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NORMAN LA FORCE, SBN 102772
LAW OFFICE OF CHRISTIAN B. GREEN
Direct Line: 510-645-2314
Facsimile: 510-645-2324
Email: Norman.LaForce@CNA.com
ASSOCIATION
STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
JULIE T. NGUYEN
Petitioner,
FORRESTER IN SUPPORT OF
ATTORNEYS’ FEES AND COSTS
OWNERS ASSOCIATION, Hearing Date
Date: May 10, 2019
Time: 9:00 A.M.
Dept.: 10
I, William Forrester, declare:
I am the community manager for the Little Orchard Business Park Owners
capacity, I am the custodian of records for
that my company has
with the Association to be its community manager. I also handle the payment of all bills and
invoices. I make this declaration based on my personal knowledge except as to those matters
based on information and belief upon which I am informed and believe them to be true. If
called upon to testify to the matters herein I could and would competently testify thereto.
2 The Little Orchard Business Park Owners Association is governed by an
DECLARATION OF WILLIAM FORRESTER IN SUPPORT OF MOTION FOR ATTORNEY
S’ FEES
of the page with the relevant section, Section 8.1, which concerning awards of attorneys’ fees
for ease of reference. I also attached hereto is an Exhibit B of a complete set of Enabling
Declaration with amendments attached.
3 Attached hereto as Exhibit C is a true and correct copy of the Association’s
Bylaws.
4 The Association incurred attorneys and costs in this action. First, it had its own
general counsel at Adams Stirling defend the Association. The fees associated with that law
office’s work were billed to and paid by the Association. Attached hereto as Exhibit D is a
true and correct copy of those billings which the Association has incurred.
10 5 The Association then tendered the defense to its insurance carrier and
11 substituted out the Adams Stirling firm for the Law Offices of Christian B. Green, by Norman
12 La Force.
13 I declare under penalty of perjury under the laws of the State of California that the
14 foregoing is true and correct and that this declaration was executed on March /2, 2019, in the
15 City of. Sia! lose » State of California.
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William Fo: ster
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DECLARATION OF WILLIAM FORRESTER IN SUPPORT OF MOTION FOR ATTORNEYS” FEES
EXHIBIT “A”
The Association shall not cause to be made, or permit any changes in the exterior
or structural portion of a-building which materially affects the outward appearance of
the building or its structural integrity.
7.9 Liability of Owners for Damage to Common Area: The owner of each
condominium shall be liable to the Association for all damage to the common area or
improvements to the extent described in section 5.1A.
7.10 Overloading: No machinery, apparatus, or appliance or equipment shall be
located in any unit or in the common area which will in any manner structurally overload
the building, er in any manner vibrate, shake or otherwise damage any portion of any
duilding.
ARTICLE VIII
GENERAL PROVISIONS.
8.1 Enforcement: The Association, or any owner, shall have the right to enforce,
by any proceeding at law or in equity, all restrictions, conditions, covenants, reserva-
tions, liens, and charges now or hereafter imposed by the provisions of this Neciaration,
the Articles and the Bylaws, and in such action shall be entitled to recover reasonable
attorneys! fees as are ordered by Court. Failure by the Association or by any owner to
enforee any covenant or restriction herein contained shall in mo event be deemed a
waiver of the right to do so thereafter.
8.2 Invalidity of Any Provision: Should any provision or portion hereof be
declared invalid or in conflict with any law of the jucisdiction where this project is
situated, the validity of all other provisions and portions hereof shall remain unaffected
and in full force and effect,
8.3 Term: The covenants and restrictions of this Neclaration shall run with and
bind the property, and shall inure ‘to the benefit of and shail be enforceable by the
Association cr the owner of any property subject to this Declaration, their respective
legal representatives, heirs, successors and assigns, for a term of thirty (30) years from
the date this Declaration is recorded, after which tine they shail be automatically
extended for successive periods of ten (10) years, unless an instrument in writing, signed
by a majority of the then owners of the coridominiums, has been recorded within the year
preceding the beginning of each successive pericd of ten (10) years, agrecing lo change
the covenants and restrictions in whole or in pert, or to terminate the same.
8.4 Amendments: After the close of escrow upon the sale of the first
condominium, this Declaration may be amended only by the affirmative vote (in person
or by proxy) or written consent of members representing a majority of the lotal voting
power of the Association. However, the percentage of voting power necessary to amend
4 specific clause shall not be less than the prescribed percentage of aifirmative votes
required for action to be taken under that clause. Any amendment must be certified ina
writing executed and acknowledged by the President or Vice President of the Association
and recorded in the Recorder's Office of the County of Santa Clara.
8.5 Encroachment Rights: If any portion of the common area enerdaches on any
condominium or any portion of a condominium encroaches on any common area due to
minor engineering errors, minar errors in original construction, reconstruction, repair,
settlement, shifting, or movement of the building, or any other cause, the owner of the
encroachment shall have the right to maintain, shall repair or replace the encroachment,
3/20/86 =19-
EXHIBIT “B”
If this document contains any restriction
based on race, color, religion, sex, gender,
gender identity, gender expression, sexual
orientation, familial
status, marital status,
disability, genetic information, national
origin, source of income as defined in
subdivision (p) of Section 12955, or
ancestry, that restriction violates state and
federal fair housing laws and is void, and
may be removed pursuant to Section
12956.2 of the Government Code. 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.
Recording Requested By and
CONFCOPY.
OR This
ME documeD
nthas
Tit deen,
revitgi
When Recorded, Mail To:
aN
COUNRY
we
Little Orchard Business Park
Owners Association
e/a Comerstone Community Doct: 23326121
Management 6/86/2816 12:36 PM
1800 Hamilton Ave., Suite 210
San Jose, CA 95125
Space Above this Line for Recorder's Use Only
Second Amendment to Little Orchard Business Park
Enabling Declaration Establishing a Plan for Condominium Ownership
This Second Amendment to Little Orchard Business Park Enabling Declaration Establishing
a Plan for Condominium Ownership is made as of the date hereinafter shown by a majority of the
total voting power of Little Orchard Business Park Owners Association (the “Association”) as
provided in Article VIII, Section 8.4 of the Little Orchard Business Park Enabling Declaration
Establishing a Plan for Condominium Ownership hereinafter described.
Recitals
I Whereas, the Little Orchard Business Park Enabling Declaration Establishing e Plan
for Condominium Owners was recorded May 15, 1986 in Book 1692, Page 1217, ef seq., and was
amended by that First Amendment to Little Orchard Business Park Enabling Declaration
Establishing a Plan for Condominium Ownership recorded September 12, 1986 in Book J842, Page
684, et seq., as Document No. 8341975, both in the Official Records of the County of Santa Clara,
California; and
2 Whereas, this Amendment affects all that certain real property located in the County
of Santa Clara, Califomia, which is more particularly described as follows:
That certain tract of land located in the City of San
Jose (“City”), County of Santa Clara, State of
California, more particularly described on that certain
Map entitled “Tract No. 7849", filed for record in the
Office of the Recorder of Santa Clara County,
California, on March 18, 1986, in Book 557 ofMaps,
Pages 28 and 29,
Second Amendment to Little Orchard Business Park Enabling Declaration Page | of8
3 Whereas, the current ordinances of the City of San Jose and the laws of the State of
Califomia permit the operation of medical marijuana cooperatives, dispensaries, operations,
establishments and providers, subject to certain conditions; and
4 Whereas, the condominiums described on Exhibit “A” and “B” attached hereto are
established marijuana dispensaries, and the condominium described on Exhibit “C” attached hereto
has been used and established as a bakery preparing marijuana “edibles” that have been distributed
to members of the dispensary operating in the condominium described in Exhibit “B”; and
$ Whereas, the members of the Association desire to adopt restrictions on permitted
uses of condominiums in the Little Orchard Business Park commercial condominium project to
protect and enhance the character of the Project.
Now, therefore, Article VII, Section 7.1 of the Little Orchard Business Park Enabling
Declaration Establishing a Plan for Condominium Ownership is amended as hereafter set forth:
7A Condominium Use: No condominium shall be occupied and used except for
uses permitted under local zoning ordinances, and other epplicable governmental
laws or ordinances, excluding the Federal Controlled Substances Act.
Notwithstanding the foregoing, whether or not permitted by ordinances, regulations
or policies of the City, the following types of uses within or about a condominium
arc prohibited, except as herein approved:
(a) Any marijuana or cannabis dispensary, collective, cooperative, operation,
establishment, provider, club or clinic and/or the growing, processing,
harvesting, distribution, sales, preparation for consumption or related activity
involving marijuana or cannabis.
{b) The manufacturing or distribution of drugs, legal or illegal, and/or drug
paraphernalia, including, without limitation, "head shops".
Notwithstanding the foregoing, the condominiums described on Exhibit “A” and
Exhibit “B” may be used as a marijuana or cannabis dispensary, collective,
cooperative, operation, establishment, provider, club or clinic to be operated and/or
for the growing, processing, harvesting, distribution, sales or related activity
concerning marijuana or cannabis; and the bakery operated on the condominium
described on Exhibit “C” may continue its current use, including producing edible
cannabis items, producing concentrated cannabis items, and cultivating cannabis.
The owner of the property described on Exhibit “C” may rot allow the use of the
front entrance of said property as a retail marijuana or cannabis dispensary,
collective, cooperative, operation, establishment, provider, club or clinic. However,
the Board of Directors is authorized, upon written application, to allow additional
nonretail marijuana-related business to be conducted on the property described on
Exhibit “C”, through a use permit issued by the Board that may be restricted in time
and/or in other particulars.
Second Amendment to Little Orchard Business Park Enabling Declaration Page 2 of 8
Ifthere is a change in the minimum allowable proximity, which is currently 50 feet,
between
marijuana or cannabis dispensaries, collectives, operations, establishments, providers, clubs or
Clinics, the condominiums described in Exhibits “B” and “C”
shall have priority due to the fact that
they established such operation prior to any other tenants,
No violation of this Section 7.1 may be asserted by the Association until findings
have been
made by the Board of Directors of the Association follwing a duc process hearing
conducted
pursuant to Corporations Code Section 7341, Issues that are encompassed in pending litigatio
n shall
not be considered in such hearing until such litigation is fully resolved.
Ds WITNESS WHERE OF, { have hereunto subscribed my name this / Z day of
ef 2016,
Little Orchard Business Park Owners
Association
“Matt R usso, President
Second Amendment to Little Orchard Business Park Enabling Declaration
Page3 of&
Officers' Certification of Second Amendment
to Little Orchard Business Park Enabling Declaration
Establishing « Plan for Condominium Ownership
We, the undersigned, say:
That I am the duly elected and acting President of Little Orchard Business Park, a California
non-profit mutual benefit corporation, That the Second Amendment to Little Orchard Business Park
Enabling Declaration Establishing a Plan for Condominium Ownership to which this Certification
is attached, which amends thet certain Little Orchard Business Park Enabling Declaration
Establishing a Plan for Condominium Ownership recorded May 15, 1986 in Bock J692, Page 1217,
et seq., as amended by that First Amendment to Little Orchard Business Park Enabling Declaration
Establishing a Plan for Condominium Ownership recorded September 12, 1986 in Book J842, Page
684, ef seq., as Document No. 8341975 in the Official Records of the County of Santa Clara, was
approved by a majority of the total voting power of the Association as provided in Article VIII,
Section 8.4 of the Little Orchard Business Park Enabling Declaration Establishing a Plan for
Condominium Ownership.
That this Certification is made pursuant to Section 4270 of the Civil Code of the State of
California, and is to be recorded together with said Second Amendment to Litle Orchard Business
Park Enabling Declaration Establishing a Plan for Condominium Ownership in the records of the
County Recorder of Santa Clara County, the County in which said Little Orchard is located.
Ideclare under penalty of perjury, under the laws of the State of California, that the foregoing
is truc and correct.
Little Orchard Business Park
Owners Association
Second Amendment to Little Orchard Business Park Enabling Declaration Page 4 of&
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Acknowledgment
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed
the document to which this certi ificate is attached, and not the truthfulness, accuracy, or validity of that
document.
State of California )
)ss
County of Santa Clara )
On y 2016, before me, Pr renes CAE aNotary
Public, personally appeared Matt Russo, who Proved to me on the basis of satisfact
ory evidence to
be the sérs0u(s) whose fan}e(s) (are subscriibed to the within inst ent and acknowledged to me
thatdig’she/they executed the same in Kis er/their authorized cpacity(ies),
seco
and that by GiYher/their
Si (s) on the instrument the per N(s) or the entity upon behalf of which the rsola(s) acted,
executed the instrument,
Tcertify under PENALTY OF PERJURY under the laws of the State of ‘California that the
foregoing peragraph is true and correct.
WITNESS my hand and official seal,
Notary Public, fate of Califomia
[seal]
Second Amendment to Littte Orchard Business Park Enabling Declaration
Page Sof 8
11
Exhibit “A”
The land referred to herein below is situated in the City of San Jose, County of Santa Clara, State
of California, and is described 2s follaws:
A Condominium Comprised of:
Parcel One:
Unit 5A as shown on that certain Condominium Plan attached as Exhibit “A” and as further defined
in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986 in Book J692,
Page 1217, Official Records, Santa Clara County (hereinafter referred to as “the Declaration”); said
Unit being located on Lat 2, Tract No. 7849, a Map of which recorded March 18, 1986 in Book 557
of Maps, at Pages 28 and 29.
Parcel Two:
An undivided 25% interest in the Condominium Common Area of Condominium Building No. 5,
as described in said Condominiurn Plan and in the Declaration, including Easements appurtenant for
support, ingress and egress over the underlying Recreational Common Area, as described in said
Declaration.
Excepting therefrom all numbered Condominium Units in said Condominium Building and
excepting therefrom all other Condominium Buildings and all other Condominium Units shown on
said Condominium Plan and described in the Declaration (including those buildings to be
constructed in the future) other than the Unit conveyed in Parcel [ above, and
Further Excepting therefrom those portions of the “Restricted Common Area” as defined in the
Declaration and/or shown on the Plan which are set aside and allocated for the exclusive use of the
Owners of the Units other that the Unit described in Parcel f above.
Parcel Three:
An Easement with the exclusive right to use the appurtenant “Restricted Common Areas”, set aside
and allocated for the exclusive use of the Owner of the Unit described in Parcel | above, as defined
in the Declaration and as shown on the Condominium Plan.
APN: 455-40-020
1859 Little Orchard Street, Unit 5A
San Jose, CA 95125
Second Amendment to Little Orchard Business Park Enabling Declaration Page 6 of 8
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Exhibit “B”
All that certain real property situate in the City of San Jose, County of Santa
Clara, State of
California, and is described as follows:
A Condominium Comprised of:
PARCEL I:
Unit 6A, asshown on that certain Condominium Plan attached as Exhibit “A” and as further
defined
in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986
in Book J 692,
Page 1217, Official Records, Santa Clare County, and First Amendment thereof recorded Septemb
er
12, 1986, Series Number 8941975, Sante Clara County Records, {hereafter referred to as “The
Declaration”); said unit being located on Lot 2, Tract No, 7849, a Map of which was filed
March i8,
1986 in Book 557 of Maps, at Pages 28 and 29.
Parcel II:
An undivided 25% interest in the Condominium Common Area of Condominium Building
No. 6,
as described on said Map, in said Condominium Plan and in the Declaration, including easements
appurtenant for support, ingress and egress over the underlying recreational common area
as
described in said Declaration.
EXCEPTING THEREFROM ali numbered Condominium Units insaid Condominium Building and
excepting therefrom all other Condominium Buildings and all other condominium units shown on
said Condominium Plan and described in the Declaration (including those buildings
to be
constructed in the future) other than the unit conveyed in Parcel [ above, and
FURTHER EXCEPTING THEREFROM those portions of the “Restricted Common Area”
as
defined in the Declaration and/or shown on the Plan which are set aside and allocated for
the
exclusive use of the owners of the units other that the Unit described in Parcel I above.
Parcel TI:
An casement with the exclusive right to use the appurtenant “Restricted Common Areas”
set aside
and allocated for the exclusive use of the owner of the unit described in Parcel I above, as defined
in the Declaration and as shown on the Condominium Plan.
APN: 455-40-024
1851 Little Orchard Street, Unit 6A
San Jose, CA 95125
Second Amendinent to Little Orchard Business Park Enabling Declaration
Page? of 8
13
Exhibit “C”
All that certain real property situated in the City of San Jose, County of Santa Clara, State of
California, described as follows:
A Condominium comprised of:
PARCEL I;
Unit 6B, as shown on that certain Condominium Plan attached as Exhibit A and as further defined
in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986 in Book J 692
Official Records, page 1217, Santa Clara County, and First Amendment thereto recorded September
12, 1986 in Book J 842 Official Records, page 684, (Series Number 8941975), Santa Clara County
Records, (hereinafter referred to as “the Declaration”); said unit being located on Lot 2, Tract No.
7849, a map which was filed March 18, 1986 in Book 557 of Maps, pages 28 and 29.
PARCEL II:
An undivided 25% interest in the Condominium Common Area of Condominium Building No. 6,
as described on said Map, in said Condominium Plan and in the Declaration, including easements,
appurtenant for support, ingress and egress over the underlying recteational common area as
described in said Declaration.
EXCEPTING THEREFROM all numbered Condominium Units in said Condominium Building and
excepting therefrom all other Condominium Buildings and all other Condominium Units shown on
said Condominium Plan and described in the Declaration (including those buildings to be
constructed in the future) other than that the unit conveyed in Parcel I above, and
FURTHER EXCEPTING THEREFROM those portions of the “Restricted Common Area” as
defined in the Declaration and/or shown on the Plan which are set aside and allocated for the
exclusive use of the Owners of the units other than the unit described in Parcel I] above.
PARCEL Hl:
An easement with the exclusive right to use the appurtenant “Restricted Common Areas” set aside
and located for the exclusive use of the Owner of the unil described in Parcel [ above, as defined in
the Declaration and as shown on the Condominium Plan.
APN: 455-40-025
1849 Little Orchard Street, Unit 6B.
San Jose, CA 95125
ONherBoniaTGorRepakite
erctard 24 emenirent 55 46
Second Amendment ta Little Orchard Business Park Enabling Declaration Page 8 of 8
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. COMMURREALTI LAND TITLE COMPANY REC FRE 2 9580181
ACCOMO,
9580181 RHE Ss FILED FOR RECORD
HICRO WAT REQUEST OF
When Recorded Return To:
kA, NUE S we
LEH HOT
John Paet Yanna, Esq. I SINPE.
Gaps
Wai25 10 et He
528 University Avenue, Suite 705 FooR
Palo Alto, California 94301 AA,
REGGR:
CERTIFICATION OF CORRECTION AND SECOND AMENDMENT
TO LITTLE ORCHARD BUSINESS PARK ENABLING DECLARATION
THIS CERTIFICATE OF CORRECTION and Second Amendment to the
42°? once L634
Orchard Business Park Enabling Declaration Establishing a Plan for Condomi june
Ownership (the “Declaration*) is made with reference to the fotlowing facts:
A The Declaration was recorded on May 15, 1986 i Book J692, commencing at
page 1217, Official Records, Santa Clara County, Catifornia, and amended by a First
Amendment thereto recorded on September (2, 1986, Book J842, commencing at page 684,
Official Records, Santa Claca County, California (the “First Amendment’). A condominium
plan (the "Condominivm Plan*) was attached as Exhibit "A" to the Declaration.
B. The Declaration imposed restcictions on certain real property described on the
subdivision map entitled “Tract No. 7849" (iled for record in the Office of the Recorder of
Santa Clara County, California on March 18, 1986, in Book 557 of Maps, pages 28 and 29,
c. The Condominium Plan contained the mandatory elements for condominium
plans as required by Civil Cade Section 135)(e) and, in addition, included the parking plan
for the project. Certain sheets of the Condominium Plan needed to be corrected in order
to reflect the correct location of certain parking spaces, to increase the number of
restricled common area parking spaces for each condominium in Building No, 5 from four
spaces to five spaces, to grant one additional restricted common arca parking space to
Building No. 4, and to reduce the number of unassigaed parking spaces in the vicinily of
Buildings 4, 5, and 6 from 44 io 3? and in the vicinity of Buildings 1, 2, and 3 from 59 to
58.
D. ‘The owners also desired to amend the Declaration to increase the truck weight
restriction as contained in Section 7.3 of the Declaration from "three-quarter ton” to “one
ton.
E. The owners have approved the necessary corrections to the Condominium Plan
and the amendment to the Declaration by wrilten consent pursuant to the provisions of
Section 8.4 of the Declaration, The purpose of this document is to memoralize this consent
in a recorded document and to satisfy the requirements of Civil Code Section 1355.
Pursuant to the provisions of Section 8.4 of the Declaration, the Condominium Finn
is corrected and the Declarailon is amended as follows:
1 Sheet 2 of the Condominium Plan attached as Exhibit "A to the Declaration
and Sheet 3 of the Plan attached as Exhibit "A* to the First Amendment are deleted in
their entirety, atid Sheets 2 and 3 attached hercta as Exhibit "A" and Exhibit “A-1,"
respectively, are substituted in their place.
2. The second sentence of Section 7.3 entitled "Vehicle Restrictions” in the
Dectaration is deleted in its entirety and the following sentence is substituted in its place:
4/18/88 ele
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K427en 163
No truck larger than one ton shall be regularly operated or
parked on the property {this provision docs not restrict delivery
tcucks or moving vans making deliveries or pickups).
3. Subject to the correction and amendment contained hercin, the Plan and
Declaration shall remain in ull force and effect.
LITTLE ORCIIARD BUSINESS PARK OWNERS ASSOCIATION Ri
A Nonprofit Mutua! Benefit Corporation
By
Its President
By Ni. Pagrace
Its Secretary
CERTIFICATE
The undersigned, the President and Secretary of the Little Orchard Business Park
Owners Association, declaze under penalty of perjury that the above-referenced Certificate
iy
of Corsection and Second Amendment were duly adopted by the members of the is
Association and that this Certificate w: executed this _ gar day of
Coarse res, 1988 in pork Aa \ California.
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STATE OF _ CALIFORNIA )
COUNTY OF SANTA CLARA )
On this 20 day of JARUARY ite
undersigned, a Notary Public, State of Califo » 1983 , before me, the
rnia, duly comatissioned and sworn, personally
appeared DANIEL A. Dt » EWSWNKNANHOCE proved to ore on the
basis of satisfactory evidence to be the person who ME
executed the within instrument as
PRESIDENT 1 Of on behalf of the corporation therein named, and
acknowledged to me that the c -Orporation executed Se
it.
IN WITNESS WHEREOF, . | have hereunto set
my hand and affixed my official seal
in the County of SANTA CLARA the day and year in this certificate Cirst above
written,
folary.
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Rotary Rave fornia.
STATE OF CALIFORNIA ) wa Covnly a
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COUNTY OF SANTA CLARA )
ype
On this 20 th day of JANUARY
undersigned, a Nolary Public, State of California, duly . 198.8 » before me, the
commissioned and sworn, personally
appeared SUSAN M. WAGNER » known to me or proved to me on the
basis of satisfactory evidence to be the person who
executed the within instrument as
SECRETARY » of on behalf of the corporation therein named, and
acknowledged (o me that the corporation executed it.
IN WITNESS WHEREOF, | have he reunto sed my hand and affixed
in the County of my official seal
SANTA CLARA the day and year in this certificate first above
written,
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NORMAN LA FORCE, SBN 102772 LAW OFFICE OF CHRISTIAN B. GREEN Direct Line: 510-645-2314 Facsimile: 510-645-2324 Email: Norman.LaForce@CNA.com ASSOCIATION STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA JULIE T. NGUYEN Petitioner, FORRESTER IN SUPPORT OF ATTORNEYS’ FEES AND COSTS OWNERS ASSOCIATION, Hearing Date Date: May 10, 2019 Time: 9:00 A.M. Dept.: 10 I, William Forrester, declare: I am the community manager for the Little Orchard Business Park Owners capacity, I am the custodian of records for that my company has with the Association to be its community manager. I also handle the payment of all bills and invoices. I make this declaration based on my personal knowledge except as to those matters based on information and belief upon which I am informed and believe them to be true. If called upon to testify to the matters herein I could and would competently testify thereto. 2 The Little Orchard Business Park Owners Association is governed by an DECLARATION OF WILLIAM FORRESTER IN SUPPORT OF MOTION FOR ATTORNEY S’ FEES of the page with the relevant section, Section 8.1, which concerning awards of attorneys’ fees for ease of reference. I also attached hereto is an Exhibit B of a complete set of Enabling Declaration with amendments attached. 3 Attached hereto as Exhibit C is a true and correct copy of the Association’s Bylaws. 4 The Association incurred attorneys and costs in this action. First, it had its own general counsel at Adams Stirling defend the Association. The fees associated with that law office’s work were billed to and paid by the Association. Attached hereto as Exhibit D is a true and correct copy of those billings which the Association has incurred. 10 5 The Association then tendered the defense to its insurance carrier and 11 substituted out the Adams Stirling firm for the Law Offices of Christian B. Green, by Norman 12 La Force. 13 I declare under penalty of perjury under the laws of the State of California that the 14 foregoing is true and correct and that this declaration was executed on March /2, 2019, in the 15 City of. Sia! lose » State of California. 16 17 18 William Fo: ster 19 20 21 22 23 24 25 26 27 28 2 DECLARATION OF WILLIAM FORRESTER IN SUPPORT OF MOTION FOR ATTORNEYS” FEES EXHIBIT “A” The Association shall not cause to be made, or permit any changes in the exterior or structural portion of a-building which materially affects the outward appearance of the building or its structural integrity. 7.9 Liability of Owners for Damage to Common Area: The owner of each condominium shall be liable to the Association for all damage to the common area or improvements to the extent described in section 5.1A. 7.10 Overloading: No machinery, apparatus, or appliance or equipment shall be located in any unit or in the common area which will in any manner structurally overload the building, er in any manner vibrate, shake or otherwise damage any portion of any duilding. ARTICLE VIII GENERAL PROVISIONS. 8.1 Enforcement: The Association, or any owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reserva- tions, liens, and charges now or hereafter imposed by the provisions of this Neciaration, the Articles and the Bylaws, and in such action shall be entitled to recover reasonable attorneys! fees as are ordered by Court. Failure by the Association or by any owner to enforee any covenant or restriction herein contained shall in mo event be deemed a waiver of the right to do so thereafter. 8.2 Invalidity of Any Provision: Should any provision or portion hereof be declared invalid or in conflict with any law of the jucisdiction where this project is situated, the validity of all other provisions and portions hereof shall remain unaffected and in full force and effect, 8.3 Term: The covenants and restrictions of this Neclaration shall run with and bind the property, and shall inure ‘to the benefit of and shail be enforceable by the Association cr the owner of any property subject to this Declaration, their respective legal representatives, heirs, successors and assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which tine they shail be automatically extended for successive periods of ten (10) years, unless an instrument in writing, signed by a majority of the then owners of the coridominiums, has been recorded within the year preceding the beginning of each successive pericd of ten (10) years, agrecing lo change the covenants and restrictions in whole or in pert, or to terminate the same. 8.4 Amendments: After the close of escrow upon the sale of the first condominium, this Declaration may be amended only by the affirmative vote (in person or by proxy) or written consent of members representing a majority of the lotal voting power of the Association. However, the percentage of voting power necessary to amend 4 specific clause shall not be less than the prescribed percentage of aifirmative votes required for action to be taken under that clause. Any amendment must be certified ina writing executed and acknowledged by the President or Vice President of the Association and recorded in the Recorder's Office of the County of Santa Clara. 8.5 Encroachment Rights: If any portion of the common area enerdaches on any condominium or any portion of a condominium encroaches on any common area due to minor engineering errors, minar errors in original construction, reconstruction, repair, settlement, shifting, or movement of the building, or any other cause, the owner of the encroachment shall have the right to maintain, shall repair or replace the encroachment, 3/20/86 =19- EXHIBIT “B” If this document contains any restriction based on race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, marital status, disability, genetic information, national origin, source of income as defined in subdivision (p) of Section 12955, or ancestry, that restriction violates state and federal fair housing laws and is void, and may be removed pursuant to Section 12956.2 of the Government Code. 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. Recording Requested By and CONFCOPY. OR This ME documeD nthas Tit deen, revitgi When Recorded, Mail To: aN COUNRY we Little Orchard Business Park Owners Association e/a Comerstone Community Doct: 23326121 Management 6/86/2816 12:36 PM 1800 Hamilton Ave., Suite 210 San Jose, CA 95125 Space Above this Line for Recorder's Use Only Second Amendment to Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership This Second Amendment to Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership is made as of the date hereinafter shown by a majority of the total voting power of Little Orchard Business Park Owners Association (the “Association”) as provided in Article VIII, Section 8.4 of the Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership hereinafter described. Recitals I Whereas, the Little Orchard Business Park Enabling Declaration Establishing e Plan for Condominium Owners was recorded May 15, 1986 in Book 1692, Page 1217, ef seq., and was amended by that First Amendment to Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership recorded September 12, 1986 in Book J842, Page 684, et seq., as Document No. 8341975, both in the Official Records of the County of Santa Clara, California; and 2 Whereas, this Amendment affects all that certain real property located in the County of Santa Clara, Califomia, which is more particularly described as follows: That certain tract of land located in the City of San Jose (“City”), County of Santa Clara, State of California, more particularly described on that certain Map entitled “Tract No. 7849", filed for record in the Office of the Recorder of Santa Clara County, California, on March 18, 1986, in Book 557 ofMaps, Pages 28 and 29, Second Amendment to Little Orchard Business Park Enabling Declaration Page | of8 3 Whereas, the current ordinances of the City of San Jose and the laws of the State of Califomia permit the operation of medical marijuana cooperatives, dispensaries, operations, establishments and providers, subject to certain conditions; and 4 Whereas, the condominiums described on Exhibit “A” and “B” attached hereto are established marijuana dispensaries, and the condominium described on Exhibit “C” attached hereto has been used and established as a bakery preparing marijuana “edibles” that have been distributed to members of the dispensary operating in the condominium described in Exhibit “B”; and $ Whereas, the members of the Association desire to adopt restrictions on permitted uses of condominiums in the Little Orchard Business Park commercial condominium project to protect and enhance the character of the Project. Now, therefore, Article VII, Section 7.1 of the Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership is amended as hereafter set forth: 7A Condominium Use: No condominium shall be occupied and used except for uses permitted under local zoning ordinances, and other epplicable governmental laws or ordinances, excluding the Federal Controlled Substances Act. Notwithstanding the foregoing, whether or not permitted by ordinances, regulations or policies of the City, the following types of uses within or about a condominium arc prohibited, except as herein approved: (a) Any marijuana or cannabis dispensary, collective, cooperative, operation, establishment, provider, club or clinic and/or the growing, processing, harvesting, distribution, sales, preparation for consumption or related activity involving marijuana or cannabis. {b) The manufacturing or distribution of drugs, legal or illegal, and/or drug paraphernalia, including, without limitation, "head shops". Notwithstanding the foregoing, the condominiums described on Exhibit “A” and Exhibit “B” may be used as a marijuana or cannabis dispensary, collective, cooperative, operation, establishment, provider, club or clinic to be operated and/or for the growing, processing, harvesting, distribution, sales or related activity concerning marijuana or cannabis; and the bakery operated on the condominium described on Exhibit “C” may continue its current use, including producing edible cannabis items, producing concentrated cannabis items, and cultivating cannabis. The owner of the property described on Exhibit “C” may rot allow the use of the front entrance of said property as a retail marijuana or cannabis dispensary, collective, cooperative, operation, establishment, provider, club or clinic. However, the Board of Directors is authorized, upon written application, to allow additional nonretail marijuana-related business to be conducted on the property described on Exhibit “C”, through a use permit issued by the Board that may be restricted in time and/or in other particulars. Second Amendment to Little Orchard Business Park Enabling Declaration Page 2 of 8 Ifthere is a change in the minimum allowable proximity, which is currently 50 feet, between marijuana or cannabis dispensaries, collectives, operations, establishments, providers, clubs or Clinics, the condominiums described in Exhibits “B” and “C” shall have priority due to the fact that they established such operation prior to any other tenants, No violation of this Section 7.1 may be asserted by the Association until findings have been made by the Board of Directors of the Association follwing a duc process hearing conducted pursuant to Corporations Code Section 7341, Issues that are encompassed in pending litigatio n shall not be considered in such hearing until such litigation is fully resolved. Ds WITNESS WHERE OF, { have hereunto subscribed my name this / Z day of ef 2016, Little Orchard Business Park Owners Association “Matt R usso, President Second Amendment to Little Orchard Business Park Enabling Declaration Page3 of& Officers' Certification of Second Amendment to Little Orchard Business Park Enabling Declaration Establishing « Plan for Condominium Ownership We, the undersigned, say: That I am the duly elected and acting President of Little Orchard Business Park, a California non-profit mutual benefit corporation, That the Second Amendment to Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership to which this Certification is attached, which amends thet certain Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership recorded May 15, 1986 in Bock J692, Page 1217, et seq., as amended by that First Amendment to Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership recorded September 12, 1986 in Book J842, Page 684, ef seq., as Document No. 8341975 in the Official Records of the County of Santa Clara, was approved by a majority of the total voting power of the Association as provided in Article VIII, Section 8.4 of the Little Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership. That this Certification is made pursuant to Section 4270 of the Civil Code of the State of California, and is to be recorded together with said Second Amendment to Litle Orchard Business Park Enabling Declaration Establishing a Plan for Condominium Ownership in the records of the County Recorder of Santa Clara County, the County in which said Little Orchard is located. Ideclare under penalty of perjury, under the laws of the State of California, that the foregoing is truc and correct. Little Orchard Business Park Owners Association Second Amendment to Little Orchard Business Park Enabling Declaration Page 4 of& 10 Acknowledgment A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certi ificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) )ss County of Santa Clara ) On y 2016, before me, Pr renes CAE aNotary Public, personally appeared Matt Russo, who Proved to me on the basis of satisfact ory evidence to be the sérs0u(s) whose fan}e(s) (are subscriibed to the within inst ent and acknowledged to me thatdig’she/they executed the same in Kis er/their authorized cpacity(ies), seco and that by GiYher/their Si (s) on the instrument the per N(s) or the entity upon behalf of which the rsola(s) acted, executed the instrument, Tcertify under PENALTY OF PERJURY under the laws of the State of ‘California that the foregoing peragraph is true and correct. WITNESS my hand and official seal, Notary Public, fate of Califomia [seal] Second Amendment to Littte Orchard Business Park Enabling Declaration Page Sof 8 11 Exhibit “A” The land referred to herein below is situated in the City of San Jose, County of Santa Clara, State of California, and is described 2s follaws: A Condominium Comprised of: Parcel One: Unit 5A as shown on that certain Condominium Plan attached as Exhibit “A” and as further defined in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986 in Book J692, Page 1217, Official Records, Santa Clara County (hereinafter referred to as “the Declaration”); said Unit being located on Lat 2, Tract No. 7849, a Map of which recorded March 18, 1986 in Book 557 of Maps, at Pages 28 and 29. Parcel Two: An undivided 25% interest in the Condominium Common Area of Condominium Building No. 5, as described in said Condominiurn Plan and in the Declaration, including Easements appurtenant for support, ingress and egress over the underlying Recreational Common Area, as described in said Declaration. Excepting therefrom all numbered Condominium Units in said Condominium Building and excepting therefrom all other Condominium Buildings and all other Condominium Units shown on said Condominium Plan and described in the Declaration (including those buildings to be constructed in the future) other than the Unit conveyed in Parcel [ above, and Further Excepting therefrom those portions of the “Restricted Common Area” as defined in the Declaration and/or shown on the Plan which are set aside and allocated for the exclusive use of the Owners of the Units other that the Unit described in Parcel f above. Parcel Three: An Easement with the exclusive right to use the appurtenant “Restricted Common Areas”, set aside and allocated for the exclusive use of the Owner of the Unit described in Parcel | above, as defined in the Declaration and as shown on the Condominium Plan. APN: 455-40-020 1859 Little Orchard Street, Unit 5A San Jose, CA 95125 Second Amendment to Little Orchard Business Park Enabling Declaration Page 6 of 8 12 Exhibit “B” All that certain real property situate in the City of San Jose, County of Santa Clara, State of California, and is described as follows: A Condominium Comprised of: PARCEL I: Unit 6A, asshown on that certain Condominium Plan attached as Exhibit “A” and as further defined in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986 in Book J 692, Page 1217, Official Records, Santa Clare County, and First Amendment thereof recorded Septemb er 12, 1986, Series Number 8941975, Sante Clara County Records, {hereafter referred to as “The Declaration”); said unit being located on Lot 2, Tract No, 7849, a Map of which was filed March i8, 1986 in Book 557 of Maps, at Pages 28 and 29. Parcel II: An undivided 25% interest in the Condominium Common Area of Condominium Building No. 6, as described on said Map, in said Condominium Plan and in the Declaration, including easements appurtenant for support, ingress and egress over the underlying recreational common area as described in said Declaration. EXCEPTING THEREFROM ali numbered Condominium Units insaid Condominium Building and excepting therefrom all other Condominium Buildings and all other condominium units shown on said Condominium Plan and described in the Declaration (including those buildings to be constructed in the future) other than the unit conveyed in Parcel [ above, and FURTHER EXCEPTING THEREFROM those portions of the “Restricted Common Area” as defined in the Declaration and/or shown on the Plan which are set aside and allocated for the exclusive use of the owners of the units other that the Unit described in Parcel I above. Parcel TI: An casement with the exclusive right to use the appurtenant “Restricted Common Areas” set aside and allocated for the exclusive use of the owner of the unit described in Parcel I above, as defined in the Declaration and as shown on the Condominium Plan. APN: 455-40-024 1851 Little Orchard Street, Unit 6A San Jose, CA 95125 Second Amendinent to Little Orchard Business Park Enabling Declaration Page? of 8 13 Exhibit “C” All that certain real property situated in the City of San Jose, County of Santa Clara, State of California, described as follows: A Condominium comprised of: PARCEL I; Unit 6B, as shown on that certain Condominium Plan attached as Exhibit A and as further defined in the Little Orchard Business Park Enabling Declaration, recorded May 15, 1986 in Book J 692 Official Records, page 1217, Santa Clara County, and First Amendment thereto recorded September 12, 1986 in Book J 842 Official Records, page 684, (Series Number 8941975), Santa Clara County Records, (hereinafter referred to as “the Declaration”); said unit being located on Lot 2, Tract No. 7849, a map which was filed March 18, 1986 in Book 557 of Maps, pages 28 and 29. PARCEL II: An undivided 25% interest in the Condominium Common Area of Condominium Building No. 6, as described on said Map, in said Condominium Plan and in the Declaration, including easements, appurtenant for support, ingress and egress over the underlying recteational common area as described in said Declaration. EXCEPTING THEREFROM all numbered Condominium Units in said Condominium Building and excepting therefrom all other Condominium Buildings and all other Condominium Units shown on said Condominium Plan and described in the Declaration (including those buildings to be constructed in the future) other than that the unit conveyed in Parcel I above, and FURTHER EXCEPTING THEREFROM those portions of the “Restricted Common Area” as defined in the Declaration and/or shown on the Plan which are set aside and allocated for the exclusive use of the Owners of the units other than the unit described in Parcel I] above. PARCEL Hl: An easement with the exclusive right to use the appurtenant “Restricted Common Areas” set aside and located for the exclusive use of the Owner of the unil described in Parcel [ above, as defined in the Declaration and as shown on the Condominium Plan. APN: 455-40-025 1849 Little Orchard Street, Unit 6B. San Jose, CA 95125 ONherBoniaTGorRepakite erctard 24 emenirent 55 46 Second Amendment ta Little Orchard Business Park Enabling Declaration Page 8 of 8 14 . COMMURREALTI LAND TITLE COMPANY REC FRE 2 9580181 ACCOMO, 9580181 RHE Ss FILED FOR RECORD HICRO WAT REQUEST OF When Recorded Return To: kA, NUE S we LEH HOT John Paet Yanna, Esq. I SINPE. Gaps Wai25 10 et He 528 University Avenue, Suite 705 FooR Palo Alto, California 94301 AA, REGGR: CERTIFICATION OF CORRECTION AND SECOND AMENDMENT TO LITTLE ORCHARD BUSINESS PARK ENABLING DECLARATION THIS CERTIFICATE OF CORRECTION and Second Amendment to the 42°? once L634 Orchard Business Park Enabling Declaration Establishing a Plan for Condomi june Ownership (the “Declaration*) is made with reference to the fotlowing facts: A The Declaration was recorded on May 15, 1986 i Book J692, commencing at page 1217, Official Records, Santa Clara County, Catifornia, and amended by a First Amendment thereto recorded on September (2, 1986, Book J842, commencing at page 684, Official Records, Santa Claca County, California (the “First Amendment’). A condominium plan (the "Condominivm Plan*) was attached as Exhibit "A" to the Declaration. B. The Declaration imposed restcictions on certain real property described on the subdivision map entitled “Tract No. 7849" (iled for record in the Office of the Recorder of Santa Clara County, California on March 18, 1986, in Book 557 of Maps, pages 28 and 29, c. The Condominium Plan contained the mandatory elements for condominium plans as required by Civil Cade Section 135)(e) and, in addition, included the parking plan for the project. Certain sheets of the Condominium Plan needed to be corrected in order to reflect the correct location of certain parking spaces, to increase the number of restricled common area parking spaces for each condominium in Building No, 5 from four spaces to five spaces, to grant one additional restricted common arca parking space to Building No. 4, and to reduce the number of unassigaed parking spaces in the vicinily of Buildings 4, 5, and 6 from 44 io 3? and in the vicinity of Buildings 1, 2, and 3 from 59 to 58. D. ‘The owners also desired to amend the Declaration to increase the truck weight restriction as contained in Section 7.3 of the Declaration from "three-quarter ton” to “one ton. E. The owners have approved the necessary corrections to the Condominium Plan and the amendment to the Declaration by wrilten consent pursuant to the provisions of Section 8.4 of the Declaration, The purpose of this document is to memoralize this consent in a recorded document and to satisfy the requirements of Civil Code Section 1355. Pursuant to the provisions of Section 8.4 of the Declaration, the Condominium Finn is corrected and the Declarailon is amended as follows: 1 Sheet 2 of the Condominium Plan attached as Exhibit "A to the Declaration and Sheet 3 of the Plan attached as Exhibit "A* to the First Amendment are deleted in their entirety, atid Sheets 2 and 3 attached hercta as Exhibit "A" and Exhibit “A-1," respectively, are substituted in their place. 2. The second sentence of Section 7.3 entitled "Vehicle Restrictions” in the Dectaration is deleted in its entirety and the following sentence is substituted in its place: 4/18/88 ele w/P/L/e 15 eee K427en 163 No truck larger than one ton shall be regularly operated or parked on the property {this provision docs not restrict delivery tcucks or moving vans making deliveries or pickups). 3. Subject to the correction and amendment contained hercin, the Plan and Declaration shall remain in ull force and effect. LITTLE ORCIIARD BUSINESS PARK OWNERS ASSOCIATION Ri A Nonprofit Mutua! Benefit Corporation By Its President By Ni. Pagrace Its Secretary CERTIFICATE The undersigned, the President and Secretary of the Little Orchard Business Park Owners Association, declaze under penalty of perjury that the above-referenced Certificate iy of Corsection and Second Amendment were duly adopted by the members of the is Association and that this Certificate w: executed this _ gar day of Coarse res, 1988 in pork Aa \ California. 8 Ex de ariet 4 Dac EAA thes 2aga tee ts Bes IeES Shan Ht a gine ey ee 1/18/88 -2- w/P/L/c a cteen te oe 16 . o X42 7enie1 636 Se STATE OF _ CALIFORNIA ) COUNTY OF SANTA CLARA ) On this 20 day of JARUARY ite undersigned, a Notary Public, State of Califo » 1983 , before me, the rnia, duly comatissioned and sworn, personally appeared DANIEL A. Dt » EWSWNKNANHOCE proved to ore on the basis of satisfactory evidence to be the person who ME executed the within instrument as PRESIDENT 1 Of on behalf of the corporation therein named, and acknowledged to me that the c -Orporation executed Se it. IN WITNESS WHEREOF, . | have hereunto set my hand and affixed my official seal in the County of SANTA CLARA the day and year in this certificate Cirst above written, folary. fotmon i€, Sta ali “Lo x i OTTER ETF scuaTt LSI yy wily 1G. LEBDY Rotary Rave fornia. STATE OF CALIFORNIA ) wa Covnly a ‘expres Doc. ns 23, 199 COUNTY OF SANTA CLARA ) ype On this 20 th day of JANUARY undersigned, a Nolary Public, State of California, duly . 198.8 » before me, the commissioned and sworn, personally appeared SUSAN M. WAGNER » known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as SECRETARY » of on behalf of the corporation therein named, and acknowledged (o me that the corporation executed it. IN WITNESS WHEREOF, | have he reunto sed my hand and affixed in the County of my official seal SANTA CLARA the day and year in this certificate first above written, ‘olary-Fublic/State ‘alifar, qusiuin SHU TEN CMeyutcvstny GrFt uy VALLIAN HIAGLEBY Notary Po Cailfornia Satta Cj unity leg corm. ex 73, 1950) 4/18/88 +3. w/P/Lfe 17 ee —— pon A NR tert te heater a ppmMae ced Rs RU a bt pM lg mene eed Le ne enn LITTLE ORCHARO STREET K42°7 pc 6 38 | Koo 4 w Ty 206.847 om anon ere 4 222s Ve ae 3% ald sal31) wi} & _ Sy Pca 4 ai u a 22 a 22 u % | 4 xde 832. 25 Oa 1 g 27 7 1. ele2] Siaait S1SMa 2¢ Poa Po i ‘qe ISISIEM§ | 2 RSEbIaf) |P- 40 [p-a0 b= le a Qo oo 4c Ww 9 wm ad a TT lias Se WEES a 1 2 a pele 21213) alo ishal —_—- HE ah at] ay i Qa © a wz + + Kaa.eo=— Co N3a*10'00Ww HN 40°4T'OO"W BOB.7R be OAT emo ag vane, =o pes . aS 72Sss peds. EXHIBIT A * SITE PLAN FOR LITTLE OQRCHARD BUSINESS PARK PARKING 44-51 CHANGED 10 LoT 2 4A-40 -u ae TRACT 7849 SAN JOSE CALIFORNIA Cumnerm Srrces JA= 40 Avote =. Dawa 6-29-86, Aoore 2 Movanerar Seas: Hee? MACKAY & SOMPS Care fetta «Land Ratner Li ee ee feAEH RE ao TA a5e)E HAY RIPPERIns ReanON ey BOT SHEET 3 OF 9 LXUIBIG "A-1" 18 en pene a he mee 3LYw hegrenoe® i ee MAB wD ay pha’