project other than his or her designated parking space or parking areas designated by the Board for temporary parking. An Owner may not lease a parking space to any person who is not an Owner or a resident at the Project, Repair or washing of a motor vehicle is not permitted anywhere on the Project, except an emergency repair. 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. Vehides that emit offensive 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 must appoint a representative to authorize towing and storage, at the Owner's expense and in compliance with Vehide Code section 22658, of any vehicle that is in violation of this section or of any abandoned or dismantled vehicle left on the Property in excess of ten calendar days. Each 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. 18 -67- Parking space P-2 is a handicap parking space. If the Owner of the Unit to which a handicap parking space is appurtenant ("the affected Owner") is not handicapped, the Board temporarilymust reassign the handicap parking space to an Owner who becomes handicapped or to a new Owner who is handicapped ("the handicapped Owner") at the written request of the handicapped Owner. The affected Owner will be reassigned the parking space the handicapped Owner has the right to use. The right of the handicapped Owner to use the handicap parking space terminates when the handicapped Owner ceases to be handicapped or when the handicapped Owner ceases to occupy a Condominium at the Project. In either of these events, the affected Owner may reoccupy the handicap space. Evidence of handicap status must be by license plate or placard issued by the California Department of Motor Vehicles. The Board may adopt rules with respect to the use and exchange of parking spaces. between a handicapped Owner and an affected Owner, including, upon written request by the affected Owner to the Board; a hearing and the opportunity for the affected Owner to be heard and review the evidence of handicap. The right to exchange a non-handicap parking space for a handicap parking spae is available to any handicapped Owner on a first-come, first-served basis. A van customized for a handicapped driver may be parked in a handicap parking space. 7.4 NUISANCE. No person may interfere with the quiet enjoyment of any other resident of the Proj ect, 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. 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. 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 one domestic dog (not to exceed 12 pounds in weight or one cat, and a reasonable number offish and turtles in aquariums and birds inside bird cages. Pure or mixed breed dog 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. 19 -68- Any dog in the Common Area (other than an exterior Exclusive Use Common Area deck, patio, balcony or yard area appurtenant to its Owner's Unit) must be leashed. After making a reasonable attempt to notify the Owner, the Board or another 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 Owner may, upon payment of all expenses, repossess the animal. Owners 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 pet and the opportunity to be heard according to the procedures set forth in the Bylaws, is a nuisance or danger to any other Owner, 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. 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. No Owner may rent a Residential 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, furnishing laundry and linen, and bellboy service. Subject to these restrictions, an Owner may lease his or her Condominium, 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 rents his or her Condominium must provide the Association with his or her address and telephone number, as well as the name and telephone number of the tenant. 7.9 CLOTHES LINES. Outside laundering or drying of clothes is not permitted. 7.10 ANTENNAS AND SATELLITE DISHES. Antennas, satellite dishes and cables for the reception of television, radio and other signals may be installed within the Common Area as provided in Article 6. 7.11 STORAGE. Any obstruction of the Common Area is prohibited. Nothing maybe kept or stored in the Common Area without the prim consent of the Board, except in designated storage areas. 7.12 WINDOW COVERING. All window coverings visible from the street or Common Area must be in a neutral color, unless otherwise approved by the Board. 20 -69- 7.13 DECKS AND PATIOS. Unless otherwise approved by the Board, the use of decks and patios is subject to the following restrictions. Nothing may be stored in those areas. Clothing, towels and laundry 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 decks or patios requires the approval of the Board as provided in Article 6. Charcoal barbecues may not be used on decks or balconies. 7.14 SOUND TRANSMISSION. A. 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. B. 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. 7.15 NOISE. All occupants agree to use reasonable efforts to minimize noise and disruption at all times. Loud noise is prohibited from 10:30 P.M. each day Sunday through Thursdayunti18 :00 A.M. each day Monday through Friday, and from 12:00A.M. until 1 O:A.M. each day Saturday and Sunday. Loud noise is defined as anything that is disturbing to occupants of another Unit, including but not limited to washer/dryers, kitchen appliances, electronic equipment (as for example sound systems and televisions), excessive footfalls, and playing of musical instruments. ARTICLE 8 Use Restrictions for a Commercial Unit In addition to all other restrictions contained in this Declaration, the use of a Commercial Unit and Common Area used in connection with a Commercial Unit is subject to the following provisions. The Board may promulgate operating rules interpreting the use restrictions set forth in this Article and imposing additional use restrictions that, in its judgment, are appropriate to providing for the peace, health, comfort, safety and general welfare of the Owners. 8.1 COMMERCIAL USE. A Commercial Unit may be occupied and used for any use permitted by the South San Francisco Planning Code for the use district in which the Project is 10cated and for no other purposes. If a use is conditionally permitted in the district in which the Project is located, the use is permitted provided the required conditional use permit has been obtained. 8.2 LEASING OF A COMMERCIAL UNIT. The Owner of a Commercial Unit may lease the Unit subject to the limitations of this Article. Each lease must provide that it is subject to all provisions of the Governing Documents. A copy of the lease must be given to the Board. 21 -70- 8.3 SIGNS. The provisions of section 7.5 apply to a Commercial Unit, as well as the following. A. If entry to a Commercial Unit is directly from the street, the occupant of the Unit may maintain both a sign of reasonable dimensions 10cated immediately above or adjacent to the entry and an awning, displaying the name of the business conducted in the Unit. If entry to a Commercial Unit is through a Common Area 10bby, the occupant of the Unit may maintain a sign of reasonable dimensions on the exterior of the building located immediately above or adjacent to the entry to the common lobby and a sign 10cated immediately above or adjacent to the entry to the Unit. Where more than one business entity occupies a Commercial Unit, the occupants must share the permitted awning and sign. The Board may permit additional signage. A sign or awning may not have moving or illuminated parts, except with the prior written approval of the Board. B. All signs and awnings must comply with the provisions of any applicable local ordinance, have a professional and business-like appearance, and be installed and maintained in first- class condition and repair at the sole expense of the occupant of the Commercial Unit that is displaying the sign. If the occupant of a Commercial Unit fails properly to maintain a sign or awning, the Association may, after notice to the Owner of the Unit and the opportunity to be heard according to the procedures set forth in the Bylaws or otherwise adopted by the Board, repair or remove the sign or awning. If the Association repairs a sign or awning, the Owner of the Unit for which the awning or sign were installed must reimburse the Association for the cost of the work. The Association may levy a reimbursement assessment against the Owner if the Owner fails to reimburse the Association for any amount owed by Owner to the Association under this section. 8.4 CUSTOMERS, GUESTS AND LESSEES. The Owner of a Commercial Unit is responsible for compliance with the provisions of the Governing Documents by all occupants of the Units and their employees, customers, guests, agents and invitees. 8.5 ANlMALS. The restrictions set forth in section 7.6 with respect to the keeping of animals apply to a Commercial Unit, except that pet stores and pet grooming facilities are permitted in a Commercial Unit if those facilities are permitted in the zoning district in which the Project is located and are not expressly prohibited in section 8.1. In addition, no cat or dog may be kept in a Commercial Unit unattended. 8.6 ADVERTISING. The occupant of a Commercial Unit may not employ an advertising medium which can be heard or seen outside the Unit, including, without limitation, flashing lights, searchlights, 10udspeakers, phonographs, radios or televisions. 8.7 MACHINERY. No machinery, apparatus or appliance may be used or operated in a Commercial Unit that will vibrate or shake the adjoining Units or Common Area of the Project, or cause an unreasonable amount of noise. 22 -71- 8.8 USE OF PORTIONS OF COMMON AREA. The occupant of a Commercial Unit and its customers and guests may not use the following portions of the Common Area: garage, hallways, 10bbies, elevator, storage and outdoor common area. 8.9 REFUSE DISPOSAL. The Owner of the Commercial Unit must store refuse containers within the portion of the Common Area designated for that purpose, and has a right of entry over the portion of the Common Area necessary to obtain access to the refuse containers. 8.10 "OCCUPANT" DEFINED. For purposes of this Article 8, the term "occupant" includes the Owner of a Commercial Unit, and any tenant, subtenant, assignee or other party that is occupying a Commercial Unit with the consent of the Owner of the Unit. 8.11 INCLUSION OF RESIDENTIAL RESTRICTIONS. The provisions of sections 7.2, 7.4, 7.5,7.6, 7.7, 7.9, 7.10 and 7.11 are incorporated into this Article 8 and are restrictions on the use of a Commercial Unit. In the case of any conflict between the provisions of this Article 8 and the incorporated provisions of Article 7, the provisions of this Article 8 will control. ARTICLE 9 Maintenance and Repair Obligations 9.1 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 covenngs. 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 Owners of Units 2, 3, 4 and 5 must maintain, repair and replace the surface of the patio appurtenant to the Unit. Replacement of a patio surface with materials substantially identical to those being replaced does not require the approval of the Association under 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 maintl'lin 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 23 -72- 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. 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 the interior of 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. The Association may levy a reimbursement assessment against the Owner if the Owner fails to reimburse the Association for any amount owed by Owner to the Association under this section. E. Maintenance Recommendations. Each Owner is subject to all maintenance recommendations provided by Declarant, including, without limitation, all guides and other documents and maintenance schedules, as they pertain to the Owner's Unit and those portions of the Common Area 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. 9.2 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, all Exclusive Use Common Areas except for those to be maintained by Owners under section 9.1E. The Association also must maintain alllandscaping except for any Exclusive Use Common Area yards, if any. 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 1364. C. Water Intrusion and Defective Conditions. The Association has the authority to inspect the Common Area, including Exclusive Use Common Areas, 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. 24 -73- 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 10cated in the Common Area, the Association is responsible for maintenance, repair and replacement of the installation, but the cost of the work must be paid by the Owner of the Unit of which that installation is a part. If the Owner fails to reimburse the Association, the Association may levy a reimbursement assessment against the Owner for the cost of the work that is not. covered by insurance, including that portion of the cost not paid by the Association's insurance carrier if the condition is covered by insurance. Altemately, the Association 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. 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. F. Maintenance Recommendations. The Association is subject to all maintenance recommendations provided by Declarant, including, without limitation, all guides and other documents and maintenance schedules, as they pertain to the Common Area and those portions, if any, of the Units 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. ;1(fi.. v i ~l 9.3 MAINTENANCE RESPONSmILITY 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. ,r LANDSCAPE AND IMPROVEMENT REQUIREMENTS. A. Landscape Plans and Construction of Improvements. Declarant must improve or cause to be improved the landscaped portions of the Common Area as shown on the following plans: (1) Landscape Plans. Plans consisting of sheet(s) designated , dated _ prepared by Job No. , entitled , together with the Legend of Plants as shown on the Plan and Irrigation System Specifications consisting of _ sheet(s), designated , dated , prepared by , Job No. , entitled 25 -74- . Declarant must file a copy ofthe as-built plans with the 465 Grand Avenue Homeowners Association. The Association must maintain the as- built plans on file as permanent records available for inspection and review by prospective owners and other interested persons and for performing its duties with respect thereto. (2) Maintenance of Landscaping. The Association must maintain all of the landscaping within the Project in general accordance with the landscaping plans referred to in subsection (1) above, unless climatic conditions make such maintenance impracticable or unless the City of South San Francisco consents to a change in the plan for landscaping. (3) Improvement Plans of Other Common Areas or Properties. A plan consisting of sheets, dated , Revised prepared by , Job No. , entitled Declarant must file a copy of the as-built plans with the 465 Grand Avenue Homeowners Association. The Association must maintain the as-built plans on file as permanent records available for inspection and review by prospective owners and other interested parties and for performance of its duties with respect thereto. B. Maintenance of Landscaped Areas. The Association must maintain and repair the works of improvement within the landscaped areas and the common properties as constructed within those properties in accordance with the plans including, but not limited to, the driveways, curbs and gutters, fences, landscape planting, water supply system, sanitary sewer, storm drain system, area lighting system, fire prevention system, irrigation system, retaining walls and subdrain system, traffic control signs, devices and striping, grades and slopes, and maintain and repair the improvements constructed in other portions of the common areas or properties. Anymodifications of the improvements installed in accordance with the plans must be made in accordance with the procedure set forth in this Declaration and modification of the use permit or other applicable zoning permit as so required. The Association must provide funds for this maintenance and repair in accordance with the assessment provisions set forth in Article 4 of this Declaration. C. Amendment of Section. The provisions of this section 9.4 containing landscape and improvement requirements may not be rescinded, amended or modified without prior approval of City of South San Francisco. 26 -75- ARTICLE 10 Insurance Coverage 10.1 REQUIRED COVERAGE. The Association must acquire and maintain the following InSurance coverage: A. Fire and Casualty. The Association must maintain a master policy offrre and casualty msurance. (1) The policy must include coverage for: a. all Common Area improvements described in section 1.6 and landscaping located within the Common Area, but excluding land, foundations, excavations and other items typically excluded from property insurance coverage, b. the Residential Units: standard components of the Unit as described in section 1.22 that were originally installed by the Declarant, 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 and trade fixtures located in a Unit are also excluded, and, c. the Commercial Unit: load bearing structural components of the Unit, the walls located between the adjoining Units or between a Unit and the Common Area and sheetrock on those walls. (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 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. B. Commercial General Liability. The Association must obtain and maintain commercial generalliability 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 liabili~f incident to the o\vnership or use of the Common Area or any other real or personal property owned or maintained by the 27 -76- 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 1365.9, 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, 10cation and use. C. Director and Officer Liability Insurance. The Association must purchase andmaintain 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 $500,000, or any greater amount required by Civil Code section 1365.7 and must include a "duty to defend" provision and a "pay on behalf of' clause. D. Fidelity Bond. If required by any institutionallender or at the discretion of the Board, a fidelity bond or policy of insurance against dishonest acts on the part of any person entrusted with or permitted to handle funds belonging to or administered by the Association, including a professional manager and its employees, naming the Association as the insured. E. Worker's Compensation Insurance. Worker's compensation insurance to the extent necessary to comply with any applicable law. 10.2 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, named insureds, 10ss 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. 10.3 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. 10.4 OWNER'S INSURANCE. Each Owner must maintain property insurance insuring against losses to the Owner's personal property located within the Unit ~nd Exclusive Use Common Area appurtenant to the Unit, and to upgrades and fixtures installed by the Owner that are part of the Unit 28 -77- and are not covered by the Association's property insurance described in section 10.1. Each Owner must maintain general 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. A reasonable minimum generalliability insurance amount established for a Commercial Unit must take into account the use conducted in that Unit. 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. 10.5 INSURANCE PREMIUMS. The cost of the Association's insurance premiums must be included in the regular assessment levied by the Association. 10.6 NOTICE OF LAPSE, CANCELLATION OR NON-RENEWAL OF INSURANCE POLICIES. The Association must, as soon as reasonablypractical, 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 re~uction in coverage or limits or an increase in the deductible. If the Association receives any notice of non-renewal of an insurance policy, it must immediately notify the Owners if replacement coverage will not be in effect by the date the existing coverage willlapse. 10.7 SETTLEMENT OF INSURANCE CLAIMS. The Association is authorized to negotiate and agree on the value and extent of any 10ss 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. ARTICLE 11 Damage or Destruction; Condemnation 11.1 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. 29 -78- 11.2 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. All insurance proceeds must be deposited with a third party depository that supervises disbursement of funds, such as an insurance trustee or a commerciallending 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 5 years experience in repair and rebuilding of property damaged through fire or other casualty. In conjunction 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; (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 the Owners under section 4.4; or, (3) the difference between ( a) total insurance proceeds pIus the amount of Association reserves and (b) the cost of the repairs or rebuilding requires a special assessment approved by a Vote of the Owners 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. 30 -79- 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, 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 its existing condition 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. 11.3 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 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 11.2D. ARTICLE 12 31 -80- Mortgage Protection Provisions 12.1 "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 mortgage. "Mortgagor" includes the trustor ofa deed of trust as well as a mortgagor. 12.2 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. 12.3 REQUIRED CONSENT OF ELIGmLE MORTGAGE HOLDERS. A. Eligible Mortgage Holder. As used in this section 12.3, "eligible mortgage holder" means a first Mortgagee, or the insurer or governmental guarantor of a first Mortgage, that has submitted a written request to the Association to notify it of any proposed action that requires the consent of a specified percentage of eligible mortgage holders. 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. Except for minor, non-substantive changes, changes to provisions governing any of the following are of a material adverse nature: (1) voting rights; (2) increases in assessments that increase the previously assessed amount more than 25%, assessment liens or priority of such liens; (3) reductions in reserves for maintenance, repairs and replacement of the Common Area; (4) hazard or fidelity insurance requirements; (5) reallocation of interests in or rights to use the Common Area or Exclusive Use Common Area; (6) responsibility for maintenance and repair of the Project; (7) expansion or contraction of the Project or the addition, annexation or withdrawal of property to or from the Project; (8) redefinition of boundaries of any Unit; (9) convertibility of Units into Common Area or of Common Area into Units; (10) imposition of any restrictions on the leasing of Units; (11) imposition of any right of first refusal or any other restriction on the right of an Owner to sell, transfer, or otherwise convey his or her Condominium; (12) restoration or repair of the Project (after a hazard damage or partial condemnation) in a manner other than that specified in the Governing Documents; or (13) any provisions which are for the express benefit of mortgage holders, insurers or guarantors. C. Termination of Legal Status of Project. Any action to terminate the legal status of the Proj ect after substantial destruction or condemnation occurs requires the approval by eligible 32 -81- mortgage holders that represent at least 51% of the votes of Units that are subject to mortgages held by eligible mortgage holders. D. Implied Consent. An eligible mortgage holder is assumed to have approved a written proposal 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. 12.4 REQUIRED CONSENT OF FIRST MORTGAGEES. Except as provided by statute in case of condemnation or substantial loss to the Units and/or Common Area, unless at least 67% of all Owners or frrst Mortgagees (based on one vote for each Condominium encumbered) have given their prior written approval, neither the Association nor the Owners may do any of the following. For purposes of this section 12.4, a first Mortgagee is assumed to have approved a written proposal 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. A. By act or omission, seek to abandon or terminate the Project; B. Change the pro-rata interest or obligations of any Condominium for purpose of levying assessments or charges or allocating distributions of hazard insurance proceeds or condemna- tion awards or for determining the pro-rata share of ownership of each Condominium in the Common Area; C. Partition or subdivide any Condominium; D. By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the Common Area. (The granting of easements for public utilities or for other public purposes consistent with the intended use of said areas by the Association or the Owners is not deemed a transfer within the meaning of this clause); or E. Use hazard insurance proceeds for losses to the Project (whether to Units or Common Area) for other than the repair, replacement or reconstruction of the Project except as provided by statute in case of substantialloss of the Units or Common Area. 12.5 NOTICE TO MORTGAGE aOLDERS, INSURERS AND GUARANTORS. Upon written request to the Association identifying the name and address of the mortgage holder, insurer or guarantor and the Unit number or address of the Unit, a mortgage holder, insurer or guarantor is entitled to timely written notice of the following: A. Any condemnation 10ss or any casualty 10ss 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; 33 -82- 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 12.4. 12.6 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. 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. 12. i 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. 12.8 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. 12.9 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. 12.10 LIEN ON INDIVIDUAL UNIT. All taxes, assessments and charges which may become liens prior to a first Mortgage under 10callaw relate only to the individual Units and not to the Project as a whole. 34 -83- ARTICLE 13 General Provisions 13.1 ENFORCEMENT. A. ACTIONS BY THE ASSOCIATION OR AN OWNER TO ENFORCE GOVERNING DOCUMENTS. The Association or any Owner may enforce the Governing Documents. The parties to a dispute between the Association and an Owner must, in all cases, 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. 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 reliefin conjunction with a claim for monetary damages not in excess of $5,000 unless the parties have endeavored to submit their dispute to alternative dispute resolution as required by sections 1369.510 through 1369.580 of the Civil Code and according to the procedures set forth in the Bylaws or operating rules adopted by the Board. 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 has refused to perform or has not responded to the request within 60 days from the date of delivery. The foregoing does not apply to a small claims action or an assessment dispute. This provision applies to any dispute between the Association and Declarant acting it its capacity as an Owner of a Unit and that does not arise out of defects in design or construction of the Project. B. LEGAL ACTIONS AGAINST DECLARANT FOR DEFECTS IN DESIGN OR CONSTRUCTION. The following provisions apply where the Association seeks to take legal action against Declarant or other party who may be liable for defects in design or construction of the Project. (1) Mandatory Binding Arbitration. Any disputes, claims, issues or controversies between any Owner and Declarant or between the Association and Declarant regarding any matters that arise out of or are in any way related to the Project, the relationship between Owner and Declarant or the relationship between the Association and Declarant, whether contractual or not, including, but not limited to, the agreement between Declarant and any Owner to purchase a Condominium or any related document, such as warranties or disclosures, or any action for claimed constructions defects must be resolved through neutral, binding arbitration and not by any court action except as provided for judicial review of arbitration proceedings by California law. Except as othernrise set fort.h in this section, the arbitration proceedings must be conducted by and in accordance with the Streamlined or Comprehensive Rules and 35 -84- Regulations of Judicial Arbitration and Mediation Services, Inc. (JAMS) or the Commercial Arbitration Ru1es of the American Arbitration Association (AAA), or any successor to them. Any fee to initiate the arbitration must be paid by Declarant, but the arbitration costs and fees, including any initiation fee, u1timately must be borne as determined by the arbitrator. The venue of the arbitration proceedings will be in the County, unless the parties agree to a different 10cation. The arbitrator must be appointed within sixty days of the receipt of a written request to arbitrate the dispute by JAMS or AAA. In selecting the arbitrator, the provisions of section 1297.121 of the Code of Civil Procedure will apply. An arbitrator may be challenged for any of the grounds listed in that section or in section 1297.124 of the Code of Civil Procedure. The arbitrator is authorized to provide all recognized remedies available in law or equity in resolution of any dispute between the parties. However, the arbitrator does not have the authority to award punitive damages. (2) Civil Code Sections 910-938 Prelitigation Requirements. Before filing any arbitration, legal action or other proceeding against Declarant, or a builder, developer, or contractor, for any claimed defects in the design and construction of the Project or for a violation of the functionality standards set forth in Civil Code sections 896-897 ("functionality standards"), the Association must comply with the procedures found in Title 7 of Part 2 of Division 2 of the California Civil Code, beginning at section 910. These procedures impact the legal rights of the Association and the Owners. 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. A decision by the Board to initiate a claim for violation of the functionality standards also requires a Vote of the Class A Owners only, or where the two class voting structure is no longer in effect, a Vote of the Owners other than Declarant. This section becomes effective automatically on the date that the fIrst director is elected to the Board without the vote of Declarant. 13.2 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 11.2 and 11.3 or by partition as permitted by Civil Code section 1359. 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. 13.3 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 writ1ng signed and acknowledged by the president or the secreta..ry of the Association certifying under penalty of perjury that the amendment was adopted with the consent of Owners as 36 -85- provided in this section. The Declaration may be amended only by a vote of more than 50% of all of the Owners and the vote of more than 50% of all of the Owners, other than Declarant. Any amendment which affects some but not all of the Condominiums also requires the approval of a majority of all of the Owners of the Condominiums affected by the amendment. Any provision of this Declaration that confers rights and benefits on Declarant may not be amended or rescinded without the prior written consent of Declarant, except as permitted by Civil Code section 1355.5. 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, and the prescribed percentage of all of the Owners other than Declarant. 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. This Declaration may also be amended in accordance with the provisions of Civil Code section 1356. 13.4 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. 13.5 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. 13.6 NOTICES. Any notice permitted or required by the Governing Documents must be in writing. Unless expressly provided otherwise in a particular provision, delivery of a notice may be by any of the following means: (1) personal delivery, (2) certified or registered U.S. mail, (3) delivery by commercially recognized courier service, or (4) email, facsimile or other electronic means if the recipient has previously agreed to that method of delivery. If delivery is by mail, the notice is deemed delivered 72 hours after a copy of it has been deposited in the United States mail, postage prepaid., addressed to the Owner at the current address given by the Owner to the secretary of the Board or addressed to the Unit of the Owner ifno address has been given to the secretary. Electronic notice is deemed delivered upon transmission to the current email address or facsimile number delivered to the Association in accordance with the provisions of this section. 13.7 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 and was caused by the "rillfhl or negligent act or omission of the Owner, his or her family members, contract 37 -86- purchasers, tenants, guests and invitees to the extent the injury or damage is not covered by insurance. 13.8 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. 13.9 NOTICE OF NEW OWNERSHIP. No later than five days after close of escrow on the purchase of a Condominium, the new Owner must inform the Association of his or her name and address, the number of the Unit purchased, and the date of close of escrow on the purchase. 13.10 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 Condominium, the consent of the affected Owner is required. 13.11 RIGHT OF PUBLIC ENTRY BY GOVERNMENTAL AGENCY. Any governmental agency, department or bureau has a right of immediate access at all times to all portions of the Common Area, except for Exclusive Use Common Areas. Notice of this right of access must be prominently displayed in the Common Area. 13.11 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. 13.12 SINGULAR AND PLURAL. The singular and plural number and masculine, feminine and neuter gender each include the other where the context requires. 13.13 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 subj ect. 13.14 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. 13.15 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 38 -87- to effect its purpose of creating a uniform plan for the development and operation of a condominium project pursuant to the provisions of section 1350 et seq. of the California Civil Code. 13.16 INCONSISTENCY IN DEFINITIONS. If there are any inconsistencies in the definitions contained in the Declaration and any notes on the Map or the Condominium Plan, the definitions contained in the Declaration control. 39 -88- Declarant has executed this Declaration on Alfred Chung To Lee Hoi Por K wok ,20_. Allen Yun Ling Lee Albert Chiu Yeung Kwok 40 -89- STATE OF CALIFORNIA COUNTY OF } }SS. } On , 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. WITNES S my hand and official seal. Signature -90- EXHIBIT A ATTACH CONDO PLAN -91- 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 responsibility of the Owner or the Association. Owner maintenance responsibilities include: Appliances Cabinets and other fixtures Drains in the Exclusive Use Common Area decks - the Owner should maintain and clean all drains in the deck before the beginning of each rainy season. Drywall and sheet rock Exclusive Use Common Areas specified in Section 9.1B Exterior Doors - see below Exterior light fixtures at entry, deck, patio 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 Unit Partition walls 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 Association maintenance responsibilities include: 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. 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 9.2A Fences Floor, wall and ceiling surfaces in common areas - clean, paint, repair, replace, Irrigation System -92- Landscaping Life Safety Systems - fire sprinkler system, including sprinkler heads within a Unit, hard-wiredsmoke alarms, fire alarm Mailboxes Retaining walls Structural elements Water proofing - roof, exterior paint Exterior Doors and Windows: Responsibility for maintenance of Exterior Doors is assigned as follows. Exterior Doors include front doors, and doors to patios, balconies and decks, screen doors, and garage doors that serve a single Unit. 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. Windows. The Association is responsible for maintenance, repair and replacement of the window frame, exterior trim, and repair, refinishing and painting of window exterior. 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, glass and any other portion of the window assembly accessible from inside the Unit. Window Washing. 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