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Resolution 1750 RESOLUTION NO. 1750 .... RESOLUTION OF THE CITY OF GILROY APPROVING A PLANNED UNIT DEVELOPMENT PERMIT, SUBJECT TO COMPLIANCE WITH THE PLANS, SPECIFICATIONS AND DESIGNS FILED WITH THE APPLICATION AND THE CONDITIONS IMPOSED HEREIN, FOR DEVELOPMENT OF THE FIRST PHASE OF THAT 38 ACRE PARCEL LOCATED AT THE NORTHWEST CORNER OF FIRST STREET AND KERN AVENUE WHEREAS, CARL BOZZO has heretofore filed with the Planning Commission of the City of Gilroy a petition in due form requesting approval of a Planned Unit Development permit for development of 38 acres of property located at the north- west corner of First Street and Kern Avenue, and WHEREAS, the Planning Commission of the City of Gilroy has given due notice of a public hearing upon the said appli- cation, in accordance with the Zoning Ordinance of the City of Gilroy, has held the hearing, and has made its report to the Council of the City of Gilroy, in which it recommends approval of a planned unit development permit, subject to certain con- ditions, and WHEREAS, the Council of the City of Gilroy has fixed the 2nd day of July, 1973, at the hour of 8:00 o'clock p.m. in the Council Chambers in the City Hall at 7390 Rosanna Street, Gilroy, California, as the time and place for hearing the said report and recommendation upon the said application, and notice of the said hearing has been given in accordance with the said Zoning Ordinance, and a public hearing has now been held upon the said application, at the time and place fixed in the said notice, before the Council, and the Council having duly considered the said application and the evidence presented, the Council does hereby determine: 1. That the Council approves and adopts the findings - 1 - RESOLUTION NO. 1750 of the Planning Commission set forth in its Resolution No. 667. 2. That Planned Unit Development permit be granted subject to the conditions set forth below. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF GILROY that a Planned Unit Development permit be granted for the premises described below, subject to the following condi- tions: (1) That the Planned Unit Development permit be issued for the first phase of the project consisting of offsite improvements for the entire project, a 54 unit retirement home, the northwest 12 condominium uni~ and 5 single family homes on We1burn Avenue, subject to the condition that all improvements are to be con- structed in accordance with plans, specifications, designs, and landscaping filed with and approved by the Planning Commission, or no building permit be issued. (2) That construction start within six (6) months of approval of the project and that the first phase of the project be completed in one (1) year. (3) That prior to the sale of any condominium units or other lots or parcels which utilize or benefit from private streets or common areas within the development, an owners' association shall be established by recorded covenants providing for membership of all such owners and for necessary capital improvement, maintenance and tax assessments, with each owner's obligations to be secured by a trust deed, upon each lot, containing a power of sale, for the benefit of the owners' association and the city. There shall also be provisions for execution of a new deed of trust in the event of a foreclosure or sale, including the power of the association and the city, if necessary, to execute and record such a new deed of trust, as the agent of the owner and in his name, if the owner fails or refuses to do so himself. The city shall also be given the right to do any act the association has the power to do, in case of default by the association. The document establishing the owners' association shall contain clauses substantially identical with the appendix annexed hereto and it and the deed of trust securing it for the benefit of the City shall be approved by the City Attorney prior to recording. (4) That each succeeding phase of the development shall be set for public hearing before the - 2 - RESOLUTION NO. 1750 Commission for further ~eport to the Council as detailed plans are developed and filed and prior to the issuance of further building permits. BE IT FURTHER RESOLVED that upon completion of all phases of construction, the entire premises be rezoned as developed. The said premises hereinbefore mentioned are described as follows: Located in the City of Gilroy, County of Santa Clara, State of California, to wit: The Northwest corner of Kern Avenue and First Street shown as parcels 01, 02, 03, and 04 page 01 book 790 in the Santa Clara County Tax Assessor's Map Book. Containing 38 acres, more or less. PASSED AND ADOPTED on the 2nd day of July, 1973, by the following vote: AYES: COUNCILMEMBERS: DeBELL, DUFFIN, HUGHAN, PATE, SILVA and GOODRICH NOES: COUNCILMEMBERS: STOUT ABSENT: COUNCILMEMBERS: None APPROVED: ) ~t' If\ > " " :; fr24-;!Cd~. .' ~ r2rL.e> ( , Mayor ATTEST: ;,dt;n;;/6 . "/,F) v/ - 3 - RESOLUTION NO. 1750 ,.F ,. o o APPENDIX AR TICLE COVENANT FOR MAINTENANCE ASSESSMENTS Section L Obligation to Pay Assessments. The Declarant, for each Lot within the Property hereby covenants and agrees, and each Owner of any Lot by acceptance of a deed therefor, or any conveyance of title thereto by purchase or otherwise, and whether or not it shall be so expressed in such deed or conveyance, is deemed to covenant and agree to pay to the Association: (1) annual assessments or charges, and (2) special as ses sments for capital improvements; all such as sessments to be established and collected as hereinafter provided. The obligation with respect to each Lot to pay all such assessments, interest thereon in the event of default. and the costs and expense s of collection thereof, in- cluding reasonable attorneys' fees, shall be the personal obligation of the then Owner of each such Lot at the time such assessments charges, interest, cost, expenses, and attorneys' fees are incurred, and shall not pass to such Owner's successors in title unless expressly assumed by them, Such obligation shall also be secured by a lien upon such Lot as hereinafter provided in Section 8, Section 2. Purpose of As ses srnents. The as ses sments levied by the Association shall be used exclusively to pay real property taxes and irrigation taxes assessed, and maintenance and improvement expenses incurred, with respect to the Common Area. Funds received by the As sociation shall be devoted fir st to the payment of real property and irrigation taxe s. Section 3. Amount of Annual Assessments. The annual assess- ment shall be in an amount which, in the determination of the As sociation, is sufficient to cover all real property taxes and irrigation taxes assessed with respect to the Common Area, and to cover all maintenance expenses incurred with respect to that portion of the Common Area to be maintained during the year covered by such annual assessment, subject to the following limitations: (a) Until January 1 of the year immediately following the conveyance of the first Lot to an Owner, the maximum annual assessment shall be ($) Dollars per Lot, and the annual assessment is hereby fixed in said amount pending any adjustment therein pursuant to subparagraphs (b) and (c). (b) For any year following the year in which the fir st Lot is conveyed to an Owner, the maximum annual assessment may be increased each year not more than (%) percent above the maximum assessment for the previous year by the Board of Directors of the Association without a vote of the Association membership. (c) For any year is conveyed to an Owne r, the time be increased above written assent of members. following the year in which the first Lot maximum annual as se s sment may at any ( %'1 percent by the vote or 0/0) percent of each class of Association ft o o Section 4. Special Assessments for Capital Improvements, In addition to the annual assessments authorized above, the Association may levy, In any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of any construction, re- construction, repair or replacement of a capital improvement upon the Common Area, provided that any such assessment shall have the vote or written assent of (0/0) percent of each class of Association members. Section 5. Notice and Quorum for any Action Authorized Under Sections 3 (c) and 4. Any action requiring membership authorization under Sections 3(c) and 4 shall be taken at a meeting called for that purpose, written notice of which shall be sent to all members not les than days nor more than days in advance of the meeting. If the proposed action is favored by a majority of the votes cast at such meeting, but such vote is less than the requisite (%) percent of each class of members, members who were not present in person or by proxy may give their assent in writing, provided the same is obtained by the appropriate officers of the A ssociation not later than __days from the date of such meeting, Section 6. Method of Asses smenL The annual as ses sments provided for -hereln shall comrnence-astoall Lots on the day of the month following the conveyance of the first Lot to an Owner, and the first annual assessrnent shall be adjusted to cover the period left in that calendar year. Both annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly basis, except that a new Owner shall, at the time of acquiring a Lot, be required to prepay the annual assessment therefor in an amount equal to one-half the annual assessment for that year. In the event that the Association shall not yet be able to receive such assessments at the time an Owner acquired his Lot, such as sessments shall be paid into an escrow account established by Declarant pending transfer to the A ssociation. The Board of Directors of the Association shall fix the amount of the next year's annual assessment against each Lot on or before December 1st of each calendar year, and written notice of such annual as se s sment shall be sent to every Owner subject thereto. Section 7, Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment not paid within days after the due date shall bear interest from the due date at the rate of ( %) percent per annum. No Owner may waive or otherwise escape liability for the assessments provided for herein by nonuse of the Common Area or abandonment of his Lot. The Association rnay bring an action at law against the Owner personally obligated to pay the same, or foreclose, by private sale or otherwise, the lien existing against that Owner's Lot under the Maintenance Deed of Trust described in Section 8. Section 8. Creation of Security L:,::n, Paflnent of the assessments prov!ided for herein shall be secured by a trust deed upon each Lot (here- inafter referred to as the "Maintenance Deed of Trust"), containing a power of sale, for the benefit of the Association and the City. Effective immediately upon recordation of any assessment levied by the Association pursuant to this Declaration, in the form attached to this Declaration as Exhibit 3, the obligation with respect 1.0 each Lot to pay such assessn'1ent, interest thereon in the event of defa.ult, and the costs and expenses of collection thereof, including reasonable attorneys' fees, shall be secured by said Maintenance Deed of Trust, ,)~, 'J~')(llJ!l;::l ,..::' ,::'::;::~::;:f<r;~;{~~7;;fuiL o o Secti.9n 9. Su1.?ordination of Security Lien to Purchase Mortgages or Deeds of Trust. The Maintenance Deed of Trust for each lot shall be executed by the first purchaser of each Lot from Declarant and shall be recorded subject only to a first mortgage or Deed of Trust given solely for the purpose of financing acquisition of that Lot. Said Maintenance Deed of Trust shall contain the following automatic subordination clause: This Deed of Trust shall be subject and subordinate to a deed of trust to be executed hereafter by Trustor or his successors in interest covering said property and securing a loan, not exceeding $ in amount or years in duration or having an interest rate in exces s of percent, or a refinancing of an earlier loan which refinancing is within the same limitations as to terms, which loan or refinancing is made solely for the purpose of financing the acquisition of said property by Trustor or his succes sor s in interest; provided, however, that this Deed of Trust shall at no time be subject and subordinate to more than one other such deed of trust, or to another deed of trust not within such limitations as to terms. Sale or transfer of any such Lot by the Owner shall not affect the lien of the Maintenance Deed of Trust. Sale or transfer of any such Lot pursuant to foreclosure or sale under the power of sale contained in said purchase mortgage or deed of trust shall extinguish the lien of the Maintenance Deed of Trust only as to the payments which became due prior to such sale or transfer but no such foreclosure or sale under power of sale or transfer shall relieve such Lot from liability for any assessment thereafter becoming due or from the lien thereof upon such Lot. Section 10. Execution of New Maintenance Deed of Trust. The lien of said Maintenance Deed of Trust will normally be extinguished if a fore- closure or sale is had under its terms, or in the event of a foreclosure under a purchase mortgage or deed of trust having priority over the Maintenance Deed of Trust pur suant to the provisions of Section 9 of this Article IV. Should any Maintenance Deed of Trust at any time and for any reason, including the foregoing, be extinguished, eliminated, or rendered unenforceable, the As sociation shall promptly demand that the then Owner of the Lot involved execute and record a new Maintenance Deed of Trust to secure the obligations contained in this Declaration. The Declarant hereby covenants and agrees, and each Owner of any Lot by acceptance of a deed thereto, or of any conveyance of title thereto by purchase or otherwise, and whether it shall be so expressed in such deed or conveyance, is deemed to covenant and agree, to execute and record such a new Maintenance Deed of Trust. If any Owner shall fail to do so promptly, then the As sociation is hereby authorized and directed to execute and record such a new Maintenance Deed of Trust as the agent of said Owner and in his name. Section 11, Extinguishment of Lien. If no notice of default under the Maintenance Deed of Tre:.st lien with re spect to a particular as ses sment is recorded within one (1) year after recordation of such assessment, said lien shall be exting,....ished with respect to such assessment and any interest, costs, expenses, and attorneys' fees due in connection therewith, and shall no longe r constitute a cloud on title to the subject Lot. An Owner's personal obligahon to pay such assessment, interest, costs, expenses and attorneys' fees, however, shall not be affected by the running of such time period. "~I o o AR TICLE RIGHT OF CITY TO COMPEL PERFORMANCE In consideration of City's approval of the development of the real property to which this Declaration relates, Declarant hereby covenants and agrees, and each Owner of any Lot by acceptance of a deed therefor, whether or not it shall be so expressed in such deed, and all heirs, executors, administrators, assigns, and successors in interest of each such Owner is deemed to covenant and agree as follows: Section 1. City's Remedie s. In the event that any or all of any part of the real property taxes, irrigation taxes and/or other taxes or assessments that may be imposed by any public entity, including the City of , on the Common Area shall remain unpaid and in default more than months after the due date thereof, City, as beneficiary of the covenants and agreements contained in this Declaration on the part of Declarant and on the part of each Owner and all successors in interest, and as the agent of the Association and in the name of the As sociation rnay do any of the following: (a) Do or perform any act the A ssociation may do or perform, (b) In the event Association fails to do so at the time specified at the time set forth in its By- Laws and in this Declaration, City may, without otherwise complying with provisions of this Declaration and said By-Laws, fix the annual assessment against each Lot. (c) If the Association fails promptly to demand that the then Owner of a Lot execute and record Maintenance Deed of Trust effective for the intended purpose, then the City is authorized to make such a demand for and in behalf of the Association, and should the Owner fail to comply with such demand, the City is authorized to execute and record such Maintenance Deed of Trust as the agent of said Owner and in his name. This Declaration hereby constitute s the As sociation and / or the City as the attorney in fact and agent of the Owner for all such purposes, (d) If City in its discretion determines the Association is not diligently attempting to collect the amounts owing the Association, City may, as the agent and in the name of the As sociation, take any such legal steps to collect such amounts, by actions of law or by foreclosure of the Maintenance Deed of Trust, as the City may determine to be necessary in each individual case, (e) If the City takes any steps not involving court proceedings to collect any sums which should be paid to the Association as provided for in this Declaration, City DlaY fix the amount of reasonable attorneys i fees in each case and the 2,~TIOt.l.r:t of attorneys' fees so fixed shall be binding upon the Declarant ar~d Owner s, Section Z. Costs of Enforcement. In the event that the City shall exercise any of the remedies afforded to it under the preceding section, any sums recovered from such suit or foreclosure sale or judicial foreclosure proceedings shall be applied first to cover the City's cost of suit or fore- '__,"''',. ~ Y.... . ..c:......~. _, I."'" "VI "":a,"n.', ',111;';" l}o"1\ ." .-' ,-. '_..' f" "'II:-:~ -: ;i.f.:;~:;:t;,:;:l. .;~ .:v;:..;f;~: ~. ::~r' ;~~ ": o o ... closure including but not limited to filing fees, title company charges, miscellaneous foreclosure charges, and reasonable attorneysl fees, The balance of any sums so recovered shall then be applied against any amount which is then lawfully owing to the City or other public entities, All re- maining sums shall belong to the Association, lJ:',':,~T.\1Fmr.,t_-..;.. .,""'- .~' ;....:.r'L.~ _~: <. "" .~'..: ,;{),,\........,.It,~.....n; ,.;.:.:..t . v',,; ~:d"K:<!x:-,:ne;;;)r.,i;,;;.~~:'..:iC2!~!iV:~}lf.~Y;,~)(';X.::.~.'~~~}'j,.~i:c.:ffiM'-'!t~.f~:.~)~ :~'=9J;;:j~;i:~::.:.!~s..::::f;.;;' :\::~,~ :~i ,-(':,"~_ .^':I-_;:::A:~S...,"f . ,f, ~".' . , -tm I I, SUSANNE E. STEINMETZ. City Clerk of the City of Gilroy, do hereby certify that the attached Resolution No. 1750 is an original resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 2nd day of July . 19 ~ at which meeting a quorum was present. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Gilroy, this 3rd day of August , 19 li.