HomeMy WebLinkAboutCT 05-12; Ocean Street Residences; Tentative Map (CT) (3)RECORDING REQUESTED BY:
FIRST AMERICAN TITLE COMPANY
WHEN RECORDED, MAIL TO:
JACKSONIDeMARCOITIDUS
!PECKENPAUGH (SLM)
2030 Main Street, Suite 1200
Irvine, CA 92614
(Space Above for Recorder's Use)
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
OCEAN STREET
NOTE: CERTAIN DISPUTES ARISING UNDER THIS DECLARATION, INCLUDING
DISPUTES CONCERNING THE DESIGN OR CONSTRUCTION OF THE
COMMUNITY, SHALL BE SUBMITTED TO JUDICIAL REFERENCE OR BINDING
ARBITRATION IN ACCORDANCE WITH SECTION 12.4.
If this document contains any restriction based on race, color, religion, sex,
gender, gender identity, gender expression, sexual orientation, familial status,
marital status, disability, genetic information, national origin, source of
income as defined in subdivision (p) of Section 12955, or ancestry, that
restriction violates state and federal fair housing laws and is void, and may be
removed pursuant to Section 12956.2 of the Government Code. Lawful
restrictions under state and federal law on the age of occupants in senior
housing or housing for older persons shall not be construed as restrictions
based on familial status.
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TABLE OF CONTENTS
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
ARTICLE 1
1.1
1.2
ARTICLE2
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
2.23
2.24
FOR
OCEAN STREET
Page
DEFINITIONS AND INTERPRETATION ..................................................... 2
Definitions ......................................................................................................... 2
Interpretation ................................................................................................... 11
MAINTENANCE COVENANTS AND USE RESTRICTIONS ................... 13
Repair and Maintenance .................................................................................. 13
Water Meters ................................................................................................... 17
Single-Family Dwelling .................................................................................. 18
Further Subdivision ......................................................................................... 18
Leasing and Rental .......................................................................................... 18
Resale .............................................................................................................. l9
Business and Commercial Activities .............................................................. 19
Nuisances ........................................................................................................ 20
Signs ................................................................................................................ 22
Parking and Vehicular Restrictions ................................................................. 23
Storage Spaces ................................................................................................ 26
Owner Maintenance of Exclusive Use Areas .................................................. 27
Animal Regulations ......................................................................................... 27
Antenna and Satellite Dish Restrictions .......................................................... 28
Trash ................................................................................................................ 29
Owner-Installed Improvements ....................................................................... 29
Mechanics' Liens ............................................................................................ 30
Drainage .......................................................................................................... 30
Water Supply System ...................................................................................... 31
View Obstructions ........................................................................................... 31
Rights ofDisabled ........................................................................................... 32
Temporary Buildings ...................................................................................... 32
Prohibited Residential Uses ............................................................................ 32
Association Property ....................................................................................... 32
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2.25
2.26
ARTICLE3
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
ARTICLE4
4.1
4.2
4.3
4.4
4.5
4.6
ARTICLE 5
5.1
5.2
TABLE OF CONTENTS
(continued)
Page
Mineral Exploration and Extraction ................................................................ 32
Post-Tension Concrete Slabs ........................................................................... 32
DISCLOSURES .............................................................................................. 32
No Representations or Warranties .................................................................. 33
Access Facilities .............................................................................................. 33
Electric Power Lines, Wireless Communications Facilities, and Human
Health .............................................................................................................. 33
Urban Environment ......................................................................................... 34
Surrounding Uses ............................................................................................ 34
Beach and Lagoon Access .............................................................................. 35
Property Lines ................................................................................................. 3 5
Sewer Backflow Prevention Valve ................................................................. 35
Utility Improvements ...................................................................................... 35
Mold ................................................................................................................ 36
Radon .............................................................................................................. 36
Supplemental Real Property Taxes ................................................................. 37
Megan's Law Notice ....................................................................................... 37
Change in Plans ............................................................................................... 3 8
No Enhanced Protection Agreement.. ............................................................. 38
Additional Provisions ...................................................................................... 38
THE ASSOCIATION ..................................................................................... 38
General Duties and Powers ............................................................................. 38
Specific Duties and Powers ............................................................................. 38
Standard of Care, Non-Liability ...................................................................... 45
Membership .................................................................................................... 46
Voting Rights .................................................................................................. 48
Unsegregated Real Property Taxes ................................................................. 49
DESIGN REVIEW COMMITTEE ................................................................. 50
Members of Committee ................................................................................... 50
Powers and Duties ........................................................................................... 50
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5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
ARTICLE6
6.1
6.2
6.3
6.4
ARTICLE 7
7.1
7.2
7.3
7.4
7.5
7.6
7.7
ARTICLES
8.1
8.2
8.3
8.4
8.5
8.6
8.7
8.8
TABLE OF CONTENTS
(continued)
Page
Review of Plans and Specifications ................................................................ 50
Meetings and Actions of the Design Review Committee ............................... 54
No Waiver of Future Approvals ...................................................................... 54
Compensation of Members ............................................................................. 54
Inspection ofWork .......................................................................................... 54
Variances ......................................................................................................... 55
Pre-Approvals ................................................................................................. 55
Appeals ............................................................................................................ 55
PROPERTY EASEMENTS AND RIGHTS ................................................... 56
Easements ........................................................................................................ 56
Additional Easements ...................................................................................... 58
Delegation ofUse ............................................................................................ 58
Right ofEntry .................................................................................................. 58
ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS ........... 59
Personal Obligation to Pay Assessments ........................................................ 59
Association Maintenance Funds ..................................................................... 59
Purpose of Assessments .................................................................................. 59
Waiver of Use ................................................................................................. 60
Limits on Annual Assessment Increases ......................................................... 60
Annual Assessments ....................................................................................... 61
Capital Improvement Assessments ................................................................. 62
INSURANCE .................................................................................................. 62
Duty to Obtain Insurance; Types .................................................................... 62
Waiver of Claim Against Association ............................................................. 64
Right and Duty of Owners to Insure ............................................................... 64
Notice of Expiration Requirements ................................................................. 64
Trustee For Policies ......................................................................................... 64
Actions as Trustee ........................................................................................... 65
Annual Insurance Review ............................................................................... 65
Required Waiver ............................................................................................. 65
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ARTICLE9
9.1
9.2
9.3
9.4
ARTICLE 10
10.1
10.2
10.3
10.4
10.5
10.6
10.7
ARTICLE 11
11.1
11.2
ARTICLE 12
12.1
12.2
12.3
12.4
ARTICLE 13
13.1
13.2
ARTICLE 14
14.1
14.2
14.3
14.4
TABLE OF CONTENTS
(continued)
Page
DESTRUCTION OF IMPROVEMENTS ...................................................... 66
Restoration of the Community ........................................................................ 66
Sale of Community and Right to Partition ...................................................... 66
Interior Damage .............................................................................................. 67
Notice to Owners and First Mortgagees ......................................................... 67
EMINENT DOMAIN ..................................................................................... 67
Property Condemnation .................................................................................. 67
Condemnation of Association Property .......................................................... 68
Condemnation of Exclusive Use Area ............................................................ 68
Condemnation of Condominiums ................................................................... 68
Condemnation of Portions of Units ................................................................ 68
Portions of A wards in Condemnation not Compensatory for Value of
Real Property ................................................................................................... 69
Notice to Owners and First Mortgagees ......................................................... 69
RIGHTS OF MORTGAGEES ........................................................................ 69
General Protections ......................................................................................... 69
Additional Rights ............................................................................................ 69
ENFORCEMENT AND DISPUTE RESOLUTION ...................................... 70
Enforcement of Governing Documents .......................................................... 70
Delinquent Assessments ................................................................................. 72
Enforcement of Bonded Obligations ............................................................... 77
Disputes with Declarant Parties ...................................................................... 78
DURATION AND AMENDMENT ............................................................... 84
Duration ........................................................................................................... 84
Termination and Amendment ......................................................................... 84
GENERAL PROVISIONS ............................................................................. 87
Mergers or Consolidations .............................................................................. 87
No Public Right or Dedication ........................................................................ 87
Notices ............................................................................................................. 87
Constructive Notice and Acceptance .............................................................. 88
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ARTICLE 15
15.1
15.2
15.3
15.4
15.5
15.6
15.7
15.8
15.9
15.10
15.11
ARTICLE 16
16.1
16.2
16.3
16.4
16.5
TABLE OF CONTENTS
(continued)
Page
DECLARANT'S RIGHTS AND RESERVATIONS ..................................... 88
Construction Rights ......................................................................................... 88
Sales and Marketing Rights ............................................................................ 89
Creating Additional Easements ....................................................................... 89
Architectural Rights ........................................................................................ 89
Developer Exemption ...................................................................................... 90
Assignment ofRights ...................................................................................... 90
Amendment to Article ..................................................................................... 90
Power of Attorney ........................................................................................... 90
Participation in Association ............................................................................ 90
Declarant Approval of Actions ....................................................................... 91
Marketing Name .............................................................................................. 91
ANNEXATION OF ADDITIONAL PROPERTY ......................................... 92
Additions By Declarant... ................................................................................ 92
Other Additions ............................................................................................... 92
Added Area Rights and Obligations ............................................................... 92
Notice of Addition ........................................................................................... 92
De-Annexation and Amendment. .................................................................... 93
LENDER SUBORDINATION
EXHIBIT A LEGAL DESCRIPTION OF ANNEXABLE AREA
EXHIBITB ARTICLES OF INCORPORATION OF THE ASSOCIATION
EXHIBIT C BYLAWS OF THE ASSOCIATION
EXHIBIT D SPECIFIC MAINTENANCE OBLIGATIONS
**[EXHIBIT E LOCATIONS OF ASSIGNED PARKING SPACES]**
**[EXHIBIT F LOCATIONS OF ASSIGNED STORAGE SPACES]**
**[EXHIBIT G ELEMENTS OF VARIABLE ANNUAL ASSESSMENTS]**
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DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
OCEAN STREET
This Declaration of Covenants, Conditions, Restrictions and Reservation of Easements is
made by OCEAN STREET 8 OWNER, LLC, a Delaware limited liability company. The
capitalized terms used in the Preamble below are defined in Article I.
PREAMBLE
A. Declarant is the owner of real property ("Phase 1 ") in the City of Carlsbad,
County of San Diego County, State of California, described as follows:
That portion of Lot I of Tract No. CT 05-12, as shown on a
subdivision map Recorded in Book __ , at Pages to __ ,
inclusive, of Maps, in the Office of the San Diego County
Recorder, which portion is shown and described in that certain
Condominium Plan for Ocean Street (Phase I), Recorded as
Instrument No. , of Official Records.
The Condominium Plan referenced above depicts Units ___ _
Association Property and Common Area.
B. In accordance with California Civil Code Section 1353(a)(l), Declarant intends to
create a "common interest development" within the meaning of California Civil Code
Section 1351(c), which is also a "condominium project," as defined in California Civil Code
Section 1351(£), and a "subdivision," as defined in California Business and Professions Code
Section II 000. Declarant intends to impose mutually beneficial restrictions under a general plan
for subdividing, maintaining, improving and selling the Condominiums in the Community for the
benefit of all the Condominiums pursuant to the Davis-Stirling Common Interest Development
Act. The general plan of development will include forming an owners association under the
California Non-Profit Mutual Benefit Corporations Law to which will be assigned the powers of
(I) owning, maintaining and administering the Association Property, (2) administering and
enforcing the Governing Documents, and (3) collecting and disbursing the Assessments and
charges hereinafter created. Declarant will cause the corporation to be formed to exercise such
powers, as required by California Civil Code Section 1363. The Members of the Association
will be the Owners in the Community, as further provided in Article 4 herein.
C. The Community is to be held, conveyed, encumbered, leased, used and improved
subject to covenants, conditions, restrictions and easements in this Declaration, all of which are
in furtherance of a plan for subdividing, maintaining, improving and selling the Condominiums
in the Community. All provisions of this Declaration are imposed as equitable servitudes on the
Community. All covenants, conditions, restrictions and easements in this Declaration shall run
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with and burden the Community, and be binding on and for the benefit of all of the Community
and all Persons acquiring any interest in the Community.
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 Area. Annexable Area means the real property described
in Exhibit A which may be made subject to this Declaration pursuant to Article 16. Any
references in this Declaration to Annexable Area are references to the Annexable Area as a
whole and to portions thereof.
1.1.2 Annual Assessment. Annual Assessment means a charge against the
Owners and their Condominiums representing their share of the Common Expenses. The Annual
Assessment is a regular assessment as described in California Civil Code Section 1366.
1.1.3 Articles of Incorporation. Articles of Incorporation means the
Articles of Incorporation of the Association as currently in effect. A copy of the initial filed
Articles is attached for informational purposes as Exhibit B; provided, however, that the
Association may amend the Articles of Incorporation from time to time without need to amend
this Declaration.
1.1.4 Assessment. Assessment means any Annual Assessment, Capital
Improvement Assessment, Reconstruction Assessment and Special Assessment.
1.1.5 Association. Association means **[Ocean Street Community
Association}**, a California nonprofit corporation (formed pursuant to the California Nonprofit
Mutual Benefit Corporation Law or successor statutes), and its successors-in-interest. The
Association is an "association" as defined in California Civil Code Section 135l(a).
1.1.6 Association Maintenance Funds. Association Maintenance Funds
means the accounts created for Association receipts and disbursements pursuant to Article 7.
1.1.7 Association Property. Association Property means real or personal
property designated by the Declarant or the Board as Association Property and therefore made
subject to the restrictions on Association Property established in the Governing Documents. Any
references in this Declaration to Association Property are references to the Association Property
as a whole and to portions thereof.
(a) Generally. The Association Property in a Phase consists of all
the real property described as Association Property in the Condominium Plan for the Phase
(except for the Units and the Common Area shown on that Plan), the Improvements described
below, and easements reserved for the Association as described below. Association Property
Improvements and easements in the Community consist of the following:
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(I) Condominium Building, Land and Related
Improvements. Each Condominium Building and the land below and surrounding the
Condominium Building (but excluding the Units and Common Area shown in the applicable
Condominium Plan), the components of the Condominium Building as listed in Section 1.1.18,
and related Improvements such as exterior lighting fixtures and utility cabinets on building
exteriors, facilities for the delivery of utilities to the Community (except for outlets that are
located in the Unit), and cables and related equipment for the delivery of Telecommunications
Services to the Community (except for any outlets or connectors that protrude into the airspace
of the Unit).
(2) Other Improvements. Entry gates and other access
facilities, parking garage, private driveway, driveway lighting, exterior parking spaces, perimeter
landscaping, other landscaped and irrigated areas, recreational building, swimming pool and spa,
water features, courtyard, walkways, address identification signs, walls, fences, drainage
facilities, water quality treatment facilities, private storm drains, private sewer and sewer pump
station.
(3) Easements Granted to or Reserved for the Association.
In addition, Association Property includes all of the easements described in the Governing
Documents, or in the Map or in other Recorded instruments and granted to the Association,
provided, however, the Association shall only have the responsibility for maintenance of such
easements where such maintenance responsibility is given to the Association.
(b) Association Property in Phase I. The Association Property in
Phase I consists of all the real property described as Association Property in the Condominium
Plan for Phase I (except for the Units and the Common Area shown on that Plan), and the
Improvements and easements described in subparagraph (a) above as applicable to the real
property in Phase I.
(c) Association Property in Future Phases. The Association
Property in future phases shall consist of the items described above as applicable to the Phase,
together with such additional association property as Declarant may designate pursuant to
Article 16.
1.1.8 Board or Board of Directors. Board or Board of Directors means the
Association's Board of Directors.
1.1.9 Budget. Budget means a written, itemized estimate of the
Association's income and Common Expenses prepared pursuant to the Bylaws.
1.1.1 0 Bylaws. Bylaws mean the Bylaws of the Association as currently in
effect. A copy of the initial form of Bylaws is attached as Exhibit C.
1.1.11 Capital Improvement Assessment. Capital Improvement Assessment
means a charge against the Owners and their Condominiums representing their share of the
Association's cost for installing or constructing capital Improvements on the Association
Property. Capital Improvement Assessments shall be levied in the same proportion as Annual
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·---------------------.
Assessments. Capital Improvement Assessments are special assessments as described m
California Civil Code Section 1366.
1.1.12 City. City means the City of Carlsbad, California, and its various
departments, divisions, employees and representatives.
1.1.13 Close of Escrow. Close of Escrow means the date on which a deed is
Recorded conveying a Condominium pursuant to a transaction requiring the issuance of a Public
Report.
1.1.14 Common Area. Common Area means the volumes of airspace
described in the Condominium Plan for each Phase, which shall be owned by Owners in each
Phase as tenants-in-common. Any references in this Declaration to Common Area are references
to the Common Area as a whole and to portions thereof. The Common Area in each Phase of the
Community constitutes the undivided interest-in-common in a portion of the real property, in
accordance with California Civil Code Section 135l(f).
1.1.15 Common Expenses. Common Expenses means those expenses for
which the Association is responsible under this Declaration. Common Expenses include the
actual and estimated costs of and reserves for maintaining, managing and operating the
Association Property (including amounts this Declaration imposes on the Association for
maintenance), including:
(a) Maintenance services for the Association Property, including
pool and spa service and landscape maintenance;
(b) The cost of all utilities (including sewer and water) and
mechanical and electrical equipment serving the Association Property, utilities which serve
individual Condominiums but which are subject to a common meter, and trash collection and
removal from central receptacles;
(c) The costs and fees attributable to managing and administering
the Association, compensating the Manager, accountants, attorneys and employees, all insurance
covering the Community and the Directors, officers and agents of the Association, and bonding
the members of the Board;
(d) The cost to repair damage to public utility Improvements if
caused by the Association during installation, maintenance or repair of private utility
Improvements;
(e) The cost of fire alarm monitoring and system testing and
maintenance;
(f) The cost of elevator monitoring, testing and maintenance;
(g) Unpaid Special Assessments, Reconstruction Assessments and
Capital Improvement Assessments;
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(h) Taxes paid by the Association;
(i) Amounts paid by the Association for discharge of any lien or
encumbrance levied against the Community, and
(j) All other expenses incurred by the Association for the
Community, for the common benefit of the Owners.
1.1.16 Community. Community means (a) Phase I and (b) each Phase
described in a Notice of Addition. The Community is a "condominium project" as defined in
California Civil Code Section 1351 (f), and a "common interest development" as defined in
California Civil Code Section 135l(c). Any references in this Declaration to the Community are
references to the Community as a whole and to portions thereof.
1.1.17 Condominium. Condominium means an estate in real property as
defined in California Civil Code Section 135l(t). A Condominium consists of an undivided fee
simple ownership interest in the Common Area in a Phase, together with a separate ownership
interest in fee in a Unit and all easements appurtenant thereto. Subject to the provisions of
Section I 0.5, the undivided fee simple interest in the Common Area in a Phase is appurtenant to
each Unit in such Phase and is a fraction having one (I) as its numerator and the number of Units
in that Phase as its denominator; and shall be held by the Owners of Condominiums in that Phase
as tenants-in-common.
1.1.18 Condominium Building. Condominium Building means any
residential structure in the Community containing multiple Units as shown on the Condominium
Plan. Each Building encloses Units shown in the applicable Condominium Plan, but the
Condominium Building is not part of the Units. For purposes of interpreting this Declaration and
the Condominium Plan, the Condominium Building is intended to include the following
components:
(a) the shell (including the roof, foundation and exterior surfaces
and the finishes thereon) and the core of the Condominium Building;
(b) all structural support elements existing in, on, under and
throughout the Condominium Building that carry roof, ceiling and upper floor loads to the
foundation, including all separate or common footings, girders, columns, joists, braces,
foundations, temporary and permanent tieback systems, load-bearing walls and other standard
support elements, and every wall, column, floor, ceiling, footing, foundation or other vertical or
horizontal Improvement in the Condominium Building, but not including any wall between
rooms in a Unit which is not necessary for the structural support of the Condominium Building
(for purposes hereof, any wall or other structure which carries roof, ceiling or upper floor loads is
"necessary for structural support");
(c) any HV AC systems which benefit the entire Condominium
Building;
(d) all exterior walls of the Condominium Building and their
surface treatments (including siding, stone, stucco, plaster, paint and stain);
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(e) fixtures that are outside the boundaries of the Units, including
exterior lighting fixtures and utility cabinets on Condominium Building exteriors, facilities for
the delivery of utilities to the Community (except for outlets that are located in the Unit);
(f) exterior fire extinguishers, fire sprinkler systems serving each
Condominium Building, including fire sprinkler pipes and fire sprinkler heads that protrude into
the airspace of the Unit;
(g) cables and related equipment for the delivery of
Telecommunications Services to the Community (except for any outlets, connectors and portions
of cables that protrude into the airspace of the Unit); and
(h) all or any portion of any stairway, elevator, vault, air shaft,
mechanical shaft, duct, pipe, line, main, conduit, lighting, flue and any other equipment, fixtures,
machinery, system or apparatus which benefits the entire Condominium Building.
1.1.19 Condominium Plan. Condominium Plan means the Recorded plan, as
currently in effect, for a Phase consisting of (a) a description or survey map of the Phase or
portion thereof, which shall refer to or show monumentation on the ground, (b) a three
dimensional description of the Phase or portion thereof, one or more dimensions of which may
extend for an indefinite distance upwards or downwards in sufficient detail to identify the
Association Property, Common Area and each Unit, and (c) a certificate consenting to the
Recordation thereof signed and acknowledged by the record owner of fee title to the Phase or
portion thereof, and by either the trustee or the Mortgagee of each Recorded Mortgage
encumbering the Phase or portion thereof.
1.1.20 County. County means San Diego County, California, and its various
departments, divisions, employees and representatives.
1.1.21 Declarant. Declarant means OCEAN STREET 8 OWNER, LLC, a
Delaware limited liability company, its successors and any Person to which it shall have assigned
the right to act as Declarant by an express written assignment. As used in this Section,
"successor" means a Person who acquires Declarant or substantially all of Declarant's assets by
sale, merger, reverse merger, consolidation, sale of stock or assets, operation oflaw or otherwise.
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.
1.1.22 Declaration. Declaration means this instrument as currently in effect.
1.1.23 Design Guidelines. Design Guidelines mean the rules or guidelines
setting forth procedures and standards for submission of plans for Design Review Committee
approval.
1.1.24 Design Review Committee or Committee. Design Review
Committee or Committee means the Design Review Committee created in accordance with
Article 5.
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1.1.25 DRE. DRE means the California Department of Real Estate and any
department or agency of the California state government which succeeds to the DRE's functions.
1.1.26 Exclusive Use Area. Exclusive Use Area means the Association
Property over which exclusive easements are reserved for the benefit of specified Owners,
including the following:
(a) Patios and decks, all as described m this Declaration and
depicted and assigned in the Condominium Plan;
(b) parking spaces as depicted and numbered in Exhibit E, and
storage spaces as depicted and numbered in Exhibit F, each as assigned in the deed to a Unit;
provided that Declarant reserves the right, without amending the Declaration, to unilaterally
amend or replace Exhibits E and F as necessary to correct errors in numbering, in depiction, in
designation, or to reflect as-built conditions, by Recording a Supplemental Declaration with the
amended exhibit( s ). When Recorded, the amended exhibit( s) will control; and
(c) internal and external telephone wiring designed to serve a single
Unit but located outside the boundaries of the Unit, in accordance with California Civil Code
Section 1351(i).
The Exclusive Use Areas for patios and decks in each Phase are assigned and
their approximate locations depicted in the Condominium Plan for the Phase; however, the as-
built location of the Improvements constituting the Exclusive Use Areas shall control.
1.1.27 Family. Family means natural individuals, related or not, who live as a
single household in a Residence.
1.1.28 Fannie Mae. Fannie Mae 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.
1.1.29 FHA. FHA means the Federal Housing Administration of the United
States Department of Housing and Urban Development and its successors.
1.1.30 FHFA. FHFA means the Federal Housing Finance Agency,
established pursuant to the Housing and Economic Recovery Act of2008.
1.1.31 First Mortgage. First Mortgage means a Mortgage with first priority
over other Mortgages on a Condominium.
1.1.32 First Mortgagee. First Mortgagee means the Mortgagee of a First
Mortgage.
1.1.33 Fiscal Year. Fiscal Year means the fiscal accounting and reporting
period of the Association.
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1.1.34 Freddie Mac. Freddie Mac means the Federal Home Loan Mortgage
Corporation created by Title II of the Emergency Home Finance Act of 1970 and its successors.
1.1.35 Ginnie Mae. Ginnie Mae means the Government National Mortgage
Association administered by the United States Department of Housing and Urban Development
and its successors.
1.1.36 Governing Documents. Governing Documents means this
Declaration, the Articles of Incorporation, Bylaws, Design Guidelines, Rules and Regulations,
Supplemental Declarations and Notices of Addition.
1.1.3 7 Improvement. Improvement means any structure and any
appurtenance thereto. The Design Review Committee may identify additional items that are
Improvements.
1.1.38 Include, Including. Whether capitalized or not, include and including
means "includes without limitation" and "including without limitation," respectively.
1.1.39 Local Government Agency. Local Government Agency means the
City, the County, a public school district, a public water district, and any other local or municipal
governmental entity or agency, including any special assessment district, maintenance district or
community facilities district.
1.1.40 Maintain, Maintenance. Whether capitalized or not, maintain and
maintenance mean "maintain, repair and replace" and "maintenance, repair and replacement,"
respectively; provided however, that maintain or maintenance shall not include repair and
replace(ment) where the context or specific language of this Declaration provides another
meaning.
1.1.41 Maintenance Guidelines. Maintenance Guidelines means any current
written guidelines, setting forth procedures and standards for the maintenance and operation of
Association Property or the Condominiums. Maintenance Guidelines may be provided by
Declarant, by the Association, or by any governmental agency. Maintenance Guidelines include
any maintenance manual initially prepared at Declarant's direction and containing recommended
frequency of inspections and maintenance activities for components of the Association Property
or pertaining to a Condominium.
1.1.42 Manager. Manager means the Person retained by the Association to
perform management functions of the Association as limited by the Governing Documents and
the terms of the agreement between the Association and the Person.
1.1.43 Map. Map means the final recorded map of Tract No. CT 05-12, Filed
in Book __ at Pages , inclusive, of , in the Office of the San
Diego County Recorder. The term also refers to alterations shown on any subsequently recorded
amendment, certificate of correction, lot line adjustment or record of survey affecting any of the
real property described in the Map.
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1.1.44 Membership. Membership means the voting and other rights,
privileges, and duties established in the Governing Documents for Association members.
1.1.45 Mortgage. Mortgage means any Recorded document, including a deed
of trust, by which a Condominium, Condominiums, or Association Property is/are hypothecated
to secure performance of an obligation.
1.1.46 Mortgagee. Mortgagee means a Person to whom a Mortgage is made,
or the assignee of the Mortgagee's rights under the Mortgage by a recorded instrument. For
purposes of this Declaration, the term Mortgagee includes a beneficiary under a deed of trust.
1.1.47 Mortgagee Majority. Mortgagee Majority means the First
Mortgagees holding First Mortgages that in the aggregate encumber at least fifty-one percent
(51%) of the Condominiums that are subject to Mortgages. For purposes of any provisions of
the Governing Documents which requires the vote or approval of a Mortgagee Majority, such
vote or approval is determined based on one (I) vote for each Condominium encumbered by a
First Mortgage held by a First Mortgagee.
1.1.48 Mortgagor. Mortgagor means a person who has mortgaged his
property. For purposes of this Declaration, the term Mortgagor shall include a trustor under a
deed of trust.
1.1.49 Notice and Hearing. Notice and Hearing means written notice and a
hearing before the Board as provided in the Bylaws.
1.1.50 Notice of Addition. Notice of Addition means an instrument Recorded
pursuant to Article 16 to annex additional real property to the Community.
1.1.51 Official Records. Official Records means the Official Records of the
County.
1.1.52 Operating Fund. Operating Fund means that portion of the Common
Expenses allocated for the daily operation of the Association.
1.1.53 Owner. Owner means the Person or Persons, including Declarant,
holding fee simple interest to a Condominium. The term "Owner" includes sellers under
executory contracts of sale but excludes Mortgagees. The term "Owner" may be expanded in a
Supplemental Declaration to include other Persons.
1.1.54 Person.
recognized under California law.
only to natural persons.
Person means a natural individual or any legal entity
When the word "person" is not capitalized, the word refers
1.1.55 Phase. Phase means each of the following: (a) Phase I, and (b) all the
real property covered by a Notice of Addition for which a Public Report has been issued by the
DRE. Declarant may otherwise define the term "Phase" in a Notice of Addition or Supplemental
Declaration.
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1.1.56 Phase 1. Phase 1 means all of the real property described in Paragraph
A of the Preamble of this Declaration.
1.1.57 Public Report. Public Report means the Final Subdivision Public
Report issued by the DRE for any Phase.
1.1.58 Reconstruction Assessment. Reconstruction Assessment means a
charge against the Owners and their Condominiums representing their share of the Association's
cost to reconstruct any Improvements on the Association Property. Such charge shall be levied
among all Owners and their Condominiums in the same proportions as Annual Assessments.
Reconstruction Assessments are "special assessments" as described in California Civil Code
Section 1366.
1.1.59 Record or File. Record or File means, concerning any document, the
entry of such document in Official Records.
1.1.60 Reserve Fund. Reserve Fund means that portion of the Common
Expenses allocated (a) for the future repair and replacement of, or additions to, structural
elements, mechanical equipment and other major components of Association-maintained
Improvements, and (b) amounts necessary to cover the deductibles under all insurance policies
maintained by the Association.
1.1.61 Right to Repair Law. Right to Repair Law means California Civil
Code Sections 895 through 945.5.
1.1.62 Right to Repair Law Claim. Right to Repair Law Claim means any
claim brought by one or more Owners or by the Association against one or more Declarant
Parties (as defined in Section 12.4) on any design construction defect matters that are governed
by the Right to Repair Law.
1.1.63 Rules and Regulations. Rules and Regulations or "Rules" means the
current rules and regulations for the Community.
1.1.64 Special Assessment. Special Assessment means (a) a reasonable
monetary penalty imposed against an Owner and the Owner's Condominium in accordance with
California Civil Code Section 1367.l(e), as a disciplinary measure for the failure of an Owner to
comply with the Governing Documents, or (b) a monetary charge imposed against an Owner and
his Condominium in accordance with California Civil Code Section 1367.l(d) to recover costs
incurred by the Association in the repair of damage to Association Property, all as further
described in this Declaration.
1.1.65 Supplemental Declaration. Supplemental Declaration means an
instrument executed, acknowledged and Recorded by Declarant which imposes conditions,
covenants, or restrictions or reserves easements for all or a portion of the Community in addition
to the conditions, covenants, restrictions and easements established by this Declaration. A
Supplemental Declaration may annex additional real property to the Community, and it may
modify this Declaration, but only with respect to the real property encumbered by the
Supplemental Declaration.
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1.1.66 Telecommunications Facilities. Telecommunications Facilities means
Improvements constructed in the Community, including cables, conduits, ducts, vaults,
connecting hardware, wires, poles, transmitters, towers, antennae and other devices now existing
or that may be developed in the future to provide Telecommunication Services to the
Community.
1.1.67 Telecommunications Services. Telecommunications Services means
the reception, distribution or transmission of video, audio, data, telephony, all related vertical
services, and any other similar services now existing or that may be developed in the future.
Declarant may expand this definition in any Supplemental Declaration.
1.1.68 Unit. Unit means a separate interest in space as defined in California
Civil Code Section 1351(f). Each Unit is a separate freehold estate, as separately shown,
numbered and designated in the Condominium Plan.
(a) Each Unit includes the entry door and entry door hardware and
the glass portions of the windows and sliding glass doors that are constructed at Unit boundaries,
between-room walls or partitions in the Unit boundaries that are not necessary for structural
support of the Condominium Building (but not any wall separating neighboring Units), drop
ceilings and soffits in the Unit and the space above and within them (and the forced-air units and
the heating and air conditioning ducts located above the drop ceilings), and those portions of gas,
water and waste pipes, ducts, chutes, conduits, wires and other utility installations that protrude
into the Unit (but not fire sprinkler heads or pipes that protrude into the Unit).
(b) The boundaries of each Unit are approximately shown in the
Condominium Plan. In interpreting deeds, this Declaration and the Condominium Plan, the
actual boundaries of each Unit shall be deemed to extend to the interior unfinished Unit-facing
surfaces of the walls, floors, and ceilings encompassing the Unit, as constructed or reconstructed
in substantial accordance with the original plans for the Unit. The foregoing interpretation shall
apply notwithstanding any description expressed in the deed, the Condominium Plan or the
Declaration, regardless of settling or lateral movements of Improvements, and regardless of
variances between Unit boundaries shown in the Condominium Plan or deed and those of the
Improvement.
1.1.69 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 the 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, maintaining, improving and
selling the Community. As used in this Declaration, the singular includes the plural and the
plural the singular. The masculine, feminine and neuter each includes the other, unless the
context dictates otherwise. Any reference in this Declaration to time of performance of
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obligations or to elapsed time means consecutive calendar days, months or years, as applicable,
unless otherwise expressly provided.
1.2.2 Articles, Sections and Exhibits. The Article and Section headings are
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. Exhibits A, D, E,
F and G attached to this Declaration are incorporated in this Declaration by this reference. The
Articles of Incorporation and the Bylaws that are attached as Exhibits B and C are attached for
informational purposes only. Either may be amended from time to time without having to amend
this Declaration. In such event, the amended version shall supersede the version attached hereto.
The locations and dimensions of any Improvements shown on the Exhibits attached hereto and to
any Notice of Addition are approximate only and the as-built location and dimension of any such
Improvements shall control.
1.2.3 Priorities and Inconsistencies. If there are conflicts or inconsistencies
between this Declaration and the Articles of Incorporation, Bylaws, Rules and Regulations, or a
Condominium Plan, then the provisions of this Declaration shall prevail; however, the
conflicting documents shall be construed to be consistent with the Declaration to the extent
possible. If there are any conflicts or inconsistencies between this Declaration and any Notice of
Addition, the provisions of the Notice of Addition shall prevail as to the real property
encumbered thereby.
1.2.4 Supplemental Declarations. Declarant may, in connection with all or
a portion of the Community, Record one (I) or more Supplemental Declarations, which shall
designate the use classifications in the real property described therein, and which may
supplement this Declaration with such additional covenants, conditions, restrictions and land
uses as Declarant may deem appropriate for the affected real property. A Supplemental
Declaration may impose additional, different or more restrictive conditions, covenants,
restrictions, land uses and limitations as Declarant may deem advisable, taking into account the
particular requirements of the real property affected thereby. If there is any conflict between any
Supplemental Declaration and the Declaration, the Supplemental Declaration shall control as to
the real property affected by such Supplemental Declaration.
1.2.5 Severability. The provisions of this Declaration are independent and
severable. If for any reason, any provision of this Declaration becomes invalid, partially invalid,
unenforceable, illegal, null and void, or against public policy, or if for any reason, a court of
competent jurisdiction determines that any provision of this Declaration is invalid, partially
invalid, unenforceable, illegal, null and void, or against public policy, the validity and
enforceability of the remaining provisions of this Declaration shall remain in effect to the fullest
extent permitted by law.
1.2.6 Statutory and Regulatory References. From and after January I,
2014, references in the Governing Documents to provisions of California Civil Code Sections
1350 to 1378, inclusive, shall be deemed to refer to the corresponding successor provisions set
forth in Division 4, Part 5 of the California Civil Code. All other references made in the
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Governing Documents to statutes or regulations are to those statutes or regulations as currently in
effect or to subsequently enacted replacement statutes or regulations.
ARTICLE2
MAINTENANCE COVENANTS AND USE RESTRICTIONS
The Community shall be held, used and enjoyed subject to the following restrictions and
subject to the exemptions of Declarant set forth in the Governing Documents.
2.1 REPAIR AND MAINTENANCE.
2.1.1 Maintenance Obligations and Standards. The specific items listed in
Exhibit D to this Declaration shall be maintained by the party indicated. If an item is not listed
in Exhibit D, then it shall be maintained in accordance with the general rules established in this
Declaration, in the current adopted Budget and any applicable Maintenance Guidelines
(provided, however, that only Declarant, and not the Association or any other Owner, shall have
the right to revise, supplement or replace any written Maintenance Guidelines initially provided
by Declarant).
(a) By Association. The Association shall maintain the Association
Property and those portions of the Exclusive Use Areas that are designated for Association
maintenance in the Governing Documents. The Association shall maintain everything it is
obligated to maintain in a clean, sanitary and attractive condition reasonably consistent with the
level and frequency of maintenance reflected in the current adopted Budget; provided, however,
that the Association shall at all times at least perform the level and frequency of maintenance
specified in the applicable Maintenance Guidelines.
(b) By Owners. Each Owner shall maintain the interior of the Unit
and those portions of the Exclusive Use Area that are designated for Owner maintenance in the
Governing Documents, in a clean, sanitary and attractive condition and as directed in the
Governing Documents and all applicable Maintenance Guidelines. Each Owner shall
immediately notify the Association of any dangerous, defective or other condition which could
cause injury to person or property in such Owner's Unit or Exclusive Use Area. Unless other
arrangements are approved by the Board, all Owner-installed Improvements must be maintained
by the Owner who installed the Improvements.
2.1.2 Commencement of Association Maintenance Obligations. The
Association's obligation to maintain the Association Property in a Phase composed solely of
Association Property shall commence on conveyance of such Association Property to the
Association either in fee or by maintenance easement. The Association's obligation to maintain
the Association Property in any Phase that includes Condominiums commences on the date on
which Annual Assessments commence on the Condominiums in the Phase, unless the terms of
the Governing Documents applicable to the real property on which the Association Property is
located provide otherwise. Until the Association is responsible for maintaining the Association
Property in a particular Phase, Declarant shall maintain such Association Property.
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2.1.3 Acceptance of Association Property. The Association must accept
ownership of and maintenance responsibility for each portion of Association Property when title
and maintenance responsibility are tendered by Declarant, whether in fee simple, by easement or
otherwise, and the Association shall execute each deed and any accompanying escrow
instructions if requested to do so by Declarant, and it shall execute any bond exonerations when
presented if the bonded obligations are satisfied. No Owner shall interfere with the exercise of
the foregoing obligations by the Association, or with the rights or obligations of Declarant.
2.1.4 Association Power to Perform Owner Obligations. If an Owner fails
to maintain any Improvement that the Owner is obligated to maintain, the Association has the
power but not the duty to perform the maintenance at the Owner's expense. In an emergency,
the Association may perform the maintenance immediately; in all other cases, the Association
may perform the maintenance after Notice and Hearing. For purposes hereof, an "emergency" is
any situation where the Board determines that there is an imminent threat of injury to persons or
damage to property.
2.1.5 Disputes Regarding Maintenance Obligations. Disputes between
Owners or between any Owner and the Association regarding maintenance shall be resolved in
accordance with the enforcement process described in Section 12.1.
2.1.6 Inspections. The Board shall periodically cause a compliance
inspection of the Community to be conducted by the Design Review Committee to report any
violations thereof. The Board shall also cause condition inspections of the Association Property
and all Improvements thereon to be conducted in conformity with the applicable Maintenance
Guidelines (each, a "Condition Inspection"), and in the absence of inspection frequency
recommendations in any applicable Maintenance Guidelines at least once every year, in
conjunction with the inspection required for the reserve study to be conducted pursuant to the
requirements of the Bylaws, to (a) determine whether the Association Property is being
maintained adequately in accordance with the standards of maintenance established in
Section 2.1.1, (b) identifY the condition of the Association 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 which
may be taken to reduce potential maintenance costs to be incurred in the future. The Board shall,
during its meetings, regularly determine whether the recommended inspections and maintenance
activities set forth in any applicable Maintenance Guidelines have been followed and, if not
followed, what corrective steps need to be taken to assure proper inspections and maintenance of
the Association Property. The Board shall keep a record of such determinations in the Board's
minutes. The Board shall keep Declarant fully informed of the Board's activities under this
Section 2.1.6. The Board shall employ, consistent with reasonable cost management, such
experts, contractors and consultants as are necessary to perform the inspections and make the
reports required by this Section.
2.1. 7 Reporting Requirements. 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 within the time set for furnishing the Budget to the Owners. The report must
include at least the following:
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(a) a description of the condition of the Association 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;
(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.
For a period of ten (I 0) years after the date of the last Close of Escrow in the
Community, the Board shall also furnish to Declarant (a) the report of each Condition Inspection
performed for the Board, whenever such inspection is performed and for whatever portion of the
Association Property that is inspected, within thirty (30) days after the completion of such
inspection, and (b) the most recent Condition Inspection report prepared for any portion of the
Association Property, no later than the date that is ten (I 0) days after the Association receives
Declarant's written request.
2.1.8 Termite Eradication. If determined by the Board to be economically
feasible, the Association shall adopt an inspection and prevention program for the prevention and
eradication of infestation by wood-destroying pests and organisms in the Community. If the
Association adopts such a program, the Association, on no less than fifteen (15) nor more than
thirty (30) days' notice, may require each Owner and the occupants of the Owner's
Condominium to vacate such Condominium to accommodate the Association's efforts to
eradicate such infestation. The notice must state the reason for the temporary relocation, the date
and time of the beginning of treatment, the anticipated date and time of termination of treatment,
and that the occupants will be responsible for their own accommodations during the temporary
relocation. Any damage caused to a Condominium by such entry by the Association or by any
person authorized by the Association shall be repaired by the Association as a Common
Expense. All costs involved in operating the inspection and preventive program as well as
repairing and replacing the Association Property and Improvements thereon when the need for
such maintenance, repair or replacement is the result of wood-destroying pests or organisms are
a Common Expense.
2.1.9 Damage by Owners. Each Owner is liable to the Association for all
damage to the Association Property that is sustained due to the negligence or willful act of the
Owner, the Owner's Family, tenants or invitees, and any other Persons who derive their use of
the Association Property from the Owner or from the Owner's Family, tenants or invitees. The
Association may, after Notice and Hearing, levy a Special Assessment against the Owner
representing a monetary charge imposed as a means of reimbursing the Association for costs
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incurred by the Association in the repair of damage to Association Property and facilities for
which the Owner or the Owner's Family, tenants or invitees were responsible. The amount of
the Special Assessment may include (a) the amount of any deductible payable on the insured
portion of the loss (if the Association elects to make a claim under its insurance policy), (b) all
costs and expenses actually incurred by the Association to correct damage that is not covered by
the Association's insurance or for which no claim has been made, and (c) the amount of the
increase in premiums payable by the Association, to the extent the increase is directly caused by
damage that was attributed to the Owner or the Owner's Family, tenants or invitees. In
accordance with California Civil Code Section 1367.l(d), the Association shall have the power
to impose a lien for the foregoing Special Assessment. If a Condominium is jointly owned, the
liability of its Owners for damage to Association Property is joint and several, except to the
extent that the Association and the joint Owners have otherwise agreed in writing.
2.1.10 Stormwater Pollutant Control. The Community is subject to all
federal, state and local requirements of the National Pollutant Discharge Elimination System
("NPDES'), adopted in accordance with the Federal Clean Water Act. In 1999, the California
State Water Resources Control Board ("SWRCB') enacted a new statewide General Permit for
Storm Water Discharges Associated with Construction Activity (the "General Permit'). The
General Permit imposes a comprehensive series of requirements on developers and builders to
file a Storm Water Pollution Prevention Plan ("SWPPP') with the Regional Water Quality
Control Board that sets forth Best Management Practices ("BMPs') that are intended to mitigate
runoff of silt and pollutants from the Community into storm drains. Some BMPs apply to
activities undertaken by the Association and Owners, and the Association and the Owners are
required to comply with the applicable BMPs. The SWPPP includes specific maintenance
schedules for post-construction operation of the BMPs that may impose long term maintenance
obligations on the Association and each Owner in the Community. The BMPs are in addition to
any local ordinances established by the City and any rules and regulations imposed by the
Association concerning discharge of non-storm water into storm drains.
2.1.11 City Required Provisions.
(a) Failure to Maintain Association Property. In the event that the
Association fails to maintain the Association Property, or any part thereof, as provided in this
Section 2.1, 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 in the Community, 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 Association Property 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 in Section 2.1.11(b) below.
(b) Special Assessment Levied by City. In the event the City is
required to perform maintenance to any portion of the Association Property pursuant to Section
2.1.11 above, the City shall submit a written invoice to the Association for all costs incurred by
the City to perform such maintenance. The City shall provide a copy of such invoice to each
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Owner in the Community, 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 in the
Community 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 fails 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 Unit in the Community for an equal pro rata 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 Unit against which the special assessment in levied. Each
Owner in the Community hereby vests the City with the right and power to levy such special
assessment, to impose a lien upon their respective Unit and to bring all legal actions and/or to
pursue lien foreclosure procedures against any Owner and his/her respective Unit for purposes of
collecting such special assessments.
(c) Landscape Maintenance Responsibilities. The
Association's and each individual Owner's landscape maintenance responsibilities, as applicable,
shall be as set forth in Exhibit D attached hereto.
2.2 WATER METERS. Each Owner, by acceptance of a deed, acknowledges that
water service is not separately metered by the water provider to measure individual
condominium usage, but is instead commonly metered to the Condominium Building through a
single City meter and privately submetered to the Units. The Association will receive a single
water bill from the City, representing all water provided to the Community during the billing
period. Other utility services are separately metered to the Units by the utility providers.
2.2.1 Allocation of Bills. Each Owner will be responsible for paying for the
water supplied to the Owner's Unit, as measured by the water submeter installed for each Unit.
To calculate the cost chargeable to each Unit for water service, the Association will hire a
metering service company (the "Metering Company") to read the water submeters and prepare
the individual water bills for delivery to each Owner. Each Owner will pay the amount shown in
the water bill to the Metering Company. The Metering Company will remit amounts paid by
each Owner to the Association, so that the Association is reimbursed for the cost of water used
by Owners. The Metering Company's service charge will be a component of Common Expenses
paid through Annual Assessments. The Metering Company will provide to the Association a
statement of all amounts received from the Owners on a regular basis. If an Owner fails to pay
any amounts when due, the Owner will be responsible for any penalties or delinquent amounts
levied by the Metering Company. If, in the future, there are no companies which can provide the
submetering service, the Association will be responsible to allocate water usage costs to each
individual Owner as measured by submeters or an equivalent method.
2.2.2 Default. Any Owner who fails to timely pay his water bill to the
Metering Company is in violation of this Section, and the Association may pursue
reimbursement directly from the Owner by means of a Special Assessment or such other
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remedies as are available under applicable law, including shutting off water service to the
Owner's Unit.
2.2.3 Submeters. Each Owner shall also have the obligation to maintain the
water submeter in the Owner's Unit. If an Owner fails to maintain the submeter, the Association
shall have the power to maintain the submeter and charge the cost thereof to the Owner as a
Special Assessment or pursue any other remedies as provided under this Declaration.
2.2.4 Deposits. Upon the Close of Escrow for each Unit, and on any
subsequent sale of a Unit by an Owner, such Owner shall be obligated to pay to the Association a
deposit in an amount equal to one (I) month's average water bill for a Unit within the
Community (as determined by the Association) as security for the Owner's obligation to pay the
water bill when due. As provided above, the Association may apply such deposit in payment of
a Defaulting Owner's water bill and such Owner shall replace the full amount of such deposit
promptly upon written notice from the Association. The Association shall, within thirty (30)
days after receiving written notice from an Owner that such Owner has sole Owner's Unit
(provided that the subsequent Owner has paid a replacement security deposit in the amount
determined appropriate by the Association) return to the Owner any amounts not expended by
the Association from such Owner's deposit. The Association may increase the amount of such
security deposits and require the deposit of additional amounts by the Owners, based on
increases in such water bills.
2.3 SINGLE-FAMILY DWELLING. The Unit shall be used as a residential
dwelling for a single Family and for no other purpose.
2.4 FURTHER SUBDIVISION. Except as otherwise provided in this Declaration,
no Owner may physically or legally subdivide the Owner's Condominium in any manner,
including dividing such Owner's Condominium into time-share estates or time-share uses. This
provision does not limit the right of an Owner to rent or lease the Condominium pursuant to
Section 2.5 below.
2.5 LEASING AND RENTAL.
2.5.1 Leasing or Rental to Declarant. Nothing in this Declaration shall be
deemed to prevent an Owner from leasing or renting the Condominium to Declarant for use as
sales offices, model home, parking area or for other residential or non-residential purposes.
Declarant may not lease any portion of the Association Property to the Owners or the
Association.
2.5.2 Leasing or Rental to Non-Declarant Parties. Nothing in this
Declaration shall be deemed to prevent an Owner from leasing or renting the Condominium for
residential occupancy by a single Family, provided that: (i) the terms of the lease or rental
agreement are set out in a written lease or rental agreement; (ii) the lease or rental agreement is
expressly made subject to this Declaration and the other Governing Documents of the
Community; (iii) the lease or rental agreement shall be for a term of not less than thirty-one (31)
days; (iv) the lessor or landlord shall not provide any services normally associated with transient
occupancy (including hotel, inn, bed & breakfast, vacation rental, time-share or similar
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temporary lodging); and (v) the lease or rental agreement shall provide that all lessees, tenants,
and their Families, agents and invitees are bound by the Governing Documents when present in
the Community, and any violation of the Governing Documents by a lessee, tenant or their
Families, agents or invitees also constitutes a default under the lease or rental agreement.
2.6 RESALE. Nothing in this Declaration shall be deemed to prevent an Owner from
transferring or selling the Condominium, either to a single Person, or to more than one (I) Person
to be held by them as tenants-in-common, joint tenants, tenants by the entirety or as community
property.
2.7 BUSINESS AND COMMERCIAL ACTIVITIES.
2.7.1 Generally. No Owner or other occupant of the Community may
undertake any activity in any Condominium nor use any portion of the Association Property, for
any business, commercial or non-residential purposes, nor for any other purpose that is
inconsistent with the Governing Documents. Such purposes include manufacturing, storage,
vending, auctions, vehicle or equipment repair, entering into any lease or rental agreement under
which the Unit would be occupied by numbers of persons in excess of the maximum occupancy
permitted under applicable law, and transient occupancy of the Unit (such as hotel, inn, bed &
breakfast, vacation rental, time-share or similar temporary lodging). Any lease or rental
agreement for a term of fewer than thirty-one (31) days, and any lease or rental agreement
pursuant to which the lessor provides any services normally associated with transient occupancy,
shall be deemed to be for transient purposes and prohibited under this Declaration. All of the
foregoing activities are prohibited whether they are engaged in full-time or part-time, whether
they are for-profit or non-profit, and whether they are licensed or unlicensed.
2.7.2 Exceptions. This Section shall not be interpreted to prohibit any of the
following:
(a) The hiring of employees or contractors to provide maintenance,
construction or repair services that are consistent with the Governing Documents;
(b) Rental or leasing of a Unit to Declarant for use as a sales office,
model homes or parking area for any period of time;
(c) Exercise by Declarant of any rights reserved to it under
Article 15;
(d) The provision of in-home health care or assisted-living services
to any resident of the Community;
(e) The provision of family home child care services as defined in
California Health and Safety Code Section 1597.40, et seq., so long as such services comply with
all applicable state and local laws, including licensing, inspection and zoning requirements.
Provided, however, that the Association has the power to limit or prohibit use of recreational
facilities and other common amenities in the Association Property by clientele of the business;
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(f) Small home-based service businesses that comply with all of the
following:
(I) The operator of the business lives in the Unit on a
permanent, full-time basis;
(2)
take place solely inside the Unit;
When conducted in the Community, business activities
(3) The business does not generate m-person visits by
suppliers or clientele;
( 4) The business complies with all laws, regulations and
ordinances applicable to the Community, including zoning, health and licensing requirements;
(5) The business otherwise complies with the Declaration
and is consistent with the residential character of the Community;
(6) The operator of the business posts no business-related
signage anywhere in the Community;
(7) There is no visible evidence in the Community of the
business;
(8) The business does not generate noise or odors that are
apparent outside the Unit; and
(9) The business does not increase the Association's
liability or casualty insurance obligation or premium.
(g) Other activities that have been determined by governmental
authorities to be consistent with the single-family residential uses in the Community, including,
for example, residential care facilities that are operated in accordance with California Health and
Safety Code Section 1566.5.
2.8 NUISANCES. Noxious or offensive activities are prohibited in the Community
and on any public street abutting or visible from the Community. The Board is entitled to
determine if any device, noise, odor, or activity constitutes a nuisance.
2.8.1 Nuisance Devices. Nuisance devices may not be kept or operated in
the Community or on any public street abutting the Community, or exposed to the view of other
Condominiums or Association Property. Nuisance devices include the following:
(a) All horns, whistles, bells or other sound devices (except security
devices used exclusively to protect the security of a Unit or a vehicle and its contents);
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(b) Noisy or smoky vehicles, power equipment (excluding lawn
mowers and other equipment used in connection with ordinary landscape maintenance), and
Restricted Vehicles (defined below);
(c) Devices that create or emit loud noises or noxious odors;
(d) Construction or demolition waste containers (except as
permitted in writing by the Committee);
(e) Devices that unreasonably interfere with television or radio
reception to a Condominium;
(f) Plants or seeds infected with noxious insects or plant diseases;
or
(g) The presence of any other thing in the Community which may
(1) increase the rate of insurance in the Community, (2) result in cancellation of the insurance,
(3) obstruct or interfere with the rights of other Owners or the Association, (4) violate any law or
provisions of the Governing Documents, or ( 5) constitute a nuisance or other threat to health or
safety under applicable law or ordinance.
2.8.2 Nuisance Activities. Nuisance activities may not be undertaken in the
Community or on any public street abutting the Community, or exposed to the view of other
Condominiums or Association Property without the Board's prior written approvaL Nuisance
activities include the following:
(a) Hanging, drying or airing clothing, fabrics or unsightly articles
in any place that is visible from other Condominiums, Association Property or public streets;
(b) The creation of unreasonable levels of noise from parties,
recorded music, radios, television or related devices, or live music performance;
(c) The creation of unreasonable levels of noise from a barking dog
or other animal kept in the Community (for example, chronic daily nuisance barking by a dog
over extended periods of time);
(d) Repair or maintenance of vehicles or mechanical equipment;
(e) Outdoor fires, except in barbecue grills and fire pits designed
and used in such a manner that they do not create a fire hazard; or
(f) Outdoor storage of bulk materials or waste materials except in
temporary storage areas designated by the Committee.
(g) Any activity which may (1) increase the rate of insurance in the
Community, (2) result in cancellation of the insurance, (3) obstruct or interfere with the rights of
other Owners, (4) violate any law or provisions of the Governing Documents, or (5) constitute a
nuisance or other threat to health or safety under applicable law or ordinance.
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2.9 SIGNS. Subject to California Civil Code Sections 712, 713 and 1353.6, and any
applicable Design Guidelines, no sign, advertising device or other display of any kind shall be
displayed in the Community or on any public street in or abutting the Community except for the
following signs:
2.9.1 Traffic and Parking Control. Entry monuments, Community
identification signs, and traffic or parking control signs maintained by the Association;
2.9.2 Addressing. For each Condominium, one (!) nameplate or address
identification sign which complies with Design Review Committee rules;
2.9.3 Security. For each Condominium, one (1) sign advising of the existence
of security services protecting a Condominium which complies with Design Review Committee
rules;
2.9.4 For Sale or Lease Signs. For each Condominium, one (I) sign
advertising the Condominium for sale or lease that complies with the following requirements:
(a) the sign has reasonable design and dimensions (which shall not
exceed eighteen (18) inches by thirty (30) inches in size), provided the sign is promptly removed
at the close of the resale escrow or the lease, or upon the OWiler' s withdrawal of the
Condominium from the resale or lease market; and
(b) the sign is of a color, style and location authorized by the Design
Review Committee.
2.9.5 Certain Noncommercial Signs. For each Condominium, a
noncommercial sign, poster, flag or banner must comply with the following requirements:
(a) a noncommercial sign or poster must not be more than nine (9)
square feet in size and a noncommercial flag or banner must not be more than fifteen (15) square
feet in size; and
(b) a noncommercial sign, poster, flag or banner may not be made of
lights, roofing, siding, paving materials, flora, or balloons, or any other similar building,
landscaping, or decorative component, or include the painting of architectural surfaces.
2.9.6 Other Authorized Signs. Other signs or displays authorized by the
Design Review Committee.
2.9.7 City Requirements. All signs or displays proposed for the Community
shall be designed in conformance with the City's Sign Ordinance and, if applicable, shall require
review a11d approval of the City Planning Director prior to installation.
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2.10 PARKING AND VEHICULAR RESTRICTIONS.
2.1 0.1 Defmitions. The following definitions shall apply to parking and
vehicular restrictions set forth in this Declaration:
2.10.2 Authorized Vehicle. An "Authorized Vehicle" is an automobile, a
passenger van designed to accommodate ten (1 0) or fewer people, a motorcycle, or a pickup
truck having a manufacturer's rating or payload capacity of one (I) ton or less. The Association
has the power to identity additional vehicles as Authorized Vehicles in the Rules and
Regulations in order to adapt this restriction to other types of vehicles that are not listed above.
2.10.3 Restricted Vehicles. The following vehicles are "Restricted
Vehicles:" (a) large commercial-type vehicles (for example, stake bed trucks, tank trucks, dump
trucks, step vans, and concrete trucks), (b) buses, limousines or vans designed to accommodate
more than ten (10) people, (c) inoperable vehicles or parts of vehicles, (d) aircraft, (e) boats, jet
skis and other water craft, (f) trailers (for example, trailers designed for horses, boats,
motorcycles or other equipment or materials), (g) motor homes and recreational vehicles (for
example, fifth-wheels, folding camping trailers, travel trailers, but not including van conversions
and truck campers), (h) any vehicle or vehicular equipment deemed a nuisance by the
Association, and (i) any other vehicle that is not classified as an Authorized Vehicle. If a vehicle
qualifies as both an Authorized Vehicle and a Restricted Vehicle, then the vehicle is presumed to
be a Restricted Vehicle, unless the vehicle is expressly authorized in writing by the Association.
The Association has the power to identifY additional vehicles as Restricted Vehicles in the Rules
and Regulations to adapt this restriction to other types of vehicles that are not listed above.
2.10.4 Parking Restrictions.
(a) Association Property Parking Garage. All Authorized
Vehicles owned or operated by or under the control of an Owner or a resident of an Owner's
Condominium and kept in the Community must be parked in the Owner's Exclusive Use Area
parking space(s) (each, a "Parking Space'') within the Association Property parking garage (the
"Parking Garage''). No Authorized Vehicles may be parked in any manner that the Association
determines will restrict the normal passage of pedestrians or vehicles in the Parking Garage. The
right to use any Parking Space is exclusive to the Owner of the Condominium to which the
Parking Space is assigned. Parking Spaces are for parking of Authorized Vehicles only. No
vehicle repair (except in emergencies) or other activities may be undertaken in the Parking
Garage. The Association has the power and duty to monitor and enforce compliance with this
Section 2.1 0.4.
(b) Parking for Owners, Residents, Employees and Guests Only.
The Parking Garage is private property and Declarant has reserved the Parking Spaces for the
benefit of itself, and for the use of Owners and residents, and the employees and guests of
Owners in the Community only. No Owner may transfer by sale, lease, easement or license any
Parking Space to any Person other than the Association, an Owner or the Declarant. All other
transfers are void.
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(c) Prohibited Vehicles. No Restricted Vehicle may be parked,
stored or kept in the Community **[, except in portions of the Parking Garage designated for the
parking of such vehicles}**.
2.10.5 Parking Spaces.
(a) Assignment. Parking Spaces in the Community are depicted
and numbered on Exhibit E attached hereto, and will be assigned in the grant deed conveying a
Unit. The right to use an assigned Exclusive Use Area parking space is an exclusive easement
appurtenant to the Owner's Unit, and it will run with the Unit for the benefit of the Owner and
future Owners of the Unit.
(b) Transfer of Assigned Parking Spaces. Each Owner may, after
the Close of Escrow, transfer one or more of the Owner's Parking Space(s) to another Owner or
the Association, or exchange it for a Parking Space owned by another Owner, the Association or
the Declarant subject to the provisions of this Section 2.1 0.5. Each transfer of a Parking Space
shall be evidenced by the completion of a Parking Space Transfer Form provided by the
Association, and such other form of conveyance as is acceptable to the affected Owners' lenders
and title insurers. If a lender or title insurer requires a recorded grant deed to evidence the
transfer of a Parking Space, the grantor and the grantee shall be responsible for the cost of
Recording such grant deed, and they shall be solely responsible for paying all documentary
transfer taxes, recording fees and property taxes in connection with the transfer. Before any such
transfer, the affected Owners must give the Association prior written notice of the proposed
exchange or transfer (including the names of the affected Owners, their Unit numbers, and the
assigned numbers of the Parking Space(s) that will be exchanged or transferred) and complete
the Parking Space Transfer Form. The Owners must also fully comply with all requirements of
their respective lenders, including obtaining any required lender consents to the transfer prior to
Recording any deed of conveyance for a Parking Space. The Owners must also comply with any
requirements that have been imposed on the Community by any Local Government Agency,
including, without limitation, any minimum parking spaces per Unit requirement or parking plan
imposed on the Community by the City. The Association shall have the power and duty to
monitor and approve or disapprove the use, enjoyment, transfer and exchange of Parking Spaces
as necessary to the effective enforcement of this covenant.
(c) Use and Transfer of Handicapped Parking Spaces. Certain
parking spaces within the Parking Garage are designated as handicapped parking spaces. If there
are no initial Owners or occupants in the Community who are appropriately licensed by the State
of California to use handicapped parking spaces (each, a "Qualified Person"), or there are fewer
Qualified Persons than the number of handicapped parking spaces in the Parking Garage,
Declarant may assign the handicapped parking spaces to Units which are not owned or occupied
by Qualified Persons. If a Qualified Person subsequently purchases, rents or leases a Unit in the
Community and the Parking Space appurtenant to such Unit is not a handicapped parking space,
the Association shall first request a voluntary temporary exchange of Parking Spaces from all
Owners who have handicapped parking spaces and are not Qualified Persons (each, a
"Nonqualified Owner"). If no Nonqualified Owner voluntarily agrees to a temporary exchange
of a handicapped parking space with a Qualified Person, the Association shall choose the
handicapped parking space located closest to the Parking Garage point of access to the Unit of
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the Qualified Person (and if multiple handicapped parking spaces are similarly located, the
Association shall choose by lottery) and assign the handicapped parking space to the Qualified
Person, and shall assign the affected Nonqualified Owner the Parking Space that is appurtenant
to the Qualified Person's Unit. The exchange shall remain in effect for so long as the Qualified
Person occupies the Unit and remains licensed by the State of California to use a handicapped
parking space and shall terminate automatically on the date that the Qualified Person ceases to
occupy the Unit or ceases to be properly licensed to use a handicapped parking space, whichever
occurs first. As stated above, the exchange is temporary and shall not alter the permanent
location of the Parking Spaces assigned to the affected Units in the grant deeds for such Units.
The Qualified Persons and Nonqualified Owners covenant and agree to cooperate with the
Association in effecting the exchange and return of the handicapped parking spaces as required
hereunder. The exchange authorized hereunder shall be deemed a temporary license of the
affected Parking Spaces between the affected Owners, and shall not transfer any other interest in
the Parking Spaces, which shall remain appurtenant to the Units to which they are assigned by
grant deed. The right of a Qualified Person to exchange a non-handicapped parking space for a
handicapped parking space shall be on a first-come, first-serve basis. The Board may adopt
Rules and Regulations regulating the exchange of non-handicapped parking spaces for
handicapped parking spaces that are not inconsistent with the provisions of this Section
2.10.S(c).
2.10.6 Guest Parking. Marked guest parking spaces are for temporary use,
not to exceed forty-eight (48) hours, by invitees of Owners only. No Owner may park any
vehicle or leave any other property in any guest space. Guest parking spaces are unreserved and
unassigned, and they are available on a first-come-first-served basis.
2.10.7 Repair, Maintenance and Restoration. No Person may repair,
maintain or restore any vehicle in the Community, and no Person may carry on in any portion of
the Community any vehicle repair, maintenance or restoration business.
2.10.8 Enforcement. The Board has the right and power to enforce all
parking and vehicle use regulations applicable to the Community, including the removal of
violating vehicles from streets and other portions of the Community in accordance with
California Vehicle Code Section 22658 or other applicable laws. The City may, but is not
required to, enforce such restrictions, rules and regulations, in addition to applicable laws and
ordinances.
2.10.9 Regulation and Restriction by Board. The Board has the power to:
(a) establish additional rules and regulations concerning parking in the Association Property,
including designating "parking," "guest parking," and "no parking" areas, (b) prohibit any
vehicle parking, operation, repair, maintenance or restoration activity in the Community if it
determines in its sole discretion that the activity is a nuisance, and (c) promulgate rules and
regulations concerning vehicles and parking in the Community as it deems necessary and
desirable.
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?
Q
2.11 STORAGE SPACES.
2.11.1 Assignment. Exclusive Use Area storage spaces in the Community
("Storage Spaces") are depicted and numbered on Exhibit F attached hereto, and will be
assigned by separate grant deed. The Storage Spaces will be assigned on a first-come first-serve
basis, and there is no guarantee that every Unit in the Community will have an appurtenant
Storage Space. The right to use a Storage Space is an exclusive easementaPPJ¥;_te!Jilllb!O the
Owner's Unit, and it will run with the Unit for the benefit of the Owner and future Owners of the
Unit.
2.11.2 Transfer of Assigned Storage Spaces. Each Owner of a Unit with an
appurtenant Storage Space may, after the Close of Escrow, transfer one or more of the Owner's
Storage Space(s) to another Owner or the Association, or exchange it for a Storage Space owned
by another Owner, the Association or the Declarant subject to the provisions of this Section
2.11.2. Each transfer of a Storage Space shall be evidenced by the completion of a Storage
Space Transfer Form provided by the Association, and such other form of conveyance as is
acceptable to the affected Owners' lenders and title insurers. If a lender or title insurer requires a
recorded grant deed to evidence the transfer of a Storage Space, the grantor and the grantee shall
be responsible for the cost of Recording such grant deed, and they shall be solely responsible for
paying all documentary transfer taxes, recording fees and property taxes in connection with the
transfer. Before any such transfer, the affected Owners must give the Association prior written
notice of the proposed exchange or transfer (including the names of the affected Owners, their
Unit numbers, and the assigned numbers of the Storage Space(s) that will be exchanged or
transferred) and complete the Storage Space Transfer Form. The Owners must also fully comply
with all requirements of their respective lenders, including obtaining any required lender
consents to the transfer prior to Recording any deed of conveyance for a Storage Space. The
Owners must also comply with any requirements that have been imposed on the Community by
any Local Government Agency. The Association shall have the power and duty to monitor and
approve or disapprove the use, enjoyment, transfer and exchange of Storage Spaces as necessary
to the effective enforcement of this covenant.
2.11.3 Storage Space Maintenance Requirements. Each Owner of a Unit
with an appurtenant Storage Space shall maintain the Storage Space in accordance with any
standards set forth by the Association and in this Declaration. Each Owner of a Storage Space,
at such Owner's cost, shall periodically clean and maintain the Owner's Storage Space and repair
any door or gate hardware and locks for such Owner's Storage Space. The Association will
repair and replace, as necessary, any broken doors or gates on the Storage Spaces and the
Association may charge the Owner of the Storage Space the cost of the repair and replacement of
the doors or gates as a Special Assessment. The Association may also levy Special Assessments
for any required maintenance of a Storage Space, in the event that the Owner of a Storage Space
fails to maintain the Owner's Storage Space in accordance with the Governing Documents.
2.11.4 Storage Space Restrictions. No Owner may transfer by sale, lease,
easement or license any Storage Space to any Person other than the Association, an Owner or the
Declarant. All other transfers are void.
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2.12 OWNER MAINTENANCE OF EXCLUSIVE USE AREAS. Each Owner
shall keep the interior areas of an Owners Exclusive Use Areas clean and in good order. No
Owner may store in any Exclusive Use Area any explosives or other hazardous materials
(including any materials listed in Title 42 U.S.C. Section 9601, et seq., Title 49 U.S.C. 1801, et
seq., Title 15 U.S.C. Section 2601, et seq., or in the regulations adopted pursuant to applicable
law). Owners may not store in any Exclusive Use Area any flammable, explosive, dangerous or
illegal materials, firearms, or any materials classified as hazardous or toxic under any local, State
or Federal law or regulation, nor may Owners use such spaces for the habitation of humans or
animals or do or permit to be done any act which is illegal or creates or may create a nuisance
and/or would cause any increase in property and/or liability insurance premiums to the
Association. No Owner may use the Exclusive Use Area deck or balcony for storage purposes,
including, without limitation, the storage of bicycles, without the approval of the Board or
Declarant (for so long as Declarant owns a Unit in the Community). The Association shall have
the power and the duty to monitor and approve or disapprove the use and enjoyment of the
Exclusive Use Areas as necessary to the enforcement of this covenant. However, the
Association shall not be liable for the safety of any items stored in any Exclusive Use Area.
2.13 ANIMAL REGULATIONS.
2.13.1 Restrictions on Numbers and Types of Animals. No commercial or
farm livestock, including poultry, may be kept in the Community. However, up to two (2) dogs
or two (2) cats, or one (I) dog and one (I) cat may be kept in each Unit, subject to applicable
law, the Governing Documents, and such rules and regulations as may be adopted by the Board.
In addition to dogs and cats, but subject to local ordinances and such Rules and Regulations as
may be adopted by the Board, residents may keep in the Unit reasonable numbers of small
household pets that live in containers or cages, including fish and birds, so long as there is no
external evidence of their presence in the Community. The Board has the power and discretion
to determine whether the types or numbers of any animals kept in a Unit are a nuisance, and the
Board shall have the power to abate the nuisance through any legal procedure that is available to
the Association.
2.13.2 Animal Keeping Areas. Animals belonging to Owners, tenants,
residents or guests in the Community must be kept indoors. Whenever outside the Unit, animals
must be kept under the control of a Person capable of controlling the animal either on a leash or
other appropriate restraint or carrier. No animal may be left unattended in any Exclusive Use
Area at any time.
2.13.3 Owner Responsibility. The Owner of the Unit shall be solely
responsible for ensuring that there is no external evidence of the presence of any animals kept by
the Owner or by the other residents of the Unit (including unreasonable noise or noticeable
odor). Furthermore, each Owner shall be absolutely liable to each and all other Owners, their
Families, tenants, residents and guests for damages or injuries caused by any animals brought or
kept in the Community by an Owner, by members of the Owner's Family, or by the Owner's
guests, tenants or invitees. Each Owner shall immediately remove any excrement or clean other
unsanitary conditions caused by such Owner's animals on any portion of the Community.
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2.14 ANTENNA AND SATELLITE DISH RESTRICTIONS. No Person may
install in the Community any antenna or over-the-air receiving device except for an "Authorized
Antenna."
2.14.1 Defmition. An Authorized Antenna is (a) an antenna designed to
receive direct broadcast satellite service, including direct-to-home satellite service, that is one (1)
meter or less in diameter, (b) an antenna designed to receive video progranuning service,
including multi-channel multipoint distribution service, instructional television fixed service, and
local multipoint distribution service, and is one (1) meter or less in diameter or diagonal
measurement, (c) an antenna designed to receive television broadcast signals, or (d) an antenna
used to receive and transmit fixed wireless signals. The foregoing definition is not intended to
prohibit cordless or wireless telephones, PDAs, computers, wireless home data networking
equipment or other portable wireless data or telephony devices that do not otherwise constitute a
nuisance device under the Governing Documents.
2.14.2 Masts. An Authorized Antenna may be mounted on a mast to reach
the height needed to receive an acceptable quality signal, subject to local governmental agency
permitting requirements for safety purposes. No mast shall be installed in such a way that it
overhangs the deck railing or patio wall/fence, or any portion of the Association Property outside
the Exclusive Use Area, or poses a threat of damage to property or injury to persons.
2.14.3 Preferred Installation Locations and Restrictions on Installation.
The Exclusive Use Area patios and decks are preferred installation locations for the Authorized
Antenna, subject to applicable restrictions and prohibitions in this Declaration. The Committee
may adopt reasonable restrictions on installation and use of an Authorized Antenna as part of its
Design Guidelines in order to minimize visibility of the Authorized Antenna from other
Condominiums. Such restrictions may designate one (I) or more additional preferred installation
locations, or require camouflage such as paint (subject to the antenna manufacturer's
recommendations) or screening vegetation or other Improvements. However, no restriction
imposed by the Committee may (a) unreasonably delay or prevent the installation, maintenance
or use of an Authorized Antenna, (b) unreasonably increase the cost of the installation,
maintenance or use of an Authorized Antenna, or (c) preclude acceptable quality reception.
2.14.4 Prohibitions on Installation. No Authorized Antenna or any other
device may be installed in the Association Property, including landscaped areas and exterior
surfaces of the Condominium Building (such as the roof, fascia, chimneys, patio walls and
exterior wall surfaces). Authorized Antennae may be installed in Exclusive Use Area patios or
decks on a mast or tripod, but no Person may make any installation that penetrates the exterior
surface of any portion of the Condominium Building, including deck railings. The Committee
may prohibit the installation of an Authorized Antenna in a particular location (including an
Exclusive Use Area) if, in the Committee's opinion, the installation, location or maintenance of
such Authorized Antenna unreasonably affects the safety of the Owners or any other Person, or
for any other safety-related reason established by the Committee. The Committee may also
prohibit an Owner from installing an Authorized Antenna on any real property which such
Owner does not own or is not entitled to exclusively use or control under the Governing
Documents. The Committee also has the power to prohibit or restrict the installation of any
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antenna or other over-the-air receiving device that does not meet the definition of an Authorized
Antenna as set forth above.
2.14.5 Review after Installation. The Committee may review the location
and installation of an Authorized Antenna after it is installed. After its review, the Committee
may require that the Authorized Antenna be moved to a preferred location (if one has been
designated) for safety reasons or to comply with reasonable restrictions subject to this Section
and applicable law.
2.14.6 Restatement of Applicable Law. This Section is intended to be a
restatement of the authority granted to the Committee under the law. All amendments,
modifications, restatements and interpretations of the law applicable to the installation, use or
maintenance of an antenna or over-the-air receiving device shall be interpreted to amend,
modify, restate or interpret this Section.
2.15 TRASH. Trash and recyclables must be stored in sanitary containers inside the
Unit and regularly moved to the Association Property collection bin. Oversized items that will
not fit in the collection bin, and hazardous waste, electronics and other materials that may not be
disposed of with regular trash or recyclables may not be abandoned anywhere in the Association
Property; the Owner is solely responsible for arranging the proper disposal thereof. No trash,
trash containers or recyclable materials may be stored in view of other Condominiums or
Association Property. The Board has the power to make additional Rules and Regulations
concerning the disposal of trash and recyclables, consistent with City ordinances.
2.16 OWNER-INSTALLED IMPROVEMENTS.
2.16.1 Outdoors. No Person may install outdoors in sight of the Association
Property or other Condominiums, any clotheslines, patio cover, wiring, air conditioning
equipment, heating units, water softeners, other similar Improvements, or other exterior additions
or alterations to any Condominium Building. Outdoor patio or lounge furniture and plants may
be kept in an Exclusive Use Area patio or deck in accordance with the Rules and Regulations.
Outdoor display of the flag of the United States is permitted pursuant to California Civil Code
Section 1353.5, as long as the flag and flag pole are located solely within, on and over the
Owner's Exclusive Use Area patio or deck.
2.16.2 Indoors. No Owner or other resident of the Community may apply
paint, foil, film, or other reflective material to the glass portion of any window in the Unit. This
Section shall not be interpreted to prohibit the installation of blinds, shutters, curtains and other
similar window coverings. **/Pending installation of permanent window coverings, Owners may
cover windows with white sheets up to __ days/months after the Close of Escrow J**
2.16.3 Structural Modification. Except as otherwise expressly provided in
this Declaration, no Person may modify any Condominium Building or any other Association
Property (including walls, foundation, roof or fire sprinklers) if the modification will impair the
structural integrity or fire safety of the Unit or neighboring Units. No Owner may pierce or
remove or otherwise modify any fire wall assembly or other interior common wall separating
adjoining Units.
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2.16.4 Noise Mitigation. No Owner may take any actions that may interfere
with structural noise mitigation Improvements installed in the Condominium by Declarant.
Owners are further prohibited from (a) puncturing, piercing or otherwise altering any walls
shared with another Condominium, if any, (b) installing any sound system, loudspeakers,
entertainment system or other music-, sound-or noise-generating or amplifying device in any
walls or ceiling of an attached Condominium, and (c) installing any tile or other hard surface
flooring on the upper levels of an attached Condominium without the prior written approval of
the Design Review Committee. Declarant may have installed noise mitigating floor materials in
upper floors or wall Improvements in walls shared with an adjoining Condominium. No Owner
shall remove any Declarant-installed noise mitigation Improvements without replacing it with
materials offering the same, substantially similar or better noise mitigation as the materials that
were originally installed by Declarant.
(a) Approval. Before installation of hard-surface flooring or
replacement of any existing noise mitigating materials that may have been installed in walls,
floors or ceilings, the Owner shall present the Design Review Committee with written
documentation from a licensed engineer, architect or other consultant with qualifications
reasonably acceptable to the Committee that the noise mitigating properties of the proposed
flooring or wall material are the same as, substantially similar to, or better than the materials
originally installed by Declarant.
(b) Violations. If the Committee determines that an Owner has
installed hard-surface flooring in violation of this Section, then the Committee shall have the
power to require the violating Owner to replace the flooring with flooring that is identical to, or,
if such flooring is no longer available, replacement flooring (and underlayment as applicable)
that provides the same or better noise mitigation performance as that which was installed in the
original construction of the Condominium Building. Removal and replacement shall be at the
violating Owner's sole expense.
2.16.5 No Liability. Neither the Declarant nor the Association shall be liable
or responsible for any damage that results from Improvements installed, constructed or modified
by or at the direction of an Owner. Owners are advised to consult and use qualified consultants
and contractors when installing, constructing or modifying Improvements on the Owner's
Condominium.
2.17 MECHANICS' LIENS. No Owner may cause or permit any mechanic's lien to
be filed against the Association Property or another Owner's Condominium for labor or
materials alleged to have been furnished or delivered to such Owner. Any Owner who permits a
mechanics' lien to be so filed shall cause the lien to be discharged no later than five (5) days
after receipt of written notice to discharge the lien is received from the Board. If the Owner fails
to remove a mechanic's lien after written notice from the Board, the Board may discharge the
lien and levy a Special Assessment against the violating Owner's Condominium to recover the
cost of discharge.
2.18 DRAINAGE. There shall be no interference with or obstruction of the
established surface drainage pattem(s) over any Condominium in the Community, unless an
adequate alternative provision is made for proper drainage.
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2.18.1 Established Drainage. Any alteration of the established drainage
pattern must at all times comply with all applicable local governmental requirements. For the
purpose hereof, "established" drainage is defined as the drainage which exists at the time of the
first Close of Escrow for the sale of the Condominium by Declarant, or as shown on any plan
approved by the Committee. Established drainage includes drainage from Condominium to
Condominium and to and from property lying outside the Community.
2.18.2 Surface Drainage Improvements; Sub-Drains. The Established
Drainage on a Condominium may consist of any or all of the following: earthen or concrete
drainage swales, concrete channels, catch basins with underground drainage pipelines, roof-
mounted gutters or downspouts (collectively, "Surface Drainage Improvements''). In addition,
one or more drain lines may have been installed beneath the surface of the Condominium or
Exclusive Use Area (each, a "Sub-Drain''). Surface Drainage Improvements and Sub-Drains
and appurtenant Improvements constructed or installed by Declarant (if any) provide for
collection and drainage of surface waters from each Condominium and from elsewhere in the
Community to proper points of disposal.
2.18.3 Maintenance of Drainage Improvements. Each Owner must
maintain, and keep free of debris and obstructions all Surface Drainage Improvements and Sub-
Drains located on or under the Condominium or Exclusive Use Area, except those for which the
Association or a public authority or utility are responsible. To ensure adequate drainage within
the Community, it is essential that the Surface Drainage Improvements and the Sub-Drains, if
any, not be modified, removed or blocked without having first made alternative drainage
arrangements. Therefore, no Owner may install, alter, modify, remove or replace any Surface
Drainage Improvements or Sub-Drains on or under the Owner's Condominium or Exclusive Use
Area without first making alternative drainage arrangements approved in writing by the
Committee and by applicable governmental agencies. Owner-installed irrigation systems must
be installed and maintained to prevent excess runoff and accumulation of surface water.
2.18.4 Grading. The grading design in the Community should not be altered
to redirect surface water flow toward the Condominiums or onto adjacent property, or to trap
water so that it ponds or floods. Grading modifications are subject to law, approval by the
Board, and the terms of any Recorded drainage easements.
2.19 WATER SUPPLY SYSTEM. No individual water supply, sewage disposal or
water softener system is permitted on any Condominium unless such system is designed, located,
constructed and equipped in accordance with the requirements, standards and recommendations
of any water district having jurisdiction, the City, County, the Design Review Committee and all
other applicable governmental authorities with jurisdiction.
2.20 VIEW OBSTRUCTIONS. Each Owner acknowledges that (a) there are no
protected views in the Community, and no Condominium is assured the existence or
unobstructed continuation of any particular view, and (b) any construction, landscaping
(including the growth of landscaping) or other installation of Improvements by Declarant or
other Owners may impair the view from any Condominium, and each Owner hereby consents to
such view impairment.
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2.21 RIGHTS OF DISABLED. Subject to Article 5, each Owner may modify such
Owner's Unit and the route over the Association Property leading to the front door of the
Owner's Unit, at the Owner's sole expense to facilitate access to the Unit 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.
2.22 TEMPORARY BUILDINGS. No outbuilding, tent, shack, shed or other
temporary building or Improvement may be placed upon any portion of the Community either
temporarily or permanently, without the prior written consent of the Design Review Committee.
2.23 PROHIBITED RESIDENTIAL USES. No garage, carport, trailer, camper,
motor home, recreational vehicle or other vehicle may be used as a residence in the Community,
either temporarily or permanently.
2.24 ASSOCIATION PROPERTY. The Association Property may not be altered
without the Board's prior written consent.
2.25 MINERAL EXPLORATION AND EXTRACTION. 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 Community, nor are oil wells, tanks,
tunnels or mineral excavations or shafts permitted upon the surface of any Condominium or
within five hundred ( 500) feet of the surface of the Community.
2.26 POST-TENSION CONCRETE SLABS. Concrete slabs for Improvements
constructed in the Community may be reinforced with a grid of steel cable installed in the
concrete slab and then tightened to create extremely high tension. This type of slab is commonly
known as a "Post-Tension Slab." Cutting into a Post-Tension Slab for any reason (for example,
to install a floor safe, to remodel plumbing, etc.) is very hazardous and may result in serious
damage to the Unit, personal injury, or both. Each Owner shall determine if the Condominium
Building containing the Owner's Unit has been constructed with a Post-Tension Slab and, if so
agrees: (a) Owner shall not cut into or otherwise tamper with the Post-Tension Slab; (b) Owner
will not permit or allow any other Person to cut into or tamper with the Post-Tension Slab so
long as Owner owns any interest in the Unit; (c) Owner shall disclose the existence of the Post-
Tension Slab to any Person who rents, leases or purchases the Unit from Owner; and (d) Owner
shall indemnify and hold Declarant and Declarant's agents, free and harmless from and against
any and all claims, damages, losses or other liability (including attorneys' fees and costs of
court) arising from any breach of this covenant by Owner.
ARTICLE3
DISCLOSURES
This Article discloses information obtained from third-party sources such as consultants,
government and public records. No Person should rely on the ongoing accuracy or completeness
of the information discussed in this Article because many of the matters discussed below are
outside the control of Declarant and the Association. Accordingly, Declarant does not make any
guarantee as to the accuracy or completeness of the matters disclosed below. Furthermore,
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Declarant is under no obligation to update or revise any matter disclosed in this Article. This
Article is intended to provide Owners with information known or provided to Declarant as of the
date this Declaration was Recorded, to be used as a starting point for further independent
investigation.
3.1 NO REPRESENTATIONS OR WARRANTIES. No representations or
warranties, express or implied, have been given by Declarant, the Association or their agents, in
connection with the Community, its physical condition, zoning, compliance with law, fitness for
intended use, or in connection with the subdivision, sale, operation, maintenance, cost of
maintenance, taxes or regulation of the Community as a condominium project, except as
expressly provided in this Declaration, as submitted by Declarant to the ORE, and as provided by
Declarant to the first Owner of each Condominium.
3.2 ACCESS FACILITIES. Vehicular and pedestrian access into the Community
may be controlled by entry doors or gates located at pedestrian entrances and the entrances to the
parking garage, gates located on the private drive and elevators requiring keys to reach
individual Units (collectively, "Access Points''). Staffing is not planned for all Access Points.
However, Declarant may provide interim staffing of Access Points at its sole cost and sole
discretion as a part of the marketing and development operations for the Community. Interim
staffing of Access Points may be modified or eliminated at any time without notice. Declarant
has reserved the right to limit the operation of any Access Point during the period when
Declarant is offering Condominiums for sale. Until the last Close of Escrow occurs in the
Community, Access Points may be open to the general public. Access Points and any staffing
thereof are not intended to provide security, privacy or safety for persons, personal property or
Condominiums within the Community. Declarant and the Association do not undertake to
provide security or privacy for the Community or Owners, nor do they make any representations
or warranties concerning the privacy, security and safety of the Community or Owners. Any
patrol service provided by the Association or any Improvements constructed or maintained by
the Association for the purposes of protecting Association Property are not intended to provide
security for Persons, personal property or Condominiums within the Community. Neither the
Association nor Declarant shall be liable to any Person and each Owner waives (to the extent
permitted by applicable law) any claim against the Association and Declarant, for (i) any
unauthorized or criminal entry of third parties into the Community, any Unit or any
Improvements within the Community, (ii) any damage or injury to Persons, or (iii) any loss of
property in and about the Community, any Unit or any Improvements within the Community, by
or from any unauthorized or criminal acts of third parties, regardless of any action, inaction,
failure, breakdown, malfunction or insufficiency of the services and Improvements provided by
the Association or Declarant.
3.3 ELECTRIC POWER LINES, WIRELESS COMMUNICATIONS
FACILITIES, AND HUMAN HEALTH. Underground and overhead electric transmission and
distribution lines and transformers ("Power Lines'') are located within or in the vicinity of all
residential communities, including this Community. The Power Lines within and in the vicinity
of the Community produce electric and magnetic fields ("EMF''). Antennas and other
equipment for wireless telecommunications (for example, cellular phones) may also be located in
or in the vicinity of the Community. Like all wireless communications facilities, these facilities
produce radio-frequency fields ("RF''). Numerous studies concerning the effects of EMF and/or
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RF on human health have been undertaken over the past several years and some are ongoing.
There are studies that have reported a possible relationship between EMF exposure and some
health conditions, such as childhood leukemia, miscarriages, and certain neurological disorders,
while other studies found no such relationship. Some studies have reported associations between
RF exposure and brain cancer, while other studies found no such relationship. Additional
information about EMF and RF is available from the following agencies:
3.3.1 the World Health Organization's International EMF Project website at
http://www.who.int/topics/electromagnetic fields/en/;
3.3.2 Southern California Edison website at https://www.sce.com/wps/portal/
home/safetv/familvlenvironmental-health;
3.3.3 the U.S. National Institute of Environmental Health Sciences website at
http://www.niehs.nih.gov/healthltopics/agents/emf/;
3.3.4 San Diego Gas & Electric website at http://www.sdge.com/safetvl
electric-and-magnetic-fields/emf-issue; and htto://www.sdge.com/safetvlelectric-and-magnetic-
fieldsllinks-emf-resources-web;
3.3.5 Electric and Magnetic Fields Program, at http://www.ehib.org/emf/;
3.3.6 Pacific Gas & Electric Company website at http://www.pge.com/
mybusiness/edusafetvlsystemworks/electric/emf/; and
3.3. 7 Sacramento Municipal Utility District website at
https://www.smud.org/en/residential/education-safetv/powerlines-and-eguipment/electric-and-
magnetic-fields.htm.
This list is not meant to be all inclusive.
3.4 URBAN ENVIRONMENT. Living in an attached Condominium Building
within a densely populated Community entails living in very close proximity to other persons
and business, with attendant limitations on solitude. Owners will hear noise from adjacent Units
within the Community, including noise from showers, bathtubs, sinks, toilets or other sources of
running water. Also, Owners may hear noise from items such as vacuum cleaners, stereos or
televisions, or from people running, walking or exercising. Finally, Owners can expect to hear
noise from adjacent residential and commercial areas. Owners may also experience light
entering the Units from street lights located in close proximity to the windows and doors of the
Units.
3.5 SURROUNDING USES. This disclosure is intended to provide Owners with
information on surrounding uses as of the date of Recordation. Uses and Improvements in the
immediate vicinity of the Community include the items listed below:
land.
North of the Community: Buena Vista Lagoon; single family residence; vacant
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South of the Community: Residential buildings.
East of the Community: Tennis court; Carlsbad Boulevard.
West of the Community: Pacific Ocean; residential buildings.
Existing and proposed uses in surrounding areas may change without notice. Neither
Declarant nor the Association have any control over uses outside the Community. Owners are
advised to contact applicable local governmental agencies for updated information concerning
the development plan for the surrounding community.
3.6 BEACH AND LAGOON ACCESS. Both the Pacific Ocean and the Buena
Vista Lagoon (collectively, the "Water Bodies'') are within walking distance from the
Community. There are several walking paths and access points to the Water Bodies within the
vicinity of the Community that will be open to the public, and, therefore, the areas in and around
these walkways and access points will be subject to varying levels of pedestrian traffic, noise and
other related conveniences. The Water Bodies are a potential hazard and should be approached
with caution. Children and pets must be closely watched to prevent accidental drowning and
other such injuries around the Water Bodies. In addition, the Water Bodies may also contribute
to the propagation of mosquitoes, other pests and odors in the Community. Owners
acknowledge and understand that it is Owners' sole responsibility to control or otherwise abate
the impact of mosquitoes and mosquito bites. Declarant makes no representations or warranties
concerning the safety of any person from mosquito bites and Declarant has no control over the
use, maintenance or care of the Water Bodies. Owners may be excluded from visiting the Water
Bodies from time to time. By acceptance of a deed to a Condominium, each Owner
acknowledges that Declarant is not responsible for maintenance of the Water Bodies or for the
safety of Owner, Owner's family, guests, tenants, invitees, agents or employees.
3.7 PROPERTY LINES. The boundaries of each Condominium in the Community
and the Association Property are delineated on subdivision (tract) maps, lot line adjustments,
parcel maps or Condominium Plans that are public records and are available at the County
Recorder's office.
3.8 SEWER BACKFLOW PREVENTION VALVE. Certain Units in the
Community have been provided with sewer backflow preventors. These devices are provided in
Units which have a finish floor elevation that is lower than the nearest upstream manhole rim.
These devices are designed to prevent sewage from backing up into a Unit in the event of a
blockage in the main sewer line in the street. The clean-out for these backflow preventors is
usually in the landscaped area in front of the Unit, but on occasion may be located within the
garage floor of these specified homes. If for any reason a sewer line requires snaking or
cleaning, the backflow preventor should be disconnected before conducting any such work to
prevent the backflow preventor device from being damaged.
3.9 UTILITY IMPROVEMENTS. There may be above-ground and subterranean
utility Improvements such as transformers, lift stations, water or sewer facilities,
telecommunications vaults and other visible Improvements necessary for the delivery of utilities
or other services either on or adjacent to each Condominium. The placement of such
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Improvements is dictated by the needs of the applicable utility or service provider, and the
presence of such Improvements in the Community is in accordance with easements created prior
to or during the development of the Community. Each Condominium and portions of the
Association Property are subject to one or more such easements for placement of utility
Improvements. No Owner may modify, remove or otherwise interfere with utility Improvements
on any Condominium or other portion of the Community.
3.10 MOLD. Molds are simple, microscopic organisms, present virtually everywhere,
indoors and outdoors. Mold can be any color, but is usually green, gray, brown or black. Mold
requires a food source (such as paper, wood, leaves or dirt), a source of moisture and a suitable
temperature (generally 40-100 degrees Fahrenheit) to grow.
Individuals are exposed to molds on a daily basis, and in most instances there are no
harmful effects. However, the buildup of molds in the indoor environment may contribute to
serious health problems for some individuals. Due to a variety of factors, including the fact that
sensitivities to various types of molds and other potential contaminants vary from person to
person, there are currently no state or federal standards concerning acceptable levels of exposure
to mold. Sources of indoor moisture that may lead to mold problems include, but are not limited
to flooding, leaks, seepage, sprinkler spray hitting the Condominium Building, overflow from
sinks or sewers, damp basement or crawl space, steam from shower or cooking, humidifiers, wet
clothes drying indoors, watering house plants, and clothes dryers exhausting indoors.
Each Owner should take precautions to prevent the growth of mold in the Unjt from these
and other sources. Preventative measures include, but are not limited to the following: (1)
regularly cleaning the Unit; (2) regularly checking for accumulated moisture in comers and
unventilated areas; (3) running fans, dehumidifiers and air conditioners to reduce indoor
humidity; (4) stopping the source of any leak or flooding; (5) removing excess water with mops
or a wet vacuum; (6) moving wet items to a dry, well-ventilated area; (7) regularly cleaning and
disinfecting indoor and outdoor surfaces that may contain mold; (8) having major appliances,
such as furnaces, heat pumps, central air conditioners, ventilation systems and furnace-attached
humidifiers inspected, cleaned and serviced regularly by a qualified professional; (9) cleaning
the refrigerator, air conditioner and dehumidifier drip pans and filters regularly and ensuring that
refrigerator and freezer doors seal properly; and (1 0) avoiding over-watering oflandscaping.
It is the Owner's responsibility to monitor the Residence on a continual basis for excessive
moisture, water and mold accumulation. For additional information regarding mold, please refer to
the following websites: California Department of Public Health -http://www.cdph.ca.gov;
Centers for Disease Control and Prevention -http://www.cdc.gov/nceh; U.S. Environmental
Protection Agency http://www.eoa.gov; lllinois Department of Public Health-
http://www.idph.state.il.us; and Washington State Department of Health-http://www.doh.wa.gov.
3.11 RADON. Radon is a colorless, odorless radioactive gas that is produced by the
natural decay of uranium, which is found in nearly all soils. Because radon is a gas, it can seep
from the ground into the air in a house through openings in the ground, and its presence increases
the risk of lung cancer. The U.S. Environmental Protection Agency (the "EPA") and U.S.
Geological Survey have produced a map that assigns one to three zone designations based on
radon potential to each county. According to the EPA, each zone designation reflects the
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average short-term radon measurement that can be expected to be measured in a building without
the implementation of radon control measures. This map is not meant to be used to determine
whether a particular home should be tested for radon, but is used to assist various government
agencies and organizations in focusing their radon program resources. Declarant has been
informed by its consultants that the County is currently in Zone 2, which has a radon potential of
moderate (frorn 2 to 4 pCi/L). Declarant and the Association make no representations,
warranties or guarantees as to the degree of radon risk within the Community. Potential buyers
and residents are advised to consult with the City or other public agencies and appropriate
experts to evaluate the potential risk. Additional information may be found at
http://eetd.lbl.gov/IEP/high-radon!USgm.htrn.
3.12 SUPPLEMENTAL REAL PROPERTY TAXES. The County Assessor has the
authority to reassess new homes after the Close of Escrow based on the difference between its
appraised value and the home's unimproved value for the period after escrow closes. The
Assessor will issue a supplemental tax bill to Owners for the difference in the taxes due based
upon the reassessment. Declarant has no control over the valuation, timing or the amount of the
supplemental bill resulting from the reassessment. Owners are solely responsible for the
payment of the supplemental tax bill.
Code:
The following notice is given pursuant to Section 11 02.6c of the California Civil
"California property tax law requires the Assessor to revalue
real property at the time the ownership of the property
changes. Because of this law, you may receive one or two
supplemental tax bills, depending on when your loan closes.
The supplemental tax bills are not mailed to your lender. If
you have arranged for your property tax payments to be paid
through an impound account, the supplemental tax bills will
not be paid by your lender. It is your responsibility to pay
these supplemental bills directly to the Tax Collector. If you
have any question concerning this matter, please call your local
Tax Collector's Office."
Neither Declarant nor any of its authorized agents, representatives, employees or sales
people have made any representations or warranties regarding supplemental real property taxes.
3.13 MEGAN'S LAW NOTICE. The following notice is given pursuant to Section
2079.1 Oa of the California Civil Code:
"Pursuant to Section 290.46 of the Penal Code, information
about specified registered sex offenders is made available to
the public via an Internet Web site maintained by the
Department of Justice at www.meganslaw.ca.gov. Depending
on an offender's criminal history, this information will include
either the address at which the offender resides or the
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community of residence and ZIP Code in which he or she
resides."
Neither Declarant nor the Neighborhood Associations make any representations,
warranties or guarantees regarding the presence or absence of registered sex offenders within the
Community or in the surrounding area. Declarant and the Association have no obligation or duty
to investigate existing residents or buyers to determine whether they are sex offenders. Owners
are solely responsible for making their own investigation.
3.14 CHANGE IN PLANS. Declarant has the right to develop the Annexable Area
with Improvements that may be different in design, size, character, style and price from those in
Phase I or any other Phase.
3.15 NO ENHANCED PROTECTION AGREEMENT. No language in this
Declaration, any Notice of Addition or any Supplemental Declaration shall constitute, or be
interpreted to constitute, an enhanced protection agreement ("EPA''), as defined in California
Civil Code Section 90 I. Further, no express or implied representations or warranties made by
Declarant in any other writing are intended to constitute, or to be interpreted to constitute, an
EPA.
3.16 ADDITIONAL PROVISIONS. 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 Governing
Documents. Declarant makes no representations or warranties regarding the future
enforceability of any portion of the Governing Documents.
ARTICLE4
THE ASSOCIATION
4.1 GENERAL DUTIES AND POWERS. The Association has the duties and
powers enumerated and described in the Governing Documents, in addition to the general and
implied powers of a nonprofit mutual benefit corporation, generally to do all things that a
corporation organized under California law may lawfully do which are necessary or proper in
operating for the general welfare of the Owners, subject only to the limits on the exercise of such
powers listed in the Governing Documents. Unless otherwise indicated in the Articles of
Incorporation, Bylaws, this Declaration, or a Supplemental 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 Association Property. The power and duty to accept, maintain and
manage the Association Property in accordance with the Governing Documents. The
Association may install or remove capital Improvements on the Association Property. The
Association may reconstruct, replace or refinish any Improvement on the Association Property.
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4.2.2 Utilities. The power and duty to obtain, for the benefit of the
Community, all water, gas and electric services necessary for the Association Property. The
power and duty to obtain for the benefit of the Community, all commonly metered residential
utilities.
4.2.3 Granting Rights. The power to grant exclusive or nonexclusive
easements, licenses, rights of way or fee interests in the Association Property owned in fee
simple by the Association, to the extent any such grant is reasonably required (a) for
Improvements to serve the Community, (b) for purposes of conformity with the as-built location
of Improvements installed or authorized by Declarant or the Association, (c) in connection with
any lawful lot line adjustment, or (d) for other purposes consistent with the intended use of the
Community. This power includes the right to create and convey easements for one or more
Owners over portions of the Association Property. The Association may de-annex any portion of
the Community from the encumbrance of the Declaration in connection with any lawful lot line
adjustment.
After the Association acquires fee title to or any easement right over Association
Property, the affirmative vote of members owning at least sixty-seven percent ( 67%) of the
Condominiums in the Community shall be required before the Board may grant exclusive use of
any portion of that Association Property to any member, except as provided in California Civil
Code Section 1363.07. Any measure placed before the members requesting that the Board grant
exclusive use of any portion of the Association Property shall specify whether the Association
will receive any monetary consideration for the grant and whether the Association or the
transferee will be responsible for providing any insurance coverage for exclusive use of the
Association Property.
4.2.4 Transfer of Exclusive Use Area Parking and Storage Spaces.
Subject to Section 4.2.3 above, pursuant to Sections 2.1 0.5 and 2.11.2 of this Declaration the
power to enter into license, lease, rent or purchase agreements with Owners in the Community
for the transfer of Exclusive Use Area parking and storage spaces, as well as the power and duty
to monitor any such license, lease, rent or purchase between Owners.
4.2.5 Employ Personnel. The power to employ Persons necessary for the
effective operation and maintenance of the Association Property, including legal, management
and accounting services.
4.2.6 Insurance. The power and duty to keep insurance for the Association
Property in accordance with this Declaration.
4.2.7 Sewers and Storm Drains. The power and duty to maintain any
private sewer systems, private storm drains, or private drainage facilities in the Association
Property in accordance with the Governing Documents.
4.2.8 Maintenance Guidelines. The power and duty to (a) operate, maintain
and inspect the Association Property and its various components in conformity with any
Maintenance Guidelines and any maintenance manual, and (b) review any maintenance manual
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for necessary or appropriate revisions no less than annually after the Board has prepared the
Budget.
4.2.9 Rules and Regulations. The power, but not the duty, to adopt, amend,
repeal and create exceptions to, the Rules and Regulations.
(a) Standards for Enforceability. To be valid and enforceable, a
Rule must satisfy all the following requirements:
(I) The Rule must be in writing;
(2) The Rule is within the authority of the Board conferred
by law or by this Declaration, the Articles of Incorporation or the Bylaws;
(3) The Rule is not inconsistent with governing law, this
Declaration, the Articles of Incorporation or the Bylaws;
(4) The Rule is adopted, amended or repealed in good faith
and in substantial compliance with the requirements of Article 4 of Title 6 of Part 4 of Division 2
of the California Civil Code;
( 5) The Rule is reasonable; and
(6) The Rule complies with the requirements of California
Civil Code Section 1357.110.
(b) Areas of Regulation. The Rules and Regulations may concern
use of the Community, signs, parking restrictions, minimum standards of property maintenance,
and any other matter under the Association's jurisdiction.
(c) Limits on Regulation. The Rules and Regulations must apply
uniformly to all Owners and must comply with this Declaration and all applicable state and local
laws. The rights of Owners to display in or on their Units religious, holiday and political signs,
symbols and decorations of the kinds normally displayed in residential condominium
neighborhoods shall not be abridged. However, the Association may adopt time, place and
manner restrictions for such displays if they are visible outside the Unit. No modification to the
Rules and Regulations may require an Owner to dispose of personal property that was in
compliance with all rules previously in force; however, this exemption shall apply only during
the period of such Owner's ownership of the Condominium and it shall not apply to:
(I) subsequent Owners who take title to a Condominium after the modification is adopted; or
(2) clarifications to the Rules and Regulations.
(d) Procedure for Adoption, Amendment and Repeal. Rules or
procedures concerning (1) the use of Association Property, (2) the use of a Condominium,
including any aesthetic standards or Design Guidelines that affect Condominiums, (3) member
discipline, including any schedule of monetary penalties for violation of the Governing
Documents, (4) any procedure for the imposition of penalties, (5) any standards for delinquent
assessment payment plans, ( 6) any procedures adopted by the Association for resolution of
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assessment disputes, (7) any procedures for reviewing and approving or disapproving a proposed
physical change to a Condominium or to the Association Property, and (8) procedures for
elections (each, a "Covered Rule") may only be adopted, amended or repealed (each, a "Rule
Change") in accordance with the following procedure:
(!) The Board must provide written notice ("Notice") of a
proposed Rule Change to the members at least thirty (30) days before making the Rule Change,
except for an Emergency Rule Change (defined below). The Notice must include the text of the
proposed Rule Change and a description ofthe purpose and effect of the proposed Rule Change;
(2) The decision on a proposed Rule Change shall be made
at a Board meeting after consideration of comments made by the members of the Association;
(3) The Board shall deliver Notice of the Rule Change to
every member of the Association within fifteen (15) days of adoption. If the change was an
Emergency Rule Change, the Notice shall include the text of the Emergency Rule Change, and
the date on which the Emergency Rule Change expires;
(4) If the Board determines that an immediate Rule Change
is required to address an imminent threat to public health or safety, or an imminent risk of
substantial economic loss to the Association, it may make the change on an emergency basis
("Emergency Rule Change") and no Notice will be required. An Emergency Rule Change is
effective for one hundred-twenty (120) days, unless the Emergency Rule Change provides for a
shorter effective period. Any Rule Change that is adopted as an Emergency Rule Change may
not be re-adopted under authority of this subpart;
(5) A Notice required by this Section 4.2.9(d) is subject to
California Civil Code Section 1350.7;
(6) A Rule Change made pursuant to this Section 4.2.9(d)
maybe reversed as provided in California Civil Code Section 1357.140.
does not apply to:
above;
Association Property;
apply generally;
or a Special Assessment;
(e) Exceptions to Procedure. The procedure in Section 4.2.9(d)
(I) Rules that do not meet the definition of Covered Rules
(2) decisions of the Board regarding maintenance of
(3) a decision on a specific matter that is not intended to
( 4) a decision setting the amount of an Annual Assessment
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( 5) a Rule Change that is required by law if the Board has
no discretion as to the substantive effect of the changes; or
(6) issuance of a document that merely repeats existing law
or the Governing Documents.
(f) Use of Facilities. The Rules and Regulations may (1) specify a
maximum number of guests which an Owner, tenant or other Person may admit to the
Association Property recreational facilities at one time, (2) establish rules for allowing Owners,
tenants or other Persons to use Association Property facilities for private functions, or
(3) establish admission fees, deposit requirements and other fees for the use of any facilities on
the Association Property.
4.2.10 Borrowings. The power, but not the duty, to borrow money for
purposes authorized by the Articles of Incorporation, Bylaws, Declaration, any Supplemental
Declarations or any Notice of Addition, and to use the Association Property as security for the
borrowing.
4.2.11 Contracts. The power, but not the duty, to enter into contracts. This
includes contracts with Owners or other Persons to provide services or to maintain
Improvements in the Community and elsewhere which the Association is not otherwise required
to provide or maintain by this Declaration.
4.2.12 Telecommunications Contract. Notwithstanding anything in the
Governing Documents to the contrary, the Board shall have the power to enter into, accept an
assigmnent of, or otherwise cause the Association to comply with the terms and provisions of an
exclusive 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 Condominium in
the Community. The Board shall only enter into, accept an assigmnent of, or otherwise cause the
Association to comply with the terms of the Telecommunications Contract if the Board
determines that the Telecommunications Contract is in the best interests of the Association.
Although not exhaustive, the Board shall consider the following factors in making such a
determination in the exercise of its business judgment:
(a) Initial Term and Extensions. The initial term of the
Telecommunications Contract should not exceed five (5) years, and, if the Telecommunications
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 before the end of either the initial or any extended term
of the Telecommunications Contract, the entire Membership of the Association may, with the
vote or written approval of more than fifty percent (50%) of all Members other than Declarant,
prevent any automatic extension that the Telecommunications Contract may provide for (with or
without cause), and thereby cause the Telecommunications Contract to expire, and (2) at any
time with reasonable notice periods, the Board may terminate the Telecommunications Contract
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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
Condominiums represents a discount from the comparable retail fees charged by the Service
Provider in the general geographic area in which the Community is 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
Condominium.
(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.
4.2.13 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 performance of an act or omission
within what such Person reasonably believed to be the scope of the Person's Association duties
("Official 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.
4.2.14 Annexing Additional Property. The power, but not the duty, to
annex, pursuant to Section 16.2, additional property to the property encumbered by this
Declaration.
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4.2.15 Vehicle and Parking Restrictions. The power granted in Section 2.10
to identify Authorized Vehicles or Restricted Vehicles and to modify the vehicle and parking
restrictions in the Governing Documents.
4.2.16 License and Use Agreements. The Association may enter into
agreements with Declarant or any homeowners association having jurisdiction over the
Annexable Area to share facilities located on the Association Property ("Facility'') with the
Owners of Units in the Annexable Area. Any such agreement shall be in form and content
acceptable to Declarant, the Board of Directors (without the approval of Owners) and Declarant
or the board of directors of any adjacent homeowners association and shall include provisions
regarding use and sharing of maintenance costs for the Facility.
4.2.17 Landscaping. The Board has the power, but not the duty, to grant
Owners revocable licenses that allow Owners to replace and/or add landscaping Improvements to
any portion of the Association Property, subject to the prior written approval of the Board, any
reasonable restrictions or conditions the Board may impose, and the right of the Board to revoke
such license, remove the Improvements and charge the Owner for the cost of such removal.
4.2.18 Prohibited Functions.
(a) Property Manager. The Association shall not hire any
employees, furnish offices or other facilities, or use any Association Property for an "on-site"
Manager. The Manager shall at all times be a professional manager employed as an independent
contractor or agent working at its own place of business.
(b) 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 Community.
(c) Political Activities. The Association shall not 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 does not directly and exclusively pertain to
the authorized activities of the Association. Furthermore, the Association shall not participate in
federal, state or local activities or activities intended to influence a governmental action affecting
areas outside the Community (for example, endorsement or support of legislative or
administrative actions by a local governmental authority), nor shall it support or campaign for or
against candidates for elected or appointed office or ballot proposals. There shall be no
amendment of this Section so long as Declarant owns any portion of the Community.
4.2.19 Standing to Resolve Disputes. The Association shall have standing to
institute, defend, settle or intervene in litigation, alternative dispute resolution or administrative
proceedings (each, an "Action'') in its own name as the real party in interest and without joining
the Owners, in matters pertaining to (a) damage to the Association Property, (b) damage to
portions of the Condominiums which the Association is obligated to maintain or repair, and
(c) damage to portions of the Condominiums which arises out of, or is integrally related to,
damage to the Association Property or portions of the Condominiums that the Association is
obligated to maintain or repair (each, a "Claim''). However, the Association shall not have
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standing to institute, defend, settle or intervene in any Action in any matter pertaining only to an
individual Condominium and not included in clauses (b) and (c) above.
The Association may, in its sole discretion, elect to institute, intervene in, continue, settle
or dismiss an Action at any time. If the Association institutes or intervenes in an Action on a
Claim, the Association's standing shall be exclusive, and the Owners shall thereafter be barred
from instituting a new Action or maintaining a pending Action on the same Claim. The
Association's election to institute or intervene in an Action on a particular Claim shall not create
any affirmative obligation on the part of the Association to maintain, settle or dismiss the Action,
except in the Association's sole discretion, and subject to Section 12.4. If the Association elects
to settle an Action, the terms of the settlement shall be binding on the Owners, and the Owners
shall be barred from instituting or continuing any other Action on the same Claim. If the
Association elects to dismiss an Action, the dismissal shall be with prejudice to the institution or
continuation by one or more Owners of any Action on the same Claim.
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 Governing Documents 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 Governing Documents or law. Unless a duty to act is imposed on the Board, the Design
Review Cmrunittee or other committees or representatives of the Association by the Governing
Documents or law, the Board, the Design Review Committee and the committees have the right
to decide to act or not act. Any decision not to act is not a waiver of the right to act in the future.
(b) Business Affairs. This Section 4.3.1(b) 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 the 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 Board duties, a Board member is entitled to rely on
information, opinions, reports or statements, including financial data prepared or presented by:
(1) One (1) or more officers or employees of the
Association whom the Board member believes to be reliable and competent in the matters
presented;
(2) 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
(3) A committee of the Board upon which the Board
member does not serve, as to matters under its designated authority, which committee the Board
member believes to merit confidence, so long as, in any such case, the Board member acts in
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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.
This Section 4.3.l(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.l(b).
(c) Association Governance. This Section 4.3.1 applies to Board
actions and Design Review Committee decisions in connection with interpretation and
enforcement of the Governing Documents, architectural and landscaping control, regulation of
uses within the Community, rulemaking and oversight of committees. Actions taken or
decisions made in connection with these matters shall be reasonable, fair and nondiscriminatory.
4.3.2 Non-liability.
(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 Community 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 California Civil Code Section 1365.7 are
met.
(c) Non-liability of Owners. Pursuant to California Civil Code
Section 1365.9, no Owner shall be liable for any cause of action in tort which can be brought
against the Owner solely because of the Owner's undivided interest in the Common Area so long
as the Association keeps one (1) or more policies of insurance which include coverage for
general liability of the Association in the amount required by California Civil Code
Section 1365.9 and that insurance is in effect for the cause of action being brought.
4.4 MEMBERSHIP.
4.4.1 Generally. Every Owner shall automatically acquire a Membership in
the Association and retain the Membership until such Owner's Condominium ownership ceases,
at which time such Owner's Membership shall automatically cease. Ownership of a
Condominium is the sole qualification for Membership. Memberships are not assignable except
to the Person to whom title to the Condominium is transferred, and every Membership is
appurtenant to and may not be separated from the fee ownership of the Condominium. The
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rights, duties, privileges and obligations of all Owners are as provided in the Governing
Documents.
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
Condominium, and then only to the transferee or Mortgagee of the Owner's Condominium. A
prohibited transfer is void and will not be reflected in the records of the Association. Any Owner
who has sold the Owner's Condominium 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 Assessments attributable to the contract seller's
Condominium which accrue before title to the Condominium is transferred. If the contract seller
fails or refuses to delegate the 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 Condominium (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 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:
(a) Class A. Class A members are all Owners except Declarant for
so long as a Class B Membership exists. Class A members are entitled to one ( 1) vote for each
Condominium 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 each Condominium shall be exercised in accordance with Section 4.5, but
no more than one (1) Class A vote may be cast for any Condominium.
(b) Class B. The Class B member is Declarant. The Class B
member is entitled to three (3) votes for each Condominium owned by Declarant which is
subject to Assessment. The Class B Membership shall convert to Class A Membership on the
earlier to occur of the following events:
(1) The second (2"d) anniversary of the first Close of
Escrow in the most recent Phase; or
(2) The fourth (4th) anniversary of the first Close of Escrow
in Phase 1.
4.4.4 Class 8 Board Appointment Right. The Class B Membership shall
also include a limited right to appoint a simple majority of the members of the Board of
Directors (the "Board Appointment Right"').
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(a) Limits on Exercise of Board Appointment Right. Until the
expiration of the Board Appointment Right as determined below, Declarant shall not be
permitted to cast any Class A or Class B vote to elect any member of the Board of Directors.
Declarant's power to fill seats on the Board shall during that time be limited to exercise of the
Board Appointment Right.
(b) Term of Board Appointment Right. The Board Appointment
Right shall remain effective until the earlier of:
(I) the date on which the Class B Membership converts to
Class A Membership; or
(2) the date on which Declarant no longer owns any portion
of the Community or Annexable Area; or
(3) the date set by Declarant in a written notice delivered to
the Board.
(c) No Amendment without Declarant Consent. Notwithstanding
anything to the contrary in this Declaration, this Section 4.4 shall not be amended without the
prior written consent of Declarant until Declarant no longer owns any portion of the Community
or Annexable Area.
4.5 VOTING RIGHTS. Voting rights attributable to the Units in a Phase shall be
exercised only after Annual Assessments have commenced in the Phase.
4.5.1 Limits GeneraUy. All voting rights are subject to the Governing
Documents. Except as provided in Sections 4.5.2 and 12.3 of this Declaration and as provided in
the Bylaws, as long as there is a Class B Membership, any provision of the Governing
Documents 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 both
the Class A and the Class B Memberships. Except as provided in Section 12.3 of this
Declaration and as provided in the Bylaws, on termination of the Class B Membership, any
provision of the Governing Documents 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 (a) the Association's
total Class A voting power, and (b) the Association's Class A voting power represented by
Owners other than Declarant.
4.5.2 Vote to Initiate Right to Repair Law Claim. Beginning on the date
of the first annual meeting of Owners, Declarant relinquishes control over the Association's
ability to decide whether to initiate a Right to Repair Law Claim. This means that Declarant,
current employees and agents of Declarant, Board members who are appointed by Declarant,
Board members elected by a majority of votes cast by Declarant, and all other Persons whose
vote or written consent is inconsistent with the intent of the preceding sentence, are prohibited
from participating and voting in any decision of the Association or Owners to initiate a Right to
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Repair Law Claim. The Association must obtain the vote or written consent of a simple majority
of the Association's voting power, excluding votes attributable to Declarant, in order to initiate a
Right to Repair Law Claim.
4.5.3 Joint Ownership. When more than one (I) Person holds an interest in
any Condominium ("co-owners''), each co-owner may attend any Association meeting, but only
one (I) co-owner shall be entitled to exercise the single vote to which the Condominium is
entitled. Co-owners owning the majority interests in a Condominium may designate in writing
one (1) of their number to vote. Fractional votes shall not be allowed and the vote for each
Condominium 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 Condominium shall be exercised as the co-owners
owning the majority interests in the Condominium 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 the co-owners' consent. No vote may be cast for any Condominium if
the co-owners present in person or by proxy owning the majority interests in such Condominium
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 Condominium 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 Governing
Documents are binding on all Owners and their successors in interest.
4.6 UNSEGREGATED REAL PROPERTY TAXES. To the extent not assessed to
or paid by the Owners, the Association shall pay all real and personal property taxes and
assessments levied on the Community. If all Condominiums in a Phase are taxed under a tax bill
covering all of such Phase, then each Owner shall pay the Owner's share of any installment due
under the tax bill to the Association at least ten (I 0) days before the delinquency date. The
Association shall transmit the taxes to the appropriate tax collection agency on or before the
delinquency date. The Association shall allocate taxes equally among the Owners and their
Condominiums in such Phase, based on the total number of Condominiums in such Phase. The
Association shall, at least forty five (45) days before the delinquency date of any tax installment,
deliver to each Owner in such Phase a copy of the tax bill, along with a written notice setting
forth the Owner's obligation to pay the Owner's share of the tax installment and the potential
additional charges to the Owner for failure to comply. The Association shall pay the taxes on
behalf of any Owner who does not pay the Owner's share. The Association shall add to the
Annual Assessment of a delinquent Owner the amount of any sum advanced, plus interest at the
rate often percent (10%) per annum and any amount necessary to reimburse the Association for
any penalty or late charge actually assessed in connection with the tax bill for a Phase, which late
charge results from the failure of the delinquent Owner to make timely payment of the Owner's
share of the taxes. Until Close of Escrow for the sale of ninety percent (90%) of the
Condominiums in the Community has occurred, this Section may not be amended without the
written consent of Declarant.
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ARTICLES
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 Public Report for
Phase 1 ("First Anniversary''). After the First Anniversary, the Board may appoint and remove
one (1) member of the Design Review Committee, and Declarant may, but is not obligated to,
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 Condominiums in the Community and the Annexable Area, or (b) the
fifth (5th) anniversary of the original issuance of the Public Report for Phase 1, 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 or agents of Owners, but Design
Review Committee members appointed by Declarant need not be Owners or agents of Owners.
Members of the Board of Directors 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 conformity with plans approved by the Design Review Committee,
and shall perform such other duties as the Board assigns to it.
5.2.2 Issuance of Standards. The Design Review Committee shall annually
issue and update its Design Guidelines and provide notice of any requirements for Committee
approval of proposed Improvements. The notice shall describe the types of proposed
Improvements that require Committee approval, and it shall include a copy of the procedure used
to review and approve or disapprove such proposed Improvements. The Design Guidelines may
require a fee to accompany each application for approval, and may identify additional factors
which the Design Review Committee will consider in reviewing submissions. The Design
Review Committee may provide that fees it imposes be uniform, or that fees be determined in
any other reasonable manner. The Design Review Committee may require such detail in plans
and specifications submitted for its review as it deems proper, including landscape plans, floor
plans, site plans, drainage plans, elevation drawings and descriptions or samples of exterior
materials and colors.
5.2.3 Retaining Consultants. The Design Review Committee has the
power, but not the duty, to retain licensed architects, contractors and other professionals to
advise its members in connection with decisions.
5.3 REVIEW OF PLANS AND SPECIFICATIONS.
5.3.1 Improvements Requiring Approval. No Owner may construct,
install or alter any Improvements in a Condominium which affects the structural integrity of the
walls, floors and ceilings of the Condominium or any structural or ornamental component of any
Condominium Building without the prior written approval of the Design Review Committee.
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The Design Review Committee may review the Improvements' impact on (1) the structural
integrity of the Condominium Building, (2) the safety of the Owners and the public, (3) the noise
heard beyond the Condominium in which the Improvement is located, (4) fire safety,
(5) common utilities and (6) the Association Property (collectively, the "Design Factors"'). The
Design Review Committee may review the impact the construction, installation, or altering of
the Improvement has on the Design Factors, as well as the impact the completed Improvement
has on the Design Factors.
5.3.2 Application Procedure. Owners who seek Committee approval shall
submit plans and specifications showing the dimensions, exterior elevation, color, materials used
and location of the proposed Improvements, along with an initial review fee in an amount set in
writing from time to time by the Committee, along with all other deposits and review materials
required under this Article (collectively, an "Application"). Until changed by the Board, the
address for the submission of the Application 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 may 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 (the ''Applicant'') certifies that the
Applicant has asked the Adjacent Owners to sign the Applications. The requirement that the
Applicant attempt to obtain the signatures of Adjacent Owners is intended only to provide notice
of the pending application to the Adjacent Owners. It does not create in the Adjacent Owners
any power to approve or disapprove the Application by signing or withholding a signature. Only
the Committee may approve or disapprove an Application.
The Design Review Committee shall deliver its written approval, disapproval, or
request for additional information or materials to the Applicant at the address listed in the
Application no later than the date that is forty-five ( 45) calendar days after the date on which the
Design Review Committee has received the complete Application (the "Review Deadline''). If,
on the Review Deadline, the Committee has failed to deliver to the Applicant its written
approval, disapproval, or request for additional information or materials, then the Application
shall be deemed approved, and the Manager or a representative of the Board or Committee shall
at the request of the Applicant execute a written approval therefor within fifteen ( 15) days after
receipt of such request.
5.3.3 Standard for Approval. A decision on a proposed Improvement shall
be consistent with California law, made in good faith and may not be unreasonable, arbitrary or
capricious. If disapproved, the written decision shall include both an explanation of why the
proposed Improvement is disapproved and a description of the procedure for reconsideration by
the Board. The Design Review Committee shall approve an Application only if it determines
that (a) installation, construction or alterations of the Improvements in the locations proposed
will not be detrimental to the appearance of the Community as a whole, (b) the appearance of the
proposed Improvements will be in harmony with the existing Improvements and the overall
design theme in the Community, (c) installation, construction or alteration of the proposed
Improvements will not detract from the beauty, wholesomeness and attractiveness of the
Community or the enjoyment of the Community by the Owners, (d) maintenance of the proposed
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Improvements will not become a burden on the Association, and (e) the proposed Improvements
are consistent with the Governing Documents. The Committee's decision on a proposed change
may not violate any governing provision of law, including the Fair Employment and Housing
Act, or a building code or other applicable law governing land use or public safety. The
Committee may consider the impact of views from other Condominiums, reasonable privacy
right claims, passage of light and air, beneficial shading and other aesthetic factors in reviewing,
approving or disapproving any Application. However, neither the Declarant nor the Association
warrants that any views in the Community are protected. No Condominium is guaranteed the
existence or unobstructed continuation of any particular view.
5.3.4 Conditions of Approval. The Design Review Committee may
condition its approval of an Application for any Improvement on any one (I) or more of the
following:
(a) The Applicant's delivery to the Association of security
acceptable to the Association against any mechanic's lien or other encumbrance which may be
Recorded against the Association Property or another Owner's Condominium as a result of such
work;
(b) The Applicant's delivery to the Association of the review fee
described in Section 5.3.2 above;
(c) Such changes to the Application as the Design Review
Committee considers appropriate;
(d) The Applicant's agreement to grant to the Association or other
Owners such easements as are made reasonably necessary by the existence of the Improvement;
(e) The Applicant's agreement to install water, gas, electrical or
other utility meters to measure any increased utility consumption;
(f) The Applicant's agreement to reimburse the Association for the
cost of maintaining the Improvement (should the Association agree to accept maintenance
responsibility for the Improvement as built);
(g) The Applicant's agreement to complete the proposed work
within a stated period of time;
(h) If required by the Committee, the Applicant's deposit of
adequate funds with the Association to repair or restore any Association Property that may be
damaged by the Applicant or the Applicant's contractors. The Design Review Committee will
determine the actual amount of the deposit in each case, but the amount shall be at least enough
to cover the cost of repairing or restoring damage that is reasonably foreseeable to the Design
Review Committee. The deposit shall be refundable to the extent the Design Review Committee
finds that the work of Improvement is complete, and that the Association Property was not
damaged or was restored at least to its condition when the work began;
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(i) If required by the Committee, the submission of additional
plans and specifications or other information before approving or disapproving the Application.
5.3.5 Governmental Approvals. The Applicant shall meet the requirements
of all applicable ordinances, codes and regulations of the City and County, including zoning
laws, building and safety codes, fire codes and applicable inspection and permit requirements
before making any construction, installation or alterations permitted under this Declaration. All
approvals issued by the Committee are in addition to, and not in lieu of, applicable governmental
approvals, which the Applicant must also obtain at his sole cost, prior to or concurrently with
Committee approvals, and before commencing any work. Furthermore, governmental approvals
are in addition to, and not in lieu of, Committee approvals required under the Governing
Documents. No determination by any governmental agency that the Applicant has met
applicable governmental requirements for a particular Improvement shall relieve the Applicant
of its obligation to obtain all required Committee approvals required under this Article and the
Governing Documents.
5.3.6 Matters Outside Scope of Approval. The Design Review
Committee's approval or disapproval of each Application shall be based solely on the aesthetic
considerations listed in this Article. Approval of any Application does not constitute a finding or
a warranty by the Design Review Committee that the work of Improvement described in the
Application or any portion of the Application (a) incorporates good engineering practices,
(b) complies with applicable law, ordinance, code, or regulation, including zoning laws, building
and safety codes or fire codes, (c) complies with the requirements of any utility provider, or
(d) is permissible under the terms of any easement, license, permit, Mortgage, deed of trust, or
other recorded or unrecorded instrument (other than the Governing Documents) that affects the
land. Nothing in this Declaration shall be construed to require Design Committee approval of
any construction, reconstruction, installation, removal or alteration of an Improvement by
Declarant or by the Association.
5.3.7 Exculpation of Committee. By submitting an Application, each
Applicant is deemed to agree that neither the Design Review Committee, nor the members
thereof, nor Declarant, nor their respective agents, employees, attorneys or consultants shall be
liable to any Person for:
(a) Any matter outside the Committee's scope of approval as
discussed in Section 5.3.6 above;
(b) Any defect in any Improvement constructed by or on behalf of
the Applicant pursuant to an approved Application;
(c) Any loss, damage, or injury to Persons or property arising out
of or in any way connected with work performed by or on behalf of the Applicant pursuant to an
approved Application; or
(d) Any loss, damage, or injury to Persons or property arising out
of or in any way connected with the performance of the Design Review Committee's duties
hereunder, unless due to willful misconduct or gross negligence.
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5.4 MEETINGS AND ACTIONS OF THE DESIGN REVIEW COMMITTEE.
The Design Review Committee shall meet as necessary to perform its duties. As long as a
majority of the members of the Design Review Committee are Declarant representatives, the
Design Review Committee may, by resolution unanimously adopted in writing, designate an
Owner or a Declarant representative to serve as a Design Review Committee Representative to
take any action or perform any duties for and on behalf of the Design Review Committee except
the granting of variances. The Design Review Committee Representative need not be a current
member of the Design Review Committee. In the absence of such designation, 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, any individual Design Review
Committee member or any other representative of the Association are not valid, are not binding
on the Association and may not be relied on by any Person. If within six ( 6) months after
issuance of the approval, an Owner either does not begin work pursuant to approved plans or
obtain an extension of time to begin work, the approval shall be automatically revoked and a new
approval must be obtained before work can begin.
5.5 NO WAIVER OF FUTURE APPROVALS. The Design Review Committee's
approval of any proposals, plans and specifications or drawings for any work done or proposed
in connection with any matter requiring the Design Review Committee's approval does not
waive the 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 (including removal of) 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 for Inspections. When the Work is complete, the
Applicant shall immediately provide the Committee with written notice of completion on the
form prescribed by the Committee. The Design Review Committee's right to inspect the Work
and notify the responsible Owner of any Noncompliance shall terminate on the date that is sixty
( 60) calendar days after the date on which the Committee has received written notice from the
Applicant on a form provided by the Committee that the Work is complete. If the Design
Review Committee fails to send a written notice of Noncompliance to an Applicant before this
time limit expires, the Work shall be deemed to comply with the approved Application.
5. 7.2 Noncompliance. If an Improvement that requires the prior approval of
the Design Review Committee is (a) commenced or completed without prior written approval by
the Committee, (b) is not completed within the time limit established by the Committee in its
approval, or (c) is not completed in substantial conformity with the approved Application, or
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(d) if no time limit is established by the Committee, the Applicant fails to complete the Work
within one (I) year after the date on which the Application was approved, then a Noncompliance
is deemed to exist, and then the Committee has the right, but not the obligation, to deliver a
written notice of Noncompliance to the violating Owner, and the Association may, but is not
required to, pursue the remedies set forth in this Section.
5.7.3 Remedy for Noncompliance. The Committee shall notifY the Board
in writing when an Owner fails to remedy any Noncompliance within sixty (60) days after the
date of the notice of Noncompliance. After Notice and Hearing, the Board shall determine
whether there is Noncompliance and, if so, the nature thereof and the estimated cost of correcting
or removing the same. If a Noncompliance exists, the Owner shall remedy or remove the same
within a period of not more than forty-five ( 45) days after the date that notice of the Board ruling
is given to the Owner. If the Owner does not comply with the Board ruling within that period,
the Association may record a Notice of Noncompliance (if allowed by law), correct the
Noncompliance and charge the Owner for the Association's costs, or commence an action for
damages or injunctive relief, as appropriate, to remedy the Noncompliance.
5.8 VARIANCES. The Design Review Committee may authorize variances from
compliance with any of the architectural provisions of this Declaration or the Design Guidelines
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 considerations require. Variances must be evidenced in writing, must be signed
by a majority of the Committee, and become effective on Recordation. After Declarant's right to
appoint a majority of the Design Review Committee's members ends, 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 this Declaration shall be deemed to have
occurred concerning the matter for which the variances were granted. The granting of a variance
does not waive any of the 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 that Owner's
Condominium. The Committee's written variance shall be Recorded against the Applicant's
Condominium in the Official Records. The cost of Recording the variance shall be borne solely
by the Applicant. No variance shall conflict with local ordinances or any specific plan for the
Community without the prior written approval of the City.
5.9 PRE-APPROVALS. The Design Review Committee may authorize pre-
approval of specified types of construction activities if, in the exercise of the Design Review
Committee's judgment, a pre-approval is appropriate to carry out the purposes of the Governing
Documents.
5.10 APPEALS. If a proposed Improvement is disapproved, the Applicant is entitled
to reconsideration by the Board of Directors at an open meeting that satisfies the requirements of
California Civil Code Section 1363.05. This paragraph does not require reconsideration of a
decision that is made by the Board, or the Design Review Committee if the Committee has the
same membership as the Board.
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ARTICLE6
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
Community as necessary to fulfill the obligations and perform the duties of the Association.
6.1.2 Utility Easements. Declarant reserves easements to install and
maintain utilities over the Association Property for the benefit of the Owners and their
Condominiums. Declarant reserves the right to grant additional easements and rights-of-way
throughout the Community to utility companies and public agencies as it deems necessary for the
proper development and disposal of the Community. Such right of Declarant shall expire on the
Close of Escrow for the sale of the last Condominium in the Community and the Annexable
Area,
6.1.3 Encroachments. Declarant reserves, for its benefit and for the benefit
of all Owners and their Condominiums, a reciprocal easement appurtenant to each Condominium
over the other Condominiums and the Association Property to accommodate (a) any existing
encroachment of any wall or any other Improvement installed by Declarant or approved by the
Design Review Committee, and (b) shifting, movement or natural settling of the Condominium
Buildings or other Improvements.
6.1.4 Easements for Public Service Use. Declarant reserves easements over
the Community for public services of the local government agencies, including but not limited
to, the right of law enforcement and fire protection personnel to enter upon the Community to
carry out their official duties.
6.1.5 Easements for Water and Utility Purposes. Declarant reserves
easements over the Community for public and private utility purposes, including but not limited
to, the right of any public utility or mutual water district of ingress and egress over the
Community to read and maintain meters, and use and maintain fire hydrants.
6.1.6 Completion of Improvements. Declarant reserves the right and
easement to enter the Community to complete any Improvement which Declarant considers
desirable to implement Declarant's development plan.
6.1.7 Owners' Easements in Association Property. Declarant reserves, for
the benefit of every Owner, and each Owner's Family, tenants and invitees, nonexclusive
easements for pedestrian and vehicular access (all as applicable) over the Association Property in
the Community as reasonably necessary for the use and enjoyment of each Condominium in the
Community. This easement is appurtenant to and passes with title to every Condominium in the
Community, but is to be exercised subject to the rights, restrictions, covenants and easements in
the Governing Documents and the Association's right to reasonably restrict access to rooftops,
maintenance facilities and other areas of the Association Property that are designated by the
Board.
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6.1.8 Access Easements.
(a) Reserved for Declarant and the Annexable Area. Declarant
reserves for its benefit and for the benefit of the owners of Condominiums located in the
Annexable Area (whether annexed to the Community or not) easements for pedestrian and
vehicular access, including construction access, over all private drives and sidewalks located
within the Community.
(b) Reserved for Models. Declarant reserves for its benefit
easements for pedestrian and vehicular ingress and egress over the private drives and through
any entry gates serving the Community during business hours, seven (7) days per week, for
access to those Condominiums within the Community which are used by Declarant, or its
assignee, for models or sales offices, as permitted by the City. Declarant shall have the right to
assign this easement, by written assignment, to any successor in interest. This easement shall
terminate when the use of such Condominiums by Declarant or its assignee, for models or sales
office purposes, has been permanently terminated.
6.1.9 Exclusive Use Areas. Declarant reserves for the benefit of specified
Owners exclusive easements over the Association Property for use and enjoyment of Exclusive
Use Areas as defined in this Declaration. The foregoing easements shall be conveyed by
Recorded deed, and the easements so conveyed shall be appurtenant to and run with the Owner's
Unit, subject to the right of the Association and its representatives to enter the Exclusive Use
Areas to carry out Association maintenance and other obligations as further described in the
Governing Documents.
6.1.10 Telecommunications Easement. Declarant reserves blanket
easements (collectively, "Telecommunications Easements'') over the Community for access and
for purposes of constructing, installing, locating, altering, operating, maintaining, inspecting,
upgrading, removing and enhancing Telecommunications Facilities (collectively,
"Telecoltlmunications Purposes'') for the benefit of Declarant. 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 Community 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
Community does not imply transfer of any Telecommunications Easements or
Telecommunications Facilities. The holders of the Telecommunications Easements may not
exercise the rights reserved hereunder in any manner which will unreasonably interfere with the
reasonable use and enjoyment of the Community by any Owner. If the exercise of any
Telecommunications Easement results in damage to the Community, then the easement holder
who caused the damage shall, within a reasonable period of time, repair such damage. If
Declarant has not conveyed the Telecommunications Easements in a Phase to another Person
before the last Close of Escrow in the Community and the Annexable Area, then Declarant
grants the Telecommunications Easements to the Association effective as of the last Close of
Escrow in the Community and the Annexable Area.
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6.2 ADDITIONAL EASEMENTS. Declarant reserves easements over the
Association Property owned in fee simple by the Association for the exclusive use by an Owner
or Owners of contiguous property as a yard, recreational, gardening, and landscaping area.
Subject to Section 4.2.3, any such easement may be conveyed by the Declarant before the last
Close of Escrow for sale of a Condominium in the Community and the Annexable Area. Such
conveyance must be approved by the Board, which approval must not be unreasonably withheld.
The purpose of the easement, the portion of the Association Property affected, the Condominium
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 the Owner's right to use the
Association Property in writing to the Owner's tenants, contract purchasers or subtenants who
reside in such Owner's Unit, subject to regulation by the Board. An Owner who has delegated
this right may not use the recreational facilities on the Association Property so long as such
delegation remains in effect.
6.4 RIGHT OF ENTRY.
6.4.1 Association. The Association has the right to enter the Exclusive Use
Areas and the Units to inspect and maintain the Association Property and any other Association-
maintained Improvements, and take whatever corrective action it determines to be necessary or
proper. Entry onto any Exclusive Use Areas and Unit under this Subsection may be made after
at least three (3) days' advance written notice to the Owner of the Condominium except for
emergency situations, which shall not require notice. For purposes hereof, an "emergency
situation" is a situation in which there is an imminent threat of injury to persons or damage to
property, as determined by the Board in the exercise of its sound business judgment. Any
damage to a Unit or Exclusive Use Area that is caused by entry under this Subsection shall be
repaired by the Association.
6.4.2 Declarant. The Declarant has the right to enter the Condominiums and
the Association Property (a) to comply with requirements for the recordation of subdivision
maps or lot line adjustments in the Community, (b) for repair of Improvements in accordance
with the provisions of the Right to Repair Law, (c) to accommodate grading or construction
activities, and (d) to comply with requirements of applicable govermnental agencies. Declarant
shall provide the applicable Owner reasonable notice before such entry, except for emergency
situations, which shall not require notice. For purposes hereof, an "emergency situation" is a
situation in which there is an imminent threat of injury to persons or damage to property, as
determined by the Declarant. Any damage to the Community that is caused by entry under this
Subsection shall be repaired by the Declarant. Unless otherwise specified in the applicable
initial grant deed by which Declarant has transferred ownership of the subject Condominium or
subject Association Property, this right of entry shall automatically expire on the later of the date
that is twelve (12) years after (a) the date this Declaration is Recorded, or (b) the date the grant
deed is Recorded by which Declarant first conveyed fee title to the subject real property under
authority of a Public Report.
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6.4.3 Owners. Each Owner shall permit other Owners, and their
representatives, to enter that Owner's Exclusive Use Area and Condominium to perform
installations, alterations or repairs to the mechanical or electrical services to a Condominium if
(a) requests for entry are made in advance, (b) entry is made at a time reasonably convenient to
the Owner whose Exclusive Use Area or Condominium is to be entered, and (c) the entered
Exclusive Use Area or Condominium is left in substantially the same condition as existed
immediately preceding such entry. Any damage to the Exclusive Use Area or Condominium
caused by entry under this Subsection shall be repaired by the entering Owner.
ARTICLE?
ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS
7.1 PERSONAL OBLIGATION TO PAY ASSESSMENTS. Each Owner shall
pay to the Association all Assessments 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. All Assessments, together with late payment penalties,
interest, costs, and reasonable attorney fees for the collection thereof, are a charge and a
continuing lien on the Condominium against which such Assessment is made. Each Assessment,
together with late payment penalties, interest, costs and reasonable attorney fees, is also the
personal obligation of the Person who was the Owner of the Condominium when the Assessment
accrued. The personal obligation for delinquent Assessments may not pass to any new Owner
("Purchaser") unless expressly assumed by the Purchaser or unless the Purchaser has actual or
constructive knowledge of such delinquent Assessments, whether by virtue of the Recordation of
a Notice of Delinquent Assessment or receipt from the Association of a certificate pursuant to
California Civil Code Section 1368(a)(4).
7.2 ASSOCIATION MAINTENANCE FUNDS. 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 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 repair or replace
on an annual or more frequent basis, and (2) payment of deductibles under the Association's
insurance policies, and (c) any other funds which the Association may elect to establish.
7.3 PURPOSE OF ASSESSMENTS. The Assessments shall be used exclusively to
(a) promote the Owners' recreation and welfare, (b) operate, improve and maintain the
Association Property, and (c) discharge any other Association obligations under this Declaration.
All amounts deposited into the Association Maintenance Funds must be used solely for the
common benefit of all Owners for purposes authorized by this Declaration. Disbursements from
the Operating Fund generally shall be made by the Association to discharge Association
responsibilities which cannot be discharged by disbursements from the Reserve Fund. However,
if the Board determines that the Operating Fund contains excess funds, the Board may transfer
the excess funds to any other Association Maintenance Fund. Disbursements from the Reserve
Fund shall be made by the Association only for the purposes specified in this Article and in
California Civil Code Section 1365.5(c).
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7.4 WAIVER OF USE. No Owner may be exempt from personal liability for
Assessments duly levied by the Association, nor release such Owner's Condominium from the
liens and charges thereof, by waiving use and enjoyment of the Association Property or by
abandoning such Owner's Condominium.
7.5 LIMITS ON ANNUAL ASSESSMENT INCREASES. The following shall
apply to the general component of Annual Assessments:
7.5.1 Maximum Authorized Annual Assessment For Initial Year of
Operations. During the Fiscal Year in which Annual Assessments commence, the Board may
levy an Annual Assessment per Condominium in an amount which exceeds one hundred twenty
percent (120%) of the amount of Annual Assessments disclosed for the Community in the most
current Budget filed with and approved by the DRE only if the Board first obtains the approval
of Owners casting a majority of votes at a meeting or election of the Association in which more
than fifty percent (SO%) of the Condominiums are represented ("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
commence, the Board may levy Annual Assessments which exceed the Annual Assessments for
the immediately preceding Fiscal Year only as follows:
(a) If the increase in Annual Assessments is less than or equal to
twenty percent (20%) of the Annual Assessments for the immediately preceding Fiscal Year,
then the Board must either (I) have distributed the Budget for the current Fiscal Year in
accordance with California Civil Code Section 1365(a), or (2) obtain the approval of Owners
casting a majority of votes in an Increase Election; or
(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.
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 Condominium.
7.5.4 Automatic Assessment Increases. Despite any other provisions of
this Section 7.5, on Declarant's annexation of the Annexable Area pursuant to Article 16, the
Annual Assessment shall be automatically increased by the additional amount, if any, necessary
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to maintain the Association Property identified in the Notice of Addition as a part of the Phase
that includes the Annexable Area as long as (a) the annexation is permitted by the ORE, 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 Public Reports for the
Community.
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 Community for which the Association is responsible where a threat to personal safety on the
Community is discovered; and
(c) An extraordinary expense necessary to maintain the portion of
the Community 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 Subsection (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 ANNUAL ASSESSMENTS.
7.6.1 Commencement of Annual Assessments. Except as provided below,
Annual Assessments shall commence on all Condominiums in a Phase on the first day of the first
calendar month following the first Close of Escrow in such Phase.
7.6.2 Assessment and Proration. 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 Condominiums for which Annual Assessments have commenced. The Board shall fix
the amount of the Annual Assessment against each Condominium 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 ORE. Written notice of any change in the amount of
any Annual Assessment, Capital Improvement Assessment or Reconstruction Assessment shall
be sent by 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.
7.6.3 Apportionment of Annual Assessments. All Annual Assessments
shall be assessed uniformly and equally against the Owners and their Condominiums based on
the number of Condominiums owned by each Owner **[except that portion of Annual
Assessments attributable to those Common Expenses described on Exhibit G shall be variably
assessed against the Owners and their Condominiums in proportion to the base interior square
footage of Condominium Unit types, also described on Exhibit G)**. The Board may determine
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
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abandonment or termination of the Community as a condominium project, any amounts
remaining in any of the Association 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.
7.6.4 Payment of Annual Assessments. Each Owner shall pay Annual
Assessments in installments at such frequency, 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 shall charge the additional expenses to the Owner.
Each installment of Annual Assessments may be paid to the Association in one (I) check or in
separate checks as payments attributable to specified Association Maintenance Funds. If any
payment of an Annual Assessment installment (a) is less than the amount assessed and (b) 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 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 to defray, in
whole or in part, the cost of any construction, repair or replacement of a capital Improvement or
such other addition to the Association 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 at 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.
ARTICLES
INSURANCE
8.1 DUTY TO OBTAIN INSURANCE; TYPES. The Association shall obtain and
keep in effect at all times the following insurance coverages:
8.1.1 Commercial General Liability. A policy of commercial general
liability insurance (including coverage for medical payments), insuring the Association and the
Owners against liability for bodily injury, death and property damage arising from or relating to
the ownership or use of the Association Property. Such policy shall specify amounts and include
protection from liability and risks as are customarily covered in similar condominium
developments in the area of the Community, and shall include a severability of interest
endorsement or the equivalent which shall preclude the insurer from denying the claim of an
Owner because of negligent acts or omissions of other Owners, or the Association or the
Association's officers and directors acting in their capacity as officers and directors. The
Association's policies shall at all times specify limits no less than the minimum amounts
required by California Civil Code Sections 1365.7 and 1365.9.
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8.1.2 Fire and Casualty Insurance. A "master" or "blanket" policy of fire
and casualty insurance with extended coverage, special form, without deduction for depreciation,
in an amount as near as possible to the full replacement value of all insurable Improvements on
the Association Property including fixtures, to the extent they are part of the Association
Property, Condominium Building service equipment and supplies, and other common personal
property belonging to the Association. The policy amount shall be at least equal to such
coverage as is commonly required by prudent institutional mortgage investors in the area in
which the Community is located. The casualty insurance shall not include earthquake coverage
unless the Board is directed to obtain earthquake coverage by a majority of the Association's
voting power.
8.1.3 Fidelity Insurance. Fidelity insurance coverage, naming the
Association as insured, for any Person handling funds of the Association, including Association
officers, directors, employees, volunteers, and agents, and the Manager and its employees,
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. However, the aggregate amount of the fidelity insurance coverage may
not be less than the sum equal to three (3) months of Annual Assessments on all Condominiums
in the Community, plus reserve funds. The insurance policies or bonds shall provide that they
may not be cancelled or substantially modified (including cancellation for non-payment of
premium) without at least ten (I 0) days' prior written notice to the Association.
8.1.4 Requirements of Fannie Mae, Ginnie Mae, Freddie Mac and
FHFA. Notwithstanding anything in the Governing Documents to the contrary, the amount,
term and coverage of any policy of insurance required under this Article 8 (including the
endorsements, the amount of the deductible, the named insureds, the loss payees, standard
mortgage clauses, notices of changes or cancellations, and the insurance company rating) shall
also satisfy the minimum requirements established for this type of development (if applicable) by
Fannie Mae, Ginnie Mae, Freddie Mac and FHFA, and any successor to those entities, so long as
any of those entities is a Mortgagee or Owner of a Condominium in the Community, except to
the extent such coverage is not reasonably available or has been waived in writing by the entity
requiring the insurance coverage. If the above entities have not established requirements on any
policy required hereunder, the term, amount and coverage of such policy shall, subject to
Section 8.1.1 above, be no less than that which is customary for similar policies on similar
projects in the area of the Community.
8.1.5 Other Insurance. Such other insurance insuring other risks
customarily insured by associations managing condominium projects similar in construction,
location and use. Such additional insurance may include general liability insurance and
director's and officer's errors and omissions insurance in the minimum amounts established in
California Civil Code Section 1365.9.
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
insureds, subject, however, to loss payment requirements established in this Declaration.
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8.2 WAIVER OF CLAIM AGAINST ASSOCIATION. All policies of insurance
kept by or for the benefit of the Association and the Owners must provide that 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 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 the Owner's personal property and all other property and Improvements in the
Owner's Condominium. Each Owner shall obtain and keep in effect at all times a policy of
insurance on form H0-6 or equivalent in at least the minimum amounts specified by Fannie Mae.
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 ten (1 0) 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 ten
(10) days' prior written notice to any insurance trustee named pursuant to Section 8.5 and to each
Fannie Mae servicer who has filed a written request with the carrier for such notice.
8.5 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 filing claims, all claims must be sent to the 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 Association insurance policies must be
paid to the Board as trustees. The Board has the exclusive authority to negotiate loss settlements
with insurance carriers, with participation, to the extent the Board desires, of First Mortgagees
who have filed written requests within ten (1 0) days of receipt of notice of any damage or
destruction as provided in Section 9.4. The Board is authorized to make a settlement with any
insurer for less than full coverage for any damage, so long as the Board acts in accordance with
the standard of care established in this Declaration. 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.
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8.6 ACTIONS AS TRUSTEE. Except as otherwise specifically provided in this
Declaration, the Board has the exclusive right to bind the Association and the Owners 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. 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.
8.7 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 in the Association Property except foundations
and footings, without deduction for depreciation, from a qualified independent insurance
appraiser, before each such annual review.
8.8 REQUIRED WAIVER. All of the Association's insurance policies insuring
against physical damage must provide, if reasonably possible, for waiver of:
8.8.1 Subrogation of claims against the Owners and tenants of the Owners;
8.8.2 Any defense based on coinsurance;
8.8.3 Any right of setoff, counterclaim, apportionment, proration or
contribution due to other insurance not carried by the Association;
8.8.4 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;
8.8.5 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;
8.8.6 Notice of the assignment of any Owner of the Owner's interest in the
insurance by virtue of a conveyance of any Condominium;
8.8. 7 Any right to require any assignment of any Mortgage to the insurer;
8.8.8 Any denial of an Owner's claim because of negligence or willful acts
by the Association or other Owners; and
8.8.9 Prejudice of the insurance by any acts or omissions of Owners that are
not under the Association's control.
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ARTICLE9
DESTRUCTION OF IMPROVEMENTS
9.1 RESTORATION OF THE COMMUNITY. Except as otherwise authorized by
the Owners, if any portion of the Community which the Association is responsible for
maintaining is destroyed, the Association shall restore the same to its former condition as
promptly as practical and in accordance with applicable law and City approvals, including plan
checks, permits and fee payments. The Association shall use the proceeds of its insurance for
reconstruction or repair of the Community unless otherwise authorized in this Declaration or by
the Owners. The Board shall commence such reconstruction promptly. The Community 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 a majority of the Owners. If the insurance proceeds amount to at least
ninety percent (90%) of the estimated cost of restoration and repair, the Board shall levy a
Reconstruction Assessment to provide the additional funds necessary for such reconstruction. If
the insurance proceeds amount to less than ninety percent (90%) of the estimated cost of
restoration and repair, the Board may levy a Reconstruction Assessment and proceed with the
restoration and repair only if both of the following conditions ("Conditions To Reconstruction")
have been satisfied: (a) the levy of a Reconstruction Assessment to pay the costs of restoration
and repair of the Community is approved by the Owners, and (b) within one (I) year after the
date on which the destruction occurred, the Board Records a certificate of the resolution
authorizing the restoration and repair ("Reconstruction Certificate"). If either of the Conditions
to Reconstruction does not occur after a destruction for which insurance proceeds available for
restoration and repair are less than ninety percent (90%) of the estimated cost of restoration and
repair, then the Board shall proceed as provided in Section 9 .2.
9.2 SALE OF COMMUNITY AND RIGHT TO PARTITION. No Owner shall
have the right to partition of the Owner's interest in the Condominium and there shall be no
judicial partition of the Community, or any part thereof, except as provided in California Civil
Code Section 1359(b). For purposes of Subsection 4 of Section 1359(b), partition may occur
only if all of the following conditions are satisfied: (a) either or both of the Conditions to
Reconstruction described in Section 9 .I have failed to occur; (b) within six ( 6) months after the
date on which destruction occurred, restoration or repair has not actually commenced; and (c) the
Owners of at least sixty seven percent (67%) of the Condominiums in the Community and a
Mortgagee Majority approve the partition. In such event, the Association shall prepare, execute
and Record, as promptly as practical, the certificate stating that a majority of the Board may
properly exercise an irrevocable power of attorney to sell the Community for the benefit of the
Owners and execute such other documents and instruments as may be necessary for the
Association to consummate the sale of the Community at the highest and best price obtainable,
either in its damaged condition, or after damaged structures have been razed. Such certificate
shall be conclusive evidence of such authority for any Person relying thereon in good faith. The
net proceeds of such sale and the proceeds of any insurance carried by the Association shall be
divided proportionately among the Owners, such proportions to be determined in accordance
with the relative appraised fair market valuation of the Condominiums as of a date immediately
before such destruction (or condemnation), expressed as percentages, and computed by dividing
such appraised valuation of each Condominium by the total of such appraised valuations of all
Condominiums in the Community. The Board is authorized to hire one (I) or more appraisers
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for such purpose and the cost of such appraisals shall be a Common Expense of the Association.
However, the balance then due on any valid Mortgage shall be first paid in order of priority
before the distribution of any proceeds to an Owner whose Condominium is so encumbered.
Nothing in this Declaration prevents partition of a co-tenancy in any Condominium. Except as
provided above, each Owner and the successors of each Owner, whether by deed, gift, devise, or
by operation of law, for their own benefit and for the Condominiums and for the benefit of all
other Owners, specifically waive and abandon all rights, interests and causes of action for a
judicial partition of the tenancy in common ownership of the Community and do further
covenant that no action for such judicial partition shall be instituted, prosecuted or reduced to
judgment.
9.3 INTERIOR DAMAGE. Except for any casualty or damage covered by
insurance kept by the Association, restoration and repair of any damage to the interior of any
individual Unit, 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 Unit so damaged. If a determination to rebuild
the Community 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
workmanlike manner, in accordance with plans approved by the Design Review Committee as
provided in this Declaration.
9.4 NOTICE TO OWNERS AND FIRST MORTGAGEES. The Board,
immediately on having knowledge of any damage or destruction of a Unit or affecting a material
portion of the Community, shall promptly notify all Owners and First Mortgagees.
ARTICLE 10
EMINENT DOMAIN
The term "taking" as used in this Article means inverse 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 PROPERTY CONDEMNATION. If (a) there is a taking of an interest in all or
part of the Community such that the ownership, operation and use of the Community in
accordance with this Declaration is substantially and adversely affected, and (b) within one
hundred twenty (120) days after the effective date of the taking the Owners of Units (1) not
taken, or (2) only partially taken but capable of being restored to at least ninety-five percent
(95%) of their floor area and to substantially their condition before the taking (collectively, the
"Remaining Units") do not by affirmative vote of at least one third (113) of their voting power
approve the continuation of the Community and the repair, restoration and replacement to the
extent feasible of the Association Property and the Remaining Units, then, after obtaining the
consent of a Mortgagee Majority, the Board shall proceed with the sale of that portion of the
Community which was not taken and distribute the net proceeds of such sale after deducting any
incidental fees and expenses, in the same proportion and manner as provided in Section 9.2.
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10.2 CONDEMNATION OF ASSOCIATION PROPERTY. If there is a taking of
the Association Property (other than Exclusive Use Area) or any interest therein, then the award
in condemnation shall be paid to the Association and shall be deposited in the Operating Fund.
10.3 CONDEMNATION OF EXCLUSIVE USE AREA. If there is a taking of all or
any portion of an Exclusive Use Area, the award in condemnation shall be paid to the Owner of
the Condominium to which the taken Exclusive Use Area was appurtenant; however, such award
shall first be applied to the balance then due on any Mortgages encumbering such Owner's
Condominium, in order of priority.
10.4 CONDEMNATION OF CONDOMINIUMS. If there is a taking of a
Condominium, the award in condemnation shall be paid to the Owner of the Condominium;
however, such award shall first be applied to the balance then due on any Mortgages
encumbering such Owner's Condominium, in order of priority.
10.5 CONDEMNATION OF PORTIONS OF UNITS.
10.5.1 Minor Takings Within Limits. If (a) there is a taking of a portion of
one or more Units such that the intended use of the Units as residential dwellings is not
substantially and adversely affected, and (b) restoration of such Units can be accomplished at a
cost less than or equal to the sum of(1) the amount of the condemnation awards for such takings
plus (2) any amounts the Owners of the taken Units wish to contribute to restoration plus (3) an
amount less than or equal to five percent ( 5%) of the Budgeted gross expenses of the Association
for that Fiscal Year (collectively, the "Allowable Cost'~, then the Board shall contract for such
restoration and levy a Reconstruction Assessment in an amount equal to the Allowable Cost
minus the amount of the condemnation awards and Owners' contributions, and the condemnation
awards, Owners' contributions and Reconstruction Assessment shall be applied to such
restoration. If the restoration is accomplished at a cost less than the amount of the condemnation
awards, then that portion of the condemnation awards which exceeds the restoration costs shall
be paid to the Owners of the partially taken Units in proportion to the decreases in the fair market
values of their Condominiums; however, such awards shall first be applied to the balance then
due on any Mortgages encumbering such Owners' Condominiums, in order of priority.
10.5.2 Minor Takings Exceeding Limits. If (a) there is a taking of a portion
of one or more Units such that the intended use of the Units as residential dwellings is not
substantially and adversely affected, and (b) restoration cannot be accomplished at a cost less
than or equal to the Allowable Cost, then the Board shall call a special meeting of the Owners. If
more than fifty percent (50%) of the voting power of the Association is represented at such
special meeting, either in person or by proxy, and a majority of the votes cast at such special
meeting are in favor of levying a Reconstruction Assessment in an amount equal to the
restoration costs minus the sum of the amount of the condemnation awards and the amounts the
Owners of the taken Units wish to contribute to such restoration, then the Board shall contract
for such restoration and levy a Reconstruction Assessment, and the condemnation awards,
Owners' contributions and Reconstruction Assessment shall be applied to such restoration.
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1 0.5.3 Major Takings. If neither Section 1 0.5.1 nor Section 1 0.5.2 applies to
the taking of a Unit, then the award in condemnation shall be paid to the Owners of the taken
Units; however, such award shall first be applied to the balance then due on any Mortgages
encumbering such Owner's Condominium, in order of priority. The Board shall have the
remaining portions of the taken Units razed. The remaining portions of the taken Units and
appurtenant Exclusive Use Areas shall become part of the Association Property, and the Owners
of such taken Units in any Phase, by acceptance of the award allotted to them in taking
proceedings, relinquish (a) to the other Owners in such Phase, on the basis of their relative
ownership of the Common Area therein, such Owners' undivided interest in the Common Area,
and (b) to the Association, the remaining portions of the Units and the appurtenant Exclusive Use
Areas. Each Owner relinquishing the Owner's interest in the Common Area pursuant to this
Section shall, at the Board's request and at the Association's expense, execute and acknowledge
such deeds and other instruments which the Board considers necessary or convenient to evidence
such relinquishment Each Owner of a taken Unit is not liable for Assessments under this
Declaration which accrue on or after the date such Owner accepts the Owner's condemnation
award.
10.6 PORTIONS OF AWARDS IN CONDEMNATION NOT COMPENSATORY
FOR VALUE OF REAL PROPERTY. Those portions of awards in condemnation which do
not directly compensate Owners for takings of real property (for example, awards for takings of
personal property, relocation expenses, moving expenses, or other allowances of a similar nature
intended to facilitate relocation) shall be paid to the Owners whose personal property is taken, or
whose relocation is intended to be facilitated.
10.7 NOTICE TO OWNERS AND FIRST MORTGAGEES. The Board, on
learning of any taking affecting a Unit or a material portion of the Community, or any threat
thereof, shall promptly notify all Owners and First Mortgagees.
ARTICLE 11
RIGHTS OF MORTGAGEES
1 L1 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 Condominiums made in good faith and for value, provided that after the foreclosure of
any such Mortgage, the foreclosed Condominium(s) will remain subject to this Declaration.
1 L2 ADDITIONAL RIGHTS. To induce the Freddie Mac, Ginnie Mae and Fannie
Mae to participate in the financing of the sale of Condominiums, the following provisions are
added hereto (and to the extent these added provisions conflict with any other provisions of the
Governing Documents, these added provisions control):
11.2.1 Right of First Refusal. Any "right of first refusal" created or
purported to be created by the Governing Documents shall not apply to nor adversely affect the
rights of a First Mortgagee to (a) foreclose or take title to a Condominium pursuant to the
remedies in the First Mortgage, or (b) accept a deed or assignment in lieu of foreclosure in the
event of default by a Mortgagor, or (c) sell or lease a Condominium acquired by the First
Mortgagee through any ofthe remedies described in (a) or (b)_
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11.2.2 Required Mortgagee Approvals. A Mortgagee Majority must
approve any amendment of any of the Governing Documents which is of a material adverse
nature to First Mortgagees, as further described in Section 13.2.1.
11.2.3 Deemed Approval. Each First Mortgagee who receives proper written
notices from the Association by certified or registered mail with a return receipt requested of any
matter requiring the approval of a Mortgagee Majority is deemed to have approved that matter if
that First Mortgagee does not submit a written response within sixty (60) days after the notice is
delivered to the First Mortgagee.
11.2.4 Notices. Each Mortgagee, insurer and guarantor of a Mortgage
encumbering one (I) or more Condominiums, upon filing a written request for notification with
the Board, is entitled to written notification from the Association of: (a) any proposed
amendment to the Governing Documents affecting a change in (i) the boundaries of any Unit, (ii)
the interest in the Common Area appurtenant to any Unit or the liability for Common Expenses,
(iii) the number of Association votes appurtenant to any Unit, or (iv) the purposes to which any
Unit or the Association Property are restricted, (b) any proposed termination of the status of the
Community as a "condominium project" as defined in California Civil Code Section 1351(f), (c)
any condemnation or casualty loss which affects either a material portion of the Community or
the Condominium( s) securing the respective First Mortgage, (d) any delinquency of sixty ( 60)
days or more in the performance of any obligation under the Governing Documents, including
the payment of Assessments or charges owed by the Owner(s) of the Condominium(s) securing
the Mortgage, which notice each Owner hereby consents to and authorizes, (e) a lapse,
cancellation, or material modification of any policy of insurance or fidelity bond kept by the
Association, and (f) any proposed action that requires the consent of a specified percentage of
First Mortgagees.
11.2.5 First Mortgagee Rights Confirmed. No provision of this Declaration
or any other Governing Document gives any Owner or any other party priority over any rights of
a First Mortgagee pursuant to its Mortgage concerning payment to the Owner of insurance
proceeds or condemnation awards for losses to or taking of a Condominium or any portion of the
Association Property.
11.2.6 Unpaid Pre-Foreclosure Assessments. The transfer of fee interest in
a Condominium as the result of the exercise of the power of sale or a judicial foreclosure
involving a default under the First Mortgage shall extinguish the lien of unpaid Assessments
which were due and payable prior to the date of the transfer, and the transferee shall take title to
the Condominium free and clear of all claims for such unpaid Assessments.
ARTICLE 12
ENFORCEMENT AND DISPUTE RESOLUTION
12.1 ENFORCEMENT OF GOVERNING DOCUMENTS. All violations of the
Governing Documents, except for: (a) those governed by Sections 12.2 or 12.3, or (b) those
subject to the Right to Repair Law (and accordingly subject to resolution through Declarant's
non-adversarial contractual provisions and alternative dispute resolution provisions commencing
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at Section 12.4 below), or California Civil Code Section 1375, et seq. (the "Calderon Act''),
shall be resolved as follows:
12.1.1 Right to Enforce. The Board, the Association, the Declarant and any
Owner may enforce the Governing Documents as described in this Article, subject to California
Civil Code Sections 1363.810, et seq., and 1369.510, et seq. Each Owner has a right of action
against the Association for the Association's failure to comply with the Governing Documents.
Each remedy provided for in this Declaration is cumulative and not exclusive or exhaustive. The
City shall have the right, but not the obligation, to enforce any provision of this Declaration.
12.1.2 Violations Identified by the Association. If the Board or the Design
Review Committee determines that there is a violation of the Governing Documents, other than
nonpayment of any Assessment, 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. This requirement
shall apply notwithstanding the fact that this Declaration may duplicate City ordinances or
regulations. If an Owner does not perform corrective action within 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.
12.1.3 Violations Identified by an Owner. If an Owner alleges that another
Person is violating the Governing Documents (other than nonpayment of any Assessment), the
complaining Owner must first submit the matter to the Board for Notice and Hearing before the
complaining Owner may resort to alternative dispute resolution, as required by California Civil
Code Section 1369.510, et seq., or litigation for relief.
12.1.4 Legal Proceedings. Failure to comply with any of the terms of the
Governing Documents 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 California Civil Code Sections 1363.810, et seq., and 1369.510 et
seq. and in Sections 12.1.2 and 12.1.3 must first be followed, if they apply.
12.1.5 Additional Remedies. After Notice and Hearing, the Board may
impose any of the remedies provided for in the Bylaws. 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 Governing Documents. Such fines or
penalties may only be assessed pursuant to California Civil Code Section 1363. 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 Condominium owned by any Owner who has
violated any provision of this Declaration. The notice shall include a legal description of the
Condominium and shall specify the provision of this 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
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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 of this Declaration does
not waive the right to enforce that provision, or any other provision of this Declaration.
12.1.7 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 a majority of the Association's 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 California Civil Code Sections 1363.810, et seq., and 1369.510, et seq.
Such approval is not necessary if the legal proceedings are initiated (a) to enforce the use
restrictions contained in Article 2, (b) to enforce the architectural and landscaping control
provisions contained in Article 5, (c) to collect any unpaid Assessments levied pursuant to the
Governing Documents, (d) for a claim, other than a Right to Repair Law 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 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. If the
Association action to incur litigation expenses or borrow money to fund litigation concerns a
Right to Repair Law Claim, then the voting requirements of both Sections 4.5.2 and 12.1.7 must
be met.
12.1.8 City. The City has the right, but not the obligation, to enforce any of
the provisions of the Declaration in favor of the City, or in which the City has an interest.
12.2 DELINQUENT 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.
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12.2.2 Creation and Release of Lien.
(a) Priority of Lien. All liens levied in accordance with this
Declaration shall be prior and superior to (I) any declaration of homestead Recorded after the
Recordation ofthis Declaration, and (2) all other liens, except (A) all taxes, bonds, Assessments
and other levies which, by law, would be superior thereto, and (B) the lien or charge of any First
Mortgage 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 Condominium was
Recorded.
(b) Notice Before Creating Lien. Before the Association may
place a lien on an Owner's Condominium to collect a past due Assessment, the Association shall
send written notice ("Notice of Intent to Lien''), at least thirty (30) days before Recording the
lien, to the Owner by certified mail which contains the following information: (I) the
Association's fee and penalty procedure, (2) an itemized statement of the charges owed by the
Owner, including the principal owed, any late charges, any interest, the method of calculation,
and any attorneys' fees, (3) the collection practices used by the Association, (4) a statement that
the Association may recover reasonable costs of collecting past due Assessments, ( 5) a statement
that the Owner has the right to inspect the Association's records, pursuant to California
Corporations Code Section 8333, (6) the following statement in 14-point boldface type or all
capital letters: "IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN
FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE
SOLD WITHOUT COURT ACTION," (7) a statement that the Owner shall not be liable to pay
the charges, interest and costs of collection if it is determined the Assessment was paid on time
to the Association, (8) a statement that the Owner has the right to request a meeting with the
Board, as provided by California Civil Code Section 1367.1(c) and Section 12.2.2(g) below,
(9) a statement concerning the Owner's right to dispute the Assessment debt by submitting a
written request for dispute resolution to the Association pursuant to the Association's "meet and
confer" program required in California Civil Code Section 1363.810, et seq. and (10) a statement
concerning the Owner's right to request alternative dispute resolution with a neutral third party
pursuant to California Civil Code Section 1369.510 before the Association may initiate
foreclosure against the Owner's separate interest, except that binding arbitration shall not be
available if the Association intends to initiate a judicial foreclosure.
(c) Dispute Resolution Before Recording Lien. Before Recording
a Notice of Delinquent Assessment, the Association shall offer the Owner and, if the Owner so
requests, participate in dispute resolution under the Association's "meet and confer" program.
(d) Dispute Resolution Before Foreclosure. Before initiating a
foreclosure for delinquent Assessments, the Association shall offer the Owner and, if the Owner
so requests, shall participate in dispute resolution under the Association's "meet and confer"
program or alternative dispute resolution with a neutral third party. The decision to pursue
resolution or a particular type of alternative dispute resolution is the Owner's choice, except that
binding arbitration is not available if the Association intends to initiate a judicial foreclosure.
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(e) Board Approval. The decision to Record a Notice of
Delinquent Assessment shall be made only by the Board and may not be delegated to an
Association agent. The Board must approve the decision by a majority vote of the Board
members in an open meeting. The Board shall record the vote in the minutes of that meeting.
(f) Dispute by Owner. An Owner may dispute the Notice of Intent
to Lien by submitting to the Board a written explanation of the reasons for the Owner's dispute.
The Board shaH respond in writing to the Owner within fifteen (15) days after the date of the
postmark of the explanation, if the explanation is mailed within fifteen ( 15) days after the
postmark of the Notice oflntent to Lien.
(g) Owner's Right to Request Meeting. An Owner may submit a
written request to meet with the Board to discuss a payment plan for the debt noticed in
Section 12.2.2(b) above. The Association shall provide the Owner with the standards for
payment plans, if any exist. The Board shall meet with the Owner in executive session within
forty-five (45) days after the date of the postmark of the request, if the request is mailed within
fifteen (15) days after the date of the postmark of the Notice of Intent to Lien, unless there is no
regularly scheduled Board meeting within that period, in which case the Board may designate a
committee of one or more members to meet with the Owner.
(h) 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 Condominium Owner, as provided in California
Civil Code Section 1367.1. The Notice of Delinquent Assessment must identity (1) the amount
of the Assessment and other authorized charges and interest, including the cost of preparing and
Recording the Notice of Delinquent Assessment, (2) the amount of collection costs incurred,
including reasonable attorneys' fees, (3) a sufficient description of the Condominium that has
been assessed, (4) the Association's name and address, (5) the name of the Owner of the
Condominium that has been assessed, and (6) if the lien is to be enforced by non-judicial
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 California Civil Code
Section 2924b to the Owner of record of the Condominium no later than ten (1 0) calendar days
after Recordation. The lien relates only to the individual Condominium against which the
Assessment was levied and not to the Community as a whole.
(i) Service on Owner's Legal Representative. In addition to the
requirements of California Civil Code Section 2924, a Notice of Delinquent Assessment shall be
served by the Association on the Owner's legal representative as provided in California Code of
Civil Procedure Section 415.10, et seq.
(j) Secondary Addresses. Upon receipt of an Owner's written
request identifYing a secondary address for purposes of collection notices, the Association shall
send an additional copy of any Notice of Intent to Lien, Notice of Delinquent Assessment or
other Notice given under Section 12.2.2 to the secondary address provided. The Association
shall notifY Owners of their right to submit secondary addresses to the Association, when the
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Association issues its pro forma operating budget under California Civil Code Section 1365.
The Owner's request must be in writing and mailed to the Association in a manner which
indicates the Association has received it. The Owner may identify or change a secondary
address at any time, provided that, if a secondary address is identified or changed during the
collection process, the Association shall only be required to send Notices to the indicated
secondary address from the point the Association receives the request.
(k) Exceptions. Assessments described in California Civil Code
Section 1367.l(e) and California Code of Regulations Section 2792.26(c) may not become a lien
against an Owner's Condominium enforceable by the sale of the Condominium under California
Civil Code Sections 2924, 2924b and 2924c.
(I) Release of Lien. Within twenty-one (21) days after payment of
the full amount claimed in the Notice of Delinquent Assessment, or other satisfaction thereof, 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 Association shall
provide the Owner with a copy of the Notice of Release or any other notice that the full amount
claimed in the Notice of Delinquent Assessment has been satisfied. 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. The Board shall enforce the collection of
amounts due under this Declaration by one (I) or more of the alternative means of relief afforded
by this Declaration, subject to the restrictions in California Civil Code Section 1367.4.
(a) The lien on a Condominium may be enforced by foreclosure
and sale of the Condominium after the Owners failure to pay any Assessment, or installment
thereof, as provided in this Declaration.
(b) The decision to initiate foreclosure after Recording a Notice of
Delinquent Assessment shall be made only by the Board and may not be delegated to an
Association agent. The Board shall approve the decision by a majority vote of the Board
members in an executive session. The Board shall record the vote in the minutes of the next
Board meeting open to all members. The Board shall maintain the confidentiality of the Owner
or Owners by identifying the matter in the minutes by the Unit number, rather than the name of
the Owner or Owners. A Board vote to approve foreclosure of a lien shall take place at least 30
days before any public sale.
(c) The Board shall provide notice by personal service to an Owner
who occupies the Unit or to the Owner's legal representative, if the Board votes to foreclose on
the Unit. The Board shall provide written notice to an Owner who does not occupy the Unit by
first-class mail, postage prepaid, at the most current address shown on the Association's books.
Unless the Owner provides written notification of a different mailing address to the Association,
the address of the Owner's Unit may be treated as the Owner's mailing address.
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(d) The 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 (or any Owner if the Association refuses to act) may
sue to foreclose the lien if (1) at least thirty (30) days have elapsed since the date on which the
Notice of Delinquent Assessment was Recorded, and (2) 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 Condominium at foreclosure sale, using as a credit bid the amounts
secured by its lien plus trustee's fees and expenses, Association funds, or funds borrowed for
such purpose, 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 Condominium, and the defaulting Owner shall be required to pay the
reasonable rental value for the Condominium during any period of continued occupancy by the
defaulting Owner or any persons claiming under the defaulting Owner. A non-judicial
foreclosure to collect delinquent Assessments shall be subject to the right of redemption within
ninety (90) days after the sale, as provided in California Civil Code Section 1367.4.
(e) A suit to recover a money judgment for unpaid Assessments
may be brought without foreclosing or waiving any lien securing the same, subject to the
provisions of California Civil Code Section 1367.1(b), but this provision or 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.
12.2.4 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 Condominium does not affect the Assessment lien, except that the sale or transfer
of any Condominium pursuant to judicial or non-judicial 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 Condominium from liens for any Assessments
thereafter becoming due. No Person who obtains title to a Condominium pursuant to a judicial
or non-judicial foreclosure of the First Mortgage is liable for the share of the Common Expenses
or Assessments chargeable to such Condominium which became due before the acquisition of
title to the Condominium 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 California Department of Veterans Affairs under its Cal-Vet loan contracts as if
the Cal-Vet loan contracts were First Mortgages.
12.2.5 Alternative Dispute Resolution. An Owner may dispute the
Assessments imposed by the Association as provided in this Declaration and in California Civil
Code Sections 1367.1 and 1367.4. If it is determined through dispute resolution pursuant to the
Association's "meet and confer" program required in this Declaration or alternative dispute
resolution with a neutral third party pursuant to California Civil Code Section 1369.510, et seq.,
that the Association Recorded a Notice of Delinquent Assessment in error, the Association shall
promptly reverse all late charges, fees, interest, attorney's fees, costs of collection, costs imposed
for the Notice prescribed in Section 1367.1(a), and costs of Recordation and release of the lien
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authorized under Section 1367.4(b) and pay all costs related to the dispute resolution or
alternative dispute resolution.
12.2.6 Receivers. In addition to the foreclosure and other remedies granted to
the Association in this Declaration, each Owner, by acceptance of a deed to such Owner's
Condominium, conveys to the Association all of such Owner's right, title and interest in all rents,
i~sues and profits derived from and appurtenant to such Condominium, subject to the right of the
Association to collect and apply such rents, issues and profits to any delinquent Assessments
owed by such Owner, 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 Condominium 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 Condominium, 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.
12.2.7 Compliance with Law. To the extent that any proviSion in this
Section 12.2 conflicts with the provisions of the Davis-Stirling Act (California Civil Code
Section 1350, et seq.) the statutory provisions shall control.
12.3 ENFORCEMENT OF BONDED OBLIGATIONS. If (a) the Association
Property Improvements in any Phase are not completed before the DRE issues a Public Report,
and (b) the Association is an obligee under a bond or other arrangement (a "Bond") required by
the DRE to secure performance of Declarant's commitment to complete such Improvements,
then the following provisions of this Section will apply:
12.3.1 Consideration by the Board. The Board shall consider and vote on
the question of action by the Association to enforce the obligations under the Bond concerning
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 Declarant's "Planned
Construction Statement" which is appended to the Bond. If the Association has given an
extension in writing for the completion of any Association Property 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 end of the extension.
12.3.2 Consideration by the Owners. A special meeting of Owners 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 Owners representing five percent (5%) of the Association's
total voting power. A vote of a majority of the Association's voting power (excluding Declarant)
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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.
12.4 DISPUTES WITH DECLARANT PARTIES. The following dispute resolution
procedure is implemented for the Community with the intent to avoid costly and potentially
lengthy traditional court proceedings. Any dispute between the Association or any Owners, on
the one hand, and the Declarant, or any director, officer, partner, shareholder, member,
employee, representative, contractor, subcontractor, design professional or agent of the Declarant
(each, a "Declarant Party," and collectively the "Declarant Parties"), on the other hand, is a
"Dispute" that shall be resolved in accordance with the following alternative dispute resolution
procedures, if the Dispute:
(a) Arises under this Declaration or otherwise relates to the
Community including Right to Repair Law Claims; and
(b) Involves neither Association Property completion bonds, nor
the collection of delinquent Assessments from Declarant;
(c) Does not involve an amount in controversy that is subject to the
Small Claims Act (California Civil Procedure Sections 116.110, et seq.); and
(d) Concerns matters that are not resolved under the express limited
warranty provided by Declarant.
In addition, Owners and the Association are advised that Sections 12.4.1 and 12.4.2
below are Declarant's alternative contractual non-adversarial procedures for the resolution of
Disputes concerning matters governed by the Right to Repair Law. These procedures are
different from and replace the "Pre-litigation Procedure" described in Chapter 4 of the Right to
Repair Law. All Disputes shall be resolved in accordance with the following alternative dispute
resolution procedures:
12.4.1 Notice. Any Person with a Dispute shall give written notice of the
Dispute by personal or mail service as authorized by California Code of Civil Procedure
Sections 415.10, 415.20, 415.21, 415.30 or 415.40 to the party to whom the Dispute is directed
("Respondent") describing the nature of the Dispute and any proposed remedy (the "Dispute
Notice").
12.4.2 Cooperation, Access and Repair. Commencing on the date the
Dispute Notice is delivered to the Respondent, the party alleging the Dispute must promptly and
reasonably cooperate with Respondent and its representatives to facilitate the resolution of the
Dispute. Respondent and its representatives have the right to (i) meet with the party alleging the
Dispute at a reasonable time and place to discuss the Dispute, (ii) enter the Community to inspect
any areas that are subject to the Dispute, and (iii) conduct inspections and testing (including
destructive or invasive testing) in a manner deemed appropriate by the Respondent. If
Respondent elects to take any corrective action, Respondent and its representatives shall be
provided full access to the Community to take and complete the corrective action. If the Dispute
relates to the planning surveying, design, engineering, grading, specifications, construction or
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other development of the Community, Respondent is granted the irrevocable right to inspect,
repair or replace any affected parts of the Community. However, Respondent is not obligated to
take any such corrective action. Respondent, with the consent of Declarant, has the right to
select the corrective action Respondent believes is appropriate. The right to take corrective
action granted in this Section is in addition to the rights granted in California Civil Code Section
1375 ("Calderon Act''). The procedures established in the Calderon Act may be implemented,
before, during or after the procedure in this Section is implemented.
12.4.3 Judicial Reference. If a Dispute is not resolved within ninety (90)
days after the Respondent receives the Dispute Notice, then any of the parties to the Dispute
(each, a "Party" and collectively, the "Parties'') may file a lawsuit, provided that the
Association must obtain the vote or written consent of Owners other than Declarant who
represent not less than sixty-seven percent (67%) of the Association's voting power (excluding
the voting power of Declarant) before filing a lawsuit in a Dispute with Declarant or a Declarant
Party. All lawsuits regarding Disputes must be resolved by general judicial reference pursuant to
California Code of Civil Procedure Sections 638 and 641 through 645.1, as modified by this
Section 12.4.3. The Parties shall cooperate in good faith to ensure that all necessary and
appropriate parties are included in the judicial reference proceeding. No Party shall be required
to participate in the judicial reference proceeding if all Parties against whom such Party would
have necessary or permissive cross-claims or counterclaims will not or cannot be joined in the
judicial reference proceeding. 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 referee shall be the only trier of
fact and law in the reference proceeding, and shall have no authority to further refer any issues of
fact or law to any other Person unless all Parties to the judicial reference proceeding consent, or
the referee determines that a conflict of interest or similar situation has arisen which would make
it inappropriate for the referee to act as the trier of fact or law concerning an issue or matter. In
the second alternative, an alternative judicial referee shall be selected in accordance with
Section !2.4.3(b) solely for resolving or rendering a decision concerning the issue or matter
involved in the conflict.
(a) Place. The proceedings shall be heard in the County.
(b) Referee. The referee shall be a retired judge who served on the
California Superior Court in the County with substantial experience in the type of matter in
dispute and without any relationship to the Parties or interest in the Master Community, unless
the Parties agree otherwise. The Parties to the judicial reference proceeding shall meet to select
the referee no later than thirty (30) days after service of the initial complaint on all defendants
named in the complaint. Any dispute regarding the selection of the referee shall be resolved by
the court in which the complaint is filed.
(c) Beginning and Timing of Proceeding. The referee shall begin
the proceeding at the earliest convenient date and shall conduct the proceeding without undue
delay.
conferences.
(d) Pre-hearing Conferences. The referee may require pre-hearing
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(e) Discovery. The Parties to the judicial reference proceeding
shall be entitled only to limited discovery, consisting of the exchange of the following: (1)
witness lists, (2) expert witness designations, (3) expert witness reports, (4) Exhibits, (5) reports
of testing or inspections, and ( 6) briefs. Any other discovery authorized in the California Code
of Civil Procedure shall be permitted by the referee upon a showing of good cause or based on
the consent of all Parties to the judicial reference proceeding.
(f) Motions. The referee shall have the power to hear and dispose
of motions, including motions relating to discovery, provisional remedies, demurrers, motions to
dismiss, motions for judgment on the pleadings and summary judgment and/or adjudication
motions, in the same manner as a trial court judge. The referee shall also have the power to
adjudicate summarily issues of fact or law including the availability of remedies whether or not
the issue adjudicated could dispose of an entire cause of action or defense.
(g) Record. A stenographic record of the hearing shall be made
which shall remain confidential except as may be necessary for post-hearing motions and any
appeals.
(h) Statement of Decision. The referee's statement of decision
shall contain an explanation of the factual and legal basis for the decision pursuant to California
Code of Civil Procedure Section 632. The decision of the referee shall stand as the decision of
the court, and upon filing of the statement of decision with the clerk of the court, judgment may
be entered thereon in the same manner as if the Dispute had been tried by the court.
(i) Remedies. The referee may grant all legal and equitable
remedies and award damages in the judicial reference proceeding.
G) Post-hearing Motions. The referee may rule on all post-
hearing motions in the same manner as a trial judge.
(k) Appeals. The decision of the referee shall be subject to appeal
in the same manner as if the Dispute had been tried by the court.
(I) Expenses. Each Party shall bear its own attorneys' fees and
costs incurred in connection with the judicial reference proceeding. All other fees and costs
incurred in connection with the judicial reference proceeding, including the cost of the
stenographic record, shall be advanced equally by each of Declarant and the Declarant Parties to
whom the Dispute is directed. However, the referee shall have the power to reallocate such fees
and costs among the Parties in the referee's final ruling. This provision does not modify any
provision of a contract between Declarant and any Declarant Party requiring indemnification or
establishing a different allocation of costs between the Declarant and the Declarant Party.
12.4.4 Arbitration of Disputes. If the judicial reference procedures in
Section 12.4.3 are legally unavailable, unenforceable at the time a Dispute would otherwise be
referred to judicial reference, or if all necessary parties cannot be joined in the judicial reference
proceeding described in Section 12.4.3, the entire matter shall proceed as one of binding
arbitration governed by the Federal Arbitration Act (9 U.S.C. §1-16) ("Arbitration"). To the
extent the rules of procedure set forth herein do not conflict with the Federal Arbitration Act,
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such rules of procedure shall be the rules of procedure for the Arbitration. Judicial Arbitration
and Mediation Service ("JAMS''), its successors, or any other entity offering arbitration services
agreed to by the Parties shall hear, try and decide all issues of both fact and law and make any
required findings of fact and, if applicable, conclusions of law. Notwithstanding the
requirements to submit Disputes to Arbitration, if the Party seeking to submit a Dispute to
Arbitration chooses, the Dispute may instead, as an alternative to Arbitration, be submitted to the
California small claims court subject to the limitations on the jurisdiction of such court. The
decision of the small claims court and any small claims appeals court will be final as to the
Dispute.
(a) Interpretation. The procedures specified in this Section 12.4.4
pertaining to Arbitration are to be interpreted and enforced as authorized by the Federal
Arbitration Act (9 U.S.C. §1-16), which is designed to encourage use of alternative methods of
dispute resolution that avoid costly and potentially lengthy court proceedings. Interpretation and
application of those procedures shall conform to Federal court rules interpreting and applying the
Federal Arbitration Act. The Community is constructed of or uses materials and products
manufactured throughout the United States which are then shipped to the Community for
installation at the Community. The shipment of these materials and products across state lines to
the Community causes the products and materials to enter into the stream of interstate commerce
and become subject to the Interstate Commerce Clause (Article I, Section VIII of the United
States Constitution) and ensuing Federal laws. References to California procedural law shall not
be construed as a waiver of any rights of the parties under the Federal Arbitration Act or the right
of the parties to have the procedures set forth in this Section 12.4.4 interpreted and enforced
under the Federal Arbitration Act.
(b) Amendment. The provisions of this Section 12.4.4 shall not be
amended nor shall other provisions be adopted that purport to supersede it without Declarant's
prior written consent. The Parties shall cooperate in good faith and shall diligently perform such
acts as may be necessary to carry out the purposes of this Section.
(c) Initiation of Claim. Any Party wishing to initiate Arbitration
pursuant to this Section shall serve a demand for Arbitration upon the responding Party and upon
JAMS, its successor, or to any other entity offering arbitration services agreed to by the Parties.
Except as otherwise set forth herein, the Arbitration shall be conducted by and in accordance
with the rules of JAMS, its successors, or to any other entity offering arbitration services agreed
to by the Parties.
(d) Arbitrator. The arbitrator to be appointed shall be employed by
JAMS, its successor, or to any other entity offering arbitration services agreed to by the Parties.
Except as otherwise set forth herein, the arbitration proceedings shall be conducted by and in
accordance with the rules of JAMS or any successor thereto. Except for procedural issues, the
proceedings, the ultimate decisions of the arbitrator, and the arbitrator himself shall be subject to
and bound by existing California case and statutory law. Should JAMS cease to exist, as such,
then all references herein to JAMS shall be deemed to refer to its successor or, if none, to the
American Arbitration Association (in which case its commercial arbitration rules shall be used).
The Parties shall cooperate in good faith and shall diligently perform such acts as may be
necessary to ensure that all necessary and appropriate parties are included in the proceeding.
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Declarant shall not be required to participate in the proceeding if all Parties against whom
Declarant would have necessary or permissive cross-claims or counterclaims will not or cannot
be joined in the proceeding.
(e) Selection of Arbitrator. The proceeding shall be conducted by
one (I) qualified arbitrator selected in accordance with the rules of JAMS. The term "qualified"
shall mean a retired judge who has experience with the laws governing residential real estate
development and construction or an attorney who has actively practiced law in California for at
least fifteen (15) years and who has experience with the laws governing residential real estate
development and construction.
(f) Motions and Remedies. The arbitrator shall have the power to
hear and dispose of motions, including motions relating to provisional remedies, demurrers,
motions to dismiss, motions for judgment on the pleadings and summary judgment and/or
adjudication motions, in the same manner as a trial court judge. In addition, the arbitrator shall
have the power to summarily adjudicate issues of fact or law, including but not limited to the
availability of remedies, whether or not the issue adjudicated could dispose of an entire cause of
action or defense. The arbitrator shall have the power to grant provisional remedies including
preliminary injunctive relief. Prior to the selection of the arbitrator any Party shall have the right
to petition the Superior Court of the County for any necessary provisional remedies.
(g) Discovery. Except as limited herein, the Parties shall be entitled
to limited discovery consisting of: (i) witness lists; (ii) expert witness designations; (iii) expert
witness reports; (iv) exhibits; (v) reports of testing or inspections, including but not limited to,
destructive or invasive testing; (vi) arbitration briefs; and (vii) the deposition, under oath, of any
designated experts and two other depositions of their choosing without obtaining the consent of
the arbitrator. All other discovery shall be permitted by the arbitrator at his discretion upon a
showing of good cause or based on the agreement of the Parties. The arbitrator shall oversee
discovery and may enforce all discovery orders in the same manner as any trial court judge.
(h) Full Disclosure. Each Party shall, in good faith, make a full
disclosure of all issues and evidence to the other Parties prior to the hearing. Any evidence or
information that the arbitrator determines was unreasonably withheld shall be inadmissible by
the Party that withheld it. The initiating Party shall be the first to disclose all of the following, in
writing, to the other Party and to the arbitrator: (i) an outline of the issues and its position on
each such issue; (ii) a list of all witnesses it intends to call; and (iii) copies of all written reports
and other documentary evidence whether or not written or contributed to by its retained experts
(collectively, the "Outline"). The initiating Party shall submit its Outline to the other Parties and
to the arbitrator within thirty (30) days of the final selection of the arbitrator. Each responding
Party shall submit its written response as directed by the arbitrator.
(i) Hearing. The hearing shall be held in the County. The
arbitrator shall promptly commence the hearing giving due consideration to the complexity of
the issues, the number of Parties and necessary discovery and other relevant matters. The
hearing shall be conducted as informally as possible. Evidence Code Section 1152, et seq., shall
be applicable for the purpose of excluding from evidence offers, compromises, and settlement
proposals, unless both Parties consent to their admission. Attorneys are not required and either
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Party may elect to be represented by someone other than a licensed attorney. Cost of an
interpreter shall be borne by the Party requiring the services of the interpreter in order to be
understood by the arbitrator and the expenses of witnesses shall be borne by the Party or Parties
producing such witnesses.
(j) Decision. The decision of the arbitrator shall be binding on the
Parties and if the award of the arbitrator is not paid within sixty ( 60) days of the award it shall be
entered as a judgment in the Superior Court of the County. The arbitrator shall cause a complete
reC<Jrd of all proceedings to be prepared similar to those kept in the Superior Court, shall try all
issues of both fact and law, and shall issue a written statement of decision, such as that described
in Code of Civil Procedure Section 643 (or its successor), which shall specify the facts and law
relied upon in reaching his/her decision within twenty (20) days after the close of testimony.
(k) Fees and Costs. Declarant shall advance the fees necessary to
initiate the arbitration proceedings, with the costs, and fees, including ongoing costs and fees, if
any, to be paid as agreed by the Parties. If the Parties cannot agree, then the total cost of the
proceedings, including the advanced initiation fees and other fees of JAMS and any related costs
and fees incurred by JAMS (such as experts and consultants retained by it) are to be paid as
determined by the arbitrator. Nothing herein shall be construed to modify or abrogate any duty
to defend and/or indemnify another Party pursuant to the terms of a contract between any such
Parties.
12.4.5 Statutes of Limitation. Nothing in this Section 12.4 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 begin 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 as long as no further steps in processing the
action are taken except those authorized in this Section 12.4.
12.4.6 Agreement to Dispute Resolution; Waivers of Jury Trial.
DECLARANT, THE ASSOCIATION AND EACH OWNER AGREE TO USE THE
PROCEDURES ESTABLISHED IN THIS SECTION 12.4 TO RESOLVE ALL DISPUTES
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 THIS SECTION 12.4, THEY
ARE GIVING UP THEIR RIGHT TO HAVE DISPUTES TRIED BEFORE A JURY. THIS
SECTION 12.4 MAY NOT BE AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN
CONSENT.
12.4.7 Covenant Regarding Proceeds. If the Association or any Owner
prevail in a Dispute, and the judgment thereon or settlement terms thereof includes a monetary
award, then the proceeds of the award shall be first applied to the remediation of the condition
that gave rise to the Dispute.
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ARTICLE 13
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 (other than an amendment by Declarant or by the Board, as
described in Sections 13.2.6 or 13.2.7 respectively) must be (a) adopted by the vote, in person or
by proxy, or written consent of Owners representing not less than (1) sixty-seven percent (67%)
of the voting power of each Class of the Association and (2) 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, and (b) approved
by the requisite percentage of First Mortgagees for the (1) amendments described in Section
13.2.1, and (2) termination of the Declaration as described in Section 13.2.4.
13.2.2 Mortgagee Consent. In addition to the consents required by
Section 13.2.1, a Mortgagee Majority must approve any amendment to this Declaration, any
Notice of Addition and any Supplemental Declaration which is of a material adverse nature to
First Mortgagees, including the following:
(a) Any amendment concerning any of the following:
(I) Voting rights;
(2) Increases in Assessments that raise the existing
Assessment by more than twenty-five percent (25%), Assessment liens or the priority of
Assessment liens;
(3) Reductions m reserves for maintenance, repair and
replacement of the Association Property;
(4)
(5)
its use; or
(6)
(7)
versa;
Responsibility for maintenance and repairs;
Reallocation of interest in the Common Area or rights to
Redefinition of any Unit boundaries;
Convertibility of Units into Association Property or vice
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------------.
(8) Expansion or contraction of the Community or the
addition, annexation or de-annexation of real property to or from the Community other than by
Declarant under Sections 16.1 and 16.5 of this Declaration;
(9) Hazard or fidelity insurance requirements;
(10) Imposing restrictions on leasing of Units;
(11) Imposing restrictions on a Unit Owner's right to sell or
transfer that Owner's Unit;
(12) Any decision by the Association to establish self-
management if professional management had been required previously by the Governing
Documents or a First Mortgagee;
(13) Restoration or repair of the Community (after damage or
partial condemnation) in a manner other than that specified in this Declaration; or
(14) Any provisions that expressly benefit Mortgagees.
(b) 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 Mortgages.
(c) Any amendment which would require a Mortgagee after it has
acquired a Condominium through foreclosure to pay more than its proportionate share of any
unpaid Assessment or Assessments accruing before such foreclosure.
(d) Any amendment which would or could result in a Mortgage
being canceled by forfeiture, or in a Condominium not being separately assessed for tax
purposes.
(e) Any amendment relating to (i) the insurance provisiOns in
Article 8, (ii) the application of insurance proceeds in Article 9, or (iii) the disposition of any
money received in any taking under condemnation proceedings.
(f) Any amendment which would or could result in partition or
subdivision of a Condominium in any manner inconsistent with this Declaration.
(g) Any amendment which would subject any Owner to a right of
first refusal or other such restriction, if such Condominium is proposed to be transferred.
(h) The termination of the legal status of the Community as a
"condominium project" as defined in California Civil Code Section 1351(f) after substantial
destruction or condemnation.
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13.2.3 Amendment of Right to Repair Law Provisions. Neither this
Section 13.2.3 nor **[Sections 1.1.41, 1.1.61, 1.1.62, 2.1.5, 3.15, 4.2.8, 4.5, 12.1.7, 12.4, 13.2.6,
13.2.6 or 15.7}** may be amended without the prior written approval of Declarant until the
expiration of all applicable statutes of limitation or repose for the filing of a complaint or suit or
other legal remedies against Declarant or its affiliates under the Right to Repair Law (including
tolling periods).
13.2.4 Termination Approval. Termination of this Declaration requires
approval of (a) a Mortgagee Majority pursuant to Section 13.2.1, (b) the Owners as provided in
Section 13.2.1, and (c) Declarant (until the expiration of all applicable statutes of limitation or
repose for the filing of a complaint or suit or other legal remedies against Declarant or its
affiliates under the Right to Repair Law).
13.2.5 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 First Mortgagees must include a
certification that the requisite approval of such First Mortgagees was obtained or deemed given
in accordance with Section 11.2.3.
13.2.6 Amendment or Termination by Declarant.
(a) Before First Closing. Notwithstanding any other provisions in
this Article, (i) Declarant may unilaterally amend or terminate this Declaration for any purpose,
until the first Close of Escrow in the Community, and (ii) Declarant may unilaterally amend or
terminate a Notice of Addition or Supplemental Declaration for any purpose, until the first Close
of Escrow in the real property affected by the Notice of Addition or Supplemental Declaration to
be amended or terminated. Amendment or termination shall not be effective until Declarant has
Recorded in the Official Records an instrument signed and acknowledged by Declarant.
(b) Minor Corrections. Notwithstanding any other provisions of
this Article, Declarant (as long as Declarant owns any portion of the Community or the
Annexable Area) may unilaterally amend this Declaration, a Notice of Addition or a
Supplemental Declaration by Recording a written instrument signed by Declarant to: (I) conform
this Declaration, the Notice of Addition or the Supplemental Declaration to the rules, regulations
or requirements of FHF A, VA, FHA, DRE, Fannie Mae, Ginnie Mae, Freddie Mac, the County
or the City, (2) amend, replace or substitute any exhibit to correct typographical or engineering
errors, (3) include any exhibit that was inadvertently omitted at the time of Recording,
(4) comply with any City, County, State or Federal laws or regulations, (5) correct typographical
errors, ( 6) supplement this Declaration with provisions which pertain to rights and obligations of
Declarant, the Association or Owners arising under the Right to Repair Law, (7) re-Phase any
portion of the Community, and (8) change any exhibit or portion of an exhibit to conform to as-
built conditions.
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Nothing in this Section 13.2.6 may be amended or terminated without the prior written
approval of Declarant.
13.2.7 Minor Corrections by the Board. The Board may amend this
Declaration, or a Notice of Addition or Supplemental Declaration for the reasons stated in
clauses (2), (3), (4), (5) or (8) of Section 13.2.6(b) by Recording a written instrument signed by
two officers of the Association certifying that the Board approved the amendment for the
purposes described therein. However, until the end of all applicable statutes of limitation or
repose for the filing of a complaint or suit or other legal remedies against Declarant or its
affiliates under the Right to Repair Law (including tolling periods), the Board must obtain the
prior written approval of Declarant to any amendment approved by the Board, or any other
amendment by the Board or Association that affects the rights of Declarant under the Right to
Repair Law, this Declaration or any Supplemental Declaration or Notice of Addition, or for any
amendment by the Board concerning matters discussed in Articles 3 or 15.
13.2.8 Amendments Requiring City Approval. Proposed amendments to
this Declaration shall be submitted for review to the City, and shall be approved by the City prior
to the amendments being valid. No later than the date that is thirty (30) calendar days after its
receipt of a proposed amendment, the City shall deliver written notice of its approval or
disapproval of the proposed amendment to the party who delivered the proposed amendment to
the City. If the City fails to deliver such written notice within such 30-calendar day period, the
City shall be deemed to have approved the proposed amendment. A copy of the final approved
amendment shall be transmitted to the City within thirty (30) days of such final approval.
ARTICLE 14
GENERAL PROVISIONS
14.1 MERGERS OR CONSOLIDATIONS. In a merger or consolidation of the
Association with another association, the property, rights and obligations ofthe Association may,
by operation of law, be transferred to another surviving or consolidated association or,
alternatively, the property, rights and obligations of another association may, by operation of
law, be added to the property, 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
Community, 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 Community to the public, or for any public use.
14.3 NOTICES. Except as otherwise provided in this Declaration, notice to be given
to an Owner must be in writing and may be delivered personally to the Owner. Personal delivery
of such notice to one (1) or more co-Owners, or any general partner of a partnership owning a
Condominium, 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. Such notice may also be delivered by
regular United State$ mail, postage prepaid, addressed to the Owner at the most recent address
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furnished by such Owner to the Association or, if no such address has been furnished, to the
street address of such Owner's Condominium. Such notice is deemed delivered three (3)
business days after the time of such mailing, except for notice of a meeting of Owners or of the
Board, in which case the notice provisions of the Bylaws control. Any notice to be given to the
Association may be delivered personally to any member of the Board, or sent by United States
mail, 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 Condominium or other portion
of the Community consents and agrees 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 Community. As
soon as practicable before sale or transfer of title to a Condominium or other separate interest in
the Community or execution of a real property sales contract therefor, the Owner of the
Condominium or other separate interest shall provide to the purchaser copies of the Governing
Documents listed in California Civil Code Section 1368(a) and its successor statutes.
ARTICLE 15
DECLARANT'S RIGHTS AND RESERVATIONS
If there is a conflict between any other portion of the Governing Documents and this
Article, this Article shall control.
15.1 CONSTRUCTION RIGHTS. Until Declarant no longer owns any portion of
the Community or the Annexable Area, Declarant has the right, without obtaining the approval
of the Association, to (a) subdivide or re-subdivide the portions of the Community owned by
Declarant, (b) complete or modify Improvements in the Association Property, or in any portion
of the Community or Annexable Area that is owned or leased solely or partially by Declarant,
(c) alter Improvements and Declarant's construction plans and designs, (d) modify Declarant's
development plan for the Community and the Annexable Area, including designating and re-
designating Phases, reshaping the Condominiums and Association Property, and constructing
dwellings of larger or smaller sizes, values, and of different types, (e) modify, extend, postpone
or terminate the annexation of any or all of the Annexable Area, or the completion of the
Community, for any purpose, including changed economic conditions, changes in Declarant's
business plans or other factors determined by Declarant in its sole discretion, and (f) construct
additional or different Improvements, all as Declarant considers advisable in the course of
development of the Community. Declarant may temporarily erect barriers, close off and restrict
access to portions of the Association Property as reasonably necessary to allow Declarant to
exercise the rights reserved in this Section so long as an Owner's access to that Owner's
Condominium is not eliminated.
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15.2 SALES AND MARKETING RIGHTS. Declarant shall have the following
rights related to sales and marketing, all of which may be exercised unilaterally by Declarant in
Declarant's sole discretion. The rights reserved in this Section will terminate on the date of the
last Close of Escrow for sale of a Condominium in the Community and Annexable Area.
15.2.1 Marketing and Sales Facilities. Declarant's rights under this
Declaration include the right to install and maintain such structures, displays, signs, billboards,
flags and sales offices in the Community, and the right to use any land, Units or mobile homes
owned or leased by Declarant in the Community for model home purposes, or for the operation
of real estate sales offices or leasing offices, all as may be reasonably necessary to conduct the
business of completing construction and disposing of the Condominiums by sale, resale, lease or
otherwise.
15.2.2 Use of Recreational Facilities. Declarant reserves for its benefit, the
right to use and occupy portions of the recreational facilities as necessary to the promotion and
advertising of the Community and the marketing of Condominiums in the Community, including
visits and special events for prospective or new purchasers. The right to use and occupy the
recreational facilities shall be in accordance with reasonable terms of a lease, license, permit, or
other written agreement entered into with the Association for such purpose; provided, however,
that Declarant may not make any use or occupancy of any portion of the recreational facilities
that would unreasonably interfere with the use and enjoyment thereof by the Owners of
Condominiums in the Community, and their Families, tenants and invitees.
15.2.3 Use of Association Property. Declarant and its prospective purchasers
of Condominiums are entitled to the nonexclusive use of the Association Property without
further cost for access, ingress, egress, use or enjoyment, to (a) show the Community to
prospective purchasers, (b) dispose of the Community as provided in this Declaration, and
(c) develop and sell the Annexable Area. Declarant, its employees, agents and prospective
purchasers are also entitled to the nonexclusive use of private streets, drives and walkways for
ingress, egress and vehicle parking as necessary in connection with the marketing and sale of the
Condominiums. Neither Declarant, nor its employees, agents nor prospective purchasers shall
make any use of the Association Property that will unreasonably interfere with the use and
enjoyment thereof by the Owners.
15.3 CREATING ADDITIONAL EASEMENTS. At any time before the Close of
Escrow for a Condominium, Declarant reserves the unilateral right to establish on that
Condominium additional licenses, easements, reservations and rights-of-way to itself, to utility
companies, or to others as Declarant determines are reasonably necessary to the proper
development and disposal of the Community and Annexable Area.
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
Community by Declarant or such Person. Declarant may exclude portions of the Community
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.
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15.5 DEVELOPER EXEMPTION. Declarant is exempt from the application of
Article 2 of this Declaration and from all other restrictions on the use and enjoyment of real
property and all maintenance covenants that are established for Owners under this Declaration,
or in a Notice of Addition, a Supplemental Declaration or in any other Governing Documents,
except to the extent that a particular provision expressly includes Declarant among the parties
covered thereby.
15.6 ASSIGNMENT OF RIGHTS. Declarant may assign any or all of its rights and
exemptions under this Article 15, and any other Declarant rights, exemptions, appointment
powers, veto powers or easements in the Governing Documents to any successor in interest to
any portion of Declarant's interest in the Community by a Recorded written assignment.
15.7 AMENDMENT TO ARTICLE. No amendment may be made to this Article
without the prior written approval of Declarant for so long as Declarant owns any portion of the
Community or the Annexable Area.
15.8 POWER OF ATTORNEY. Each Owner of a Condominium in the Community,
by accepting a deed to a Condominium, shall be deemed to have (a) agreed and acknowledged
that the Owners own no interest in the Annexable Area, (b) agreed and acknowledged that the
Annexable Area may be developed, if at all, by Declarant in its sole and absolute discretion, in
accordance with Declarant's development plans, and (c) constituted and irrevocably appointed
Declarant, for so long as Declarant owns all or any portion of the Annexable Area, as his
attorney-in-fact, for the Owner and each of the Owner's Mortgagees, optionees, grantees,
licensees, trustees, receivers, lessees, tenants, judgment creditors, heirs, legatees, devisees,
administrators, executors, legal representatives, successors and assigns, whether voluntary or
involuntary, and thereby to have conveyed a power of attorney coupled with an interest to
Declarant as the Owner's attorney-in-fact to prepare, execute, acknowledge and Record any
instrument for all or any portion of the Annexable Area, or any amendment to or restatement of
the Condominium Plan, as Declarant deems to be reasonably necessary to correct errors, to
conform to as-built conditions, or to bring the Condominium Plan into compliance with any City,
County, State or Federal law or regulations. However, nothing set forth herein shall be deemed
or construed as an agreement by Declarant that any Owner shall be entitled to any participation
in or discretion over the preparation and Recordation of an instrument for all or any portion of
the Annexable Area. The acceptance or creation of any Mortgage or other encumbrance,
whether or not voluntary, created in good faith, or given for value, shall be accepted or created
subject to each of the power of attorney provisions in this Section.
15.9 PARTICIPATION IN ASSOCIATION. The Association shall provide
Declarant with written notice of the transfer of any Condominium and all notices and other
documents to which a Mortgagee is entitled pursuant to this Declaration, provided that Declarant
shall not be required to make written request for such notices and other documents.
Commencing on the date on which Declarant no longer has a representative on the Board, the
Association shall provide Declarant with written notice of all meetings of the Board that any
Owner is entitled to attend (each, an "Open Meeting") as if Declarant were an Owner, and
Declarant shall be entitled to have a representative ("Declarant's Representative'') present at all
Open Meetings. However, the Board has the power to withhold information from the
Declarant's Representative and to exclude the Declarant's Representative from any Open
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Meeting or portion thereof if, in the good faith judgment of the Board, access to such information
or attendance at the Open Meeting would adversely affect the attorney-client privilege between
the Association and its counsel or if, in the good faith judgment of the Board, access to such
information or attendance at an Open Meeting would not be in the best interest of the
Association or the Owners. The Declarant's Representative shall not be entitled to attend
executive sessions ofthe Board. The Declarant's Representative will attend any Open Meeting it
is permitted to attend in an observer capacity only, and it shall not have any right to vote on
matters coming before the Board or Owners. Declarant's Representative shall be entitled to
receive copies of the minutes of all Open Meetings. The Declarant's rights to receive written
notice of meetings and to have a Declarant's Representative present at such meeting shall
continue until the later of the date that is ten (I 0) years after the first Close of Escrow in the
Community, or the expiration date of all applicable statutes of limitations or repose for the filing
of a complaint or suit or other legal remedies against Declarant under the Right to Repair Law
(including any tolling periods).
15.10 DECLARANT APPROVAL OF ACTIONS.
15.10.1 General Rights. Until Declarant no longer owns a portion of the
Community or the Annexable Area, Declarant's prior written approval is required for any
amendment to the Governing Documents which would impair or diminish Declarant's right to
complete the Community or the Annexable Area or sell or lease Condominiums therein.
15.10.2 Limit on Actions. Until the end of all applicable statutes oflimitations
or repose for the filing of a complaint or suit or other legal remedies against Declarant under the
Right to Repair Law (including any tolling periods), 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 Community of real property other than
the Annexable Area pursuant to Section 16.2;
(c) The levy of a Capital Improvement Assessment for the
construction of new facilities not constructed on the Association Property by Declarant;
(d) Any significant reduction of Association maintenance or other
services; or
(e) Any modification or termination of any provision of the
Governing Documents benefiting Declarant.
15.11 MARKETING NAME. The Community shall be marketed under the general
name "Ocean Street." Declarant may change the marketing name of the Community or
designate a different marketing name for any Phase at any time in Declarant's sole discretion.
Declarant shall notify the DRE of any change in or addition to the marketing name or names of
the Community or any Phase.
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ARTICLE 16
ANNEXATION OF ADDITIONAL PROPERTY
Additional real property may be annexed to the Community and become subject to this
Declaration by any of the following methods:
16.1 ADDITIONS BY DECLARANT. Declarant may add the Annexable Area to the
Community and bring such added area under the general plan of this Declaration without the
approval of the Association, the Board, or Owners, as long as Declarant owns any portion of the
Annexable Area. No amendment may be made to this Section 16.1 without the prior written
approval of Declarant.
16.2 OTHER ADDITIONS. Additional real property may be annexed to the
Community 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 ADDED AREA RIGHTS AND OBLIGATIONS. When a Notice of Addition
containing the provisions required by Section 16.4 is Recorded, all provisions in this Declaration
will apply to the real property described in such Notice of Addition (the "Added Area'~ in the
same manner as if the real property were originally covered by this Declaration. Thereafter, the
rights, powers and responsibilities of the Owners, lessees and occupants of Condominiums in the
Added Area, as well as in the property originally subject to this Declaration, will be the same as
if the Added Area were originally covered by this Declaration. After the first day of the month
following the first Close of Escrow in the Added Area, the Owners of Condominiums in the
Added Area shall share in the payment of Assessments to the Association to meet Common
Expenses of the Community. Voting rights attributable to the Condominiums in the Added Area
may not be exercised until Annual Assessments have commenced on such Condominiums.
16.4 NOTICE OF ADDITION. The additions authorized under Sections 16.1 and
16.2 must be made by Recording a Notice of Addition against the real property to be added to
the coverage of this Declaration. The Notice of Addition must (a) reference by instrument
number this Declaration and the date of its Recordation, (b) describe with specificity the Added
Area, (c) state that this Declaration shall apply to the Added Area and (d) describe the land use
designations in the Added Area. 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. On Recordation of the Notice of Addition, the Added
Area will be annexed to and constitute a part of the Community and it will become subject to this
Declaration. Subject to Section 16.2, the Owners of Condominiums in the Added Area will
automatically acquire Membership in the Association. No Notice of Addition or Supplemental
Declaration may revoke the covenants, conditions, restrictions, reservation of easements, or
equitable servitudes in this Declaration as the same pertain to the real property originally covered
by this Declaration.
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16.5 DE-ANNEXATION AND AMENDMENT. In addition to the rights to amend
or terminate a Notice of Addition granted elsewhere in this Declaration or in a Notice of
Addition, Declarant may also amend a Notice of Addition for purposes other than those
described in Section 13.2.6 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
provided that (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 concerning any portion of such Phase, (c) Assessments
have not yet commenced concerning any portion of such Phase, (d) Close of Escrow has not
occurred for the sale of any Condominium in such Phase, and (e) the Association has not made
any expenditures or incurred any obligations concerning any portion of such Phase. No
amendment may be made to this Section 16.5 without the prior written approval of Declarant.
{SIGNATURES ON NEXT PAGE}
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{SIGNATURE PAGE TO DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS}
This Declaration is dated for identification purposes ________ , __ .
STATE OF CALIFORNIA
COUNTY OF __________ _
OCEAN STREET 8 OWNER, LLC,
a Delaware limited liability company
By: Zephyr Partner-re, LLC
a Delaware corporation,
its Manager
Brad Termini, Manager
Declarant
On __________ , __ ,before me, ----::--:------:....,..,.-:--:--:::--,-----
<here insert name and title of the officer)
personally appeared---------------------------
who proved to me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity
upon behalf of which the persons 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.
Signature:
-94-
(SEAL)
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LENDER SUBORDINATION
The undersigned, as Beneficiary of the beneficial interest in and under the Deed of Trust,
________ ("Deed of Trust") among , a __
--:----------'' as Trustor, , as Trustee, and , a _________ _
______ , as Beneficiary, recorded on , __ , as Instrument No. _
:----:----,..,.--------,--'' in the Official Records of County, California,
hereby subordinates the Deed of Trust and its beneficial interest thereunder to the foregoing
Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for--,-.,.,.--:-
---:-:-----' as amended or restated (the "Declaration"), to any Notice of Addition
recorded pursuant to the provisions of Article 16 of the Declaration, as amended or restated (the
"Notice''), any Supplemental Declaration, as amended or restated, and to all easements to be
conveyed to the Association in accordance with the Declaration, any Notice and any
Supplemental Declaration. By executing this Subordination, the undersigned agrees that if the
undersigned acquires title to all or any portion of the Community by foreclosure (whether
judicial or non-judicial), 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, any
applicable Notice and any applicable Supplemental Declaration, which shall remain in full force
and effect.
Dated: a ___________________ _
By: ~--------------------------Print Name:
Title: ----------------
By: ------------------Print Name:
Title: ----------------
{NOTARIAL ACKNOWLEDGMENT ON NEXT PAGE}
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STATE OF CALIFORNIA
COUNTY OF ____________ _
On ___________________ , ____ ,beforeme, ______ ~-------------------------
(here insert name and title of the officer)
personally appeared---------------------------------------
who proved to me on the basis of satisfactory evidence to be the persons whose names are
subscribed to the within instrument and acknowledged to me that they executed the same in their
authorized capacities, and that by their signatures on the instrument the persons, or the entity
upon behalf of which the persons 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.
Signature: ---------------------
(SEAL)
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EXHIBIT A
LEGAL DESCRIPTION OF ANNEXABLE AREA
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EXHIBITB
ARTICLES OF INCORPORATION OF THE ASSOCIATION
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EXHIBITC
BYLAWS OF THE ASSOCIATION
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--------------------------------------------------------
EXHffiiTD
SPECIFIC MAINTENANCE OBLIGATIONS
Component
Structural Integrity of
Condominium Building.
Roof
Foundation
Internal Structural Components of
Condominium Building
Outer Surface of Condominium
Building Walls
Stucco
Siding
Surface Finishes
Unit Entry Door
Door Hardware
Weatherstripping
Frame
Replacement of Door
Outdoor Paint or Other F iuish
Indoor Paint or Other Finish
Exclusive Use Areas
Deck/Patio
Parking Space
Storage Space
Owner
Maintain.
Sweep floor regularly; keep free of
standing water. Maintain slider/French
door.
Keep free of debris and trash.
Keep free of debris and trash. Maintain
lock on door and door hardware.
Association
Maintain per schedule.
Maintain per schedule.
Maintain per schedule,
including any fire assembly and
noise mitigation measures
between Unit (does not include
any noise mitigating floor
covering materials installed in
the Unit).
Maintain per schedule.
Maintain per schedule.
Maintain per schedule.
Maintain per schedule.
Maintain per schedule.
Maintain per schedule.
Replace per schedule.
Maintain per schedule.
Maintain surface membrane per
schedule.
Maintain per schedule.
Maintain door per schedule.
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-------------------------------------------------------'
Component
Air conditioning compressor and
compressor pad
Unit systems-Water pressure
regulator, water heater, plumbing
outlets and fixtures, furnaces,
ducts, built-in appliances
(microwave, range, ovens),
electrical wiring and circuit
breakers
Forced-air heater in Unit
Telephone wiring exclusively
serving a Unit
Utility Service
Interior of Unit
Indoor floor coverings
Indoor wall surfaces and ceiling
Owner
Maintain ductwork to Unit and any in the
Unit airspace (including any above drop
ceilings).
Maintain systems and appliances in the
Owner's Unit; but see also "Plumbing"
below.
Maintain heater and all ductwork inside
the Unit.
Maintain.
Maintain gas lines not serviced by Gas
Company or Association and water and
electrical utilities not serviced by provider
or Association.
Maintain all elements not designated for
maintenance by Association.
Maintain; Committee to pre-approve in
writing replacement floorings and noise
mitigating underlayments.
Maintain surface, including paint and
other wall coverings, and patch and repair
damage to drywall. No removal or
replacement of drywall or ceiling without
prior written approval of Committee.
Association
Maintain compressor and pad.
Maintain all components that
serve two or more Units.
Maintain all utilities serving
Association Property or more
than one Unit.
Maintain shear walls, fire
assembly and any noise
mitigation measures installed
between walls in the
Condominium Building.
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Component Owner
Plumbing Immediately report water leaks, sewer
backups and overflowing tnbs and sinks
to the Association. Maintain in-Unit
plumbing fixtnres, including sinks, toilets,
bath, shower, faucets, sink hardware, and
drain lines for washing machine and
dishwasher and gas line and vent line (if
any) for dryer. Owners and tenants must
regularly inspect water supply lines/hoses
connected to washing machine, toilets,
faucets and dishwasher for leaks and
replace when necessary at Owner's
expense. Do not leave running faucets or
toilets unattended. Owners are also
responsible for removing blockages from
all drains and sewer lines serving the Unit
through laterals to the main line. Owners
are responsible for damage to the Unit, to
other Units and to Association Property to
extent caused by Owner or tenant failure
to prevent or stop leaks or overflows in
the Unit and for damage caused by
negligent plumbing repairs. Residents
who plan to leave the Unit unoccupied for
more than 24 hours should shut off water
supplies to fixtnres and appliances to
prevent leaks during their absence.
Plumbers hired by Owners must be
approved by Association. The Board has
the right and power to promulgate Rules
and Regulations to supplement or revise
the foregoing requirements without
having to amend this Declaration.
Cabinets Maintain.
Interior doors and hardware Maintain.
Appliances Maintain.
Fire Sprinklers Keep heads free of dust and debris. Do
not obstruct heads nor expose them to
open flame or high heat sources. Do not
disable heads. Immediately report to
Association any damage, leak or
malfunction.
Electrical Maintain outlets and switch wiring and
distribution exclusively serving the Unit
wherever located. Owner shall hire
qualified electrical contractor approved
by the Association for all electrical
maintenance work.
Smoke detector Maintain (including periodic testing and
Association
Maintain pipes and other
fixtures serving more than one
Unit.
Maintain per schedule the
pipes, valve, pressure gauges.
Test all systems per schedule.
Maintain wiring and
distribution equipment serving
more than one Unit.
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Component Owner
battery replacement). Report malfunction
to servicer specified in Maintenance
Guidelines.
Window~ (except sliding glass Maintain and regularly clean indoor and
doors) outdoor surfaces of glass if accessible.
Maintain weather-stripping, caulking,
locks, screens, and replace broken glass.
Sliding Class Doors
Hardware Maintain lock, weather stripping, rollers,
screen door (including screen, frame and
lock) keep track clear of obstructions.
Glass Replace broken glass as necessary.
Regularly clean indoor and outdoor
surfaces.
Mailbox Replace lost key or broken lock as
necessary.
Outdoor Lighting Fixtures
Controlled by switch in Unit or Relamp as necessary.
separately metered to Unit
Controlled by switch in Association
Property
Private Street Improvements,
Landscaping, Community Walls
Parking Garage
Utility Submeter Maintain submeter. Owner responsible
for cost of replacement or repair or
damage caused by Owner or Owner's
Family, tenants or guest.
Common Amenities including
recreatilmal room, swimming pool
and spa, elevators, water features
and courtyard
Association
Maintain frame per schedule.
Wash exterior surfaces of the
windows in the Condominium
Building, at the frequency
specified in the adopted Budget.
Maintain fixtures per schedule
and wiring.
Maintain fixtures and wiring
per schedule; relamp as
necessary.
Maintain streets and
landscaping per schedule.
Maintain parking area surfaces
(including any required
sweeping and trash removal),
lighting, entry facilities,
blowers, related improvements,
all per schedule.
If Owner fails to maintain
submeter, Association shall
have the power to perform
required maintenance and
charge the cost thereof to the
Owner as a Special Assessment
in addition to any other
remedies available under law.
Maintain per schedule
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NOTES:
Maintain, capitalized or not, means "maintain, repair and replace." Notwithstanding anything in the
Declaration or this exhibit to the contrary, all maintenance by Owners must at least conform to the recommendations
in the Maintenance Guidelines.
This exhibit is not intended to be an exhaustive list of Association maintenance obligations; it is intended to
supplement relevant provisions of the Declaration, the applicable Notice of Addition or Supplemental Declaration,
the Maintenance Guidelines, and the Association's latest adopted budget.
The phrase ''per schedule," when used in connection with Association maintenance obligations, shall mean
and refer to maintenance levels and frequencies in the latest adopted Budget; provided, however, that the
Association shall not permit any required maintenance to fall below the levels specified in the Maintenance
Guidelines (if any are specified for the Improvement).
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**/EXHIBIT E
LOCATIONS OF PARKING SPACES]**
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**/EXHIBIT F
LOCATIONS OF STORAGE SPACES]**
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**[EXHIBIT G
ELEMENTS OF VARIABLE ANNUAL ASSESSMENTS]**
Variable Common Expenses:
I. Insurance
2. Domestic Gas (if common)
3. Domestic Water (if common)
4. Paint
S. Roof
6. Other (Electricity)
Variable Assessment. The variable Common Expense components of the Annual Assessment
shall be allocated and assessed against all Condominiums roughly in proportion to the base
square footage of the Unit Type of each Condominium Unit as reflected in the Budget of the
Association, as it may be amended from time to time. The share of the variable Common
Expenses allocated to each Condominium Unit Type (the "Variable Assessment") shall be
determined as follows:
I. Add the total of the budgeted annual variable Common Expenses described above to
arrive at the total annual "Variable Cost."
2. Divide the Variable Cost by the aggregate Unit Type base square footage of all
Condominiums for which Annual Assessments have commenced (as reflected in the then
current Budget), to determine the annual "Variable Cost Factor."
3. Multiply the Variable Cost Factor by the base square footage of each Unit Type for
which Annual Assessments have commenced (as reflected in the then current Budget) to
determine the Variable Assessment portion of the Annual Assessment for each
Condominium Unit.
Unit Type. The Unit type of each Condominium Unit is identified on the Unit Location Map
pages of the Condominium Plan in which the Condominium Unit is located.
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