El Rio Occupancy Agreement
This Agreement, made and entered into this ___ day of ___________, 20___ by and between the El Rio Mobile Home Park Cooperative, a California Nonprofit public benefit corporation (hereinafter “Cooperative”), having its principal office and place of business at 2120 N. Pacific Ave., Santa Cruz, California 95060, and _____________________ (“Member”);
- Whereas, the Cooperative has been formed for the purpose of acquiring, owning and operating a cooperative mobile home park (“Park”) as a limited-equity housing cooperative pursuant to 33007.5 of the Health and Safety Code for low and moderate income persons, located at 2120 N. Pacific Ave, Santa Cruz California; and
- Whereas, the Member is the owner and holder of a membership share (“Membership Share”) in the Cooperative and has a bona fide intention to reside in the Park.
- Now therefore, in consideration of the promises contained in this Agreement the Cooperative hereby lets to the Member and the Member hereby hires and takes from the Cooperative Space number _____ (“Space”) including the surrounding open space and car parking space(s) as delineated in the park plot plan.
To have and to hold said Space unto the Member, his/her executors, administrators, and his/her successors in interest who become members in the manner described in the Bylaws, on the terms and conditions set forth herein and in the Articles of incorporation as amended, and Bylaws now or hereafter adopted pursuant thereto, from the date of this occupancy Agreement, for a term terminating on December 31, 20___, renewable thereafter for successive one year terms under the conditions provided for in this Occupancy Agreement so long as Member is in good standing. Cooperative reserves the right to change the terms of the Occupancy Agreement upon renewal.
1.1. Total Monthly Operating Charges
The total initial monthly operating charges (“Operating Charges”) for the Space shall be the sum of $__________ for operating expenses (“Operating Expenses”) for the park.
The monthly Operating Expenses is equal to one-twelfth of the Space’s proportionate share of the sum required by the Cooperative, as estimated by its Board of Directors to meet its annual expenses, including but not limited to the following items:
- The annual cost of all operating expenses of the Park and services furnished.
- The annual cost of necessary management and administration of the property.
- The annual amount of all taxes and assessments levied against the Park or other property of the Cooperative for which it is required to pay.
- The cost of fire and extended coverage insurance on the Park and such other insurance as the Cooperative may obtain or as may be required by any loan secured by the Park.
- The annual cost of furnishing water, electricity, heat, gas, garbage and trash collection and other utilities, if furnished by the Cooperative.
- The annual deposit made by the Cooperative into all reserves set up by the Board of Directors, including the general operating reserve and the reserve for replacements.
- The estimated annual cost of repairs, maintenance, and replacements of the Park property to be made by the Cooperative.
- The annual amount of principal, interest, mortgage insurance premiums, and other required payments on any mortgages on the property.
- Any other expenses of the Cooperative approved by the Board of Directors including operating deficits if any, for prior periods.
The Board of Directors shall establish the amount of the Operating Expenses annually but may do so at more frequent intervals should circumstances so require. No Member shall be charged with more than his/her proportionate share of the Operating Expenses.
1.2. When Operating Charges are Due
Member agrees to pay his/her portion of the monthly operating charge for each calendar month promptly on or before the first day of each month without any obligation on the part of the Cooperative to make demand for payment. Payment is to be made at the office of the Management at the Park.
1.3 Special Assessments
In addition to the operating charges, the Member shall also pay any Special Assessments levied by the Board of Directors. Special Assessments shall be levied as provided in the Bylaws for the purpose of defraying, in whole or in part, the common expenses of the Cooperative for any fiscal year, including but nor limited to unanticipated delinquencies, costs of construction, unexpected repairs or replacement or reconstruction of capital improvements in or on the Property. No Member shall be charged with more than his/her proportionate share of any Special Assessment as determined by the Board of Directors.
1.4. Individual Special Assessments
The Member shall also pay any Individual Special Assessment levied by the Board of Directors. Individual Special Assessments shall be levied as provided in the Bylaws for the purpose of reimbursing the Cooperative for costs incurred in performing repairs on the Member’s Space which the Member is responsible for pursuant to the Bylaws and this Agreement.
1.5. Property Taxes
If property taxes are owed, the Members all pay the Member’s proportional share of the property taxes as determined in accordance with the annual schedule of property taxes prepared by the Tax Assessor for the County of Santa Cruz. The Cooperative shall bill the Member for the property taxes on a semi-annual basis, providing the Member with a copy of the schedule prepared by the Tax Assessor. It is Member’s responsibility, upon acceptance of a Certificate of Membership and execution of this Agreement, to file with the Tax Assessor Change of Ownership information as required by law and to file Information required for a Homeowner’s Tax Exemption.
1.6. Late Charges
Late Charges and Other Costs in Case of Default. Operating Charges, Special and Individual Assessments are delinquent if not paid within fifteen (15) days after they become due. In addition to the other sums that have become or will become due, pursuant to the terms of this Agreement, if an assessment is delinquent the Member shall pay to the Cooperative a late charge not to exceed ten percent (10%) of the delinquent assessment or ten dollars ($10.00), whichever is greater. In addition to late charges imposed on delinquent assessments, the Member shall pay all reasonable costs incurred by the Cooperative in collecting the delinquent assessment, including reasonable attorneys’ fees and interest on all sums due, including the delinquent assessment, reasonable costs of collection and late charges at twelve percent (12%) annual percentage rate, interest commencing thirty (30) days after the assessment becomes due.
In the event either party to this Occupancy Agreement institutes legal action against the other party to interpret or enforce this Occupancy Agreement or to obtain damages for any alleged breach of this Occupancy Agreement or to enforce payment of any late charges pursuant to this Article, the prevailing party in such action shall be entitled to an award of reasonable attorneys’ fees and other costs of suit.
Upon acceptance of occupancy the Member shall make a payment within 5 days of being notified by the Cooperative of the amount due for his/her pro rate share of monthly Operating Charges for the first month’s charges if it is a partial month. Thereafter the Member shall pay his/her share of monthly Operating Charges as specified in Article 1, in advance, on or before the first day of each month.
The term of occupancy shall be continuously and automatically extended and renewed at the expiration of the initial term on a year-to-year basis, or for additional periods as determined by the Board of Directors. All extensions and renewals shall be upon the same terms and conditions as set forth in this Occupancy Agreement and in any amendments thereto.
The Member may elect to terminate this Agreement by taking the following steps:
- Notice of the Member’s election to leave the Park shall be given to the Cooperative in writing at least sixty (60) days prior to the termination by the Member; and
- The Member shall have met all the requirements for transfer of a Membership Share contained in the Bylaws, including but not limited to the provisions contained in the section entitled Transfer of Membership; and
- The Member shall have, on or before the date of final termination:
- Endorsed his or her Membership Share for transfer to the incoming Member whom that Member has been identified and approved for membership by the Board of Directors, or when the Cooperative has exercised its right to purchase under the Bylaws; and
- Met all his/her obligations and paid all amounts due under this Occupancy Agreement up to the time of said termination; and
- Vacated the Space, leaving same in a good state of repair, excepting normal wear and tear.
- Returned his/her set of the Bylaws to the Cooperative or paid a $0.50 reprinting charge.
Upon compliance with provisions of this Article, Member shall have no further liability under this Occupancy Agreement, including liability for payment of his/her share of the Operating Charges, and shall be entitled to no payment from the Cooperative except as may otherwise be provided for in the Bylaws of the Cooperative.
Occupancy of the Space under this Occupancy Agreement is limited to the Member and the following named members of his/her immediate household:
The Cooperative recognizes the right of the Member to entertain guests or visitors, provided, however, that the Member shall not allow guests or visitors to remain for a period longer than 30 days without the written consent of the Board or the Board’s designated representative.
The Member shall occupy the Space covered by this Occupancy Agreement with a private coach residence for himself/herself and his/her immediate household (as listed above in Article 4), and for no other purpose. The Member may enjoy the use in common with other Members of the Cooperative of all community property and facilities of the Park so long as he/she continues to own a Membership in the Cooperative, occupies his/her Space, and abides by the terms of the Occupancy Agreement.
The Member shall not permit or cause anything to be done or kept upon the premises which will increase the rate of insurance for the park, or on its contents, or that will obstruct or interfere with the rights of other occupants or that will unreasonably annoy them. The Member will not commit or permit any illegal act to be committed on the premises. The Member shall comply with all of the requirements of all governmental authorities with respect to the premises.
If, by reason of the occupancy or use of the premises by the Member, the rate of insurance for the Park shall be increased, the Member shall become personally liable for the additional insurance premium.
As used in this Article, the term “Member” includes the Member and all persons belonging to Member’s immediate household listed in Article 4.
The Member hereby agrees not to assign this agreement or sublet his/her mobile home space or trailer without written consent of the Board of Directors. Approval by the Board will be conditioned on compliance with the Bylaws and all rules and regulations of the Cooperative. The board may add reasonable additional special conditions. Any subleasing in violation of this Occupancy Agreement shall, at the option of the Cooperative, result in the forfeiture of the Member’s rights under this Occupancy Agreement.
The liability of the Member under this agreement shall continue notwithstanding the fact that he/she may have sublet the mobile home space with the approval of the Cooperative. The Member shall continue to be liable for all obligations hereunder and shall be responsible to the Cooperative for the conduct of his or her sub-lessee.
In return for the Member’s continued compliance with the terms and conditions of this Occupancy Agreement, the Cooperative agrees that the Member may at all times, while this Occupancy Agreement remains in effect, have and enjoy for his/her sole use and benefit the space described above, after obtaining occupancy, and may enjoy in common with all other Members of the Cooperative the use of all community property and facilities of the Park.
Neither this Occupancy Agreement nor the Member’s right of occupancy shall be transferable or assignable except as provided by the Bylaws of the Cooperative.
The Cooperative shall provide necessary management, operation and administration of the Park; pay or provide for the payment of all taxes or assessments levied against the Park; procure and pay or provide for the payment of fire insurance and extended coverage as required under the terms of any approved loans on the property in the Park, and such other insurance as the Cooperative may deem advisable on the property in the Park. The Cooperative will not provide insurance on the Member’s personal property.
The Cooperative shall provide water, electricity, heat and gas to the common areas of the Park in such amounts as it deems reasonable for the proper maintenance and use of such areas. The cost of utilities and services related to the common areas will be the responsibility of the Cooperative but will be charged to the Members through the monthly Operating Charge.
The Cooperative shall provide water, electricity, and gas to each individual Space. The Member will be charged by the Cooperative for his/her use of electricity and gas according to the amount of usage if the space is individually metered. If the space is not individually metered, a flat rate of ______ shall be charged. The Cooperative shall provide garbage collection.
The Member is responsible for contracting for and paying directly for cable TV and telephone service.
- By Member: Each Member shall be responsible for the repair and maintenance of his/her coach. Each Member shall be responsible for the repair and maintenance of his/her own Space and/or the Common Areas of the Park at his/her own expense as follows:
- Any repairs, replacements or maintenance necessitated by his/her own negligence or misuse, or that of other occupants of the Member’s Space, or that of Member’s guests;
- Any repairs, maintenance or replacements required pursuant to this Occupancy Agreement or the Bylaws.
It shall further be the duty of each Member to keep his or her Space free from debris.
- By Cooperative: The Cooperative shall provide and pay for all necessary repairs, maintenance and replacements, including ordinary and extraordinary maintenance and replacements of the premises and fixtures not within the Member’s Space. In the Clubhouse area this includes all fixtures and furnishings and all major systems such as roof, exteriors, structural elements, and windows. The Cooperative shall also maintain any electrical and plumbing systems not within the Member’s Spaces.
The Manager of the Park shall have the right to authorize entry into the Member’s coach for an emergency only. Permission will be obtained from the Member when access to his/her space is needed to undertake necessary or agreed upon repairs, maintenance, and replacements by Cooperative employees, management employees, and by employees of any contractor, utility company, governmental agency, or others for such purposes. In such event, unless the Member consents at the time of entry, such entry shall be made only upon 24 hours written notice and during normal business hours, except in the event of an emergency, whereupon the above individuals may enter the Member’s coach upon direction of the Manager or other authorized representative of the Cooperative without prior notice or consent for the limited purposes of correcting the emergency situation or making emergency inspection.
Right of the Cooperative to Make Repairs at Member’s Expense. In case the Member shall fail to effect the repairs, maintenance or replacements specified in paragraph 1 of this Article, in a manner satisfactory to the Cooperative, and pay for same, the Cooperative may do so and add the cost thereof to the Member’s next month’s payment, as an individual Special Assessment, as provided in the Bylaws. Prior to performing such repairs, the Cooperative shall serve upon the Member notice of the Member’s responsibility to perform such repairs. Said notice shall provide the Member with seven (7) days in which to complete the repairs prior to the Cooperative making the repairs, except in cases of health hazard, fire hazard or emergency, in which case the Cooperative’s notice may provide a lesser reasonable time after service of notice upon the Member for the Member to perform such repairs. If the Member fails to make repairs within the time stated in the notice, the Cooperative shall have the right to enter the Member’s space and complete all necessary repairs and maintenance. Upon receipt of a request in writing from a Member for a reasonable extension of time for cause, the Board of Directors may grant additional time to repair.
The Member shall not, without the written consent of the Cooperative, make any improvements or structural alterations in his/her Space or in the water, gas, pipes, electrical conduits, plumbing or other fixtures connected therewith, or remove any additions, improvements, or fixtures from the Space.
If the Member for any reason shall cease to be an occupant of the Space, he/she shall surrender to the Cooperative possession thereof, including any alterations, additions, fixtures and improvements. The Member must correct any alterations or improvements made to the Space by the Member without proper authorization or the Cooperative will correct same at Member’s expense.
The parties mutually agree that the occurrence of one or more of the events specified in this Article shall constitute a default by the Member. At any given time after such occurrence, the Cooperative may elect to give written notice to the Member, as provided by paragraph 2 of the “required procedures” set forth in this Article, that this Agreement will be terminated. Upon such termination, should the Member fail to vacate the Space, the Cooperative may institute an appropriate legal or equitable proceeding to recover possession of the Space, subject, however, to the provisions of the Bylaws and state law governing the termination of memberships.
13.1. Good Cause Required for Termination of Occupancy Agreement
The Cooperative may only terminate the Member’s rights under this Agreement for good cause. Good cause includes, but is not limited to, the defaults specified below.
13.2. Definition of Default
Any of the following shall constitute a default by the Member under the terms of this Occupancy Agreement:
- The Member has committed one or more substantial violations of this Occupancy Agreement or repeated minor violations of this Occupancy Agreement that disrupt the living ability of the park, adversely affect the health and safety of any person or the right of any Member to the quiet enjoyment of the premises and related Park facilities, interfere with the management of the Park, or have an adverse financial effect upon the Park. The payment of Member’s share of monthly Operating Charges or any other sum due under the Agreement after the due date but within the grace period permitted under state law constitutes a minor violation.
- Member has committed any acts or has permitted his/her guests or visitors to commit any acts that interfere with other Members’ right to peaceful enjoyment of their Spaces.
- Member has permitted any person to willfully or wantonly destroy, deface, damage, impair or remove any part of the common area or another Member’s coach or the facilities, equipment or appurtenances thereto or has done any such thing himself or herself.
- Member has refused to accept an approved change to the Occupancy Agreement or Rules and Regulations that will become effective upon action by the Board of Directors.
- The Member ceases to be the owner and legal holder of a Membership in the Cooperative.
- The Membership in the Cooperative owned by the Member is duly levied upon and sold under process of any court.
- The Member defaults under membership loan financing if he/she has received a loan through the Santa Cruz Community Credit Union to purchase a membership in the Cooperative.
- The Member fails to pay Operating Charges, Special Assessments, Individual Assessments or Member’s proportional share of the property taxes as required by the Bylaws or to reimburse the Cooperative for amounts spent to cure default under membership loan or to pay off membership loan.
- Member violates Park Rules and Regulations attached hereto and incorporated herein.
- Member commits or permits any illegal act to be conducted on the premises.
- The Member attempts to transfer or assign this Agreement or sublet the Coach in a manner inconsistent with the provisions of the Bylaws or this Agreement.
- The Member voluntarily files or has involuntarily filed against him/her any petition of bankruptcy or insolvency or the Member makes a general assignment for the benefit of creditors.
- The Member makes any alterations to the space without the prior written consent of the Board of Directors.
- The Member fails to make and/or pay for repairs and maintenance as provided for in Article 11 of this Agreement.
- The Member has intentionally misrepresented any material fact or intentionally failed to state material fact that would affect the Member’s initial eligibility or continuing eligibility to reside in the Park, or the Cooperative’s state or federal tax-exempt status.
- The Member has intentionally misrepresented any material fact or intentionally failed to state material fact that would affect the amount of Member’s monthly carrying charges.
- Share Loan Default. Any default by a Member under a promissory note or loan agreement made for the purpose of financing the purchase of a Membership Certificate (a “Share Loan”) shall be considered a default by the Member under the Bylaws and this Occupancy Agreement. Any amounts expended by the Cooperative to cure such default to repay such Share Loan shall be immediately due and owing the Cooperative by the Member holding the Share Loan.
- Obligation of Cooperative to Pay Share Loans. The Cooperative shall have the power to enter into Recognition Agreements and Security Agreements with the Santa Cruz Community Credit Union (the “Share Lender”) to facilitate and secure share loans made by the Share Lender to Members for the purpose of financing the purchase of Membership Certificates. The Board of Directors shall approve the terms and conditions of the documents evidencing such share loans, and the Cooperative is authorized to obligate itself, by resolution of the Board of Directors, to pay any amounts due the Share Lender upon default by a Member on a Share Loan.
- Subordination. Any lien created under the provisions of these Bylaws or pursuant to state law for the benefit of the Cooperative is expressly made subject and subordinate to the rights of the Share Lender as a lender financing the purchase by Members of Membership Certificates pursuant to a Recognition Agreement and Security Agreement to be approved by the Board of Directors; and no such lien shall in any way defeat, invalidate, or impair the obligation or priority of such loans unless the Share Lender expressly subordinates its interest, in writing, to such lien.
- Default Notice Requirement. If any Member with an outstanding share loan from the Share Lender is in default under any provision of the Articles, Bylaws or Rules and Regulations of the Cooperative or under an Occupancy Agreement, and the default is not cured within the required time period after written notice to that Member, the Cooperative shall give written notice of such default to the Share Lender. The Share Lender at its option may cure such default, but is under no obligation to do so, and the Cooperative will recognize such cure by the Share Lender as if personally performed by the Member.
13.3 Required procedures
The Cooperative may terminate a Member’s rights under this Occupancy Agreement and under the Membership Share in accordance with the following procedures:
- The Member shall be given 60 days prior notice of the proposed termination and the reasons for the termination except when the reason for expulsion is non-payment of carrying charges, whereupon a three (3) day notice shall be sent. Notice shall be given in accordance with applicable provisions of California law,
- The Member being expelled shall be given an opportunity to be heard, either orally or in writing, at a hearing to be held not fewer than (5) days before the effective date of the proposed expulsion. If a hearing is requested within ten (10) days after service of a three (3) day notice to pay carrying charges or quit, that notice shall not be operative until (3) days after a final decision is reached at the hearing. The hearing will be held by a committee, which shall consist of a five-member committee appointed by the Board of Directors, composed of three members of the Board of Directors and two impartial, disinterested persons who were not involved in the original decision to seek expulsion. These two committee members may or may not be residents of the Park. The notice to the Member of her or his proposed expulsion shall state the date, time and place of the hearing on the notice of proposed expulsion.
- Following the hearing, the hearing committee shall decide whether or not the Member should in fact be expelled, suspended or sanctioned in some other way. The decision of the committee shall be final. Should the Cooperative terminate the Member’s Occupancy Agreement pursuant to the provisions of this section, the Cooperative is entitled to recover the amount by which the unpaid Operating Charges, Special Assessments and individual Special Assessments for the balance of the term of this Occupancy Agreement exceed the amount of such assessment lost that could have been reasonably avoided by the Cooperative, to be computed in accordance with paragraph (3) of subdivision (a) of Section 1951.2 of the California Civil Code.
Any action challenging a termination of Membership, including a claim alleging defective notice, must be commenced within one year after the date of termination.
The Member hereby expressly waives any and all right of redemption in case he or she is dispossessed by judgment of any court or judge; the words “enter,” and “re-enter,” and “reentry,” as used in this Agreement are not restricted to their technical legal meaning, and in the event of a breach or threatened breach of any of the provisions of this Agreement, the Cooperative shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings, and other remedies were not herein provided for.
The Member expressly agrees that there exists under this Occupancy Agreement a landlord-tenant relationship and that in the event of a breach or threatened breach by the Member of any provision of this Agreement, the cooperative may have available such legal remedies as are available to a landlord for the breach or threatened breach by a tenant of any provision of a lease or rental agreement.
As used in this Article, the term “Member” includes the Member and all persons belonging to Member’s immediate household listed in Article 4.
The Member agrees that he/she will preserve and promote the cooperative membership principles on which the Cooperative has been founded, abide by the Articles of Incorporation, Bylaws, Rules and Regulations of the Cooperative and any amendments thereto, and by his/her acts of cooperation with its other members bring about for himself/herself and his/her co-members a high standard in home and community conditions. The Cooperative agrees to make its rules and regulations known to the Member by the personal delivery of same to him/her or by promulgating them in such other manner as to constitute adequate notice.
In the event of loss or damage by fire or other casualty to the above mentioned Space without the fault or negligence of the Member, the Cooperative shall determine when to restore the damaged Space and shall further determine in the event such Space shall not be restored the amount that shall be paid to the Member to redeem the Membership Share of the Member subject to the procedures established in Article 23.
If, under such circumstances, the Cooperative determines to restore the Space, Operating Charges shall abate wholly or partially as determined by the Cooperative until the Space has been restored. If the Cooperative determines not to restore the Space, the Operating Charges shall cease from the date of such loss or casualty.
The Member agrees that the representatives of any mortgagee holding a mortgage on the property of the Cooperative, the officers and employees of the Cooperative, the employees of any managing agents and, with the approval of the Cooperative, the employees of any contractor, utility company, or governmental agency or other person shall have the right to enter the Space, but not the coach, of the Member for the purpose of making inspections at any reasonable hour of the day, provided, however, that, unless the Member consents at the time of entry, such entry shall be made only upon 24-hour written notice and during normal business hours, except in the event of an emergency as determined by the Manager, or where the Member has abandoned or surrendered the premises.
Notwithstanding any provisions in this Agreement to the contrary, the provisions of this Occupancy Agreement and the rights and duties of the parties hereto, including any persons who may subsequently become bound hereby, shall be subject to and subordinate to the provisions of any promissory note or deeds of trust that may at any time hereafter be placed on the property of the Cooperative. The Member hereby agrees to execute, at the Cooperative’s request and expense, any instrument that the Cooperative or any lender may deem necessary or desirable to effect the subordination of this Occupancy Agreement to any such mortgage or deed of trust, and the Member hereby appoints the Cooperative and each and every officer thereof, and any future officer, his/her irrevocable attorney-in-fact during the term hereof to execute any such instrument on behalf of the Member.
In the event Member is absent from the coach and Space for ninety (90) consecutive days while in default of monthly Operating Charges, the Member shall, at the option of the Cooperative, be deemed to have abandoned the dwelling unit, and any remaining personal property of the Member or other occupants shall be considered abandoned and may be disposed of by the Cooperative according to state law.
Except as otherwise provided whenever the provisions of the Bylaws of the Cooperative or this Occupancy Agreement require notice to be given to either party hereto, any notice of the Cooperative to the Member shall be deemed to have been duly made if the Cooperative has made reasonable attempts to personally deliver it to the Member at his/her Space or to the Member’s last known address. Any notice or demand by the Member to the Cooperative shall be deemed to have been duly given if personally delivered to an officer of the Cooperative. Where personal delivery is impractical or ineffective, such notice may also be given by depositing it in the United States mail, first class postage, prepaid, and addressed to the Member as shown on the books of the Cooperative, or to the President of the Cooperative, as the case may be, and the time of mailing shall be deemed to be the time of the giving of such notice.
No representations other than those contained in this Occupancy Agreement, the Articles of Incorporation, and the Bylaws of the Cooperative shall be binding upon the Cooperative.
The provisions of this Occupancy Agreement shall be deemed independent and severable, and the invalidity of a portion shall not affect the validity of enforcement of any other provision.
In witness whereas the parties hereto have caused this Agreement to be signed the date first above written.
El Rio Mobile Home Park Cooperative, Inc.
Note: This document will need to be signed