HomeMy WebLinkAboutCT 02-17; Shelley Property AKA Fair Oaks Valley; Tentative Map (CT)
RECORDING REQUESTED BY:
WHEN RECORDED, MAIL TO:
Timothy L. Randall, Esq. Songstad Randall Coffee & Humphrey LLP 2201 Dupont Dr., Suite 100
Irvine, California 92612
____________________________________________________________________________ (Space Above for Recorder’s Use)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
LA COSTA 49
A PLANNED RESIDENTIAL DEVELOPMENT
THIS DOCUMENT REQUIRES THAT HOMEOWNERS AND THE HOMEOWNERS ASSOCIATION RESOLVE
ALL DISPUTES WITH THE DEVELOPER, INCLUDING,
WITHOUT LIMITATION, CONSTRUCTION DEFECT CLAIMS, THROUGH JUDICIAL REFERENCE AND NOT BY A JURY TRIAL.
i
TABLE OF CONTENTS
FOR
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
LA COSTA 49
DESCRIPTION PAGE
ARTICLE I DEFINITIONS AND INTERPRETATION ................................................................1 1.1. Definitions................................................................................................................1 1.2. Interpretation ............................................................................................................7
ARTICLE II RESIDENCE AND USE RESTRICTIONS...............................................................8
2.1. Single Family Residence..........................................................................................8
2.2. Business or Commercial Activity ............................................................................8 2.3. Nuisances .................................................................................................................8 2.4. Signs; Displays.........................................................................................................9
2.5. Parking and Vehicular Restrictions .........................................................................9
2.6. Animal Regulations ...............................................................................................10
2.7. Satellite Dishes and Antennae ...............................................................................11 2.8. Trash ......................................................................................................................12 2.9. Installations ............................................................................................................12
2.10. Further Subdivision ................................................................................................13
2.11. Drainage .................................................................................................................13
2.12. Water Supply System .............................................................................................13 2.13. View Obstructions .................................................................................................13 2.14. Solar Energy Systems ............................................................................................14
2.15. Installation of Yard Landscaping ...........................................................................14
2.16. Rights of Disabled..................................................................................................14
2.17. Temporary Buildings .............................................................................................14 2.18. Common Property Facilities ..................................................................................14 2.19. Drilling ...................................................................................................................14
2.20. Toxic or Noxious Matter; Disposal of Toxic and Hazardous Waste
Products; Erosion and Drainage Control ...............................................................14
2.21. Pollutant Control ....................................................................................................15
2.22. Site Distance Corridors ..........................................................................................15 2.23. Fencing ...................................................................................................................15
2.24. Fire Buffer Zones ...................................................................................................15
ARTICLE III DISCLOSURES ......................................................................................................17
ii
3.1. No Representations or Warranties .........................................................................17
3.2. Concrete and Masonry Improvements ...................................................................17
3.3. Drainage and Irrigation ..........................................................................................17
3.4. Grading ..................................................................................................................17 3.5. Electric Power Lines and Electromagnetic Fields .................................................18 3.6. Offers of Dedication ..............................................................................................18
3.7. Natural Open Space Areas .....................................................................................18
3.8. Disclaimer of Liability ...........................................................................................19
3.9. Additional Provisions.............................................................................................19
ARTICLE IV THE MEADOWS AT REDLANDS COMMUNITY ASSOCIATION; REPAIR AND MAINTENANCE OBLIGATIONS .........................................................19
4.1. General Duties and Powers ....................................................................................19
4.2. Specific Duties and Powers ...................................................................................19
4.3. Standard of Care, Non-liability ..............................................................................24 4.4. Membership ...........................................................................................................25 4.5. Voting Rights .........................................................................................................26
4.6. Board of Directors..................................................................................................27
4.7. Repair and Maintenance ........................................................................................28
ARTICLE V DESIGN REVIEW COMMITTEE ..........................................................................31 5.1. Members of Committee .........................................................................................31 5.2. Powers and Duties..................................................................................................31
5.3. Review of Plans and Specifications .......................................................................32
5.4. Meetings and Actions of the Design Review Committee ......................................33
5.5. No Waiver of Future Approvals ............................................................................34 5.6. Compensation of Members ....................................................................................34 5.7. Inspection of Work ................................................................................................34
5.8. Variances................................................................................................................35
5.9. Maintenance and Repairs .......................................................................................35
5.10. Pre-approvals .........................................................................................................35 5.11. Appeals ..................................................................................................................35
ARTICLE VI PROPERTY EASEMENTS AND RIGHTS ..........................................................35
6.1. Easements ..............................................................................................................35
6.2. Right to Grant Exclusive Easements......................................................................37
6.3. Delegation of Use ..................................................................................................37 6.4. Owners ...................................................................................................................37
ARTICLE VII ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS .................37
7.1. Personal Obligation to Pay Assessments ...............................................................37
7.2. Funds of the Association ........................................................................................37
7.3. Purpose of Assessments .........................................................................................38
7.4. Waiver of Use ........................................................................................................38 7.5. Limits on Annual Assessment Increases................................................................38
7.6. Commencement and Collection of Annual Assessments ......................................39
7.7. Capital Improvement Assessments ........................................................................41
iii
ARTICLE VIII INSURANCE .......................................................................................................41
8.1. Duty to Obtain Insurance; Types ...........................................................................41
8.2. Waiver of Claim Against Association ...................................................................42
8.3. Right and Duty of Owners to Insure ......................................................................42 8.4. Notice of Expiration Requirements .......................................................................42 8.5. Insurance Premiums ...............................................................................................42
8.6. Trustee For Policies ...............................................................................................42
8.7. Actions as Trustee ..................................................................................................43
8.8. Annual Insurance Review ......................................................................................43 8.9. Required Waiver ....................................................................................................43
ARTICLE IX DESTRUCTION OF IMPROVEMENTS ..............................................................44
9.1. Damage to Common Property ...............................................................................44
9.2. Damage to Residences-Reconstruction..................................................................44
9.3. Interior Damage .....................................................................................................44 9.4. Notice to Owners and Listed Mortgagees ..............................................................45
ARTICLE X EMINENT DOMAIN ..............................................................................................45
10.1. Condemnation of Common Property .....................................................................45
10.2. Condemnation of Lots............................................................................................45
10.3. Notice to Owners and Mortgagees .........................................................................45
ARTICLE XI RIGHTS OF MORTGAGEES................................................................................45 11.1. General Protections ................................................................................................45
11.2. Additional Rights ...................................................................................................45
ARTICLE XII ENFORCEMENT..................................................................................................47
12.1. Enforcement of Restrictions ..................................................................................47 12.2. Nonpayment of Assessments .................................................................................49
ARTICLE XIII DURATION AND AMENDMENT ....................................................................53
13.1. Duration .................................................................................................................53
13.2. Termination and Amendment ................................................................................53
13.3. Dispute with Declarant Parties...............................................................................53 13.4. Mortgagee Consent ................................................................................................55 13.5. Termination Approval ............................................................................................56
13.6. Notice to Mortgagees .............................................................................................56
13.7. Certificate ...............................................................................................................56
ARTICLE XIV GENERAL PROVISIONS ..................................................................................56
14.1. Mergers or Consolidations .....................................................................................56 14.2. No Public Right or Dedication ...............................................................................56
14.3. Notices ...................................................................................................................57
14.4. Constructive Notice and Acceptance .....................................................................57
ARTICLE XV DECLARANT’S RIGHTS AND RESERVATIONS ...........................................57
15.1. Construction Rights ...............................................................................................57
iv
15.2. Sales and Marketing Rights ...................................................................................58
15.3. Creating Additional Easements..............................................................................58
15.4. Architectural Rights ...............................................................................................58
15.5. Use Restriction Exemption ....................................................................................58 15.6. Assignment of Rights .............................................................................................58 15.7. Amendments ..........................................................................................................58
15.8. Exercise of Rights ..................................................................................................59
15.9. Use of Properties ....................................................................................................59
15.10. Participation in Association ...................................................................................59 15.11. Declarant Approval of Actions ..............................................................................59
ARTICLE XVI ANNEXATION OF ADDITIONAL PROPERTY ..............................................60
16.1. Additions by Declarant ..........................................................................................60
16.2. Other Additions ......................................................................................................60
16.3. Rights and Obligations – Added Territory.............................................................60 16.4. Notice of Addition .................................................................................................60 16.5. Deannexation and Amendment ..............................................................................61
ARTICLE XVII RIGHTS OF CITY .............................................................................................61
17.1. General Enforcement by the City ..........................................................................61 17.2. Notice and Amendment .........................................................................................61 17.3. Failure of Association to Maintain Common Area and Association
Maintenance Areas.................................................................................................61
17.4. Special Assessments Levied by the City ...............................................................62
EXHIBIT "A" ARTICLES OF INCORPORATION OF THE ASSOCIATION
EXHIBIT "B" BYLAWS OF THE ASSOCIATION
EXHIBIT "C" LEGAL DESCRIPTION OF ANNEXABLE TERRITORY EXHIBIT "D" DRAWINGS SHOWING LOCATION OF ASSOCIATION
MAINTENANCE AREAS IN PHASE 1
EXHIBIT "E" HMP LIST OF EXOTIC SPECIES EXHIBIT "F" FIRE BUFFER ZONES
EXHIBIT "G" PRIVATE STORM DRAIN SYSTEM
1
CT0217.CC&Rs-fair oaks.cln.docx
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
LA COSTA 49
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS is made by CWV LA COSTA 49 LLC, a Delaware
limited liability company ("Declarant"). The capitalized terms used in the Preamble are defined
in Article I.
P R E A M B L E:
A. Declarant is the owner of real property ("Phase 1") located in the City of
Carlsbad, San Diego County, California, described as follows:
Lots 1 to 5, inclusive, of Tract No. 02-17, as shown on City of
Carlsbad Tract 02-17 Fair Oaks Valley Filed on ____________, ____, in Book ______, at Pages __ to __, inclusive, of Maps, in the Office of the San Diego County Recorder ("Tract 02-17").
B. Declarant intends to create a "planned development", as defined in Section
1351(k) of the California Civil Code, to create a "subdivision" as defined in Section 11000 of the
California Business and Professions Code, and to impose mutually beneficial restrictions under a general plan for subdividing, improving, maintaining and selling the Lots in the Properties for the benefit of all the Lots created pursuant to the Davis-Stirling Common Interest Development
Act.
C. The Properties are to be held, conveyed, encumbered, leased, used and improved
subject to the limits, restrictions, reservations, rights, easements, conditions and covenants in this Declaration, all of which are in furtherance of a plan for subdividing, improving, maintaining and selling the Lots in the Properties. All provisions of this Declaration are imposed as equitable
servitudes on the Properties. All limits, restrictions, reservations, rights, easements, conditions
and covenants in this Declaration shall run with and burden the Properties and shall be binding
on and for the benefit of all of the Properties and all Persons having or acquiring any interest in the Properties and their successive owners and assigns.
ARTICLE I DEFINITIONS AND INTERPRETATION
1.1 Definitions. Unless otherwise expressly provided, the following words and
phrases when used in this Declaration have the following meanings.
1.1.1 Annexable Territory. Annexable Territory means the real property described in Exhibit "C" which may be made subject to this Declaration pursuant to Article
XVI. Any references in this Declaration to Annexable Territory are references to the Annexable
Territory as a whole and to portions thereof.
2
CT0217.CC&Rs-fair oaks.cln.docx
1.1.2 Annual Assessment. Annual Assessment means a charge levied against
the Owners and their Lots, representing their share of the Common Expenses, which is to be
levied as provided herein. The Annual Assessment is a regular assessment as described in
California Civil Code Section 1366.
1.1.3 Articles. Articles means the Articles of Incorporation of the Association initially in the form of Exhibit "A" attached hereto, as amended from time to time.
1.1.4 Assessment. Assessment means any Annual Assessment, Capital
Improvement Assessment, Reconstruction Assessment and Special Assessment.
1.1.5 Association. Association means La Costa 49 Community Association, a California nonprofit corporation (formed pursuant to the California Nonprofit Mutual Benefit Corporation Law), and its successors in interest. The Association is an "association" as defined
in Section 1351(a) of the California Civil Code.
1.1.6 Association Maintenance Areas. Association Maintenance Areas means
those portions of the Lots or within public right of ways, if any, which shall be maintained by the Association. The Association will have a nonexclusive easement for maintenance purposes over the Association Maintenance Areas. The approximate location of the Association Maintenance
Areas in Phase 1 is depicted on the drawings attached as Exhibit "D". Additional Association
Maintenance Areas may be annexed to the Properties pursuant to Article XVI hereof.
1.1.7 Association Maintenance Funds. Association Maintenance Funds means the accounts created for Association receipts and disbursements pursuant to Article VII.
1.1.8 Board or Board of Directors. Board or Board of Directors means the
Association’s Board of Directors.
1.1.9 BRE. BRE means the Bureau of Real Estate of the California Department
of Consumer Affairs and any department or agency of the California state government which succeeds to the BRE’s functions.
1.1.10 Budget. Budget means a written, itemized estimate of the Association’s
income and Common Expenses prepared pursuant to the Bylaws.
1.1.11 Bylaws. Bylaws means the Bylaws of the Association as adopted by the
Board initially in the form of Exhibit "B", as amended from time to time.
1.1.12 Capital Improvement Assessment. Capital Improvement Assessment means a charge against the Owners and their Lots, representing their share of the Association’s
cost for installing or constructing capital Improvements on the Common Property. Capital
Improvement Assessments shall be levied in the same proportion as Annual Assessments.
Capital Improvement Assessments are special assessments as described in California Civil Code
Section 1366.
1.1.13 City. City means the City of Carlsbad, California, and its various
departments, divisions, employees and representatives.
3
CT0217.CC&Rs-fair oaks.cln.docx
1.1.14 Close of Escrow. Close of Escrow means the date on which a deed is
Recorded conveying a Lot pursuant to a transaction requiring the issuance of a Final Subdivision
Public Report by the BRE.
1.1.15 Co-owner. Co-owner means a Person who holds an interest in a Lot with at least one other Person.
1.1.16 Common Area. Common Area means all the real property and
Improvements which are owned by the Association. The Common Area at the time of the first
Close of Escrow in Phase 1 includes Lot ___ of Tract No. 02-17. Additional Common Area may
be annexed to the Properties pursuant to Article XVI hereof.
1.1.17 Common Expenses. Common Expenses means those expenses for which the Association is responsible under this Declaration, including the actual and estimated costs of
and reserves for maintaining, managing, operating and replacing the Common Property.
Common Expenses also include unpaid Special Assessments, Reconstruction Assessments and
Capital Improvement Assessments. Common Expenses include the cost of (a) all utilities metered to one or more Lots and other commonly metered charges for the Properties; (b) trash collection and removal (as applicable); (c) maintaining clustered mailboxes (the mailboxes shall
be the responsibility of the applicable Owner); (d) managing and administering the Association
including compensation paid by the Association to managers, accountants, attorneys and other
employees; (e) gardening and other services benefiting the Common Property; (f) fire, casualty, liability, workers’ compensation, errors and omissions and director, officer and agent liability insurance and other insurance covering the Properties and the Directors, officers and agents of
the Association; (g) bonding the members of the Board; (h) taxes paid by the Association,
including any tax assessed against the Properties; (i) amounts paid by the Association for
discharge of any lien or encumbrance levied against the Properties; and (j) all other expenses incurred by the Association for any reason whatsoever in connection with the Properties and/or for the common benefit of the Owners.
1.1.18 Common Property. Common Property means the Common Area and the
Association Maintenance Area. Any references in this Declaration to Common Property are
references to the Common Property as a whole and to portions thereof.
1.1.19 County. County means San Diego County, California, and its various departments, divisions, employees and representatives.
1.1.20 Declarant. Declarant means CWV La Costa 49 LLC, a Delaware limited
liability company, its successors and any Person to which it shall have assigned any of its rights
by an express written assignment. As used in this Section, “successor” means a Person who
acquires Declarant or substantially all of its assets, or who merges with Declarant, by sale, merger, reverse merger, consolidation, sale of stock or assets, will or other testamentary
disposition, operation of law or otherwise. Except as expressly provided in this Declaration,
Declarant shall determine in its sole discretion the time, place and manner in which it discharges
its obligations and exercises the rights reserved to it under this Declaration. Declarant is a
“builder” as described in California Civil Code Section 1375.
4
CT0217.CC&Rs-fair oaks.cln.docx
1.1.21 Declaration. Declaration means this instrument as it may be amended
from time to time.
1.1.22 Design Review Committee or Committee. Design Review Committee or
Committee means the Design Review Committee created in accordance with Article V.
1.1.23 Drainage Improvements. Drainage Improvements means any sub-drains and appurtenant improvements constructed or installed by Declarant to provide for subterranean
drainage of water from and to various portions of the Properties.
1.1.24 Family. Family means natural individuals, whether or not related, who
live as a single household in a Residence.
1.1.25 FHA. FHA means the Federal Housing Administration of the United States Department of Housing and Urban Development and any department or agency of the
United States government which succeeds to FHA’s function of insuring notes secured by
Mortgages on residential real estate.
1.1.26 FHLMC. FHLMC means the Federal Home Loan Mortgage Corporation created by Title II of the Emergency Home Finance Act of 1970, and its successors.
1.1.27 First Mortgage. First Mortgage means a Mortgage with first priority over
other Mortgages or Deeds of Trust on a Lot.
1.1.28 First Mortgagee. First Mortgagee means the Mortgagee of a First
Mortgage.
1.1.29 Fiscal Year. Fiscal Year means the fiscal accounting and reporting period of the Association selected by the Board.
1.1.30 FNMA. FNMA means the Federal National Mortgage Association, a
government-sponsored private corporation established pursuant to Title VIII of the Housing and
Urban Development Act of 1968, and its successors.
1.1.31 GNMA. GNMA means the Government National Mortgage Association administered by the United States Department of Housing and Urban Development, and its
successors.
1.1.32 Governing Authority. Governing Authority means the City and County
and the various departments, divisions, employees and representatives thereof and any other
governmental or quasi-governmental authority with jurisdiction over the Properties.
1.1.33 Hazardous Materials. Hazardous Materials means any toxic substance,
material or waste which is or becomes (i) regulated by any local governmental authority, the
State of California or the United States government, or (ii) defined as "hazardous waste",
"extremely hazardous waste", "restricted hazardous waste", "Non-RCRA hazardous waste",
"RCRA hazardous waste" or "recyclable material" under any federal, state or local statute or regulation promulgated thereunder.
5
CT0217.CC&Rs-fair oaks.cln.docx
1.1.34 Improvement or Improvements. Improvement or Improvements means all
structures and appurtenances thereto, including buildings, walkways, irrigation systems, garages,
recreational facilities, electrical and mechanical systems and equipment, roads, driveways,
parking areas, fences, all types of walls, awnings, stairs, decks, all types of landscaping and plantings, antennae, windbreaks, the exterior surfaces of any visible structure and the paint on such surfaces, poles, signs, exterior air conditioning and water softener fixtures or equipment.
The Design Review Committee may identify additional items that are Improvements.
1.1.35 Includes, Including. Whether capitalized or not, includes and including
means "includes without limitation", and "including without limitation", respectively.
1.1.36 Increase Election. Increase Election means a meeting or election of the Association in which more than fifty percent (50%) of the Lots are represented.
1.1.37 Lot. Lot means any residential Lot or parcel of land shown on any
Recorded subdivision map or Recorded parcel map of the Properties, with the exception of the
Common Area.
1.1.38 Maintain. Whether capitalized or not, maintain means maintain, repair and replace.
1.1.39 Manager. Manager means the Person retained by the Association to
perform management functions of the Association as limited by the Restrictions and the terms of
the agreement between the Association and the Person.
1.1.40 Member. Member means each Owner in its capacity as a member of the Association.
1.1.41 Membership. Membership means the voting and other rights and
privileges of Members of the Association, as provided in the Restrictions, together with their
correlative duties.
1.1.42 Mortgage. Mortgage means any document, including a deed of trust, encumbering one or more Lots or other portion of the Properties to secure the performance of an
obligation.
1.1.43 Mortgagee. Mortgagee means a Person to whom a Mortgage is made
(including a beneficiary under a deed of trust), or the assignee of the Mortgagee’s rights under the Mortgage by a Recorded assignment.
1.1.44 Mortgagor. Mortgagor means a person who has mortgaged his property to
another.
1.1.45 Notice and Hearing. Notice and Hearing means written notice and a
hearing before the Board as provided in the Bylaws.
1.1.46 Notice of Addition. Notice of Addition means an instrument Recorded pursuant to Article XVI of this Declaration to annex additional real property to the Properties.
6
CT0217.CC&Rs-fair oaks.cln.docx
1.1.47 Official Act. Official Act means any act or omission performed by a
Board member, Association officer, Design Review Committee member or any other
Association committee member that is within what such person reasonably believes to be the
scope of that person’s Association duties.
1.1.48 Owner. Owner means the Person or Persons, including Declarant, holding fee simple interest of record to any Lot. Each Owner has a Membership in the Association. The
term "Owner" includes a seller under an executory contract of sale but excludes Mortgagees.
The term “Owner” may be expanded in a Supplemental Declaration to include other Persons.
1.1.49 Party Wall. Party Wall means a wall or fence placed on the boundary line between two (2) residential Lots (but does not include the structural wall of a Residence).
1.1.50 Person. Person means a natural individual or any other entity with the
legal capacity to hold title to real property. When the word “person” is not capitalized, the word
refers only to natural persons.
1.1.51 Phase. Phase means each of the following: (a) Phase 1 and (b) all the real property covered by a Notice of Addition, for which a Final Subdivision Public Report has been issued by the BRE, unless “Phase” is otherwise defined in such Notice of Addition.
1.1.52 Phase 1. Phase 1 means all of the real property described in Paragraph A
of the Preamble of this Declaration.
1.1.53 Properties. Properties means (a) Phase 1, and (b) each Phase described in a Notice of Addition. The Properties are a “common interest development” and a “planned development” as defined in Sections 1351(c) and 1351(k), respectively, of the California Civil
Code. Any references in this Declaration to the Properties are references to the Properties as a
whole and to portions thereof.
1.1.54 Reconstruction Assessment. Reconstruction Assessment means a charge against the Owners and their Lots, representing their share of the Association’s cost to reconstruct any Improvements on the Common Property. Such charge shall be levied among all
Owners and their Lots in the same proportions as Annual Assessments. Reconstruction
Assessments are “special assessments” as described in California Civil Code Section 1366.
1.1.55 Record, File, Recordation. Record, File, or Recordation means, with respect to any document, the entry of such document in the Official Records of the County Recorder.
1.1.56 Residence. Residence means a building located on a Lot designed and
intended for use and occupancy as a residence by a single Family.
1.1.57 Restrictions. Restrictions means this Declaration, the Articles, the
Bylaws, and the Rules and Regulations, Supplemental Declarations and Notices of Addition.
7
CT0217.CC&Rs-fair oaks.cln.docx
1.1.58 Rules and Regulations. Rules and Regulations means the current rules and
regulations adopted by the Board pursuant to this Declaration or the Bylaws, as amended from
time to time.
1.1.59 Special Assessment. Special Assessment means either (a) a charge against an Owner to reimburse the Association for costs incurred for the enforcement of the Restrictions, or (b) a reasonable fine or penalty, plus interest and other charges on such Special Assessment as
provided for in this Declaration. Special Assessments do not include any late payment penalties,
interest charges or costs (including attorneys’ fees) incurred by the Association in the collection
of Annual, Capital Improvement or Reconstruction Assessments.
1.1.60 Supplemental Declaration. Supplemental Declaration means an instrument executed, acknowledged and Recorded by Declarant which imposes conditions,
covenants, or restrictions or reserves easements established for a phase of addition to those
established by this Declaration. A Supplemental Declaration may affect one or more Phases. A
Notice of Addition may include a Supplemental Declaration. Declarant may Record a Supplemental Declaration so long as Declarant owns all of the real property to be encumbered by the Supplemental Declaration. Supplemental Declarations may modify this Declaration as it
applies to the property encumbered by the Supplemental Declaration.
1.1.61 USFWS. USFWS means the United States Fish and Wildlife Service.
1.1.62 VA. VA means the Department of Veterans Affairs of the United States of America and any department or agency of the United States government which succeeds to VA’s function of issuing guarantees of notes secured by mortgages on residential real estate.
1.2 Interpretation.
1.2.1 General Rules. This Declaration shall be liberally construed to effectuate
its purpose of creating a uniform plan for subdividing, improving, maintaining and selling the Properties. As used in this Declaration, the singular includes the plural and the plural the singular; and the masculine, feminine and neuter each includes the other, unless the context
dictates otherwise.
1.2.2 Articles, Sections and Exhibits. The Article and Section headings have
been inserted for convenience only, and may not be considered in resolving questions of interpretation or construction. Unless otherwise indicated, any references in this Declaration to articles, sections or exhibits are to Articles, Sections and exhibits of this Declaration. The
exhibits attached to this Declaration are incorporated herein by this reference.
1.2.3 Priorities and Inconsistencies. If there are conflicts or inconsistencies
between this Declaration and the Articles, Bylaws, Rules and Regulations, or a Supplemental
Declaration, then the provisions of this Declaration shall prevail.
1.2.4 Severability. The provisions of this Declaration are independent and
severable. A determination of invalidity or partial invalidity or unenforceability of any one
provision of this Declaration by a court of competent jurisdiction does not affect the validity or
enforceability of any other provisions of this Declaration.
8
CT0217.CC&Rs-fair oaks.cln.docx
1.2.5 Statutory References. All references made in this Declaration to statutes
are to those statutes as currently in effect or to subsequently enacted replacement statutes.
ARTICLE II
RESIDENCE AND USE RESTRICTIONS
The Properties shall be held, used and enjoyed subject to the following restrictions and the exemptions of Declarant set forth in this Declaration.
2.1 Single Family Residence. Each Lot shall be used as a dwelling for a single
Family and for no other purpose. An Owner may rent his Lot to a single Family provided that
the Lot is rented pursuant to a lease or rental agreement which is (a) in writing and (b) subject to all of the provisions of this Declaration.
2.2 Business or Commercial Activity. No part of the Properties may ever be used for
any business, commercial (including auctions or similar events), manufacturing, mercantile,
storage, vending or other nonresidential purposes, including any activity for which the provider
is compensated or receives any consideration, regardless of whether the activity is engaged in full or part-time, generates or does not generate a profit, or requires or does not require a license; except Declarant may use any portion of the Properties for a model home site and display and
sales offices in accordance with Article XV of this Declaration. This Section 2.2 does not
preclude any of the above-described activities without external evidence thereof, provided that:
(a) such activities comply with law; (b) the patrons or clientele of such activities do not visit the Lot or park automobiles or other vehicles in the Properties; (c) the existence or operation of such activities is not apparent or detectable by sight, sound or smell from outside the boundaries of the
Lot; (d) such activities do not increase the Association’s liability or casualty insurance obligation
or premium; and (e) such activities are consistent with the residential character of the Properties
and conform with the provisions of this Declaration.
2.3 Nuisances. Noxious or offensive activities are prohibited on the Properties or on any public street abutting or visible from the Properties. All horns, whistles, bells or other sound
devices, except security devices used exclusively to protect the security of a Residence and its
contents and/or an Owner’s vehicle(s), are also prohibited. Noisy, unsightly, unusually painted
or smoky vehicles, large power equipment and large power tools (excluding lawn mowers and other equipment utilized in connection with ordinary landscape maintenance), off-road motor vehicles or items which may unreasonably interfere with television or radio reception to any Lot,
and objects which create or emit loud noises or noxious odors may not be located, used or placed
in the Properties or on any public street abutting the Properties, or exposed to the view of other
Owners without the Board’s prior written approval. The Board is entitled to determine if any
noise, odor, or activity producing such noise or odor constitutes a nuisance; provided, however, that any such determination must be consistent with any other specific Restrictions or limitations
of the Restrictions. The Board may also adopt a policy regarding the enforcement of nuisance
claims made by an Owner which claims do not affect the maintenance, repair and replacement of
any Common Property or otherwise have a general and material adverse impact on the Properties
or a material portion thereof (e.g., barking dog, noise disturbance) ("Private Nuisance"). Such policy may provide that (a) a complaining Owner must satisfy certain requirements such as
reporting first to police or other Governing Authorities with enforcement capabilities before the
9
CT0217.CC&Rs-fair oaks.cln.docx
Board will take action on the Private Nuisance claim, or (ii) Private Nuisance claims be handled
solely by the complaining Owner filing a complaint with the applicable Governing Authority or
bringing a personal claim against the Owner responsible for the Private Nuisance; provided,
however, that any such policy shall be enforced by the Board in a consistent manner. The Board may also establish a list of Private Nuisances that will not be enforced by the Board.
No Owner may (a) permit or cause anything to be done or kept on the Properties or on
any public street abutting the Properties which may (i) increase the rate of insurance in the
Properties, (ii) result in the cancellation of such insurance, or (iii) obstruct or interfere with the
rights of other Owners, or (b) commit or permit any nuisance thereon or violate any law. Each Owner shall comply with all requirements of the local or state health authorities and with all other laws regarding occupancy and use of a Residence. Each Owner is accountable to the
Association and other Owners for the conduct and behavior of persons residing in or visiting his
Lot. Any damage to the Common Property or property of another Owner caused by such
persons shall be repaired at the sole expense of the Owner of the Lot where such persons are residing or visiting.
2.4 Signs; Displays. Subject to Civil Code Sections 712, 713 and 1353.5, (a) no
commercial, business or similar sign, advertising device or other display of any kind
(collectively, "Signs") shall be displayed in or from the Properties or any portion thereof or on
any public street in or abutting the Properties other than one (1) sign displayed on a Lot advising of the existence of security services protecting a Residence which complies with Design Review Committee rules and (b) non-commercial Signs may be displayed on Lots if such Signs (i) are
made of paper, cardboard, cloth, plastic, or fabric (no Sign may be placed, maintained, affixed or
painted on any portion of the Common Property); (ii) are posted or displayed from the yard of
the Lot or the balcony of the Lot or on the window or door of the Lot; (iii) do not include lights, balloons or any other similar decorative component, or include the painting of architectural surfaces; (iv) is not more than nine (9) square feet in size with respect to solid Signs and fifteen
(15) square feet in size for flags or banners; (v) does not endanger public health or safety or
violate a local, state or federal law; and (vi) is not otherwise a nuisance under Section 2.3.
2.5 Parking and Vehicular Restrictions.
2.5.1 Authorized Vehicles. The following vehicles are "Authorized Vehicles": standard passenger vehicles, including automobiles, passenger vans designed to accommodate
ten (10) or fewer people, motorcycles and pick-up trucks having a manufacturer’s rating or
payload capacity of one (1) ton or less. Authorized Vehicles may be parked in any portion of the
Properties intended for parking of motorized vehicles; however, no Owner may park a vehicle in a manner which the Association determines either restricts the passage of pedestrians or vehicles over driveways, streets or sidewalks on the Properties, or extends beyond the limits of the space
where the vehicle is parked. The Association has the power to identify additional vehicles as
Authorized Vehicles in the Rules and Regulations and to adapt this restriction to other types of
vehicles.
2.5.2 Prohibited Vehicles. Vehicles that are not Authorized Vehicles shall be considered "Prohibited Vehicles". Prohibited Vehicles include the following without limitation:
(a) recreational vehicles (e.g., motorhomes, travel trailers, camper vans, boats, etc.), (b)
10
CT0217.CC&Rs-fair oaks.cln.docx
commercial-type vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step vans, concrete
trucks and limousines), (c) buses or vans designed to accommodate more than ten (10) people,
(d) vehicles having more than two (2) axles, (e) trailers, (f) inoperable vehicles or parts of
vehicles, (g) aircraft, and (h) any vehicle or vehicular equipment deemed a nuisance by the Board. Prohibited Vehicles may not be parked, stored or kept on any public or private street in, adjacent to or visible from the Properties or any other Common Property parking area, or within
the areas as established by the City for front yard setbacks, except for brief periods for loading,
unloading, making deliveries or emergency repairs. Without limiting the generality of the
foregoing, no recreational vehicles shall be stored in the front yards of any Residence. If a vehicle qualifies as both an Authorized Vehicle and a Prohibited Vehicle, then the vehicle is presumed to be a Prohibited Vehicle unless the vehicle is expressly classified as an Authorized
Vehicle in writing by the Board. Prohibited Vehicles may only be parked in an Owner’s fully
enclosed garage with the door closed so long as their presence on the Properties does not
otherwise violate the provisions of this Declaration.
2.5.3 General Restrictions. Subject to the restrictions on Prohibited Vehicles, all vehicles owned or operated by or under the control of an Owner or a resident of an Owner’s
Lot and kept in the Properties must be parked in such Owner’s garage on the Owner’s Lot to the
extent of the space available; provided that each Owner shall ensure that at all times the garage
has space available for parking at least the number of Authorized Vehicles for which it was originally designed by Declarant. No repair, maintenance or restoration of any vehicle may be conducted on the Properties except in an enclosed garage when the garage door is closed,
provided such activity is not undertaken as a business, and provided that such activity may be
prohibited entirely by the Board if the Board determines that it constitutes a nuisance.
2.5.4 Parking Regulations. The Board may establish additional regulations regarding any parking areas not assigned to individual Lots, including designating “parking,” “guest parking,” and “no parking” areas; and may enforce all parking and vehicle use regulations
applicable to the Properties, including removing violating vehicles from the Properties pursuant
to California Vehicle Code Section 22658.2 or other applicable law. If the Board fails to enforce
any of the parking or vehicle use regulations, the applicable Governing Authority may enforce such regulations.
2.6 Animal Regulations. The only animals that may be raised, bred or kept in any
Residence are (a) dogs, cats, fish, birds and other usual household pets ("Household Pets"),
provided that they are not kept, bred or raised for commercial purposes, in unreasonable
quantities or sizes or in violation of the Restrictions, or (b) subject to the prior approval of the Association, any animal other than a Household Pet, including but not limited to snakes, lizards and other reptiles, livestock and spiders, scorpions and other insects (collectively, "Authorized
Pets"). The Association is also entitled to restrict breeds of Authorized Pets that may reasonably
create a danger of personal injury to persons coming on the Property. As used in the
Declaration, “unreasonable quantities” ordinarily means more than two (2) pets per Residence;
however, the Association may determine that a reasonable number in any instance may be more or less. The Association may limit the size of Authorized Pets and may prohibit maintenance of
any Authorized Pets which, in the Association’s opinion, constitutes a nuisance to any other
Owner. Authorized Pets must be either kept in an enclosed area or on a leash held by a person
capable of controlling the animal. Each Person is liable for any unreasonable noise and for
11
CT0217.CC&Rs-fair oaks.cln.docx
damage to person or property caused by any animals brought or kept on the Properties by such
Person. Each Person shall clean up after such Person’s animals. Any Person who keeps any
animal, including without limitation any insect or reptile, in the Properties shall indemnify,
defend and hold harmless the Association, its officers, directors, contractors, agents and employees from any claim brought by any Person against the Association, its officers, directors, agents and employees for personal injuries or property damage caused by such animals. None of
the foregoing shall serve to allow any Owner or Owner’s family, guests, tenants and invitees to
maintain any animal, insect, fish or reptile on the Properties other than an Authorized Pet.
2.7 Satellite Dishes and Antennae.
2.7.1 Dishes. A satellite dish and antenna designed to receive direct broadcast satellite service (including direct-to-home satellite service), or video programming services via
multi-point distribution services, or to receive or transmit fixed wireless signals, may be installed
on an Owner’s Lot so long as such antenna or satellite dish is (i) one meter or less in diameter,
(ii) installed in the least visually obtrusive portion of an Owner’s Lot where an acceptable quality signal can be received, so long as such installation is not unreasonably expensive, and (iii) either screened from view or painted to match the surrounding area so as to blend in with the
surrounding area, so long as such screening or painting is not unreasonably expensive.
2.7.2 Broadcast Antennae. An antenna designed to receive television broadcast
signals may be installed on an Owner’s Lot so long as (i) an acceptable quality signal cannot be received via an indoor antenna (e.g., an antenna mounted in an attic, “rabbit ears,” etc.), (ii) the antenna used is the smallest size available at a reasonable cost that receives an acceptable quality
signal, and (iii) the antenna is installed in the least visually obtrusive portion of an Owner’s Lot
where an acceptable quality signal can be received, so long as such installation is not
unreasonably expensive.
2.7.3 Notification. After installing an outdoor antenna or satellite dish pursuant to Section 2.7.1 or 2.7.2 above, the Owner must complete and submit a notification form to the
Association. The Association will inspect the antenna or satellite dish to determine compliance
with the above requirements.
Notwithstanding the foregoing, no radio station or short-wave operations of any kind may operate from any Lot unless approved by the Design Review Committee. With the exception of any master antenna maintained by the Association and subject to Section 1376 of the California
Civil Code and Federal Communications Commission regulations promulgated pursuant to the
federal Telecommunications Act of 1996, no exterior antenna, "C.B." antenna, television
antenna, earth receiving station, satellite dish or other antenna of any type may be erected or
maintained on the Properties unless approved by the Design Review Committee.
In addition to the restrictions described above, the Association may adopt additional
restrictions on the installation or use of a satellite dish or antenna on an Owner’s Lot as a part of
the Association’s Rules and Regulations so long as such restrictions do not violate any applicable
state or federal law or regulation. The Association may prohibit the installation of a satellite dish
or antenna if the installation, location or maintenance of such satellite dish or antenna
12
CT0217.CC&Rs-fair oaks.cln.docx
unreasonably affects the safety of managers, agents or employees of the Association and other
Owners, or for any other safety related reason established by the Association.
This Section is intended to be a restatement of the authority granted to the Association
under the law. All amendments, modifications, restatements and interpretations of the law applicable to the installation, use or maintenance of an antenna shall be interpreted to amend, modify, restate or interpret this Section.
2.8 Trash. No trash may be kept or permitted upon the Properties or on any public
street abutting or visible from the Properties, except in containers located in appropriate areas
screened from view, and no odor may be permitted to arise therefrom so as to render the Properties offensive. Such containers may be exposed to the view of neighboring Lots only when set out at a location approved by the Design Review Committee for a reasonable period of
time (not to exceed twelve (12) hours before and after scheduled trash collection hours). No
outdoor fires are permitted, except in barbecue grills and fire pits if designed and used in such a
manner that they do not create a fire hazard. No clothing, fabrics or unsightly articles may be hung, dried or aired on or over any Lot.
2.9 Installations.
2.9.1 Generally. No Owner may cause or permit any mechanic’s lien to be filed
against the Properties for labor or materials alleged to have been furnished or delivered to the
Properties or any Lot for such Owner, and any Owner who does so shall immediately cause the lien to be discharged within five (5) days after notice to the Owner from the Board. If any Owner fails to remove such mechanic’s lien, the Board may discharge the lien and charge the
Owner a Special Assessment for such cost of discharge.
2.9.2 Outside Installations. Unless approved by the Design Review Committee,
the following outside installations are prohibited: (a) clotheslines, balcony, patio or deck covers, wiring, air conditioning equipment, water softeners, other machines and other Improvements, (b) Improvements protruding through the walls or roofs of buildings, and (c) other exterior additions
or alterations to any Lot. Outdoor patio or lounge furniture, plants and barbecue equipment may
be kept in accordance with the Rules and Regulations. No plants or seeds infected with noxious
insects or plant diseases may be brought upon, grown or maintained on the Properties. The Association has the right to specify in the Rules and Regulations unsightly items that may not be kept on the Lots.
2.9.3 Inside Installations. All exposed window coverings are subject to the
Design Review Committee’s approval of types and color. No paper, cardboard or other
temporary window coverings shall be permitted; provided, however, for a period not to exceed
thirty (30) days following the Close of Escrow for a Residence, the Owner of such Residence may use clean pressed white sheets, neatly hung, as temporary window coverings. The Board
has the right to specify in the Rules and Regulations the types and colors of window coverings
that may be exposed in the Properties. Nothing may be done in any Lot or in, on or to the
Common Area which may impair the structural integrity of any building in the Properties or
which structurally alters any such building except as otherwise expressly provided in this Declaration.
13
CT0217.CC&Rs-fair oaks.cln.docx
Sections 2.9.2 and 2.9.3 do not apply to Improvements installed (a) as a part of the
original construction of the Properties by Declarant, (b) by the Association, or (c) with the
approval of the Design Review Committee.
2.10 Further Subdivision. Except as otherwise provided in this Declaration, no Owner may physically or legally subdivide his Lot in any manner, including any division of such Owner’s Lot into time-share estates or time-share uses. This provision does not limit the right of
an Owner to (a) rent or lease his entire Lot by a written lease or rental agreement subject to this
Declaration; (b) sell such Owner’s Lot; or (c) transfer or sell any Lot to more than one Person to
be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community property. Each lease and/or rental agreement shall provide that any failure by the tenant or other occupant of the Lot to comply with the Restrictions constitutes a default under the lease or rental
agreement.
2.11 Drainage. No one may interfere with or alter the established drainage pattern over
any Lot unless an adequate alternative provision is made for proper drainage with the Design Review Committee’s prior written approval. For the purpose of this Section, “established” drainage means, for any Phase, the drainage which (a) exists at the time of the first Close of
Escrow in such Phase, or (b) is shown in any plan approved by the Board. Established drainage
includes drainage from the Lots onto the Common Property and from the Common Property onto
the Lots.
Each Owner, by accepting a grant deed to his Lot, acknowledges and understands that in connection with the development of the Properties, Declarant may have installed one or more
Drainage Improvements beneath the surface of such Owner’s Lot. To ensure adequate drainage
throughout the Properties, it is essential that the Drainage Improvements, if any, not be modified,
removed or blocked without having first made alternative drainage arrangements. No Owner may alter, modify, remove or replace any Drainage Improvements located in such Owner’s Lot without the written approval of the Design Review Committee. Before starting work, the Owner
must submit an alternative drainage plan to the Design Review Committee. Any modification,
removal or replacement of Drainage Improvements must comply with law.
2.12 Water Supply System. No individual water supply, sewage disposal or water softener system is permitted on any Lot unless such system is designed, located, constructed and equipped in accordance with the requirements, standards and recommendations of any applicable
water district, the applicable Governing Authority, the Design Review Committee, and all other
applicable governmental authorities.
2.13 View Obstructions. No vegetation or other obstruction may be installed or
maintained on any Lot in such location or of such height as to unreasonably obstruct the view from any other Lot. If there is a dispute between Owners concerning the obstruction of a view
from a Lot, the dispute shall be submitted to the Design Review Committee, whose decision in
such matters shall be binding. Any item or vegetation maintained on any Lot which is exposed
to the view of any Owner must be removed or otherwise altered to the Design Review
Committee’s satisfaction, if it determines that the item or vegetation in its then existing state does not comply with the purposes or provisions of this Declaration. If an Owner fails to
perform necessary pruning, trimming, or thinning, the Association may, after Notice and
14
CT0217.CC&Rs-fair oaks.cln.docx
Hearing, enter upon such Owner’s Lot to perform such work. The Board may charge the Owner
a Special Assessment for the cost of performing such work. Each Owner acknowledges that (a)
there are no protected views in the Properties, and no Lot is assured the existence or
unobstructed continuation of any particular view, and (b) any construction, landscaping or other installation of Improvements by Declarant or other Owners may impair the view from any Lot, and each Owner hereby consents to such view impairment.
2.14 Solar Energy Systems. Each Owner may install a solar energy system on his Lot
which serves his Residence so long as (a) the design and location of the solar energy system
meet the requirements of all applicable governmental ordinances and (b) said design and location receive the prior written approval of the Design Review Committee.
2.15 Installation of Yard Landscaping. Each Owner shall complete the installation of
landscaping on all the yard areas of such Owner’s Lot (not installed by Declarant) in accordance
with a plan approved by the Design Review Committee within six (6) months after the Close of
Escrow. Each Owner shall obtain all permits necessary and shall comply with all requirements of the applicable Governing Authority.
2.16 Rights of Disabled. Subject to the provisions of Article VIII of this Declaration,
each Owner may modify his Residence and the route over the Lot leading to the front door of his
Residence, at his sole expense, in order to facilitate access to his Residence by persons who are
blind, visually impaired, deaf or physically disabled, or to alter conditions which could be hazardous to such persons, in accordance with California Civil Code Section 1360 or any other applicable law or ordinance.
2.17 Temporary Buildings. No outbuilding, tent, shack, shed or other temporary
building or Improvement may be placed upon any portion of the Properties either temporarily or
permanently, without the prior written consent of the Design Review Committee. No garage, carport, trailer, camper, motor home, recreational vehicle or other vehicle may be used as a residence in the Properties, either temporarily or permanently.
2.18 Common Property Facilities. The Common Property may not be altered without
the Board’s prior written consent.
2.19 Drilling. No oil drilling, oil, gas or mineral development operations, oil refining, geothermal exploration or development, quarrying or mining operations of any kind may be conducted on the Properties, nor are oil wells, tanks, tunnels or mineral excavations or shafts
permitted upon the surface of any Lot or within five hundred feet (500’) below the surface of the
Properties. No derrick or other structure designed for use in boring for water, oil, geothermal
heat or natural gas may be erected, maintained or permitted on any Lot.
2.20 Toxic or Noxious Matter; Disposal of Toxic and Hazardous Waste Products; Erosion and Drainage Control. All Hazardous Materials shall be properly disposed of within the
Properties in compliance with applicable law, including any applicable storm water pollution
prevention plan and any program established by the Association with respect thereto. Hazardous
Materials such as toxic chemicals or hydrocarbon compounds such as gasoline, motor oil, anti-
freeze, solvents, paints, paint thinners, wood preservatives and other such fluids shall not be
15
CT0217.CC&Rs-fair oaks.cln.docx
discharged into any street or any storm drain or storm water conveyance system within the
Properties. Use and disposal of Hazardous Materials, including, pesticides, fungicides,
herbicides, insecticides, fertilizers and other such chemical treatments shall meet the applicable
Governing Authority requirements as prescribed in their respective containers.
2.21 Pollutant Control.
2.21.1 NPDES Requirements. The Properties are subject to all federal, state and
local requirements of the National Pollutant Discharge Elimination System ("NPDES") adopted
pursuant to the Federal Clean Water Act. Pursuant to a NPDES General Permit adopted by the
state Water Resources Control Board and the county NPDES Storm Water Permit Program, Drainage Area Management Plan ("DAMP"), the applicable Governing Authority has adopted a Water Quality Management Plan for the Properties ("Water Management Plan") which
identifies certain Best Management Practices ("BMP") to reduce the discharge of pollutants to
storm water facilities, before, during and after construction on the Properties is completed. The
Association shall comply with all BMPs and perform all maintenance imposed by DAMP and the Water Management Plan, as amended. The costs of such maintenance, if any, shall be treated as Common Expenses.
2.21.2 BMP Guidelines. The Association shall ensure that all landscape
irrigation on the Properties is implemented in accordance with the BMPs, including without
limitation (a) the provision for water sensors and programmable irrigation times allowing for short cycles, (b) the use of planting material similar to that installed by Declarant and with similar water requirements in order to reduce excess irrigation runoff and to promote surface
filtration, and (c) maintenance of all permanent slopes with required landscaping with native or
other drought tolerant planting materials.
2.22 Site Distance Corridors. No structure, fence, wall, tree, shrub, sign or other object shall be placed or permitted on the Properties within the Caltrans corner sight distance corridors ("Site Line"). No obstructions shall impede nor conflict with the line-of-sight which is
established per City Standard Public Street-Design Criteria, Section 8.B.1 and B.2. The Sight
Lines are depicted on Tract No. 02-17. Each Owner whose Lot is affected by a Sight Line shall
maintain this condition.
2.23 Fencing.
2.23.1 Perimeter Fencing. Perimeter fencing that is adjacent to Open Space as
designated on Tract No. 02-17 shall require approval of the City prior to installation.
2.23.2 Interior Fencing. There shall be no combustible fencing within one
hundred feet (100') from undisturbed natural vegetation.
2.24 Exotic Species. No owner shall install on its Lot any of the Exotic Species as set forth on the HMP List of Exotic Species as attached hereto as Exhibit "E".
2.25 Fire Buffer Zones. Owners and the Association shall comply with the Fire
Protection Plan as adopted by the City for Tract No. 02-17 including the following as they relate
to the Fire Buffer Zones as shown on Exhibit "F" attached hereto:
16
CT0217.CC&Rs-fair oaks.cln.docx
Zone 1
Zone 1 shall be measured horizontally twenty (20) feet outward from the
outlying edge of any habitable structure(s) or inward from the top of slope.
Planting within Zone 1 shall consist of ground cover or low growing
shrubs species (less than three (3) feet in height) known to have fire
retardant qualities.
No trees or shrubs (over three (3) feet in height at maturity) shall be
allowed.
Irrigation shall be required and maintained.
All attachments to the structure shall be noncombustible.
No solid fuel fire pits or outdoor fire places shall be permitted.
Zone 2
Zone 2 shall be measured horizontally twenty (20) feet outward from the outlying edge of Zone 1.
Planting within this zone shall consist of low water use plant species
known to have slow burning, low fuel characteristics.
No trees shall be allowed.
Irrigation shall be required and maintained.
If Zone 2 crosses over a fence line, a six (6) foot side strip of modified
landscaping shall be provided parallel to the fence line in order to provide
access for firefighters. Plants located within the six (6) foot access area
shall not exceed a height of eighteen (18) inches at maturity.
Zone 3
Zone 3 shall be measured outward from the outlying edge of Zone 2. It
shall include the remainder of the area between Zone 2 and high risk fire areas.
The horizontal distance from the structure(s) to hazardous native
vegetation shall not be less than sixty (60) feet.
Planting within this zone shall consist of low water use or drought tolerant
plant species known to have slow burning, low fuel characteristics.
Trees are allowed provided that, at maturity, a twenty (20) foot spacing can be maintained between the tree canopies.
17
CT0217.CC&Rs-fair oaks.cln.docx
Irrigation shall be required and maintained.
Any future brush management within Fire Suppression Zone 3 of Open Space Lot 12 of Tract No. 02-17 shall be done without disturbing the
ground and shall require a biological monitor.
Activities in the proximity to the San Diego goldenstar shall occur between July 1 and November 30, when the plant is not expected to have foliage above the ground and no heavy equipment will
be used that may compact the soil.
ARTICLE III
DISCLOSURES
Much of the information included in this Article (a) was obtained from other sources
(e.g., governmental and other public agencies and public records) and (b) is subject to change for
reasons beyond the control of Declarant and the Association. Therefore, Declarant and the
Association do not guarantee the accuracy or completeness of any of the information in this
Article. Further, neither Declarant nor the Association undertakes to advise any Person of any changes affecting the disclosures in this Article.
3.1 No Representations or Warranties. No representations or warranties, express or
implied, have been given or made by Declarant, the Association or their agents in connection
with the Properties, including physical condition, zoning, compliance with laws, or fitness for
intended use, nor in connection with the subdivision, sale, operation, maintenance, cost of maintenance, taxes or regulation of the Properties as a planned unit development.
3.2 Concrete and Masonry Improvements. Special attention is required in designing
concrete and masonry Improvements such as masonry walls and planters, concrete slabs, pools,
spas and decking. For example, steel reinforcing bars may be required in lieu of steel mesh in
concrete patio slabs. Block walls may require extra horizontal and vertical steel reinforcing bars. Pools and spas located at the top or bottom of a slope or on expansive soils require special
design.
3.3 Drainage and Irrigation. Owners must use adequate drainage and irrigation
control. The construction or modification of Improvements should not result in ponding of
water. The landscape irrigation system should be designed and operated to prevent excessive saturation of soils. Water must drain away from footings and other Improvements and
obstructions such as walls should not be constructed across swales unless adequate replacement
Drainage Improvements have been installed or created. Planters should be lined with an
impervious surface and should contain outlets to drain excess water.
3.4 Grading. The grading and drainage design in the Properties should not be altered in the course of installing Improvements in a manner that will redirect surface water flow toward
the Residences or onto adjacent property or that will trap water so that it ponds or floods.
Drainage devices such as concrete ditches, area drain lines and gutters should be carefully
designed and installed with professional assistance then maintained in an unobstructed condition.
18
CT0217.CC&Rs-fair oaks.cln.docx
Drainage devices installed by the Declarant and designed to serve more than one Lot or the
Common Property should not be altered in any manner that will redirect or obstruct the drainage
through these drainage devices. Grading and drainage modifications are subject to law, approval
by the Board, and the terms of any drainage easements of Record.
3.5 Electric Power Lines and Electromagnetic Fields. Underground or overhead electric transmission and distribution lines and transformers are located in and around the
Properties. The lines and transformers are owned, operated and maintained by San Diego Gas &
Electric. Power lines and transformers produce extremely low-frequency electromagnetic fields
("ELF-EMF") when operating. For some time, there has been speculation in the scientific community about health risks associated with living near ELF-EMF sources. In 1992, the United States Congress authorized the Electric and Magnetic Fields Research and Public Information
Dissemination Program ("EMF-RAPID Program") to perform research on these issues and to
analyze the existing scientific evidence in order to clarify the potential for health risks from
exposure to ELF-EMF. In May of 1999, the National Institute of Environmental Health Sciences ("NIEHS") issued a report to Congress summarizing its review of scientific data from over three hundred studies on ELF-EMF health risks. The ELF-EMF studies consists of both
epidemiological studies (studies of exposure in human populations) and controlled laboratory
experiments on animal and cell models. While some epidemiological studies suggested some
link between certain health effects and exposure to ELF-EMF, the laboratory experiments did not support such a link. According to the NIEHS report, the scientific evidence shows no clear pattern of health hazards from ELF-EMF exposure, and the NIEHS report did not find evidence
of any link sufficient to recommend widespread changes in the design or use of electrical
transmission equipment. However, because the evidence does not clearly rule out any effect,
NIEHS advocated continuing inexpensive and safe reductions in exposure to ELF-EMF and endorsed current utility practices regarding design and siting of new transmission and distribution lines. Further information on this subject is available from the California Electric
and Magnetic Fields Program, California Department of Health Services, located at 1515 Clay
Street, 17th Floor, Oakland, California 94612, (510) 622-4500 or on the website
at http://www.dhs.ca.gov/ps/deodc/ehib.
3.6 Offers of Dedication. Portions of the Common Area are subject to irrevocable offers of dedication as shown on Tract No. 02-17. The Governing Authority may accept the
offer of dedication and assume responsibility for maintaining these portions of the Common
Property at any time.
3.7 Natural Open Space Areas. The Properties include, and are located in close proximity to, natural open space areas which provide habitat for various forms of wildlife, including, but not limited to, rats, mice, poisonous and other types of snakes, raccoons,
opossums, skunks, squirrels, rabbits, insects and poisonous vegetation (e.g., poison ivy, poison
oak, etc.). Animal wildlife may venture from the natural open space areas into the Properties,
including an Owner’s Lot. The natural open space areas include certain types of vegetation and
wildlife that are protected species pursuant to federal or state environmental laws or other arrangements with Governing Authorities. Owners and Owner Parties should keep domestic pets
within their Residences to protect them from being attacked by wildlife and to prevent them from
preying on endangered species in the natural open space areas. Each Owner assumes all risks
pertaining to such wildlife and releases Declarant and the Association and their respective
19
CT0217.CC&Rs-fair oaks.cln.docx
shareholders, directors, officers, employees, consultants and agents from any and all claims,
damages, costs, expenses, losses and other liability (including attorneys’ fees) for death or injury
to any person and/or damage to any property arising from or otherwise relating to such wildlife.
3.8 Disclaimer of Liability. Neither the Declarant nor the Association shall be liable or responsible for any damage to Improvements constructed or modified by an Owner or that is the result of Improvements constructed or modified by an Owner. Improvements should not be
installed, constructed or modified without the assistance of qualified consultants.
3.9 Additional Provisions. The Association and the Owners should be aware that
there may be provisions of various laws, including the Davis-Stirling Common Interest Development Act codified at Sections 1350 et seq. of the California Civil Code and the federal Fair Housing Act codified at Title 42 United States Code, Section 3601 et seq., which may
supplement or override the Restrictions. Declarant makes no representations or warranties
regarding the future enforceability of any portion of the Restrictions.
ARTICLE IV LA COSTA 49 COMMUNITY ASSOCIATION; REPAIR AND MAINTENANCE OBLIGATIONS
4.1 General Duties and Powers. The Association has the duties and powers listed in
the Restrictions and also has the general and implied powers of a nonprofit mutual benefit
corporation, generally to do all things that a corporation organized under the laws of the State of California may lawfully do which are necessary or proper in operating for the peace, health, comfort, safety and general welfare of the Owners, subject only to the limits on the exercise of
such powers listed in the Restrictions. Unless otherwise indicated in the Articles, Bylaws or this
Declaration, the powers of the Association may be exercised by the Board.
4.2 Specific Duties and Powers. In addition to its general powers and duties, the Association has the following specific powers and duties.
4.2.1 Common Property. The power and duty to accept, maintain and manage
the Common Property in accordance with the Restrictions. The Association may install or
remove capital Improvements on the Common Property. The Association may reconstruct,
replace or refinish any Improvement on the Common Property.
4.2.2 Utilities. The power and duty to obtain, for the benefit of the Properties, all commonly metered water, gas and electric services, and the power, but not the duty, to
provide for trash collection and cable or master television service.
4.2.3 Granting Rights. The power to grant, without the consent of any Owners,
exclusive or nonexclusive easements, licenses, rights of way or fee interests in the Common
Property, to the extent any such grant is reasonably required for either (a) utilities and facilities to serve the Common Property and the Lots, (b) purposes of conformity with the as-built location
of Improvements installed by Declarant, or (c) other purposes consistent with the intended use of
the Properties. The Association may de-annex any portion of the Properties from the
encumbrance of the Declaration in connection with any lawful lot line adjustment.
20
CT0217.CC&Rs-fair oaks.cln.docx
4.2.4 Employ Personnel. The power to employ Persons necessary for the
effective operation and maintenance of the Common Property, including legal, management and
accounting services.
4.2.5 Insurance. The power and duty to maintain insurance for the Common Property in accordance with this Declaration. The Association shall promptly reimburse Declarant for any insurance premiums or amounts paid by Declarant on behalf of the Association
before the first Close of Escrow and/or during the initial stages of development of the Properties.
4.2.6 Sewers and Storm Drains. The power and duty to maintain any private
sewer systems, private storm drains, or private drainage facilities in the Common Property in accordance with the Restrictions. In furtherance thereof and without limitation, the Association shall maintain the private storm drain system as set forth on Exhibit "G" attached hereto, which
shall include maintenance of the storm water filtration devices located within the adjacent public
right of ways to the satisfaction of the City Engineer.
4.2.7 Right of Entry. Declarant and the Association each have a limited right of entry in and on the Lots to inspect the Properties, and may take whatever corrective action each determines to be necessary or proper, consistent with this Declaration. The Association may act
under this Section 4.2.7 with the authorization of two-thirds (2/3) of the Board. Entry onto a Lot
by the Association under this right of entry or by the Board, Declarant, or their representatives
pursuant to Civil Code Section 1375(d) may only be made (except in an emergency) after three (3) days advance written notice to the Owner of the Lot. The Association has no duty to maintain any property or Improvements required to be maintained by the Owners. Nothing in
this Article limits the right of an Owner to exclusive occupancy and control over his Lot.
However, an Owner shall permit a right of entry to the Association or any person authorized by
the Board to be exercised in any emergency originating in or threatening his Residence or Lot, whether the Owner is present or not. Any damage to a Residence or Lot caused by such entry shall be repaired by the Association as a Common Expense. Furthermore, each Owner shall
permit other Owners, or their representatives, to enter his Lot to perform required installations,
alterations or repairs to the mechanical or electrical services to a Lot if (a) requests for entry are
made in advance to the Owner whose Lot is to be entered; (b) entry is made at a time reasonably convenient to the Owner whose Lot is to be entered; and (c) the entered Lot is left in substantially the same condition as existed immediately preceding such entry. In an emergency,
such right of entry is immediate. Any damage caused to a Lot by such entry by an Owner or its
representatives shall be repaired by such Owner.
4.2.8 Issuance of Design Guidelines. The Board shall issue and regularly update design guidelines for the construction, installation or alteration of Improvements in the Properties. The design guidelines shall include rules or guidelines setting forth procedures for
the submission of plans for approval, may require a fee to accompany each application for
approval, or may identify additional factors which the Design Review Committee shall consider
in reviewing submissions. The Board may provide that fees it imposes be uniform, or that fees
be determined in any other reasonable manner. The Board may require such detail in plans and specifications submitted for Design Review Committee review as it deems proper, including
landscape plans, floor plans, site plans, drainage plans, elevation drawings and descriptions or
samples of exterior material and colors.
21
CT0217.CC&Rs-fair oaks.cln.docx
4.2.9 Rules and Regulations. The power, but not the duty, to establish, amend,
restate, delete, and create exceptions to, the Rules and Regulations.
(a) Effective Date. The Rules and Regulations and all changes to the
Rules and Regulations will become effective as provided in Sections 1357.110 through 1357.140 of the California Civil Code, as amended from time to time.
(b) Areas of Regulation. The Rules and Regulations may concern use
of the Properties, signs, parking restrictions, minimum standards of property maintenance, and
any other matter under the Association’s jurisdiction; however, the Rules and Regulations are
enforceable only to the extent they are consistent with the Articles, the Bylaws and this Declaration.
(c) Limits on Regulation. The Rules and Regulations shall be
enforced against the Owners in a fair and reasonable manner. The rights of Owners to display
religious and holiday signs, symbols and decorations within their Residences of the kinds
normally displayed in single family residential neighborhoods shall not be abridged, except the Association may adopt time, place and manner restrictions with respect to such displays if they are visible outside of the Residence. No modification to the Rules and Regulations may require
an Owner to dispose of personal property that was on a Lot prior to the adoption of such
modification if such personal property was in compliance with all Rules and Regulations
previously in force; however, this exemption shall apply only during the period of such Owner’s ownership of the Lot and shall not apply to (i) subsequent Owners who take title to the Lot after the modification is adopted, or (ii) clarifications to the Rules and Regulations.
(d) Use of Facilities. The Rules and Regulations may (i) specify a
maximum number of guests which an Owner, tenant or other Person may admit to the Common
Property recreational facilities at one time, (ii) establish rules for allowing Owners, tenants or other Persons to use Common Property facilities for private functions, or (iii) establish admission fees, deposit requirements and other fees for the use of any facilities on Common Property.
4.2.10 Borrowings. The power, but not the duty, to borrow money for purposes
authorized by the Articles, Bylaws, Declaration, any Supplemental Declarations or any Notice of
Addition, and to use the Common Property as security for the borrowing.
4.2.11 Contracts. The power, but not the duty, to enter into contracts. This includes contracts with (a) Owners or other Persons to provide services or to maintain
Improvements in the Properties and elsewhere which the Association is not otherwise required to
provide or maintain pursuant to this Declaration and (b) Declarant which are approved by the
BRE.
4.2.12 Indemnification.
(a) For Association Representatives. To the fullest extent authorized
by law, the Association has the power and duty to indemnify Board members, Association
officers, Design Review Committee members, and all other Association committee members for
all damages, pay all expenses incurred, and satisfy any judgment or fine levied as a result of any
action or threatened action brought because of the performance by such persons of an Official
22
CT0217.CC&Rs-fair oaks.cln.docx
Act. Board members, Association officers, Design Review Committee members, and all other
Association committee members are deemed to be agents of the Association when they are
performing Official Acts for purposes of obtaining indemnification from the Association
pursuant to this Section. The entitlement to indemnification under this Declaration inures to the benefit of the estate, executor, administrator and heirs of any person entitled to such indemnification.
(b) For Other Agents of the Association. To the fullest extent
authorized by law, the Association has the power, but not the duty, to indemnify any other
Person acting as an agent of the Association for damages incurred, pay expenses incurred, and satisfy any judgment or fine levied as a result of any action or threatened action because of an Official Act.
(c) Provided by Contract. The Association also has the power, but not
the duty, to contract with any Person to provide indemnification in addition to any
indemnification authorized by law on such terms and subject to such conditions as the Association may impose.
4.2.13 Annexing Additional Property. The power, but not the duty, to annex,
pursuant to Article XVI, additional property to the Properties encumbered by this Declaration.
4.2.14 Vehicle Restrictions. The power granted in Section 2.5 to identify
Authorized Vehicles or Prohibited Vehicles and to modify and enforce the restrictions on vehicles.
4.2.15 License and Use Agreements. The Association may enter into agreements
with Declarant or any homeowners association having jurisdiction over the Annexable Territory
to share recreational or other facilities located on the Common Property ("Facility") with the
owners of residences on Annexable Territory that is not annexed to the Properties. Any such agreement shall be in form and content acceptable to Declarant, the Board of Directors (without the approval of Owners) and the board of directors of any adjacent homeowners association and
shall include provisions regarding equal use and sharing of maintenance costs for the Facility.
4.2.16 Telecommunications Contract. Notwithstanding anything in the
Restrictions to the contrary, the Board shall have the power to enter into, accept an assignment of, or otherwise cause the Association to comply with the terms and provisions of a telecommunications services contract ("Telecommunications Contract") with a
telecommunications service provider ("Service Provider"), pursuant to which the Service
Provider shall serve as the provider of Telecommunications Services to each Lot in the
Properties. The Board shall only enter into, accept an assignment of, or otherwise cause the
Association to comply with the terms and provisions of the Telecommunications Contract if the Board determines, in its sole discretion, that such action is in the best interests of the
Association. Although not exhaustive, the Board shall consider the following factors in making
such a determination:
(a) Initial Term and Extensions. The initial term of the
Telecommunications Contract should not exceed five (5) years, and, if the Telecommunications
23
CT0217.CC&Rs-fair oaks.cln.docx
Contract provides for automatic extensions, the length of each such extension should also not
exceed five (5) years.
(b) Termination. The Telecommunications Contract should provide
that: (i) at least six (6) months prior to the expiration of either the initial or any extended term of the Telecommunications Contract, the entire Membership of the Association may, without cause, by a sixty percent (60%) vote, prevent any automatic extension that the Telecommunications
Contract may provide for, and thereby allow the Telecommunications Contract to expire, and (ii)
at any time, the Board may terminate the Telecommunications Contract if, in the sole discretion
of the Board, the Service Provider fails to provide quality, state-of-the-art Telecommunications Services.
(c) Fees. Whether the monthly fee charged to the Association by the
Service Provider for the provision of the Telecommunications Services to all of the Lots
represents a discount from the comparable retail fees charged by the Service Provider in the
general geographic area in which the Properties are located, and, if so, the amount of such discount.
(d) Installation of Telecommunications Facilities. Whether the
Service Provider is solely responsible for the installation, and the cost thereof, of all of the
Telecommunications Facilities necessary to provide Telecommunications Services to each Lot.
(e) Removal of Telecommunications Facilities. Whether the Service Provider has the right to remove the Telecommunications Facilities upon expiration or termination of the Telecommunications Contract.
4.2.17 Prohibited Functions.
(a) Off-site Nuisances. The Association shall not use any Association
funds or resources to abate any annoyance or nuisance emanating from outside the physical boundaries of the Properties.
(b) Political Activities. The Association shall not (i) participate in
federal, state or local political activities or activities intended to influence a governmental action
affecting areas outside the boundaries of the Properties (e.g., endorsement or support of (A)
legislative or administrative actions by a local governmental authority, (B) candidates for elected or appointed office, or (C) ballot proposals), or (ii) conduct, sponsor, participate in or expend funds or resources toward any activity, campaign or event, including any social or political
campaign, event or activity which is not directly and exclusively pertaining to the authorized
activities of the Association. There shall be no amendment of this Section so long as Declarant
owns the Properties or Annexable Territory.
24
CT0217.CC&Rs-fair oaks.cln.docx
4.3 Standard of Care, Non-liability.
4.3.1 Scope of Powers and Standard of Care.
(a) General Scope of Powers. Rights and powers conferred on the
Board, the Design Review Committee or other committees or representatives of the Association by the Restrictions are not duties, obligations or disabilities charged upon those Persons unless the rights and powers are explicitly identified as including duties or obligations in the
Restrictions or law. Unless a duty to act is imposed on the Board, the Design Review Committee
or other committees or representatives of the Association by the Restrictions or law, the Board,
the Design Review Committee and the committees have the right to decide to act or not act. Any decision to not act is not a waiver of the right to act in the future.
(b) Business Affairs. This Section 4.3 applies to Board member
actions in connection with management, personnel, maintenance and operations, insurance,
contracts and finances and Design Review Committee member actions. Each Board member
shall perform the duties of a Board member in good faith, in a manner such Board member believes to be in the best interests of the Association and with such care, including reasonable inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
When performing his duties, a Board member is entitled to rely on information, opinions, reports
or statements, including financial data prepared or presented by:
(i) One or more officers or employees of the Association whom the Board member believes to be reliable and competent in the matters presented;
(ii) Legal counsel, independent accountants or other Persons as
to matters which the Board member believes to be within such Person’s professional or expert
competence; or
(iii) A committee of the Board upon which the Board member does not serve, as to matters within such committee’s designated authority, where the Board member believes the view point of or information provided by such committee should
reasonably be relied on, so long as, in any such case, the Board member acts in good faith, after
reasonable inquiry when the need therefor is indicated by the circumstances and without
knowledge that would cause such reliance to be unwarranted.
(iv) This Section 4.3.1(b) is intended to be a restatement of the business judgment rule established in applicable law as it applies to the Association. All
modifications and interpretations of the business judgment rule applicable to the Association
shall be interpreted to modify and interpret this Section 4.3.1(b).
(c) Association Governance. This Section 4.3 applies to Board actions
and Design Review Committee decisions in connection with the interpretation and enforcement of the Restrictions, architectural and landscaping control, regulation of uses within the
Properties, rule making and oversight of committees. Actions taken or decisions made in
connection with these matters shall be reasonable, fair and nondiscriminatory.
25
CT0217.CC&Rs-fair oaks.cln.docx
4.3.2 Nonliability.
(a) General Rule. No Person is liable to any other Person (other than
the Association or a party claiming in the name of the Association) for injuries or damage
resulting from such Person’s Official Acts, except to the extent that such injuries or damage result from the Person’s willful or malicious misconduct. No Person is liable to the Association (or to any party claiming in the name of the Association) for injuries or damage resulting from
such Person’s Official Acts, except to the extent that such injuries or damage result from such
Person’s negligence or willful or malicious misconduct. The Association is not liable for
damage to property in the Properties unless caused by the negligence of the Association, the Board, the Association’s officers, the Manager or the Manager’s staff.
(b) Non-liability of Volunteer Board Members and Officers. A
volunteer Board member or volunteer Association officer shall not be personally liable to any
Person who suffers injury, including bodily injury, emotional distress, wrongful death or
property damage or loss as a result of the tortious act or omission of the volunteer officer or Board member if all applicable conditions specified in Section 1365.7 of the California Civil Code are met.
4.4 Membership.
4.4.1 Generally. Every Owner is a Member of the Association and shall remain
a Member of the Association until such Owner no longer owns a Lot, at which time such Owner’s Membership shall automatically cease. Except for Class C Membership, ownership of a Lot is the sole qualification for Membership. Except for Class C Membership, Memberships
are not assignable except to the Person to whom title to the Lot is transferred, and every
Membership is appurtenant to and may not be separated from the fee ownership of such Lot and
automatically transfers to a Person on the acquisition of a Lot. The rights, duties, privileges and obligations of all Owners are as provided in the Restrictions.
4.4.2 Transfer. The Membership of any Owner may not be transferred, pledged
or alienated in any way, except on the transfer or encumbrance of such Owner’s Lot, and then
only to the transferee or Mortgagee of such Lot. A prohibited transfer is void and will not be
reflected in the records of the Association. Any Owner who has sold his Lot to a contract purchaser under an agreement to purchase may delegate the Owner’s Membership rights to the contract purchaser. The delegation must be in writing and must be delivered to the Association
before the contract purchaser may vote. The contract seller shall remain liable for all charges
and Assessments attributable to the contract seller’s Lot which accrue before title to the Lot is
transferred. If the contract seller fails or refuses to delegate his Membership rights to the
contract purchaser before the close of escrow, the Association may record the transfer to the contract purchaser in the Association’s records. However, no contract purchaser will be entitled
to vote at Association meetings during the term of a purchase contract without satisfactory
evidence of the delegation of the contract seller’s Membership rights to the contract purchaser.
The Association may levy a reasonable transfer fee against a new Owner and such Owner’s Lot
(which fee shall be paid through escrow or added to the Annual Assessment chargeable to such new Owner) to reimburse the Association for the administrative cost of transferring the
26
CT0217.CC&Rs-fair oaks.cln.docx
Membership to the new Owner on the Association’s records. Such fee may not exceed the
Association’s actual cost involved in changing its records.
4.4.3 Classes of Membership. The Association classes of voting Membership
are as follows:
Class A. Class A Members are all Owners except Declarant; provided, however, that Declarant shall become a Class A Member as to Lots owned by Declarant on the termination
of the Class B Membership as provided below. Class A Members are entitled to one (1) vote for
each Lot owned by such Class A Members which is subject to assessment. Declarant shall
become a Class A Member on conversion of Declarant’s Class B Membership as provided below. The vote for such Lot shall be exercised in accordance with Section 4.5.1, but no more than one (1) Class A vote may be cast for any Lot.
Class B. The Class B Member is Declarant. The Class B Member is entitled to
three (3) votes for each Lot owned by Declarant and subject to assessment. The Class B
Membership shall convert to Class A Membership on the first to occur of the following events:
(a) The second anniversary of the first Close of Escrow in the most recent Phase; or
(b) The fourth anniversary of the first Close of Escrow in Phase 1.
However, if all of the Annexable Territory is annexed to the Properties within one (1) year from
the first Close of Escrow in Phase 1, the Class B Membership shall convert to Class A Membership on the fourth anniversary of the first Close of Escrow in Phase 1.
Class C. The Class C Member is Declarant (whether or not Declarant owns a Lot
in the Properties). The Class C Membership shall not be considered a part of the voting power of
the Association and Declarant is not entitled to exercise any Class C vote except for the purpose
of electing those members of the Board which the Class C Membership is entitled to elect hereunder. The Class C Member is entitled to solely elect a majority of the members of the Board of Directors at the first annual meeting of the Members of the Association.
4.5 Voting Rights.
4.5.1 Limits. All voting rights are subject to the Restrictions. Except as
otherwise provided in this Declaration and the Bylaws, as long as there is a Class B Membership, any provision of the Restrictions which expressly requires the vote or written consent of a specified percentage (instead of a majority of a quorum) of the Association’s voting power
before action may be undertaken shall require the approval of such specified percentage of the
voting power of each class of Membership. Except as otherwise provided in this Declaration and
the Bylaws, on termination of the Class B Membership, any provision of the Restrictions which
expressly requires the vote or written consent of Owners representing a specified percentage (instead of a majority of a quorum) of the Association’s voting power before action may be
undertaken shall then require the vote or written consent of Owners representing such specified
percentage of both (1) the Association’s total voting power and (2) the Association’s voting
power represented by Owners other than Declarant.
27
CT0217.CC&Rs-fair oaks.cln.docx
4.5.2 Joint Ownership. Each Co-owner may attend any Association meeting,
but only one (1) such Co-owner shall be entitled to exercise the single vote to which the Lot is
entitled. Co-owners owning the majority interests in a Lot may designate in writing one (1) of
their number to vote. Fractional votes shall not be allowed, and the vote for each Lot shall be exercised, if at all, as a unit. Where no voting Co-owner is designated or if the designation is revoked, the vote for the Lot shall be exercised as the Co-owners owning the majority interests in
the Lot agree. Unless the Association receives a written objection in advance from a Co-owner,
it shall be conclusively presumed that the voting Co-owner is acting with his Co-owners’
consent. No vote may be cast for any Lot if the Co-owners present in person or by proxy owning the majority interests in such Lot fail to agree to the vote or other action. The nonvoting Co-owner or Co-owners are jointly and severally responsible for all obligations imposed on the
jointly-owned Lot and are entitled to all other benefits of ownership. All agreements and
determinations lawfully made by the Association in accordance with the voting percentages
established in the Restrictions are binding on all Owners and their successors in interest.
4.6 Board of Directors.
4.6.1 Candidacy Requirements for Owners. Only Owners who meet the
following criteria are qualified to run for and be elected to the Board of Directors:
(a) The Owner must be in compliance with the Restrictions for the
three (3) months immediately preceding the date of the election at which the Owner is being considered for election to the Board of Directors. To be in compliance, within five (5) days after receipt of written notice by the Association, the Owner must correct (to the satisfaction of the
Board), any violation of the Restrictions for which the Owner has been determined to be
responsible under this Declaration;
(b) The Owner must be current in the payment of all Assessments for the three (3) months immediately preceding the date of the election at which the Owner is being considered for election to the Board of Directors; and
(c) The Owner must not be related by blood or marriage or reside in
the same household as any other Board member.
4.6.2 Incumbent Requirements. To remain qualified to serve on the Board of Directors, an Owner who has been elected to the Board of Directors must:
(a) Not be absent from more than three (3) consecutive regularly
scheduled meetings of the Board;
(b) Attend at least seventy-five percent (75%) of the Board meetings
held during the year and attend the entire meeting each time;
(c) Comply with every duly approved action of the Board;
(d) Subject to Subsection (e) below, within five (5) days after receipt
of written notice by the Association, comply with the Restrictions and correct (to the satisfaction
28
CT0217.CC&Rs-fair oaks.cln.docx
of the Board) any violation of the Restrictions for which that director has been determined to be
responsible pursuant to this Declaration;
(e) Not be delinquent in the payment of any Assessment more than
once in any Fiscal Year;
(f) Exhibit respect, professionalism and courteous behavior to Owners, committee members, vendors, the Manager and its staff, and any other Persons
associated with or retained by the Association;
(g) Unless such compensation is first approved by the vote of
Members representing at least a majority of the Association’s voting power, refuse any type of gain, such as money, services, products, gifts or gratuities of a significant value, as determined by a majority vote of the Board who meet all of the required qualifications to serve as such,
which gain is offered in relation to the Owner’s service as a director. In addition, the Owner
must disclose such offers at an open meeting of the Board. Compensation for services duly
approved by the Board and unrelated to duties as a director or officer of the Association, and reimbursement of expenses associated with services to the Association, do not constitute prohibited gain within the meaning of this Subsection; and
(h) Not act in a manner determined by a majority vote of the Board to
be grossly detrimental to the general safety, health or welfare of the Association and its
members.
4.7 Repair and Maintenance.
4.7.1 By Owners.
(a) The Lot. Each Owner shall maintain, at his sole expense and
subject to the approval of the Design Review Committee, his Lot except for those portions of the
Owner’s Lot that are Association Property, and the Residence (including the exterior and roof thereof) and all other Improvements on the Owner’s Lot including any fence or wall constructed on the Lot along the Lot Line abutting any Common Property or public property in a clean,
sanitary and attractive condition, and in accordance with the original construction design of the
Improvements in the Properties. Each Owner shall be obligated to pay for any damage to the
Common Property or other Lots caused by such Owner. Each Owner shall pay when due all charges for any utility service which is separately metered to his Lot.
(b) Party Walls. Each wall or fence built as a part of the original
construction of the Residences upon the Properties and placed on the dividing line between the
Lots is a Party Wall, and to the extent not inconsistent with the provisions of this Section, the
general rules of law regarding party walls and liability for property damage due to negligence or
willful acts or omissions apply thereto.
(i) Sharing of Repair and Maintenance. The cost of reasonable
repair and maintenance of a Party Wall shall be shared equally by the Owners of the Lots
connected by such Party Wall. However, each Owner shall be solely responsible for repainting
the side of any Party Wall facing his Lot.
29
CT0217.CC&Rs-fair oaks.cln.docx
(ii) Destruction by Fire or Other Casualty. Unless covered by a
blanket insurance policy maintained by the Association under Section 8.1, if a Party Wall is
destroyed or damaged by fire or other casualty, any Owner whose Lot is affected thereby may
restore it, and the Owner of the other Lot affected thereby shall contribute equally to the cost of restoration thereof without prejudice, however, to the right of any such Owner to call for a larger contribution from the other under any rule of law regarding liability for negligent or willful acts
or omissions.
(iii) Weatherproofing. Notwithstanding any other provision of
this Article, an Owner who by his negligent or willful act causes a Party Wall to be exposed to the elements or to deteriorate or require repair or replacement shall bear the whole cost of furnishing the necessary protection against such elements or the necessary repairs or
replacement.
(iv) Right to Contribution Runs With Land. The right of any
Owner to contribution from any other Owner under this Article is appurtenant to the land and passes to such Owner’s successors in title.
(c) Other Responsibilities. Each Owner shall maintain his individual
mailbox.
4.7.2 By Association.
(a) Commencement of Obligations. The Association’s obligation to maintain the Common Property in any Phase commences on the date Annual Assessments commence on Lots in the Phase that includes the Common Property. Until commencement of
Annual Assessments on Lots in any Phase in which a Lot is located, Declarant shall maintain the
Common Property in such Phase. The Association’s obligation to maintain the Common
Property in a Phase composed solely of Common Property shall commence on conveyance of such Common Property to the Association.
(b) Maintenance Standards. Subject to Articles IX and X, the
Association shall maintain the Common Property and Improvements thereon or shall contract to
assure the Common Property and Improvements thereon are maintained in a clean, sanitary and
attractive condition reasonably consistent with the level of maintenance reflected in the most current Budget on file with and approved by the BRE. However, the Association is not responsible for performing those items of maintenance, repair or Improvement of the Lots which
are the responsibility of the Owners pursuant to Section 4.7.1. The Board shall determine, in its
sole discretion, the level and frequency of maintenance of the Common Property.
(c) Maintenance Items. The Association shall repair and pay for all
centrally metered utilities and mechanical and electrical equipment serving the Common Property; pay all charges for utilities which serve individual Lots but which are subject to a
common meter; pay all Common Expenses and charges for utilities serving recreational
amenities; maintain all Common Property, including all walks, private driveways and other
means of ingress and egress in the Properties and all natural open space areas. The Association
30
CT0217.CC&Rs-fair oaks.cln.docx
may, but is not required to, perform all corrective janitorial, landscaping and repair work in any
Residence if the Owner thereof fails to do so after Notice and Hearing.
(d) Public Right-of-Way. The Association shall maintain and replace
any and all street trees located within the public right-of-ways adjacent to the Properties as required by the City unless and until such maintenance is assumed by the Street Lighting and Landscape District No. 2 or any other special district. In addition, the Association shall maintain
and repair all private street lights located within the public right-of-ways, including any poles,
mast arms, luminaires, ballasts and other related improvements. All such maintenance and repair
within the public right-of-ways shall be in accordance with the standards as required by the City and pursuant to all required permits, encroachment agreements and other agreements between Declarant and/or the Association and the City.
(e) Additional Items. The Association shall also be responsible for
maintaining any Improvements designated by a majority of the voting power of the Association.
Such Improvements shall be deemed Association Maintenance Areas and subject to the Restrictions applicable to the Association Maintenance Areas.
(f) Charges to Owners. All costs of maintenance, repairs and
replacements for the Properties shall be paid for as Common Expenses out of the Association
Maintenance Funds as provided in this Declaration.
4.7.3 Inspection of the Properties. The Board shall require strict compliance with all provisions of this Declaration and cause the Properties to be inspected by the Design Review Committee for any violation thereof. The Association shall have the Common Property
and all Improvements thereon inspected at least once every three (3) years to (a) determine
whether the Common Property is being maintained adequately in accordance with the standards
of maintenance established in Section 4.7.2, (b) identify the condition of the Common Property and any Improvements thereon, including the existence of any hazards or defects, and the need for performing additional maintenance, refurbishment, replacement, or repair, and (c)
recommend preventive actions to reduce potential future maintenance costs. The Association
may employ such experts and consultants it deems necessary to perform the inspection and make
the report required by this Section. The Association shall prepare a report of the results of the inspection required by this Section. The report shall be furnished to Owners and Declarant by the earlier of sixty (60) days after the report is completed or at the time the next Association
Budget is sent to the Owners. The report must include at least the following:
(a) a description of the condition of the Common Property, including a
list of items inspected, and the status of maintenance, repair and need for replacement of all such
items;
(b) a description of all maintenance, repair and replacement planned
for the ensuing Fiscal Year and included in the Budget;
(c) if any maintenance, repair or replacement is to be deferred, the
reason for such deferral;
31
CT0217.CC&Rs-fair oaks.cln.docx
(d) a summary of all reports of inspections performed by any expert or
consultant employed by the Association to perform inspections;
(e) a report of the status of compliance with the maintenance,
replacement and repair needs identified in the inspection report for preceding years; and
(f) such other matters as the Board considers appropriate.
4.7.4 Damage by Owners. Each Owner is liable to the Association for any
damage to the Common Property or the Residences caused by the act or negligence of an Owner,
his guests, tenants or invitees, or any other persons deriving their right to use the Common
Property from the Owner, or such Owner’s family, tenants and guests. The Association may, after Notice and Hearing, (a) determine whether any claim shall be made on the Association’s insurance, and (b) levy a Special Assessment equal to the cost of repairing the damage or any
deductible paid and the increase, if any, in insurance premiums directly attributable to the
damage caused by such Owner or the person for whom such Owner may be liable as described in
this Declaration. If a Lot is jointly owned, the liability of its Owners is joint and several, except to the extent that the Association has previously contracted in writing with the joint owners to the contrary. After Notice and Hearing, the cost of correcting the damage shall be a Special
Assessment against such Owner.
ARTICLE V
DESIGN REVIEW COMMITTEE
5.1 Members of Committee. The Design Review Committee shall be composed of three (3) members. The initial members of the Design Review Committee shall be
representatives of Declarant until one (1) year after the original issuance of the Final Subdivision
Public Report ("Public Report") for the Properties ("First Anniversary"). After the First
Anniversary the Board may appoint and remove one (1) member of the Design Review Committee, and Declarant may appoint and remove a majority of the members of the Design Review Committee and fill any vacancy of such majority, until the earlier to occur of (a) Close
of Escrow for the sale of ninety percent (90%) of all the Lots in the Properties, or (b) the fifth
(5th) anniversary of the original issuance of the Public Report for the Properties, after which the
Board may appoint and remove all members of the Design Review Committee. Design Review Committee members appointed by the Board must be Owners, but Design Review Committee members appointed by Declarant need not be Owners. Board members may serve as Design
Review Committee members.
5.2 Powers and Duties.
5.2.1 General Powers and Duties. The Design Review Committee shall
consider and act upon all plans and specifications submitted for its approval, including inspection of work in progress to assure conformance with plans approved by the Design Review
Committee, and shall perform such other duties as the Board assigns to it.
5.2.2 Compliance with Design Guidelines. The Design Review Committee
shall comply with any design guidelines issued by the Board pursuant to Section 4.2.8.
32
CT0217.CC&Rs-fair oaks.cln.docx
5.2.3 Retaining Consultants. The Design Review Committee has the power, but
not the duty, to retain Persons to advise its members in connection with decisions; however, the
Design Review Committee does not have the power to delegate its decision-making power.
5.3 Review of Plans and Specifications.
5.3.1 Improvements Requiring Approval. No construction, installation or alteration of an Improvement, including landscaping, in the Properties may be commenced until
the plans and specifications therefor showing the nature, kind, shape, height, width, color,
materials and location thereof have been submitted to and approved in writing by the Design
Review Committee; however, any Improvement may be repainted without Design Review Committee approval so long as the Improvement is repainted the identical color which it was last painted. Without limiting the generality of the foregoing, the provisions of this Article apply to
the construction, installation and alteration of solar energy systems, as defined in Section 801.5
of the California Civil Code, subject to the provisions of California Civil Code Section 714, the
City Building Code, zoning regulations, and other laws.
5.3.2 Application Procedure. Until changed by the Board, the address for the submission of such plans and specifications is the Association’s principal office. The form of
application used by the Design Review Committee may include spaces allowing “Adjacent
Owners” to sign or initial the application confirming that they have been notified of the
application. The Design Review Committee shall establish a definition of “Adjacent Owners” in its design guidelines. Applications will be complete and may be approved or disapproved by the Design Review Committee even if all of the Adjacent Owners do not initial the applications so
long as the Owner submitting plans and specifications ("Applicant") certifies that the Applicant
requested that the Adjacent Owners sign the applications.
By submitting plans and specifications, the Applicant (a) represents and warrants to the Design Review Committee and to the Association that the plans and specifications submitted by the Applicant do not violate any governing provision of law, including the Fair Employment and
Housing Act (California Government Code Sections 12900 et seq.), building codes and other
applicable laws governing land use and public safety and (b) agrees to indemnify, defend and
hold the Association, its officers, the Board and the Design Review Committee harmless from and against all loss, damage or liability or claims or assertions thereof resulting from or arising in connection with the Design Review Committee’s approval of any plans and specifications
submitted by the Applicant.
The Design Review Committee may reject the application for approval if it determines
that the Applicant’s plans and specifications are incomplete. The Design Review Committee
shall transmit its decision and the reasons therefor in writing to the “Applicant” at the address listed in the application for approval within forty-five (45) days after the Design Review
Committee receives all required materials. If the Applicant’s application is disapproved, the
Design Review Committee’s notice of decision sent to the Applicant shall include a description
of the procedure for reconsideration of the decision by the Board. Any application submitted
pursuant to this Section shall be deemed approved unless the Design Review Committee transmits written disapproval or a request for additional information or materials to the Applicant
33
CT0217.CC&Rs-fair oaks.cln.docx
within forty-five (45) days after the date the Design Review Committee receives all required
materials.
5.3.3 Standard for Approval. The Design Review Committee shall approve
plans and specifications submitted for its approval only if it determines that (a) installation, construction or alterations of the Improvements in the locations indicated will not be detrimental to the appearance of the surrounding area of the Properties as a whole, (b) the appearance of any
structure affected by the proposed Improvements will be in harmony with the surrounding
structures, (c) installation, construction or alteration of the proposed Improvements will not
detract from the beauty, wholesomeness and attractiveness of the Properties or the enjoyment thereof by the Owners, (d) maintenance of the proposed Improvements will not become a burden on the Association, and (e) the proposed Improvements are consistent with this Declaration. The
Design Review Committee may condition its approval of proposals or plans and specifications
for any Improvement on any of the following: (i) the Applicant’s furnishing the Association
with security acceptable to the Association against any mechanic’s lien or other encumbrance which may be Recorded against the Properties as a result of such work, (ii) such changes therein as it considers appropriate, (iii) the Applicant’s agreement to grant appropriate easements to the
Association for the maintenance of the Improvements, (iv) the Applicant’s agreement to install
(at its sole cost) water, gas, electrical or other utility meters to measure any increased
consumption, (v) the Applicant’s agreement to reimburse the Association for the cost of such maintenance, or (vi) the Applicant’s agreement to complete the proposed work within a stated period of time, and may require submission of additional plans and specifications or other
information before approving or disapproving material submitted. The Applicant shall meet any
review or permit requirements of the applicable Governing Authority before making any
construction, installation or alterations permitted under this Declaration. The Design Review Committee’s approval or disapproval shall be based solely on the considerations listed in this Article. The Design Review Committee is not responsible for reviewing, nor may its approval of
any plan or design be deemed approval of, any plan or design from the standpoint of structural
safety or conformance with building or other codes. The Design Review Committee may
consider the impact of views from other Residences or Lots and reasonable privacy right claims as factors in reviewing, approving or disapproving any proposed landscaping, construction or other Improvement. However, neither the Declarant nor the Association warrants that any views
in the Properties are protected. No Residence or Lot is guaranteed the existence or unobstructed
continuation of any particular view.
5.4 Meetings and Actions of the Design Review Committee. The Design Review Committee shall meet as necessary to perform its duties. The vote or written consent of a majority of the Design Review Committee constitutes an act of the Design Review Committee.
All approvals issued by the Design Review Committee must be in writing. Verbal approvals
issued by the Design Review Committee or any individual Design Review Committee member
are not valid, are not binding on the Association and may not be relied on by any Person. If any
member of the Design Review Committee ("Affected Member") has a personal interest in any application because such application (a) was submitted by or on behalf of the Affected Member
or the spouse of the Affected Member and/or (b) the construction activity described in such
application will or may have a direct physical impact on the Affected Member’s Lot (for
example, but not by way of limitation, the construction activity is taking place on a Residence
which is adjacent to or in the immediate vicinity of the Affected Member’s Lot or has some other
34
CT0217.CC&Rs-fair oaks.cln.docx
direct physical impact on the Affected Member’s Lot) (as applicable an "Affected Application")
then the Affected Member shall not participate on the Design Review Committee with respect to
the Affected Application and the other members of the Design Review Committee shall ask the
Board to appoint a temporary member to sit on the Design Review Committee with respect to the Affected Application.
5.5 No Waiver of Future Approvals. The Design Review Committee’s approval of
any proposals or plans and specifications or drawings for any work done or proposed or in
connection with any other matter requiring the Design Review Committee’s approval does not
waive any right to withhold approval of any similar proposals, plans and specifications, drawings or matters subsequently or additionally submitted for approval.
5.6 Compensation of Members. The Design Review Committee’s members shall
receive no compensation for services rendered, other than reimbursement for expenses incurred
by them in performing their duties.
5.7 Inspection of Work. The Design Review Committee or its duly authorized representative may inspect any work for which approval of plans is required under this Article ("Work"). The right to inspect includes the right to require any Owner to take such action as
may be necessary to remedy any noncompliance with the Design Review Committee-approved
plans for the Work or with the requirements of this Declaration ("Noncompliance").
5.7.1 Time Limit. The Design Review Committee’s right to inspect the Work and notify the responsible Applicant of any Noncompliance shall terminate sixty (60) days after the later to occur of (a) completion of the Work or (b) receipt by the Design Review Committee
of written notice of such completion from the Applicant. As used in this Article V, the Work
shall only be deemed “complete” or “completed” or in a state of “completion” when all work of
any kind has been completed in accordance with this Declaration and all applicable Governing Authorities have completed all applicable inspections of the Work and issued all final approvals, sign offs, certificates and other permits or authorizations. The Design Review Committee’s
rights of inspection shall not terminate if plans for the Work have not previously been submitted
to and approved in writing by the Design Review Committee. If the Design Review Committee
finds that any Work was done without obtaining written approval of the Design Review Committee or was not done in substantial compliance with plans and specifications approved by the Design Review Committee, it shall notify the applicable Owner in writing of failure to
comply with this Article V, specifying the particulars of Noncompliance. The Design Review
Committee may require the Owner to take such action as may be necessary to remedy a
Noncompliance, including without limitation the removal of any and all Improvements constructed or installed as a result of such Noncompliance with this Article V. If the Committee fails to send a notice of Noncompliance to an Owner before this time limit expires, the Work
shall be deemed to comply with the approved plans.
5.7.2 Remedy. If an Owner fails to remedy any Noncompliance within sixty
(60) days after the date of notice from the Design Review Committee, the Design Review
Committee may proceed in accordance with Section 12.1.1 below.
35
CT0217.CC&Rs-fair oaks.cln.docx
5.8 Variances. The Design Review Committee may authorize variances from
compliance with any of the architectural provisions of this Declaration including restrictions on
height, size, floor area or placement of structures, or similar restrictions, when circumstances
such as topography, natural obstructions, hardship, aesthetic or environmental consideration require. Such variances must be evidenced in writing, must be signed by a majority of the Design Review Committee, and become effective on Recordation. After Declarant’s right to
appoint a majority of the Design Review Committee’s members expires, the Board must approve
any variance recommended by the Design Review Committee before any such variance becomes
effective. If variances are granted, no violation of the covenants, conditions and restrictions in this Declaration shall be deemed to have occurred with respect to the matter for which the variances were granted. The granting of a variance does not waive any of the terms and
provisions of this Declaration for any purpose except as to the particular property and particular
provision of this Declaration covered by the variance, nor does it affect the Owner’s obligation to
comply with all laws affecting the use of his Lot.
5.9 Maintenance and Repairs. Each Owner (a) is solely responsible for maintaining, repairing and replacing any Improvement(s) installed or constructed by such Owner unless the
Association enters into an agreement with such Owner (which agreement must be Recorded)
pursuant to which the Association assumes such responsibility, (b) shall reimburse the
Association for any damage or injury resulting from or arising in connection with the construction, installation, use or existence of such Improvement, the amount of which shall be subject to collection as a Special Assessment, and (c) shall indemnify, defend and hold the
Association, its officers, the Board and the Design Review Committee harmless from and against
all loss, damage or liability or claims or assertions thereof (including but not limited to attorneys’
fees and costs) resulting from or arising in connection with the construction, installation, use or existence of the Improvement.
5.10 Pre-approvals. The Design Review Committee may authorize pre-approval of
certain specified types of construction activities if, in the exercise of the Design Review
Committee’s judgment, such pre-approval is appropriate in carrying out the purposes of the
Restrictions.
5.11 Appeals. An Applicant whose application has been disapproved by the Design Review Committee may apply to the Board for reconsideration of the Design Review
Committee’s decision, in accordance with procedures for such reconsideration adopted by the
Board. The Board’s reconsideration of a Design Review Committee disapproval shall take place
at an open meeting (i.e., not in an executive session).
ARTICLE VI PROPERTY EASEMENTS AND RIGHTS
6.1 Easements.
6.1.1 Maintenance and Repair. Declarant reserves for the benefit of the
Association and all Association agents, officers and employees, nonexclusive easements over the
Common Property as necessary to fulfill the obligations and perform the duties of the Association.
36
CT0217.CC&Rs-fair oaks.cln.docx
6.1.2 Association Maintenance Areas. Declarant reserves for the benefit of the
Association and all Association agents, officers and employees an easement over the Association
Maintenance Areas, if any, for maintenance thereof and over the Lots for access, ingress and
egress necessary to such maintenance. No Owner may interfere with the Association’s exercise of its rights under the easement reserved in this Section.
6.1.3 Utility Easements. Declarant reserves easements to install and maintain
utilities in the Common Property for the benefit of the Owners and their Lots. Declarant reserves
the right to grant additional easements and rights-of-way throughout the Properties to utility
companies and public agencies as it deems necessary for the proper development of the Properties. Declarant’s right shall expire on the Close of Escrow for the sale of the last Lot in the Properties and the Annexable Territory.
6.1.4 Encroachments. Declarant reserves for its benefit and for the benefit of
Owners and their Lots a reciprocal easement appurtenant to each Lot over the other Lots and the
Common Area to accommodate (a) any existing encroachment of any wall or any other authorized Improvement, (b) any existing encroachment of any wall or any other authorized Improvement, (c) authorized construction or repair, and (d) shifting, movement or natural
settling of the Residences or other Improvements. Use of the foregoing easements may not
unreasonably interfere with each Owner’s use and enjoyment of the burdened Lots.
6.1.5 Completion of Improvements. Declarant reserves the right and easement to enter the Properties to complete any Improvement which Declarant considers desirable to implement Declarant’s development plan.
6.1.6 Owners’ Easements in Common Area. Declarant reserves for the benefit
of every Owner, his Family, tenants and guests, nonexclusive easements for (a) use and
enjoyment of the Common Area, and (b) vehicular and pedestrian access over the Common Area. The foregoing easements are subject to the restrictions, rights and other easements in the Restrictions.
6.1.7 Access Easements. Declarant reserves for its benefit and for the benefit of
the owners of residences that may be constructed in the Annexable Territory (whether annexed to
the Properties or not) easements for pedestrian and vehicular access over all streets and driveways located within the Property.
6.1.8 Telecommunications Easement. Declarant reserves blanket easements
("Telecommunications Easements") over the Properties for access and for purposes of
constructing, installing, locating, altering, operating, maintaining, inspecting, upgrading,
removing and enhancing Telecommunications Facilities ("Telecommunications Purposes") for
the benefit of Declarant and the Properties. Such easements are freely transferable by Declarant to any other Person and their successors and assigns. No one, except for Declarant, and
Declarant’s transferees may use the Properties for Telecommunications Purposes. All
Telecommunications Facilities shall be owned, leased or licensed by Declarant, as determined by
Declarant, in its sole discretion and business judgment. Transfer of the Properties does not imply
transfer of any Telecommunications Easements or Telecommunications Facilities. Exercise of Telecommunications Easements shall not unreasonably interfere with the reasonable use and
37
CT0217.CC&Rs-fair oaks.cln.docx
enjoyment of the Properties by the Owners. If the exercise of any Telecommunications
Easement results in damage to the Properties, the holder of the Telecommunications Easement
shall, within a reasonable period of time, repair such damage. If Declarant has not conveyed the
Telecommunications Easements in the Properties to another Person before the first Close of Escrow, then Declarant hereby grants the Telecommunications Easements for the Properties to the Association effective as of the first Close of Escrow.
6.2 Right to Grant Exclusive Easements. Declarant reserves the right, but not the
obligation, to grant easements over the Common Property for the exclusive use by an Owner or
Owners of contiguous property as a yard, recreational, gardening, and landscaping area. Any such easement may be conveyed by the Declarant before the last Close of Escrow for sale of a Lot in the Properties and the Annexable Territory. Such conveyance must be approved by the
Board, which approval must not be unreasonably withheld. The purpose of the easement, the
portion of the Common Property affected, the Lot to which the easement is appurtenant, and any
restrictions on use of the easement area shall be identified in a Recorded grant of easement.
6.3 Delegation of Use. Any Owner may delegate his right to use the Common Property in writing to his tenants, contract purchasers or subtenants who reside in such Owner’s
Residence, subject to regulation by the Board.
6.4 Owners. Each Owner shall permit other Owners, and their representatives, to
enter his Lot to perform installations, alterations or repairs to the mechanical or electrical services to a Lot if (a) requests for entry are made in advance; (b) entry is made at a time reasonably convenient to the Owner whose Lot is to be entered; and (c) the entered Lot is left in
substantially the same condition as existed immediately preceding such entry. Any damage to
the Lot caused by entry under this Subsection shall be repaired by the entering Owner.
ARTICLE VII ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS
7.1 Personal Obligation to Pay Assessments. Each Owner is deemed to covenant to
pay to the Association Assessments which are established and collected pursuant to this
Declaration. The Association shall not levy or collect any Assessment that exceeds the amount
necessary for the purpose for which it is levied. Except as provided in this Section, all Assessments, together with interest, costs, and reasonable attorney fees for the collection thereof, are a charge and a continuing lien on the Lot against which such Assessment is made; provided,
however, that the lien for Special Assessments that are imposed as a fine or penalty cannot be
enforced under Section 2924, 2924(b) or 2924(c) of the California Civil Code. Each
Assessment, together with interest, costs and reasonable attorney fees, is also the personal
obligation of the Person who was the Owner of the Lot when the Assessment accrued. The personal obligation for delinquent Assessments may not pass to any new Owner ("Purchaser")
unless expressly assumed by the Purchaser.
7.2 Funds of the Association. The Association shall establish no fewer than two (2)
separate Association Maintenance Fund accounts into which shall be deposited all money paid to
the Association and from which disbursements shall be made, as provided in this Declaration. The Association Maintenance Funds may be established as trust accounts at a banking or savings
38
CT0217.CC&Rs-fair oaks.cln.docx
institution and shall include: (a) an Operating Fund for current Common Expenses, (b) an
adequate Reserve Fund for the portion of Common Expenses allocated to (i) reserves for
Improvements which the Board does not expect to perform on an annual or more frequent basis,
and (ii) payment of deductible amounts for insurance policies which the Association obtains, and (c) any other funds which the Association may establish. All reserves shall be determined annually by the Board pursuant to maintenance cost guidelines established in accordance with
prudent property management practices generally applied for “common interest developments”
(as defined in Section 1351(c) of the California Civil Code) throughout the County.
7.3 Purpose of Assessments. The Assessments shall be deposited into the Maintenance Funds and used exclusively to (a) promote the Owners’ recreation, health, safety and welfare, (b) operate, improve and maintain the Common Property, and (c) discharge any
other Association obligations under the Declaration. Disbursements from the Operating Fund
shall be made by the Association for such purposes as are necessary for the discharge of its
responsibilities in this Declaration for the common benefit of all Owners, other than those purposes for which disbursements from the Reserve Fund are to be used. Disbursements from the Reserve Fund shall be made by the Association only for the purposes specified in this Article
and in Section 1365.5(c) of the California Civil Code, as amended.
7.4 Waiver of Use. No Owner may exempt himself from personal liability for
Assessments, nor release such Owner’s Lot from the liens and charges thereof, by waiving use and enjoyment of the Common Property or by abandoning such Owner’s Lot.
7.5 Limits on Annual Assessment Increases.
7.5.1 Maximum Authorized Annual Assessment For Initial Year of Operations.
During the Fiscal Year in which Annual Assessments first commence, the Board shall not
increase the Annual Assessment by an amount which exceeds twenty percent (20%) of the Annual Assessments for Lots on which Annual Assessments have commenced as disclosed in the most current Budget filed with and approved by the BRE unless such increase is first
approved by the vote of Owners casting a majority of votes at an Increase Election. This Section
does not limit Annual Assessment increases necessary for addressing an “Emergency Situation”
as defined in Section 7.5.5.
7.5.2 Maximum Authorized Annual Assessment For Subsequent Fiscal Years. During the Fiscal Years following the Fiscal Year in which Annual Assessments first commence,
the Board may increase the Annual Assessment only as follows:
(a) If the increase in Annual Assessments does not exceed twenty
percent (20%) of the Annual Assessments for the immediately preceding Fiscal Year and the
Board has either (i) distributed the Budget for the current Fiscal Year in accordance with Section 1365(a) of the California Civil Code, or (ii) obtained the approval of Owners casting a majority
of votes in an Increase Election;
(b) If the increase in Annual Assessments is greater than twenty
percent (20%) of the Annual Assessments for the immediately preceding Fiscal Year, then the
Board must obtain the approval of Owners casting a majority of votes in an Increase Election.
39
CT0217.CC&Rs-fair oaks.cln.docx
This Section does not limit Annual Assessment increases necessary for addressing an
"Emergency Situation" as defined in Section 7.5.5.
7.5.3 Supplemental Annual Assessments. If the Board determines that the
Association’s essential functions may be properly funded by an Annual Assessment in an amount less than the maximum authorized Annual Assessment described above, it may levy such lesser Annual Assessment. If the Board determines that the estimate of total charges for the
current year is or will become inadequate to meet all Common Expenses, it shall immediately
determine the approximate amount of the inadequacy. Subject to the limits described in Sections
7.5.1, 7.5.2 and 7.5.5, the Board may levy a supplemental Annual Assessment reflecting a revision of the total charges to be assessed against each Lot.
7.5.4 Automatic Assessment Increases. Despite any other provisions of this
Section 7.5, on Declarant’s annexation of the Annexable Territory pursuant to Article XVI, the
Annual Assessment shall be automatically increased by the additional amount, if any, necessary
to maintain the Common Property in or abutting such Annexable Territory so long as (a) the annexation of such Annexable Territory is permitted by the BRE, and (b) the amount of such increase does not result in the levy of an Annual Assessment which is greater than the maximum
potential Annual Assessment disclosed in all Final Subdivision Public Reports for the Properties.
7.5.5 Emergency Situations. For purposes of Sections 7.5.1, 7.5.2 and 7.7, an
"Emergency Situation" is any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to maintain the portion of the
Properties for which the Association is responsible where a threat to personal safety on the
Properties is discovered; and
(c) An extraordinary expense necessary to maintain the portion of the Properties for which the Association is responsible that could not have been reasonably foreseen by the Board when preparing the Budget. Before imposing or collecting an Assessment pursuant
to this Subparagraph (c), the Board shall adopt a resolution containing written findings regarding
the necessity of the extraordinary expense involved and why the expense was not or could not
have been reasonably foreseen in the budgeting process. The resolution shall be distributed to the Owners with the notice of the Assessment.
7.6 Commencement and Collection of Annual Assessments. Annual Assessments
shall commence on all Lots in a Phase on the first day of the first calendar month following the
first Close of Escrow for the sale of a Lot in such Phase, except that if such Phase also includes
any Lots used by Declarant as a model home ("Model Home"), Annual Assessments on the
Model Homes in such Phase shall not commence until the first Close of Escrow for the sale of a Lot other than a Model Home in such Phase. Without limiting the generality of the foregoing,
Annual Assessments shall not commence on any Model Homes in a Phase which consists solely
of Model Homes ("Model Phase") until the first day of the first calendar month following the earlier to occur of (a) the termination of the use of the Lots as a Model Home (if the Model
Homes were previously sold using a sale leaseback arrangement), (b) the first Close of Escrow
40
CT0217.CC&Rs-fair oaks.cln.docx
for the sale of a Model Home in the Model Phase (if the Model Homes were not previously sold
using a sale leaseback arrangement), or (c) the first Close of Escrow for the sale of a Lot in the
final numerical Phase which consists solely of Lots other than Model Homes. All Annual
Assessments shall be assessed uniformly and equally against the Owners and their Lots based on the number of Lots owned by each Owner except as may be otherwise provided in a Notice of Addition. Annual Assessments for fractions of a month shall be prorated. Declarant shall pay its
full pro rata share of the Annual Assessments on all unsold Lots for which Annual Assessments
have commenced. The Board shall fix the amount of the Annual Assessment against each Lot at
least thirty (30) days in advance of each Annual Assessment period. However, unless otherwise established by the Board, the initial Annual Assessments shall be assessed in accordance with the most recent Budget on file with and approved by the BRE. Written notice of any change in the
amount of any Annual Assessment, Capital Improvement Assessment or Reconstruction
Assessment shall be sent via first-class mail to every Owner subject thereto not less than thirty
(30) nor more than sixty (60) days before the increased Assessment becomes due.
The Board has the power to require that funds in the Operating Fund at the end of the Fiscal Year be retained and used to reduce the following Fiscal Year’s Annual Assessments. On
dissolution of the Association incident to the abandonment or termination of the Properties as a
planned development, any amounts remaining in any of the Maintenance Funds shall be
distributed to or for the benefit of the Owners in the same proportions as such money was collected from the Owners.
Declarant and any other Owner of a Lot on which a Residence which has not been
constructed are exempt from payment of that portion of the Annual Assessment which is
allocated to defraying expenses and reserves directly attributable to the existence and use of the
Residence. This exemption includes expenses and reserves relating to exterior maintenance, walkway and carport lighting, cable television and trash disposal. Such exemption remains in effect only until the earlier to occur of (a) the Recordation of a notice of completion of the
Residence, (b) the occupation or use of the Residence, or (c) completion of all elements of the
Residence structures that the Association is obligated to maintain.
Despite any other provisions of this Declaration, until the earlier to occur of (i) the Recordation of a notice of completion of an Improvement on the Common Property, or (ii) the placement of such Improvement into use, each Owner (including Declarant) shall be exempt
from paying that portion of any Annual Assessment which is allocated to defraying expenses and
reserves directly attributable to the existence and use of such Improvement.
Each Owner shall pay Annual Assessments in installments at such frequency and in such amounts and by such methods as are established by the Board. If the Association incurs additional expenses because of a payment method selected by an Owner, the Association may
charge that expense to the Owner. The Association does not have to apportion the expense
among all Owners as a part of Annual Assessments. Each installment of Annual Assessments
may be paid to the Association in one check or in separate checks as payments attributable to
specified Association Maintenance Funds. If any payment of an Annual Assessment installment (1) is less than the amount assessed and (2) does not specify the Association Maintenance Fund
or Funds into which it should be deposited, then the amount received shall be credited in order of
41
CT0217.CC&Rs-fair oaks.cln.docx
priority first to the Operating Fund, until that portion of the Annual Assessment has been
satisfied, and second to the Reserve Fund.
7.7 Capital Improvement Assessments. The Board may levy, in any Fiscal Year, a
Capital Improvement Assessment or Reconstruction Assessment applicable to that Fiscal Year only to defray, in whole or in part, the cost of any construction, repair or replacement of a capital Improvement or other such addition to the Common Property. No Capital Improvement
Assessments in any Fiscal Year which, if added to the Capital Improvement Assessments already
levied during such Fiscal Year, exceed five percent (5%) of the Association’s Budgeted gross
expenses for such Fiscal Year, may be levied without the vote or written consent of Owners casting a majority of votes in an Increase Election. The Board may levy in any Fiscal Year, a Capital Improvement Assessment applicable to that Fiscal Year which exceeds five percent (5%)
of the Association’s Budgeted gross expenses for such Fiscal Year if such increase is necessary
for addressing an Emergency Situation as defined in Section 7.5.5.
ARTICLE VIII INSURANCE
8.1 Duty to Obtain Insurance; Types. The Association shall obtain and maintain in
effect at all times the following insurance coverages:
8.1.1 Public Liability. Adequate public liability insurance (including coverage
for medical payments), with limits acceptable to FNMA and as required by Section 1365.9 of the California Civil Code, insuring against liability for bodily injury, death and property damage arising from the activities of the Association and the Owners on the Common Property.
8.1.2 Fire and Casualty Insurance. Fire and casualty insurance with extended
coverage, without deduction for depreciation, in an amount as near as possible to the full
replacement value of all insurable Improvements installed by Declarant or by the Association or the Common Property and those portions of the Residences, including the structural portions and fixtures, and all built-in or set-in appliances, cabinets and initial basic floor coverings, as initially
installed or replacements thereof in accordance with the original plans and specifications for the
Properties, or as installed by or at the expense of the Owners. The casualty insurance shall
include earthquake coverage unless the Board is directed not to obtain earthquake coverage by a majority of the Association’s voting power.
8.1.3 Fidelity Insurance. Fidelity insurance coverage for any Person handling
funds of the Association, whether or not such persons are compensated for their services, in an
amount not less than the estimated maximum of funds, including reserve funds, in the custody of
the Person during the term of the insurance. The aggregate amount of the fidelity insurance
coverage may not be less than the sum equal to one-fourth (1/4) of the Annual Assessments on all Lots in the Properties, plus reserve funds.
8.1.4 Insurance Required by FNMA, GNMA and FHLMC. Casualty, flood,
liability and fidelity insurance meeting the insurance requirements for planned unit developments
established by FNMA, GNMA and FHLMC, so long as any of these entities is a Mortgagee or
42
CT0217.CC&Rs-fair oaks.cln.docx
Owner of a Lot in the Properties, except to the extent such coverage is not reasonably available
or has been waived in writing by the entity requiring the insurance coverage.
8.1.5 Other Insurance. Such other insurance insuring other risks customarily
insured by associations managing planned unit developments similar in construction, location and use. Such additional insurance shall include general liability insurance and director’s and officer’s errors and omissions insurance in the minimum amounts established in Section 1365.9
of the California Civil Code.
8.1.6 Beneficiaries. The Association’s insurance shall be kept for the benefit of
the Association, the Owners, and the Mortgagees, as their interests may appear as named insured, subject, however, to loss payment requirements established in this Declaration.
8.2 Waiver of Claim Against Association. As to all policies of insurance kept by or
for the benefit of the Association and the Owners, the Association and the Owners waive and
release all claims against one another, the Board and Declarant, to the extent of the insurance
proceeds available, whether or not the insurable damage or injury is caused by the negligence of or breach of any agreement by any of the Persons.
8.3 Right and Duty of Owners to Insure. Each Owner is responsible for insuring his
personal property and all other property and Improvements on his Lot for which the Association
has not purchased insurance in accordance with Section 8.1. Nothing in this Declaration
precludes any Owner from carrying any public liability insurance he considers desirable; however, Owners’ policies may not adversely affect or diminish any coverage under any of the Association’s insurance policies. Duplicate copies of Owners’ insurance policies shall be
deposited with the Association on request. If any loss intended to be covered by the
Association’s insurance occurs and the proceeds payable are reduced due to insurance carried by
any Owner, such Owner shall assign the proceeds of the Owner’s insurance to the Association, to the extent of such reduction, for application to the same purposes as the reduced proceeds are to be applied.
8.4 Notice of Expiration Requirements. If available, each of the Association’s
insurance policies must contain a provision that the policy may not be canceled, terminated,
materially modified or allowed to expire by its terms, without at least thirty (30) days’ prior written notice to the Board and Declarant, and to each Owner and Mortgagee, insurer and guarantor of a First Mortgage who has filed a written request with the carrier for such notice and
every other Person in interest who requests such notice of the insurer. In addition, fidelity
insurance shall provide that it may not be canceled or substantially modified without at least
thirty (30) days’ prior written notice to any insurance trustee named pursuant to Section 8.6 and
to each FNMA servicer who has filed a written request with the carrier for such notice.
8.5 Insurance Premiums. Premiums for insurance policies obtained by the
Association are Common Expenses.
8.6 Trustee For Policies. The Association is trustee of the interests of all named
insureds under the Association’s insurance policies. Unless an insurance policy provides for a
different procedure for the filing of claims, all claims made under such policy must be sent to the
43
CT0217.CC&Rs-fair oaks.cln.docx
insurance carrier or agent by certified mail and be clearly identified as a claim. The Association
shall keep a record of all claims made. All insurance proceeds under any such policies provided
for in Section 8.1 must be paid to the Board as trustees. The Board has the authority to negotiate
loss settlements with insurance carriers, with participation, to the extent they desire, of First Mortgagees who have filed written requests within ten (10) days of receipt of notice of any damage or destruction as provided in Section 9.4. Any two (2) officers of the Association may
sign a loss claim form and release form in connection with the settlement of a loss claim, and
such signatures are binding on all the named insureds. A representative chosen by the Board
may be named as an insured, including a trustee with whom the Association may enter into an insurance trust agreement and any successor to such trustee, who shall have exclusive authority to negotiate losses under any insurance policy and to perform such other functions necessary to
accomplish this purpose.
8.7 Actions as Trustee. Except as otherwise specifically provided in this Declaration,
the Board has the exclusive right to bind the Association and the Owners in respect to all matters affecting insurance carried by the Association, the settlement of a loss claim, and the surrender, cancellation, and modification of all such insurance, in a manner satisfactory to Mortgagees of
seventy-five percent (75%) of the First Mortgages held by First Mortgagees who have filed
requests under Section 8.4. Duplicate originals or certificates of all policies of fire and casualty
insurance kept by the Association and of all renewals thereof, together with proof of payment of premiums, shall be delivered by the Association to all Owners and Mortgagees who requested them in writing.
8.8 Annual Insurance Review. The Board shall review the Association’s insurance
policies at least annually to determine the amount of the casualty and fire insurance referred to in
Section 8.1. If economically feasible, the Board shall obtain a current appraisal of the full replacement value of the Improvements on the Common Property and the Properties, except for foundations and footings, without deduction for depreciation, from a qualified independent
insurance appraiser, before each such annual review.
8.9 Required Waiver. All of the Association’s insurance policies insuring against
physical damage must provide, if reasonably possible, for waiver of:
(1) Subrogation of claims against the Owners and tenants of the Owners;
(2) Any defense based on coinsurance;
(3) Any right of setoff, counterclaim, apportionment, proration or contribution
due to other insurance not carried by the Association;
(4) Any invalidity, other adverse effect or defense due to any breach of
warranty or condition caused by the Association, any Owner or any tenant of any Owner, or arising from any act or omission of any named insured or the respective agents, contractors and
employees of any insured;
(5) Any right of the insurer to repair, rebuild or replace, and, if the
Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the
insurance an amount less than the replacement value of the Improvements insured;
44
CT0217.CC&Rs-fair oaks.cln.docx
(6) Notice of the assignment of any Owner of his interest in the insurance by
virtue of a conveyance of any Lot;
(7) Any right to require any assignment of any Mortgage to the insurer;
(8) Any denial of an Owner’s claim because of negligent acts by the Association or other Owners; and
(9) Prejudice of the insurance by any acts or omissions of Owners that are not
under the Association’s control.
ARTICLE IX
DESTRUCTION OF IMPROVEMENTS
9.1 Damage to Common Property. Except as otherwise authorized by sixty-seven percent (67%) of the voting power of the Association, if any portion of the Common Property is
destroyed, the Association shall restore the same to its former condition as promptly as practical.
The Association shall use the proceeds of its insurance for reconstruction or repair of the
Properties unless otherwise authorized in this Declaration. The Board shall prepare or obtain the documents necessary for commencing such reconstruction as promptly as practical. The Properties shall be reconstructed or rebuilt substantially in accordance with the original
construction plans if they are available, unless changes recommended by the Design Review
Committee have been approved by at least sixty-seven percent (67%) of the Owners and by the
Mortgagees of at least fifty-one percent (51%) of First Mortgages on the Lots.
9.2 Damage to Residences-Reconstruction. If all or any portion of any Residence or other Improvements on a Lot is damaged or destroyed by fire or other casualty, the Owner of
such Lot shall rebuild, repair or reconstruct the Residence and Improvement in a manner which
will restore them substantially to their appearance and condition immediately prior to the
casualty or as otherwise approved by the Design Review Committee. The Owner of any damaged Lot or Residence and the Design Review Committee shall proceed with all due diligence, and the Owner shall cause reconstruction to commence within six (6) months after the
damage occurs and to be completed within twelve (12) months after damage occurs, unless
prevented by causes beyond such Owner’s reasonable control. The transfer of a damaged Lot or
a Lot with a damaged Residence to another Person will not extend the time allowed in this Section for commencement and completion of reconstruction by the transferee. However, no such transferee will be required to commence or complete reconstruction in less than thirty (30)
days from the date the transferee acquired title to the Lot.
9.3 Interior Damage. With the exception of any casualty or damage covered by
insurance maintained by the Association, restoration and repair of any damage to the interior of
any individual Residence, including all fixtures, cabinets and improvements therein, together with restoration and repair of all interior paint, wall coverings and floor coverings, must be made
by and at the individual expense of the Owner of the Residence so damaged. If a determination
to rebuild the Properties after partial or total destruction is made, as provided in this Article, such
interior repair and restoration shall be completed as promptly as practical and in a lawful and
45
CT0217.CC&Rs-fair oaks.cln.docx
workmanlike manner, in accordance with plans approved by the Design Review Committee as
provided in this Declaration.
9.4 Notice to Owners and Listed Mortgagees. The Board, immediately on having
knowledge of any damage or destruction affecting a material portion of the Common Area, shall promptly notify all Owners and Mortgagees, insurers and guarantors of First Mortgages on Lots in the Properties who have filed a written request for such notice with the Board.
ARTICLE X
EMINENT DOMAIN
The term "taking" as used in this Article means condemnation by exercise of the power of eminent domain or by sale under threat of the exercise of the power of eminent domain. The Board shall represent the Owners in any proceedings, negotiations, settlements, or agreements
regarding takings. All takings proceeds shall be payable to the Association for the benefit of the
Owners and their Mortgagees, and shall be distributed to such Owners and Mortgagees as
provided in this Article.
10.1 Condemnation of Common Property. If there is a taking of the Common Property or any portion thereof, then the award in condemnation shall be paid to the Association and shall
be deposited in the Operating Fund.
10.2 Condemnation of Lots. If there is a taking of a Lot (other than any portion of the
Lot which is Association Maintenance Area), the award in condemnation shall be paid to the Owner of the Lot; however, such award shall first be applied to the balance then due on any Mortgages encumbering such Owner’s Lot, in order of priority.
10.3 Notice to Owners and Mortgagees. The Board, on learning of any condemnation
proceeding affecting a material portion of the Common Area, or any threat thereof, shall
promptly notify all Owners and those Mortgagees, insurers and guarantors of Mortgages on Lots in the Properties who have filed a written request for such notice with the Association.
ARTICLE XI RIGHTS OF MORTGAGEES
11.1 General Protections. No amendment or violation of this Declaration defeats or
renders invalid the rights of the Mortgagee under any Mortgage encumbering one (1) or more Lots made in good faith and for value, provided that after the foreclosure of any such Mortgage such Lot(s) will remain subject to this Declaration. For purposes of any provisions of the
Restrictions which require the vote or approval of a specified percentage of First Mortgagees,
such vote or approval is determined based on one (1) vote for each Lot encumbered by each such
First Mortgage.
11.2 Additional Rights. In order to induce VA, FHA FHLMC, GNMA and FNMA to participate in the financing of the sale of Lots, the following provisions are added hereto (and to
the extent these added provisions conflict with any other provisions of the Restrictions, these
added provisions control):
46
CT0217.CC&Rs-fair oaks.cln.docx
11.2.1 Notices. Each Mortgagee, insurer and guarantor of a Mortgage
encumbering one (1) or more Lots, upon filing a written request for notification with the Board,
is entitled to written notification from the Association of: (a) any condemnation or casualty loss
which affects either a material portion of the Properties or the Lot(s) securing the respective First Mortgage; (b) any delinquency of sixty (60) days or more in the performance of any obligation under the Restrictions, including the payment of Assessments or charges owed by the Owner(s)
of the Lot(s) securing the Mortgage, which notice each Owner hereby consents to and authorizes;
and (c) a lapse, cancellation, or material modification of any policy of insurance or fidelity bond
maintained by the Association.
11.2.2 Right of First Refusal. Each Owner, including each First Mortgagee of a Mortgage encumbering any Lot who obtains title to such Lot pursuant to (a) the remedies
provided in such Mortgage, (b) foreclosure of the Mortgage, or (c) deed or assignment in lieu of
foreclosure, is exempt from any “right of first refusal” created or purported to be created by the
Restrictions.
11.2.3 Unpaid Assessments. Each First Mortgagee of a First Mortgage encumbering any Lot who obtains title to such Lot pursuant to the remedies provided in such
Mortgage or by foreclosure of such Mortgage, shall take title to such Lot free and clear of any
claims for unpaid Assessments or charges against such Lot which accrued before the time such
Mortgagee acquires title to such Lot.
11.2.4 Association Records. All Mortgagees, insurers and guarantors of First Mortgages, on written request to the Association, shall have the right to:
(a) examine current copies of the Association’s books, records and
financial statements and the Restrictions during normal business hours; and
(b) receive written notice of all meetings of Owners; and
(c) designate in writing a representative who shall be authorized to attend all meetings of Owners.
11.25 Payment of Taxes. First Mortgagees may, jointly or singly, pay taxes or
other charges which are in default and which may or have become a charge against any Common
Property and may pay any overdue premiums on hazard insurance policies, or secure new hazard insurance coverage on the lapse of a policy, for Common Property, and the Association shall immediately reimburse First Mortgagees who made such payments.
11.26 Intended Improvements. All intended Improvements in any Phase other
than Phase 1 shall be substantially consistent with the Improvements in Phase 1 in structure type
and quality of construction. The requirements of this Section 11.2.6 are for the benefit of and
may be enforced only by FNMA.
11.27 Contracts. The Board may enter into such contracts or agreements on
behalf of the Association as are required in order to satisfy the guidelines of VA, FHA, FHLMC,
FNMA, GNMA or any similar entity, so as to allow for the purchase, insurance or guaranty, as
the case may be, by such entities of First Mortgages encumbering Lots improved with
47
CT0217.CC&Rs-fair oaks.cln.docx
Residences. Each Owner hereby agrees that it will benefit the Association and its Members, as a
class of potential Mortgage borrowers and potential sellers of their Lots, if such agencies
approve the Properties as a qualifying subdivision under their respective policies, rules and
regulations. Each Owner hereby authorizes his Mortgagees to furnish information to the Board concerning the status of any Mortgage encumbering a Lot.
ARTICLE XII ENFORCEMENT
12.1 Enforcement of Restrictions. All violations of the Restrictions, other than those
described in Section 12.2 or regulated by Civil Code Section 1375, shall be resolved as follows:
12.1.1 Violations Identified by the Association. If the Board determines that there is a violation of the Restrictions, or the Design Review Committee determines that an
Improvement which is the maintenance responsibility of an Owner needs installation,
maintenance, repair, restoration or painting, then the Board shall give written notice to the
responsible Owner identifying (a) the condition or violation complained of, and (b) the length of time the Owner has to remedy the violation including, if appropriate, the length of time the Owner has to submit plans to the Design Review Committee and the length of time the Owner
has to complete the work proposed in the plans submitted to the Design Review Committee. If
an Owner does not perform such corrective action as is required by the Board and the Design
Review Committee in the allotted time, the Board, after Notice and Hearing, may remedy such condition or violation complained of, and the cost thereof shall be charged to the Owner as a Special Assessment. If the violation involves nonpayment of any Assessment, then the Board
may collect such delinquent Assessment pursuant to the procedures established in Section 12.2.
12.1.2 Violations Identified by an Owner. If an Owner ("Complainant") alleges
that another Person ("Respondent") is violating the Restrictions (other than nonpayment of any Assessment), the Complainant must first submit the matter to the Board for Notice and Hearing before the Complainant may resort to alternative dispute resolution, as required by Sections
1369.510 through 1369.590 of the California Civil Code, or litigation for relief. Notwithstanding
the foregoing, the Association has no obligation to pursue enforcement of an alleged violation if
the Complainant is not in “good standing.” If the Association informs the Complainant that the Complainant is not in good standing, then the Complainant may proceed with alternative dispute resolution, as required under California Civil Code Sections 1369.510 through 1369.590, or
litigation for relief against the Respondent with respect to the alleged violation. For purposes of
this Section 12.1.2, a Complainant is not in “good standing” if (i) the Complainant is delinquent
in the payment of any type of Assessment or (ii) the Complainant is otherwise in violation of the Restrictions and such violation has not been remedied to the Association’s reasonable satisfaction.
12.1.3 Meet and Confer. If a dispute exists (as determined by the Board after
Notice and Hearing) between the Association and any Owner involving their rights, duties or
liabilities under the Davis-Stirling Common Interest Development Act codified at Sections 1350 et seq. of the California Civil Code, the Nonprofit Mutual Benefit Corporation Law codified at Sections 7110 et seq. of the California Corporations Code, or the Restrictions, then before
proceeding to either alternative dispute resolution in accordance with California Civil Code
48
CT0217.CC&Rs-fair oaks.cln.docx
Sections 1369.510 through 1369.590 or litigation, a party shall invoke a dispute resolution
procedure either (i) adopted by the Board pursuant to California Civil Code Section 1363.830, or
(ii) if the Board fails to adopt a procedure pursuant to California Civil Code Section 1363.830,
then in accordance with California Civil Code Section 1363.840.
12.1.4 Legal Proceedings. Failure to comply with any of the terms of the Restrictions by any Person is grounds for relief which may include an action to recover damages,
injunctive relief, foreclosure of any lien, or any combination thereof; however, the procedures
established in Sections 1369.510 through 1369.590 of the California Civil Code and in Sections
12.1.1, 12.1.2 and 12.1.3 above must first be followed, if they apply.
12.1.5 Additional Remedies. The Board may adopt a schedule of reasonable fines or penalties which, in its reasonable discretion, the Board may assess against a Person for
the failure of such Person to comply with the Restrictions. Such fines or penalties may only be
assessed after Notice and Hearing. After Notice and Hearing, the Board may direct the officers
of the Association to Record a notice of noncompliance (if allowed by law) against a Lot owned by any Owner who has violated any provision of this Declaration. The notice shall include a legal description of the Lot and shall specify the provision of the Declaration that was violated,
the violation committed, and the steps required to remedy the noncompliance. Once the
noncompliance is remedied or the non-complying Owner has taken such other steps as
reasonably required by the Board, the Board shall direct the officers of the Association to Record a notice that the noncompliance has been remedied.
12.1.6 No Waiver. Failure to enforce any provision does not waive the right to
enforce that provision, or any other provision of this Declaration.
12.1.7 Right to Enforce. The Board and any Owner may enforce the Restrictions
as described in this Article, subject to Sections 1369.510 through 1369.590 of the California Civil Code. Each Owner has a right of action against the Association for the Association’s failure to comply with the Restrictions. Each remedy provided for in this Declaration is
cumulative and not exclusive or exhaustive.
12.1.8 Limit on Expenditures. The Association may not incur litigation
expenses, including attorneys’ fees, or borrow money to fund litigation, where the Association initiates legal proceedings or is joined as a plaintiff in legal proceedings, unless the Association first obtains the consent of sixty-seven percent (67%) of the Association voting power (excluding
the voting power of any Owner who would be a defendant in such proceedings), and, if
applicable, complies with the requirements of Sections 1369.510 through 1369.590 of the
California Civil Code. Such approval is not necessary if the legal proceedings are initiated (a) to
enforce the use restrictions contained in Article II, (b) to enforce the architectural and landscaping control provisions contained in Article V, (c) to collect any unpaid Assessments
levied pursuant to the Restrictions, (d) for a claim, the total value of which is less than Five
Hundred Thousand Dollars ($500,000), or (e) as a cross-complaint in litigation to which the
Association is already a party. If the Association decides to use or transfer reserve funds or
borrow funds to pay for any litigation, the Association must notify the Owners of the decision by mail. Such notice shall provide an explanation of why the litigation is being initiated or
defended, why operating funds cannot be used, how and when the reserve funds will be replaced
49
CT0217.CC&Rs-fair oaks.cln.docx
or the loan will be repaid, and a proposed budget for the litigation. The notice must state that the
Owners have a right to review an accounting for the litigation which will be available at the
Association’s office. The accounting shall be updated monthly.
12.2 Nonpayment of Assessments.
12.2.1 Delinquency. Assessments are delinquent if not paid within fifteen (15) days after the due date established by the Association. Assessments not paid within thirty (30)
days after the due date, plus all reasonable costs of collection (including attorneys’ fees) and late
charges bear interest at the maximum rate permitted by law commencing thirty (30) days after
the due date until paid. The Association may also require the delinquent Owner to pay a late charge in accordance with California Civil Code Section 1366(e)(2). The Association need not accept any tender of a partial payment of an Assessment and all costs and attorneys’ fees
attributable thereto. Acceptance of any such tender does not waive the Association’s right to
demand and receive full payment.
12.2.2 Creation and Release of Lien.
(a) Priority of Lien. All sums assessed in accordance with this Declaration constitute a lien on the assessed Lot prior and superior to (i) any declaration of
homestead Recorded after the Recordation of this Declaration, and (ii) all other liens, except (1)
all taxes, bonds, Assessments and other levies which, by law, would be superior thereto, and (2)
the lien or charge of any First Mortgage of Record (meaning any Recorded Mortgage with first priority or seniority over other Mortgages) made in good faith and for value and Recorded before the date on which the “Notice of Delinquent Assessment” (described in this Section) against the
assessed Lot was Recorded.
(b) Prerequisite to Creating Lien. Before the Association may place a
lien on an Owner’s Lot to collect a past due Assessment, the Association must comply with (i) the notification requirements of California Civil Code Section 1367.1(a) and (ii) the procedural requirements of California Civil Code Section 1367.1(c).
(c) Notice of Delinquent Assessment. The lien becomes effective on
Recordation by the Board or its authorized agent of a Notice of Delinquent Assessment ("Notice of Delinquent Assessment") securing the payment of any Assessment or installment thereof levied by the Association against any Lot Owner, as provided in Section 1367 of the California Civil Code. The Notice of Delinquent Assessment must identify (i) the amount of the
Assessment and other authorized charges and interest, including the cost of preparing and
Recording the Notice of Delinquent Assessment, (ii) the amount of collection costs incurred,
including reasonable attorneys’ fees, (iii) a sufficient description of the Lot that has been
assessed, (iv) the Association’s name and address, (v) the name of the Owner of the Lot that has been assessed, and (vi) if the lien is to be enforced by nonjudicial foreclosure, the name and
address of the trustee authorized by the Association to enforce the lien by sale. The Notice of
Delinquent Assessment must be signed by an authorized Association officer or agent and must
be mailed in the manner required by Section 2924b of the California Civil Code to the Owner of
record of the Lot no later than (10) calendar days after Recordation. The lien relates only to the individual Lot against which the Assessment was levied and not to the Properties as a whole.
50
CT0217.CC&Rs-fair oaks.cln.docx
(d) Exceptions. Special Assessments may not become a lien
enforceable by nonjudicial foreclosure against such Owner’s Lot.
(e) Release of Lien. Within twenty-one (21) days following (a)
payment of the full amount claimed in the Notice of Delinquent Assessment, or other satisfaction thereof, or (b) discovery by the Board that the lien was recorded in error, the Board shall cause to be Recorded a Notice of Satisfaction and Release of Lien ("Notice of Release") stating the
satisfaction and release of the amount claimed. The Board may require the Owner to pay a
reasonable charge for preparing and Recording the Notice of Release. Any purchaser or
encumbrancer who has acted in good faith and extended value may rely on the Notice of Release as conclusive evidence of the full satisfaction of the sums identified as owed in the Notice of Delinquent Assessment.
12.2.3 Enforcement of Liens. Except as otherwise provided herein and in any
applicable provisions of the California Civil Code, the Association may enforce the collection of
amounts due under this Declaration as follows:
(a) Judicial or Non-Judicial Foreclosure. If (i) the amount of a delinquent Assessment equals or exceeds eighteen hundred dollars ($1,800.00) (excluding
accelerated Assessments, late charges, fees and costs of collection, attorneys’ fees and interest)
or (ii) an Assessment is more than twelve (12) months past due, the Association may enforce
collection of the amount due by using judicial or nonjudicial foreclosure, provided that the Association must comply first with the requirements of Section 1367.4(c) of the California Civil Code. The foreclosure sale shall be conducted in accordance with the provisions of the
California Civil Code applicable to the exercise of powers of sale in Mortgages, or in any
manner permitted by law. The Association may sue to foreclose the lien if (a) at least thirty (30)
days have elapsed since the date on which the Notice of Delinquent Assessment was Recorded and (b) at least ten (10) days have elapsed since a copy of the Notice of Delinquent Assessment was mailed to the Owner affected thereby. The Association may bid on the Lot at foreclosure
sale, and acquire and hold, lease, mortgage and convey the same. On completion of the
foreclosure sale, the Association or the purchaser at the sale may file suit to secure occupancy of
the defaulting Owner’s Lot, and the defaulting Owner shall be required to pay the reasonable rental value for the Lot during any period of continued occupancy by the defaulting Owner or any persons claiming under the defaulting Owner. Notwithstanding the foregoing, a nonjudicial
foreclosure by the Association to collect a debt for delinquent Assessments shall be subject to a
right of redemption. The redemption period shall expire ninety (90) days after the foreclosure
sale.
(b) Civil Action in Small Claims Court. If the amount of a delinquent Assessment does not exceed eighteen hundred dollars ($1,800.00) (excluding accelerated
Assessments, late charges, fees and costs of collection, attorneys’ fees and interest), the
Association may not enforce the collection of the amount due by judicial or nonjudicial
foreclosure, but may collect such amount by a civil action in small claims court pursuant to
Sections 116.110 et seq. of the California Code of Civil Procedure. The amount of a delinquent Assessment which may be recovered in small claims court may not exceed the jurisdictional
limits of the court and shall be the sum of (i) the amount owed as of the date of filing of the
complaint in the proceeding and (ii) in the discretion of the court, an additional amount equal to
51
CT0217.CC&Rs-fair oaks.cln.docx
the amount owed for the period from the date the complaint is filed until satisfaction of the
judgment, which total amount may include without limitation any reasonable late charges, fees
and costs of collection, attorneys’ fees and interest.
12.2.4 Other Legal Remedies. Subject to the limitations set forth in Section 1367.4 of the California Civil Code, the Association may enforce the collection of amounts due under this Declaration in any other manner provided by law. Any suit to recover a money
judgment does not affirm the adequacy of money damages. Any recovery resulting from a suit at
law or in equity initiated pursuant to this Section may include reasonable attorneys’ fees as fixed
by the court.
12.2.5 Priority of Assessment Lien. Mortgages Recorded before a Notice of Delinquent Assessment have lien priority over the Notice of Delinquent Assessment. Sale or
transfer of any Lot does not affect the Assessment lien, except that the sale or transfer of any Lot
pursuant to judicial or nonjudicial foreclosure of a First Mortgage extinguishes the lien of such
Assessments as to payments which became due before such sale or transfer. No sale or transfer relieves such Lot from liens for any Assessments thereafter becoming due. No Person who obtains title to a Lot pursuant to a judicial or nonjudicial foreclosure of the First Mortgage is
liable for the share of the Common Expenses or Assessments chargeable to such Lot which
became due before the acquisition of title to the Lot by such Person. Such unpaid share of
Common Expenses or Assessments is a Common Expense collectible from all Owners including such Person. The Association may take such action as is necessary to make any Assessment lien subordinate to the interests of the Department of Veterans Affairs of the State of California under
its Cal-Vet loan contracts as if the Cal-Vet loan contracts were First Mortgages of record.
12.2.6 Alternative Dispute Resolution. An Owner may dispute the Assessments
imposed by the Association if such Owner pays in full (a) the amount of the Assessment in dispute, (b) any late charges, (c) any interest, and (d) all fees and costs associated with preparing and filing a Notice of Delinquent Assessment (including mailing costs and attorneys’ fees not to
exceed the maximum amount allowed by law, and states by written notice that such amount is
paid under protest, and the written notice is mailed by certified mail not more than thirty (30)
days after Recording the Notice of Delinquent Assessment. On receipt of the written notice, the Association shall inform the Owner in writing that the dispute may be resolved through alternative dispute resolution as established in Civil Code Sections 1363.810 and 1369.510 et
seq. The right of any Owner to use alternative dispute resolution under this Section may not be
exercised more than two (2) times in any single calendar year, and not more than three (3) times
within any five (5) calendar years unless the Owner and the Association mutually agree to use alternative dispute resolution when this limit is exceeded. An Owner may request and be awarded through alternative dispute resolution reasonable interest to be paid by the Association
in the total amount paid under items (a) through (d) above, if it is determined that the Assessment
levied by the Association was not correctly levied.
12.2.7 Receivers. In addition to the foreclosure and other remedies granted the
Association in this Declaration, each Owner, by acceptance of a deed to such Owner’s Lot, conveys to the Association all of such Owner’s right, title and interest in all rents, issues and
profits derived from and appurtenant to such Lot, subject to the right of the Association to collect
and apply such rents, issues and profits to any delinquent Assessments owed by such Owner,
52
CT0217.CC&Rs-fair oaks.cln.docx
reserving to the Owner the right, before any default by the Owner in the payment of
Assessments, to collect and retain such rents, issues and profits as they may become due and
payable. On any such default the Association may, on the expiration of thirty (30) days
following delivery to the Owner of the “Notice of Delinquent Assessment” described in this Declaration, either in person, by agent or by receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness secured by the lien described in this
Declaration, (a) enter in or on and take possession of the Lot or any part thereof, (b) in the
Association’s name sue for or otherwise collect such rents, issues and profits, including those
past due and unpaid, and (c) apply the same, less allowable expenses of operation, to any delinquencies of the Owner, and in such order as the Association may determine. The entering upon and taking possession of the Lot, the collection of rents, issues and profits and the
application thereof, shall not cure or waive any default or notice of default under this Declaration
or invalidate any act done pursuant to such notice.
12.2.8 Enforcement of Bonded Obligations. If (a) the Common Area Improvements are not completed before issuance of a Final Subdivision Public Report for the Properties by the BRE, and (b) the Association is obligee under a bond or other arrangement
("Bond") required by the BRE to secure performance of Declarant’s commitment to complete
such Improvements, then the following provisions of this Section will be applicable:
(i) Board Vote. The Board shall consider and vote on the question of action by the Association to enforce the obligations under the Bond with respect to any such Improvement for which a Notice of Completion has not been filed within sixty (60)
days after the completion date specified for that Improvement in the Planned Construction
Statement appended to the Bond. If the Association has given an extension in writing for the
completion of any Common Area Improvement, then the Board shall be directed to consider and vote on the aforesaid question if a Notice of Completion has not been filed within thirty (30) days after the expiration of the extension.
(ii) Meeting of Members. A special meeting of Members for
the purpose of voting to override a decision by the Board not to initiate action to enforce the
obligations under the Bond or on the Board’s failure to consider and vote on the question shall be held no fewer than thirty-five (35) nor more than forty-five (45) days after the Board receives a petition for such a meeting signed by Members representing five percent (5%) of the
Association’s total voting power. A vote of a majority of the Association’s voting power
(excluding Declarant) to take action to enforce the obligations under the Bond shall be deemed to
be the decision of the Association, and the Board shall thereafter implement such decision by initiating and pursuing appropriate action in the Association’s name.
Neither the Association nor Owner shall make any claim against any Bond or delayed release of
any Bond for purposes that are not solely related to Declarant’s failure to complete the
obligations secured by such Bond.
53
CT0217.CC&Rs-fair oaks.cln.docx
ARTICLE XIII DURATION AND AMENDMENT
13.1 Duration. This Declaration shall continue in full force unless a declaration of
termination satisfying the requirements of an amendment to this Declaration established in Section 13.2 is Recorded.
13.2 Termination and Amendment.
13.2.1 Amendment Approval. Notice of the subject matter of a proposed
amendment to this Declaration in reasonably detailed form must be included in the notice of any
Association meeting or election at which a proposed amendment is to be considered. To be effective, a proposed amendment must be adopted by the vote, in person or by proxy, or written consent of Owners representing not less than (i) sixty-seven percent (67%) of the voting power
of each Class of the Association and (ii) sixty-seven percent (67%) of the Association’s voting
power represented by Owners other than Declarant, provided that the specified percentage of the
Association’s voting power necessary to amend a specific provision of this Declaration may not be less than the percentage of affirmative votes prescribed for action to be taken under the provision that is the subject of the proposed amendment. So long as there exists a Class B
Membership, and VA or FHA is making or insuring a Mortgage in the Properties, the prior
approval of VA or FHA (whichever is making or insuring a Mortgage) is required for any
amendment to the Declaration for the purpose of terminating the Declaration, dissolving the Association (except pursuant to merger or consolidation) or conveying all of the Common Property.
13.3 Dispute with Declarant Parties. Any disputes between (a) the Association or any
Owners, and (b) the Declarant or any director, officer, partner, employee, agent, representatives,
contractor, subcontractor, design professional or agent of the Declarant (collectively, "Declarant Parties") arising under this Declaration or relating to the Properties, shall be subject to the following provisions:
13.3.1 Construction Defect Disputes. Before the commencement of any legal
action by the Association or any Owner against a Declarant Party based on a claim for defects in
the design or construction of any Residence, Common Property or Improvements thereon, the Association or Owner must first comply with the requirements of Civil Code Section 1375 (even though Section 1375 does not apply to Owners by its terms). If the parties fail to resolve their
dispute in accordance with the procedures established under Civil Code Section 1375, the dispute
shall be resolved in accordance with subsection 13.3.3.
13.3.2 Other Disputes. Any other disputes arising under this Declaration or
otherwise between the Association, any Owner and a Declarant Party (except for action taken by the Association against Declarant for delinquent Assessments, and any action involving any
Common Property completion bonds) shall be resolved in accordance with Section 13.3.3. The
dispute resolution procedure in subsection 13.3.3 for resolution of disputes under this subsection
13.3.2 shall be deemed to satisfy the alternative dispute requirements of Civil Code Sections
1369.510 through 1369.590.
54
CT0217.CC&Rs-fair oaks.cln.docx
13.3.3 Judicial Reference. The following dispute resolution procedure is
implemented for the Properties in accordance with the philosophy and intent of the Federal
Arbitration Act (9 U.S.C. Sections 1-16) which is designed to encourage use of alternative
methods of dispute resolution that avoid costly and potentially lengthy traditional court proceedings. The dispute resolution procedure in this Section is to be interpreted and enforced as if it were a proceeding authorized by the Federal Arbitration Act. Parties interpreting this
Section shall follow the federal and state court rulings which provide that the Federal Arbitration
Act (1) is a congressional declaration of a liberal federal policy favoring arbitration agreements,
notwithstanding substantive or procedural state policies to the contrary, (2) requires that federal and state courts rigorously enforce agreements to arbitrate, and (3) requires that the scope of arbitrable issues be resolved in favor of arbitration. Any unresolved disputes shall be submitted
to general judicial reference pursuant to California Code of Civil Procedure Sections 638(1) and
641-645.1. The parties shall cooperate in good faith to ensure that all necessary and appropriate
parties are included in the judicial reference proceeding. Declarant shall not be required to participate in the judicial reference proceeding unless it is satisfied that all necessary and appropriate parties will participate. The parties shall each be responsible for their own attorneys’
fees. The referee’s fee and the cost of use of a courtroom or other space in which to hold the
proceeding, if applicable, shall be advanced equally by the Declarant Parties who are parties to
the Dispute. However, the referee shall have the power to reallocate the costs and expenses described in the preceding sentence among the parties to the proceeding in the referee’s final ruling.
The general referee shall have the authority to try all issues of fact and law, and to report
a statement of decision to the court. The parties shall use the procedures adopted by "JAMS" for
judicial reference (or any other entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the parties); however, the following rules and procedures shall apply in all cases unless the parties agree otherwise:
(1) The proceedings shall be heard in the County;
(2) The referee must be a retired judge or a licensed attorney with substantial
experience in relevant real estate matters;
(3) Any dispute regarding the selection of the referee shall be resolved by JAMS or the entity providing the reference services, or, if no entity is involved, by the court with
appropriate jurisdiction;
(4) The referee may require one or more pre-hearing conferences;
(5) The parties shall be entitled to discovery, and the referee shall oversee
discovery and may enforce all discovery orders in the same manner as any trial court judge;
(6) A stenographic record of the trial shall be made, provided that the record
shall remain confidential except as may be necessary for post-hearing motions and any appeals;
(7) The referee’s statement of decision shall contain findings of fact and
conclusions of law; and
55
CT0217.CC&Rs-fair oaks.cln.docx
(8) The referee shall have the authority to rule on all post-hearing motions in
the same manner as a trial judge.
The statement of decision of the referee on all issues considered by the referee is binding
on the Parties, and on filing of the statement of decision with the clerk of the court, or with the judge where there is no clerk, judgment may be entered thereon. The decision of the referee shall be appealable as if rendered by the court. This provision shall in no way be construed to
limit any valid cause of action which may be brought by any of the parties. The parties
acknowledge and accept that they are waiving their right to a jury trial.
13.3.4 Civil Code Sections 1369.510 through 1369.590. Section 13.3.3 governs only the resolution of disputes with Declarant Parties and shall not affect the subject matter of such disputes. Unless the subject matter of a dispute expressly involves enforcement of the
Restrictions, such dispute shall not be governed by the provisions of California Civil Code
Sections 1369.510 through 1369.590, or any successor statute. Enforcement of this Declaration
as between the Declarant Parties and any other party shall not entitle the prevailing party in any dispute to reasonable attorneys’ fees or costs.
13.3.5 Statutes of Limitation. Nothing in Section 13.3.3 shall be considered to
toll, stay, reduce or extend any applicable statute of limitations, provided, however, that
Declarant, the Declarant Parties, the Association and any Owner may commence a legal action
which in the good faith determination of that Person is necessary to preserve that Person’s rights under any applicable statute of limitations so long as no further steps in processing the action are taken except those authorized in Section 13.3.3.
13.3.6 Agreement to Dispute Resolution; Waivers of Jury Trial. DECLARANT,
THE ASSOCIATION AND EACH OWNER AGREE TO USE THE PROCEDURES
ESTABLISHED IN SECTION 13.3.3 TO RESOLVE ALL DISPUTES WHICH ARE COVERED UNDER SECTION 13.3.3 AND WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY OTHER MANNER. DECLARANT, THE ASSOCIATION, AND EACH
OWNER ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES AS
PROVIDED IN SECTION 13.3.3, THEY ARE GIVING UP THEIR RIGHT TO HAVE
DISPUTES TRIED BEFORE A JURY. THIS SECTION 13.3.6 AND SECTION 13.3.3 MAY NOT BE AMENDED WITHOUT DECLARANT’S PRIOR WRITTEN CONSENT.
13.4 Mortgagee Consent. In addition to the notices and consents required by Section
13.2.1, the Mortgagees of fifty-one percent (51%) of the First Mortgages on all the Lots in the
Properties who have requested the Association to notify them of proposed action requiring the
consent of a specified percentage of First Mortgagees must approve any amendment to this
Declaration which is of a material nature, as follows:
(a) Any amendment which affects or purports to affect the validity or priority
of Mortgages or the rights or protection granted to Mortgagees, insurers or guarantors of First
Mortgages.
56
CT0217.CC&Rs-fair oaks.cln.docx
(b) Any amendment which would require a Mortgagee after it has acquired a
Lot through foreclosure to pay more than its proportionate share of any unpaid Assessment or
Assessments accruing before such foreclosure.
(c) Any amendment which would or could result in a Mortgage being canceled by forfeiture, or in a Lot not being separately assessed for tax purposes.
(d) Any amendment relating to (i) the insurance provisions in Article VIII, (ii)
the application of insurance proceeds in Article IX, or (iii) the disposition of any money received
in any taking under condemnation proceedings.
(e) Any amendment which would subject any Owner to a right of first refusal or other such restriction, if such Lot is proposed to be transferred.
13.5 Termination Approval. Termination of this Declaration requires approval of the
Owners as provided in Section 13.2.1.
13.6 Notice to Mortgagees. Each Mortgagee of a First Mortgage on a Lot in the
Properties which receives proper written notice of a proposed amendment or termination of this Declaration with a return receipt requested is deemed to have approved the amendment or termination if the Mortgagee fails to submit a response to the notice within thirty (30) days after
the Mortgagee receives the notice.
13.7 Certificate. A copy of each amendment must be certified by at least two (2)
Association officers. The amendment becomes effective when a Certificate of Amendment is Recorded. The certificate, signed and sworn to by two (2) Association officers that the requisite number of Owners and Mortgagees have approved the amendment, when Recorded, is
conclusive evidence of that fact. The Association shall keep in its files for at least four (4) years
the record of all such approvals. The certificate reflecting any termination or amendment which
requires the written consent of any of the Mortgagees of First Mortgages must include a certification that the requisite approval of such First Mortgagees was obtained.
ARTICLE XIV GENERAL PROVISIONS
14.1 Mergers or Consolidations. In a merger or consolidation of the Association with
another association, its properties, rights and obligations may, by operation of law, be transferred to another surviving or consolidated association or, alternatively, the properties, rights and obligations of another association may, by operation of law, be added to the properties, rights
and obligations of the Association as a surviving corporation pursuant to a merger. The
surviving or consolidated association may administer and enforce the covenants, conditions and
restrictions established by this Declaration governing the Properties, together with the covenants
and restrictions established on any other property, as one (1) plan.
14.2 No Public Right or Dedication. Nothing in this Declaration is a gift or dedication
of all or any part of the Properties to the public, or for any public use.
57
CT0217.CC&Rs-fair oaks.cln.docx
14.3 Notices. Any notice permitted or required to be delivered under this Declaration
must be in writing and may be delivered either personally, by mail or by Federal Express (or
similar overnight delivery service). If delivery is made by personal delivery, it shall be deemed
to have been delivered upon delivery of such notice if addressed to any Person at the most recent address furnished by such Person to the Association or, if no such address has been furnished, to the street address of such Person’s Residence (as applicable, the "Authorized Address"),
whether or not the Person to whom such notice is addressed accepts such notice or is at the
Authorized Address to which such notice is delivered, so long as such delivery is certified in
writing by the Person making such delivery. Personal delivery of such notice to one (1) or more Co-owners, or any general partner of a partnership owning a Residence, constitutes delivery to all owners. Personal delivery of such notice to any officer or agent for the service of process on
a corporation or limited liability company constitutes delivery to the corporation or limited
liability company. Except for notice of a meeting of Owners or of the Board, in which case the
notice provisions of the Bylaws control, any notice sent by mail shall be deemed delivered three (3) business days after a copy of the same has been deposited in the United States mail, certified, postage prepaid, addressed to any Person at such Person’s Authorized Address. If delivery is
made by Federal Express (or similar overnight delivery service) the notice shall be deemed
delivered upon delivery to the Authorized Address, whether or not the Person to whom it is
addressed accepts such delivery or is at the Authorized Address to which such notice is delivered, so long as Federal Express or such delivery service certifies that delivery was attempted and in the case where the Person to whom the notice was addressed was not at the
Authorized Address, that notice of the attempted deliver was left at the Authorized Address. A
Person’s Authorized Address may be changed from time to time by notice in writing to the
Association; provided that any notice of change of an Authorized Address shall not apply to notices sent, but not necessarily delivered, prior to delivery of the notice of change in the Authorized Address to the Association. In addition, the Association shall not be obligated to
accept changes in an Authorized Address if it reasonably believes that such changes are being
pursued in whole or in part to avoid or frustrate the delivery of notices. Any notice to be given
to the Association may be delivered personally to any member of the Board, or sent by United States mail, certified, postage prepaid, addressed to the Association at such address as may be fixed and circulated to all Owners.
14.4 Constructive Notice and Acceptance. Every Person who owns, occupies or
acquires any right, title, estate or interest in or to any Lot or other portion of the Properties does
consent and agree, and shall be conclusively deemed to have consented and agreed, to every limit, restriction, easement, reservation, condition and covenant contained in this Declaration, whether or not any reference to these restrictions is in the instrument by which such person
acquired an interest in the Properties.
ARTICLE XV
DECLARANT’S RIGHTS AND RESERVATIONS
If there is a conflict between any other portion of the Restrictions and this Article, this Article shall control.
15.1 Construction Rights. Declarant has the right to (a) subdivide or re-subdivide the
Properties, (b) complete or modify Improvements to and on the Common Property or any portion
58
CT0217.CC&Rs-fair oaks.cln.docx
of the Properties owned solely or partially by Declarant, (c) alter Improvements and Declarant’s
construction plans and designs, (d) modify Declarant’s development plan for the Properties and
the Annexable Territory, including designating and redesignating Phases and constructing
Residences of larger or smaller sizes, values, and of different types, and (e) construct such additional Improvements as Declarant considers advisable in the course of development of the Properties so long as any Lot in the Properties or the Annexable Territory remains unsold.
15.2 Sales and Marketing Rights. Declarant’s rights under this Declaration include,
but are not limited to, the right to install and maintain such structures, displays, signs, billboards,
flags and sales offices as may be reasonably necessary to conduct Declarant’s business of completing the work and disposing of the Lots or the Annexable Territory by sale, resale, lease or otherwise. Declarant may use any Lots owned or leased by Declarant in the Properties as
model home complexes, real estate sales offices or leasing offices.
15.3 Creating Additional Easements. At any time before acquisition of title to a Lot in
the Properties by a purchaser from Declarant, Declarant has the right to establish on that Lot additional licenses, easements, reservations and rights-of-way to itself, to utility companies, or to others as Declarant determines are reasonably necessary to the Properties’ proper development
and disposal.
15.4 Architectural Rights. Declarant and any Person to whom Declarant may assign
all or a portion of its exemption under this Declaration need not seek or obtain Design Review Committee approval of any Improvements constructed anywhere on the Properties by Declarant or such Person. Declarant may exclude portions of the Properties from jurisdiction of the Design
Review Committee in the applicable Notice of Addition or Supplemental Declaration.
Declarant, may, at its option, establish an additional design review committee for any area
exempted from the jurisdiction of the Design Review Committee.
15.5 Use Restriction Exemption. Declarant and any Person to whom Declarant may assign all or a portion of its exemption under this Declaration is exempt from the restrictions
established in Article II.
15.6 Assignment of Rights. Declarant may assign its rights under the Restrictions to
any successor in interest to any portion of Declarant’s interest in the Properties by a written assignment.
15.7 Amendments. No amendment may be made to this Article without the prior
written approval of Declarant. At any time before the first Close of Escrow in Phase 1,
Declarant may unilaterally amend or terminate this Declaration by Recording a written
instrument which effects the amendment or termination and is signed and acknowledged by
Declarant. For so long as Declarant owns any portion of the Properties or the Annexable Territory, Declarant may unilaterally amend this Declaration by Recording a written instrument
signed by Declarant to (a) conform this Declaration to the rules, regulations or requirements of
VA, FHA, BRE, FNMA, GNMA or FHLMC, (b) amend Article III, (c) amend any of the
exhibits to this Declaration that depict portions of the Properties in a Phase in which
Assessments have not commenced, (d) comply with any local, state or federal laws or regulations, and (e) correct any typographical errors.
59
CT0217.CC&Rs-fair oaks.cln.docx
15.8 Exercise of Rights. Each Owner grants an irrevocable, special power of attorney
to Declarant to execute and Record all documents and maps necessary to allow Declarant to
exercise its rights under this Article.
15.9 Use of Properties. Declarant and its prospective purchasers of Lots are entitled to the nonexclusive use of the Common Property and any recreational facilities thereon, without further cost for access, ingress, egress, use or enjoyment, to (a) show the Properties to
prospective purchasers, (b) dispose of the Properties as provided in this Declaration, and (c)
develop and sell the Annexable Territory. Declarant, and prospective purchasers, are also
entitled to the nonexclusive use of any portions of the Properties which are private streets, drives and walkways for ingress, egress and accommodating vehicular and pedestrian traffic to and from the Properties and the Annexable Territory. The use of the Common Area by Declarant
may not unreasonably interfere with the use thereof by the other Owners.
15.10 Participation in Association. The Association shall provide Declarant with
written notice of the transfer of any Lot and all notices and other documents to which a Mortgagee is entitled pursuant to this Declaration, provided that Declarant shall be provided such notices and other documents without making written request therefor. Commencing on the date
on which Declarant no longer has an elected representative on the Board, and continuing until
the later to occur of the date on which Declarant (a) no longer owns a Lot in the Properties or (b)
cannot unilaterally annex property to the Properties, the Association shall provide Declarant with written notice of all meetings of the Board as if Declarant were an Owner and Declarant shall be entitled to have a representative present at all such Board meetings ("Declarant’s
Representative"). The Declarant’s Representative shall be present in an advisory capacity only
and shall not be a Board member or have any right to vote on matters coming before the Board.
15.11 Declarant Approval of Actions.
15.11.1 General Rights. Until Declarant no longer owns a portion of the Properties or the Annexable Territory, Declarant’s prior written approval is required for any
amendment to the Restrictions which would impair or diminish Declarant’s rights to complete
the Properties or the Annexable Territory or sell or lease dwellings therein.
15.11.2 Limit on Actions. Until Declarant no longer owns any Lots in the Properties, or the Annexable Territory, the following actions, before being undertaken by the Association, must first be approved in writing by Declarant:
(a) Any amendment or action requiring the approval of First
Mortgagees;
(b) The annexation to the Properties of real property other than the
Annexable Territory pursuant to Section 16.2;
(c) The levy of a Capital Improvement Assessment for the
construction of new facilities not constructed on the Common Area by Declarant;
(d) Any significant reduction of Association maintenance or other
services; or
60
CT0217.CC&Rs-fair oaks.cln.docx
(e) Any modification or termination of any provision of the
Restrictions benefiting Declarant.
ARTICLE XVI
ANNEXATION OF ADDITIONAL PROPERTY
Additional real property may be annexed to Phase 1 and such additional real property may become subject to this Declaration by any of the following methods:
16.1 Additions by Declarant. Declarant may add the Annexable Territory to the
Properties and bring such added territory under the general plan of this Declaration without the
approval of the Association, the Board, or Members, so long as Declarant owns any portion of the Annexable Territory.
16.2 Other Additions. Additional real property may be annexed to the Properties and
brought under the general plan of this Declaration upon the approval by vote or written consent
of Members entitled to exercise no less than two-thirds (2/3) of the Association’s voting power.
16.3 Rights and Obligations – Added Territory. Subject to the provisions of Section 16.4, when a Notice of Addition containing the provisions required by this Section is Recorded, all provisions in this Declaration will apply to the real property described in such Notice of
Addition (the "Added Territory") in the same manner as if the real property were originally
covered by this Declaration. Thereafter, the rights, powers and responsibilities of the parties to
this Declaration with respect to the Added Territory will be the same as with respect to the property originally covered by this Declaration, and the rights, powers and responsibilities of the Owners, lessees and occupants of Lots in the Added Territory, as well as in the property
originally subject to this Declaration, will be the same as if the Added Territory were originally
covered by this Declaration. After the first day of the month following the first Close of Escrow
in the Added Territory, the Owners of Lots located in the Added Territory shall share in the payment of Assessments to the Association to meet Common Expenses of the entire Properties. Voting rights attributable to the Lots in the Added Territory do not vest until Annual
Assessments have commenced on such Lots.
16.4 Notice of Addition. The additions authorized under Sections 16.1 and 16.2 must
be made by Recording a Notice of Addition which will extend the general plan of this Declaration to such Added Territory. The Notice of Addition for any addition under Section 16.1 must be signed by Declarant. The Notice of Addition for any addition under Section 16.2
must be signed by at least two (2) officers of the Association to certify that the Owner approval
required under Section 16.2 was obtained. The Recordation of said Notice of Addition
effectuates the annexation of the real property described in the Notice of Addition as Added
Territory. On Recordation of the Notice of Addition, the Added Territory will constitute a part of the Properties, become subject to this Declaration and covered by the general plan of
covenants, conditions, restrictions, reservation of easements and equitable servitudes contained
in this Declaration, and become subject to the Association’s functions, powers and jurisdiction;
and the Owners of Lots in the Added Territory will automatically acquire Membership. The
Notice of Addition may contain a Supplemental Declaration of the covenants, conditions, restrictions, reservation of easements and equitable servitudes in this Declaration if necessary to
61
CT0217.CC&Rs-fair oaks.cln.docx
reflect the different character, if any, of the Added Territory, or as Declarant deems appropriate
in the development of the Added Territory, and as are not inconsistent with the general plan of
this Declaration. In no event, however, may such Notice of Addition or Supplemental
Declaration revoke, modify or add to the covenants, conditions, restrictions, reservation of easements, or equitable servitudes established by this Declaration as the same pertain to the real property originally covered by this Declaration. Concurrently with the first Close of Escrow for
the sale of a Lot in any Phase annexed to the Properties in accordance herewith, Declarant shall
pay to the Association an appropriate amount (as determined by BRE) for reserves for
replacement or deferred maintenance of the Common Area in such Phase required by or arising out of the use and occupancy of the Residences in such Phase under a rental program conducted by Declarant if such rental program was in effect for at least one (1) year before such first Close
of Escrow.
16.5 Deannexation and Amendment. Declarant may amend a Notice of Addition or
delete all or a portion of a Phase from coverage of this Declaration and the Association’s jurisdiction so long as Declarant is the owner of all of such Phase and (a) an amending instrument or a Notice of Deletion of Territory, as applicable, is Recorded in the same manner as
the applicable Notice of Addition was Recorded, (b) Declarant has not exercised any Association
vote with respect to any portion of such Phase, (c) Assessments have not yet commenced with
respect to any portion of such Phase, (d) Close of Escrow has not occurred for the sale of any Lot in such Phase, (e) the Association has not made any expenditures or incurred any obligations with respect to any portion of such Phase.
ARTICLE XVII
RIGHTS OF CITY
17.1 General Enforcement by the City. The City shall have the right, but not the obligation, to enforce those protective covenants set forth in this Declaration in favor of, or in which the City has an interest.
17.2 Notice and Amendment. A copy of any proposed amendment shall be provided to
the City in advance. If the proposed amendment affects the City, City shall have the right to
disapprove. A copy of the final approved amendment shall be transmitted to City within thirty (30) days for the official record.
17.3 Failure of Association to Maintain Common Area and Association Maintenance
Areas. In the event that the Association fails to maintain the Common Area and/or the
Association Maintenance Areas as provided in Article IV, the City shall have the right, but not
the duty, to perform the necessary maintenance. If the City elects to perform such maintenance,
the City shall give written notice to the Association, with a copy thereof to the Owners, setting forth with particularity the maintenance which the City finds to be required and requesting the
same be carried out by the Association within a period of thirty (30) days from the giving of such
notice. In the event that the Association fails to carry out such maintenance of the Common
Area and/or Association Maintenance Areas within the period specified by the City's notice, the
City shall be entitled to cause such work to be completed and shall be entitled to reimbursement with respect thereto from the Owners as provided herein.
62
CT0217.CC&Rs-fair oaks.cln.docx
17.4 Special Assessments Levied by the City. In the event the City has performed the
necessary maintenance to either Common Area and/or Association Maintenance Areas, the City
shall submit a written invoice to the Association for all costs incurred by the City to perform
such maintenance of the Common Area and/or Association Maintenance Areas. The City shall provide a copy of such invoice to each Owner, together with a statement that if the Association fails to pay such invoice in full within the time specified, the City will pursue collection against
the Owners pursuant to the provisions of this Section. Said invoice shall be due and payable by
the Association within twenty (20) days of receipt by the Association. If the Association shall
fail to pay such invoice in full within the period specified, payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to six percent (6%) of the amount of the invoice. Thereafter the City may pursue collection from the Association by means of any
remedies available at law or in equity. Without limiting the generality of the foregoing, in
addition to all other rights and remedies available to the City, the City may levy a special
assessment against the Owners of each Lot for an equal prorata share of the invoice, plus the late charge. Such special assessment shall constitute a charge on the land and shall be a continuing lien upon each Lot against which the special assessment is levied. Each Owner hereby vests the
City with the right and power to levy such special assessment, to impose a lien upon their
respective Lot and to bring all legal actions and/or to pursue lien foreclosure procedures against
any Owner and his/her respective Lot for purposes of collecting such special assessment in accordance with the procedures set forth in Section 12.2 of this Declaration.
This Declaration is dated for identification purposes __________________, 20__.
"DECLARANT":
CWV LA COSTA 49 LLC, a Delaware limited liability company
By:
Its:
63
CT0217.CC&Rs-fair oaks.cln.docx
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 2013, before me, , Notary Public, personally appeared
, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. WITNESS my hand and official seal.
Notary Public
In and For Said County and State
64
CT0217.CC&Rs-fair oaks.cln.docx
SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in and under that certain Deed
of Trust dated ______________, ____, and recorded on ______________, ____ in the Official Records of ____________ County, California, as Instrument No. _________________, which Deed of Trust is between ________________________________________, as Trustor,
_________________________________________________________, as Trustee, and
____________________________________, as Beneficiary, hereby expressly subordinates such
Deed of Trust and its beneficial interests thereunder to the foregoing Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for ________________________ ("Declaration"), to any Notice of Addition of Territory recorded pursuant to the provisions of
Article XVI of the Declaration ("Notice"), and to all easements to be conveyed to the
Association in accordance with the Declaration or any Notice. By executing this Subordination,
the undersigned agrees that should the undersigned acquire title to all or any portion of the Properties by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the undersigned will acquire title subject to the
provisions of the Declaration and any applicable Notice, which shall remain in full force and
effect.
Dated: _______________, 200__ , a
By:
Its:
By:
Its: "Beneficiary"
65
CT0217.CC&Rs-fair oaks.cln.docx
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 2013, before me, , Notary Public, personally appeared
, who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct. WITNESS my hand and official seal.
Notary Public
In and For Said County and State
EXHIBIT "A"
ARTICLES OF INCORPORATION OF THE ASSOCIATION
EXHIBIT "B"
BYLAWS OF THE ASSOCIATION
EXHIBIT "C"
LEGAL DESCRIPTION OF ANNEXABLE TERRITORY
EXHIBIT "D"
DRAWINGS SHOWING LOCATION OF
ASSOCIATION MAINTENANCE AREAS IN PHASE 1
EXHIBIT "E"
HMP LIST OF EXOTIC SPECIES
EXHIBIT "F"
FIRE BUFFER ZONES
EXHIBIT "G"
PRIVATE STORM DRAIN SYSTEM