HomeMy WebLinkAboutCT 12-05; La Costa Residential Montecina; Tentative Map (CT)1\ *
RECORDING REQUESTED BY:
First American Title -tisiJ
AFTER RECORDING RETURN TO:
Glenn Mau, Esq. ($8# 138515)
ARCHER NORRIS, A Professional Law Corporation
4695 MacArthur Court, Suite 350
Newport Beach, California 92660
Telephone: 949.975.8200
Facsimile: 949.975.8210
Internet: www.archemorris.com
D 0 C U 2014-0030016
111111111111111111111111111111111111111111111111111111111 ~11111111111
JAN 23, 2014 8:00 AM
OFFICIAL RECORDS SAN DIEriO COUNTY RECORDER'S OFFICE
Emeat J. Dronenbulg. Jr .• COUNTY RECORDER
FEES: 240.00
PAGES: 76
IIII~IIIIIDIIIIIWI
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
MONTECINA AT LA COSTA
A COMMON INTEREST DEVELOPMENT
ARTICLE XIV, SECTION 14.4 OF THIS DECLARATION CONTAINS BINDING NEUTRAL
ARBITRATION PROVISIONS THAT INCLUDE A WAIVER OF THE RIGHT TO A JURY
TRIAL. YOU SHOULD CONSULT LEGAL COUNSEL WITH ANY QUESTIONS ON
THESE OR OTHER PROVISIONS OF THIS DECLARATION
IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR,
RELIGION, SEX, GENDER, GENDER IDENTITY, GENDER EXPRESSION, SEXUAL
ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, 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
T0070156/1611557-4 01/07114
ARTICLE I
1.1
1.2
1.3
1.4
1.5
ARTICLE II
ARTICLE Ill
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
ARTICLE IV
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8
4.9
4.10
4.11
4.12
4.13
4.14
4.15
4.16
4.17
4.18
4.19
4.20
4.21
4.22
4.23
4.24
4.25
4.26
TABLE OF CONTENTS
Page
RECITALS .................................................................................................... 1
Description of Real Property ............................................................................... 1
Phases of the Project ......................................................................................... 1
Ownership lnterests ............................................................................................ 1
Common Plan for Project .................................................................................... 1
Boundary Modifications ...................................................................................... 1
DEFINITIONS ............................................................................................... 2
PROPERTY RIGHTS .................................................................................... 7
Association Property ........................................................................................... 7
Association Maintenance Areas .......................................................................... B
Lot ...................................................................................................................... B
Partition Prohibited ............................................................................................. 8
Annexation and Deannexation Rights ................................................................. 8
Easements ......................................................................................................... 9
Provisions Restricting Delegation of Use .......................................................... 12
No Restriction on Owner's Right to Ingress and Egress .................................... 12
USE RESTRICTIONS ................................................................................. 12
Alterations ........................................................................................................ 12
Animals ............................................................................................................ 12
Antenna and Satellite Dish Equipment... ........................................................... 13
Burning ............................................................................................................. 13
Compliance with Project Documents ................................................................ 13
Disclosure -Right to Farm ............................................................................... 13
Drainage ........................................................................................................... 14
Exterior Apparatus ............................................................................................ 14
Garages ........................................................................................................... 14
Invitees ............................................................................................................. 15
Landscaping ..................................................................................................... 15
Liability of Owners for Damages ....................................................................... 15
Mailboxes ......................................................................................................... 15
Mineral and Water Exploration .......................................................................... 15
Nuisances ......................................................................................................... 15
Parking ............................................................................................................. 15
Power Equipment and Car Maintenance .......................................................... 16
Prohibition of Dumping Oil and Chemicals ........................................................ 16
Rental of Lots and Residences ......................................................................... 16
Restrictions on Business .................................................................................. 17
Signs and Flags ................................................................................................ 17
Solar Energy Systems ...................................................................................... 17
Sports Apparatus .............................................................................................. 17
Storage of Waste Materials .............................................................................. 18
Use and Occupancy ......................................................................................... 18
Window Coverings ............................................................................................ 18
T007015611611557-4 -i-
ARTICLEV
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
ARTICLE VI
6.1
6.2
6.3
6.4
6.5
6.6
6.7
6.8
6.9
6.10
6.11
6.12
ARTICLE VII
7.1
7.2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
ARTICLE VIII
8.1
8.2
8.3
8.4
8.5
ARTICLE IX
9.1
9.2
9.3
TABLE OF CONTENTS
(continued)
Page
MAINTENANCE OBLIGATIONS ................................................................. 18
Maintenance of Association Property ................................................................ 18
Maintenance of Association Maintenance Areas ............................................... 19
Maintenance of Lots and Residences ............................................................... 19
Maintenance of Party Walls .............................................................................. 20
Maintenance of Stormwater Systems ............................................................... 20
Landscape Maintenance Responsibilities ......................................................... 23
Utility Bills ......................................................................................................... 23
Other Association Obligations ........................................................................... 23
Inspection and Maintenance Guidelines ........................................................... 23
ARCHITECTURAL REVIEW AND APPROVAL PROCEDURES ................ 23
Formation and Composition of ACC ................................................................. 23
Duties of the ACC ............................................................................................. 24
Design Guidelines ............................................................................................ 24
Submission of Plans ......................................................................................... 24
Basis for Review ............................................................................................... 24
Form of Approvals, Conditional Approvals and Denials .................................... 24
Reconsideration of Denial of Application .......................................................... 25
Proceeding with and Completion of Work ......................................................... 25
Compliance with Approval ................................................................................ 25
Compliance with Governmental Agency Procedures ........................................ 26
Waiver .............................................................................................................. 26
No Liability ........................................................................................................ 26
ASSOCIATION ADMINISTRATION, MEMBERSHIP AND VOTING ........... 26
Association to Manage Project ......................................................................... 26
Membership ...................................................................................................... 26
Transferred Membership .................................................................................. 26
Voting ............................................................................................................... 27
No Proxies ........................................................................................................ 27
Classes of Membership and Voting .................................................................. 27
Special Voting Rights of Class A Members for Election of Directors ................. 28
Commencement of Voting Rights ..................................................................... 28
Secret Ballot Voting .......................................................................................... 28
POWERS, DUTIES AND LIMITATIONS OF THE ASSOCIATION .............. 28
Powers and Duties of Association .................................................................... 28
Property Taxes and Assessments .................................................................... 30
Discharge of Liens ............................................................................................ 31
Payment of Expenses ....................................................................................... 31
Dispute Resolution ........................................................................................... 31
ASSESSMENTS ......................................................................................... 31
Agreement to Pay ............................................................................................. 31
Purpose of Assessments .................................................................................. 32
Exemptions from Regular Assessments ........................................................... 32
T007015611611557-4 -ii-
9.4
9.5
9.6
9.7
9.8
9.9
9.10
9.11
9.12
9.13
ARTICLE X
10.1
10.2
ARTICLE XI
11.1
11.2
11.3
11.4
11.5
11.6
11.7
ARTICLE XII
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
TABLE OF CONTENTS
(continued)
Page
Regular Assessments ....................................................................................... 32
Special Assessments ....................................................................................... 32
Reimbursement Assessments .......................................................................... 33
Commencement of Assessments ..................................................................... 33
Accounts .......................................................................................................... 33
Enforcement of Assessments ........................................................................... 34
Satisfaction of Lien ........................................................................................... 34
Lien Eliminated by Foreclosure ......................................................................... 34
Waiver of Homestead Protections ..............•..................................................... 34
Subordination of Lien ........................................................................................ 34
AMENDMENT AND ENFORCEMENT OF RESTRICTIONS ....................... 35
Amendment of Declaration ............................................................................... 35
Enforcement ..................................................................................................... 37
BUDGETS AND FINANCIAL STATEMENTS .............................................. 39
Preparation and Distribution of Budget ............................................................. 39
Annual Report .................................................................................................. 39
Quarterly Reconciliation .................................................................................... 39
Reserve Account Study .................................................................................... 39
Notice of Increased Assessments ..................................................................... 40
Statement of Outstanding Charges ................................................................... 40
Owner's Right to Conduct an Independent Audit ............................................. .40
INSURANCE, DESTRUCTION AND CONDEMNATION ............................ .40
Insurance ......................................................................................................... 40
General Provisions and Limitations ................................................................... 40
Types of Coverage ........................................................................................... 41
Waiver of Subrogation ...................................................................................... 42
Insurance by Owner ......................................................................................... 42
Annual Review of Policies ................................................................................ 43
Payment of Premiums ...................................................................................... 43
Damage or Destruction ..................................................................................... 43
Condemnation .................................................................................................. 44
ARTICLE XIII MORTGAGEE PROTECTIONS .................................................................. 45
13.1 Mortgages Permitted ........................................................................................ 45
13.2 Priority of Mortgage .......................................................................................... 45
13.3 Rights of Institutional Mortgagees ..................................................................... 45
13.4 Rights of Mortgagees Upon Default of Mortgagor ............................................. 45
13.5 Payment of Taxes or Premiums by Mortgagees .............................................. .46
13.6 Effect of Breach ................................................................................................ 46
13.7 Conflict with Declaration ................................................................................... 46
13.8 Notice to Mortgagees ....................................................................................... 46
13.9 Inspect Books and Records .............................................................................. 46
T0070156/1611557-4 -iii-
TABLE OF CONTENTS
(continued}
Page
ARTICLE XIV DISPUTE RESOLUTION PROCEDURES ................................................. .46
14.1 In General ......................................................................................................... 46
14.2 Disputes Between Association and Owners ...................................................... 47
14.3 Notice of Non-Adversarial Procedures .............................................................. 47
14.4 Disputes Between Association/Owner and Declarant ....................................... 50
14.5 Affirmative Defenses Applicable to Right to Repair Act Disputes ...................... 55
14.6 Exceptions; Admissibility of Communications: Statute of Limitations ................ 56
14.7 Legal Proceeding Against Declarant ................................................................. 56
ARTICLE XV
15.1
15.2
ENFORCEMENT OF BONDED OBLIGATIONS ......................................... 57
Bonded Obligations .......................................................................................... 57
Release of Bond ............................................................................................... 57
ARTICLE XVI GENERAL PROVISIONS ........................................................................... 58
16.1 Term ................................................................................................................. 58
16.2 Owner's Compliance ........................................................................................ 58
16.3 Notices ............................................................................................................. 58
16.4 Notice of Transfer ............................................................................................. 58
16.5 Delivery of Project Documents to Transferee .................................................... 58
16.6 Easements Reserved and Granted ................................................................... 58
16.7 Termination of any Responsibilities of Declarant .............................................. 58
16.8 Mergers and Consolidations ............................................................................. 59
16.9 Limitation of Restriction on Declarant ............................................................... 59
16.10 Assignment by Declarant... ............................................................................... 59
16.11 Severability ....................................................................................................... 59
16.12 Estoppel Certificate .......................................................................................... 59
16.13 Succes5or Statutes ........................................................................................... 60
16.14 Conflict with Project Documents ....................................................................... 60
16.15 Exhibits ............................................................................................................. 60
16.16 Headings .......................................................................................................... 60
16.17 Owner's Acknowledgment ................................................................................ 60
16. 18 Construction of Provisions ................................................................................ 60
EXHIBIT A-MAINTENANCE RESPONSIBILITY CHART
EXHIBIT B-LANDSCAPE MAINTENANCE EXHIBIT
EXHIBIT C-STORMWATER MAINTENANCE CHECKLIST
EXHIBIT D-LOCATION OF BIO RETENTION BASINS AND VEGETATED SWALES
T007015611611557-4 -iv-
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
OF
MONTECINA AT LA COSTA
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF
MONTECINA AT LA COSTA is made on the date hereinafter set forth by TAYLOR MORRISON
OF CALIFORNIA, LLC, a California limited liability company (herein referred to as "Dec/aranf').
Montecina at La Costa is a stand-alone, residential community comprised of single family
detached homes in the Cijy of Carlsbad, County of San Diego, State of California, being
developed by Declarant. Declarant's current development plan for the community is that there will
be 32 homes, private streets and landscaped areas. However, there is no guarantee that the
communijy will be developed or completed as presently proposed, and nothing in this Declaration
shall be construed to require Declarant to develop the maximum number of homes approved, and
that there may be increases or decreases if there are any changes, amendments to the
governmental approvals for the community.
ARTICLE I
RECITALS
1.1 Description of Real Property. Dedarant is the Owner of that certain real property
in the City of Carlsbad, County of San Diego, State of California, more particularly described as
Lots 1 through 41, inclusive, as shown on 'City of Carlsbad Tract No. 12-05', according to Map
Thereof No. 15945, filed in the Office of the County Recorder of San Diego County, October 18,
2013, as Document No. 2013-0626851 of Official Records.
1.2 Phases of the Project. Declarant has improved or intends to improve the Project
by subdividing it into Lots, Association Property, and other improvements, as defined
hereinbelow. Declarant intends to sell each Lot to a separate party (each, an "Ownet").
Declarant intends to develop the Project in two (2) or more Phases. The first Phase will consist
of the Initially Covered Property, as defined below. Prior to annexation, the Additional Property
shall not be subject to any provision of this Declaration. Declarant may, but shall have no
obligation to, annex all or any portion of the Additional Property to the Project by recording a
Declaration of Annexation in compliance with the provisions of this Declaration.
1.3 Ownership Interests. Each Owner shall receive fee title to his/her Lot, mandatory
membership in the Montecina at La Costa Homeowners Association, a non-exclusive easement
for use, enjoyment, ingress and egress over the Association Property, Association Maintenance
Areas, and such other interests as are provided herein.
1.4 Common Plan for Project. By this Declaration, Declarant intends to establish a
common scheme and plan for the possession, use, enjoyment, repair, Maintenance, restoration
and improvement of the Project and interests therein conveyed and to establish thereon a
common interest development.
1.5 Boundary Modifications. If the boundaries of real property change as a result of
one or more subsequently recorded final maps, amended final maps, parcel maps. amended
T0070156/1611557-4 -1-01107/14
parcel maps, certificates of correction, lot line adjustments and/or records of survey, then for all
purposes of this Declaration.
1.5.1 Added to Lot. Real property which is removed from a Lot and added to
another Lot shall thereafter be part of that other lot;
1.5.2 Removed from Declaration. Real property which is removed from
Association Property and added to real property which is not subject to this Declaration
shall no longer constitute a part of such Association Property and shall no longer be
subject to this Declaration; and
1.5.3 Added to Declaration. Real property not subject to this Declaration which
is added to Association Property shall be part of the Association Property to which it is
added and shall automatically be subject to all provisions of this Declaration.
NOW, THEREFORE, Declarant hereby declares that the first Phase (the "Initially
Covered Property") shall be held, conveyed, mortgaged, encumbered, leased, rented, used,
occupied, sold and improved, subject to the following declarations, limitations, covenants,
conditions, restrictions and easements, all of which are for the purpose of enhancing and
protecting the value and attractiveness of the Project, in accordance with the plan for
improvement of the Project and all division thereof into lots and Parcels. Pursuant to California
Civil Code §§ 4250(a) and 5975, all of the limitations, covenants, conditions, restrictions and
easements shall constitute covenants which shall run with the land, be enforceable as equitable
servitudes, and shall be binding upon Declarant and its successors and assigns, and all parties
having or acquiring any right, title or interest in or to any part of the Project.
ARTICLE II
DEFINITIONS
In addition to other definitions provided for herein, the following terms shall have the
following meanings:
2.1 "Additional Charges" shall mean costs, fees, charges and expenditures,
including, without limitation, attorney's fees, late charges, interest and recording and filing fees
actually incurred by the Association in collecting and/or enforcing payment of Assessments,
fines and/or penalties.
2.2 "Additional Property" shall mean Lots 1 through 21, inclusive, and 29 through 41,
inclusive, as shown on the Map, and all Improvements situated on such real property annexed
by Declarant, and any other real property and Improvements annexed into the Project, as
provided in this Declaration. However, there is no guarantee that any of the Additional Property
will be annexed into the Project as intended by Declarant.
2.3 "Alteration" shall mean constructing, performing, installing, remodeling, repairing,
replacing, demolishing, and/or changing the color or shade of any Improvement. The term
"Alteration" does not include repainting or refinishing any Improvement in the same color, hue,
intensity, tone, and shade or repairing any Improvement with the same materials.
T0070156/1611557-4 -2-01/07/14
2.4 "Antenna Equipment" shall individually and collectively refer to any and all
television, video or radio poles, antennae, satellite dishes, cables, other transmission and/or
reception fixtures, or other over-the-air receiving device or related or similar personal property.
2.5 "Antenna Laws" shall refer to Title 47 U.S.C. §§ 1 et seq., 47 CFR § 1.4000 and
any other applicable state, federal and local laws, rules and decisions promulgated with respect
thereto, pertaining to the use, installation and maintenance Antenna Equipment.
2.6 "Architectural Control Committee" or "ACC" shall mean the committee referenced
in Article VI of this Declaration.
2. 7 "Articles" shall mean the Articles of Incorporation of Montecina at La Costa
Homeowners Association and any amendments thereto.
2.8 "Assessment" shall mean that portion of the cost of maintaining, improving,
repairing, operating and managing the Project which is to be paid by each Owner as determined
by the Association and as more particularly set forth in Article IX of this Declaration.
2.9 "Association" shall mean Montecina at La Costa Homeowners Association, a
California nonprofit mutual benefit corporation, the Members of which shall be the Owners of
Lots in the Project, their successors and assigns.
2.10 "Assocjation Maintenance Areas" shall mean those portions of the Project that
are not owned in fee by the Association but for which the Association shall have the obligation
to Maintain, repair and/or replace, as set forth in this Declaration. It is anticipated that
"Association Maintenance Areas" shall include, but not be limited to, the sidewalks and
landscaping within the public right-of-way that fronts the Project and runs parallel along Rancho
Santa Fe Road. 'Association Maintenance Areas" shall also mean any real property and
Improvements described as • Association Maintenance Areas" in a Declaration of Annexation.
2.11 "Association Property" shall mean Lots 33 through 41, inclusive, as shown on the
Map, and all Improvements thereon. It is anticipated that the Association Property in the Project
shall include, but not be limited to, the streets, sidewalks, curbs, detention basins, perimeter
walls and fences, landscaping and other Improvements. Association Property shall generally
describe real property and Improvements within the Project in which the Association shall be
conveyed fee title to said real property. The term "Association Property" shall also mean any
real property and Improvements described as "Association Property" in a Declaration of
Annexation. Association Property shall be "common area" as that term is defined in California
Civil Code§ 4095.
2.12 "Association Rules" shall mean rules and regulations regulating the use and
enjoyment of the Project which may be adopted by the Board from time to time.
2.13 "Authorized Vehicles' shall include, but not be limited to, standard passenger
vehicles, motorcycles and trucks (unless otherwise defined as a Commercial Vehicle below)
used for personal transportation. The Board shall have the discretion to modify, amend or
change the definition of "Authorized Vehicles" through Association Rules so long as the
minimum standards set forth in Section 4.16 of this Declaration are satisfied.
2.14 "BMPs" shall mean Best Management Practices as it pertains to the
management of stormwater maintenance management, as set forth in this Declaration.
T007015611611557-4 -3-01/07/14
2.15 "Board" or "Board of Directors" shall mean the Board of Directors of the
Association.
2.16 "Bond" shall mean a bond, security or other arrangement to secure performance
of the commitment of Declarant to complete Association Property Improvements.
2.17 "BRE" shall mean the California Bureau of Real Estate, and any successor entity,
agency, department, commission and/or council.
2.18 "Bylaws" shall mean the Bylaws of the Association, as amended from time to
time.
2.19 "City" shall mean the City of Carlsbad, the City in which the Project is located.
2.20 "Commercial Vehicles" shall mean any truck or vehicle that (a) bears any signage
or writing that gives information about or advertises any business, company or service, (b) has
more than (2) axles, (c) is longer than twenty-one (21) feet in length from bumper to bumper, (d)
exceeds 10,000 pounds gross vehicle weight rating, and/or (e) is not used for personal
transportation.
2.21 "Common Expenses" shall mean and include the actual and estimated expenses
of operating the Project and any reasonable reserve for such purposes as found and
determined by the Board and all sums designated as Common Expenses by or pursuant to the
Project Documents.
2.22 "County" shall mean the County of San Diego, California, the County in which the
Project is located.
2.23 "Declarant" shall mean Taylor Morrison of California, LLC, a California limited
liability company, its successors and assigns, if such successors and assigns are assigned the
rights of Declarant pursuant to Article XVI, Section 16.10 hereof or if such successor or assign
is a mortgagee acquiring Declarant's interest in the Project by foreclosure or by deed in lieu of
foreclosure.
2.24 "Declaration" shall mean this Declaration, and any amendments, modifications or
supplements thereto.
2.25 "Design Guidelines" shall refer to architectural rules, regulations and guidelines
that may be adopted by the ACC, in its sole discretion. The Design Guidelines may impose
specific requirements on individual Units if those requirements are reasonable in light of specific
topography, visibility or other factors. Design Guidelines shall constitute "Association Rules."
2.26 "Eligible First Mortgagee" shall mean any Institutional Mortgagee who has
requested notice by sending a written request to the Association, stating both its name and
address and the Lot, or address of the Lot encumbered by the Mortgage and requests that the
Association deliver written notice to it of any or all of the events specified in Article XIII, Section
13.7.
2.27 "Final public Report" shall mean the final public report issued by the BRE or any
successor state agency pursuant to the Subdivided Lands Act (California Business &
Professions Code§§ 11000, et seq.) as it may be amended from time to time.
T007015611611557-4 -4-01/07/14
2.28 "Homeowner's Manual" shall mean the documents provided to original Owners
by Declarant, as may be updated and amended from time to time, including, but not limited to,
fixtures, appliances, windows, siding, landscaping, etc., originally installed by Declarant, and
which sets forth obligations, procedures, operation and schedules pertaining to certain products
manufactured by others and installed on the Lot and/or Residence, including warranty terms,
usage instructions, Maintenance Obligations and schedules for the Owner to Maintain the
Improvements for which an Owner is responsible. Each Owner shall be responsible to ensure
that the subsequent purchaser of such Owner's Lot is aware of and is given the Homeowner's
Manual.
2.29 "Improvements" shall mean all structures and improvements on the Project,
including, but not limited to, buildings, outbuildings, underground installations, slope, grading,
roads, curbs, gutters, storm drains, utilities, driveways, parking areas, fences, walls, screening
walls and barriers, retaining walls, stairs, decks, swimming pools, spas, saunas, patios, patio
covers, painting, light standards, sound equipment, windbreaks, plantings, shrubbery,
landscaping, irrigation system, drainage ditches, streets, street lighting, monuments, and other
works of Improvement as defined in California Civil Code § 8050, excluding only those
Improvements, or portions thereof, that are dedicated to the public or a public or quasi-public
entity or utility company, and accepted for Maintenance by the public, such entity or utility
company.
2.30 "Initially Covered Property" shall mean Lots 22 through 28, inclusive, as shown
on the Map, and all Improvements thereon.
2.31 "Institutional Mortgagee" shall mean a First Mortgagee that is (a) a federally or
state chartered or licensed bank or savings and loan association; (b) a mortgage company or
other entity chartered or licensed under federal or state laws whose principal business is lending
money on the security of real property or investing in such loans; (c) an insurance company; (d)
a federal or state agency or instrumentality including, without limitation, FNMA and FHLMC; or
(e) an insurer or governmental guarantor of a First Mortgage including the FHA and the VA.
2.32 "Lot" shall mean any Lot, as shown on the Map, and any other parcel of land
designated as "Lot" in any recorded supplement to the Declaration or in any Declaration of
Annexation, but shall not include Association Property.
2.33 "Maintain" or "Maintained" (but not the word "Maintenance") shall mean taking all
actions reasonably necessary to keep an Improvement in first class condition and repair, which
actions include but are not limited to regular inspections, painting, Maintenance, refinishing,
repairing, replacing and reconstructing the Improvement, and in the case of landscaping,
irrigating and fertilizing the landscaping. Owners shall have no responsibility to Maintain any
Improvement Maintained by a third party or the public or quasi-public entity or utility company
even if the third party or the public or a quasi-public entity or utility company fails to perform all
actions required by this Declaration.
2.34 "Maintenance" shall mean the exercise of reasonable care of buildings, roads,
landscaping, lighting and other related Improvements and fixtures in a state similar to their
original condition, normal wear and tear excepted. Maintenance of landscaping shall further
mean the exercise of regular fertilization, irrigation, and other garden practices necessary to
promote a healthy, weed free environment for optimum plant growth.
T007015611611557-4 -5-01/07/14
2.35 "Maintenance Obligations" shall mean the Owner's or Association's obligation to
perform: (i) all reasonable Maintenance consistent with the terms of the any Maintenance
manual provided by Declarant, any Maintenance obligations and schedules in any warranty
offered by Declarant or any manufacturer, and any Maintenance obligations and schedules
otherwise provided to the Owner or Association by Declarant or any manufacturer, as
applicable; (ii) any commonly accepted Maintenance practices to prolong the life of the
materials and construction of all Lots, Residences and Improvements; and (iii) any Maintenance
Obligations and requirements set forth in this Declaration, as amended and updated from time
to time. · Attached as Exhibit A to this Declaration and incorporated herein by reference is a
non-exclusive list of maintenance responsibilities between Owners and the Association.
2.36 "Map" shall mean that subdivision map entitled "City of Carlsbad Tract No. 12-
05", according to Map Thereof No. 15945, filed in the Office of the County Recorder of San
Diego County, October 18, 2013, as Document No. 2013-0626851 of Official Records.
2.37 "Member'' shall mean a person or entity holding a membership in the Association
as provided herein. Each Owner shall constitute a Member. If there is more than one Owner per
Lot, the co-owners collectively shall constitute a single Member.
2.38 "Member in Good Standing" shall mean an Owner who is not delinquent in
payment of Assessments, is not in violation of any provision of the Project Documents, and/or
does not otherwise have any disciplinary action pending between said Owner and the
Association.
2.39 "Model Home Lots" shall mean those Lots within the Project which are initially
used by Declarant for the sole purpose of marketing other Lots and Residences constructed by
Declarant and such Lot is not initially occupied or used for residential purposes. It is intended
and anticipated that the Model Home Lots will be in the last Phase of the Project.
2.40 "Mortgage" shall mean a mortgage or deed of trust encumbering a lot or other
portion of the Project. A "Mortgagee" shall include the beneficiary under a deed of trust and any
guarantor or insurer of a Mortgage. "First Mortgagee" or "Eligible First Mortgagee" is one having
priority over all other Mortgages or holders of Mortgages encumbering the same Lot or other
portion of the Project. An "Eligible First Mortgagee" shall include any holder (including FHLMC
and FNMA), insurer (including FHA), or guarantor (including VA) of a First Mortgage on a Lot or
other portion of the Project who has requested the Association to notify the First Mortgagee of
any proposed action that requires the consent of a specified percentage of Eligible First
Mortgagees. "FHA" shall mean the United States Department of Housing and Urban
Development, Federal Housing Administration. 'VA" shall mean the United States Department
of Veterans Affairs. "FHLMC" shall mean the Federal Home Loan Mortgage Corporation.
"FNMA" shall mean the Federal National Mortgage Association. Where any provision of the
Project Documents requires the approval of an Eligible First Mortgagee, the approval of the
holder, insurer or guarantor of that First Mortgage shall be deemed to be the required approval.
2.41 "Notice of Lien" shall mean a Notice of Delinquent Assessment recorded as a
lien against an Owner's Lot for the failure to pay Assessments as set forth in this Declaration.
2.42 "Owner(s)" shall mean the record holder or holders of title, if more than one, to
any Lot in the Project. "Owner" includes Declarant, except where specified as mutually
exclusive. This shall not include contract sellers or persons or entities having any interest
merely as security for the performance of an obligation. If a Lot is sold under a recorded
T00701 56/161 1557-4 -6-01/07/14
contract of sale (or a recorded memorandum of such contract), the purchaser, rather than the
fee Owner, shall be considered the "Owner."
2.43 "Party Walls" shall mean any fence or wall (including retaining walls) constructed
or composed of any material or combination of materials that are originally constructed and
placed on, near or adjacent to the common boundary of two (2) or more Lots. Party walls do not
include fencing or walls separating lots from Association Property, any fencing or walls located
solely on Association Property, or fencing and walls that may be located along the perimeter of
the Project.
2.44 "Permitted Parking Areas" shall mean garages and guest parking spaces that are
designed and established for the parking of passenger motor vehicles. "Permitted Parking
Areas" do not include any portion of sidewalks, driveway aprons or areas in any adjacent
residential project. Use of Permitted Parking Areas is described in Article IV, Section 4.16 of this
Declaration.
2.45 "Phase" shall mean any Lots and/or Association Property which are made
subject to the provisions of this Declaration either by recording this Declaration or by recording a
Declaration of Annexation; provided, a single Declaration of Annexation may establish more
than one Phase in accordance with the terms of that Declaration of Annexation.
2.46 "Project" shall mean the entire real property described in Article I, Section 1.1
above, including all structures and Improvements erected or to be erected thereon or on such
Additional Property which may be brought within the jurisdiction of the Association.
2.47 "Project Documents" shall mean and include this Declaration, as amended from
time to time, the exhibits, if any, attached hereto, together with the other basic documents used
to create and govern the Project, including the Map, Articles, Bylaws and Association Rules.
2.48 "Quorum" shall mean a majority of those entitled to act, except in the case of a
quorum necessary for the imposition of Regular and Special Assessments set forth in Article IX.
2.49 "Residence" shall mean a dwelling structure on a lot, including the garage that
serves that dwelling structure.
2.50 "Right to Repair Act" shall refer to California Civil Code §§ 895-945.5, as may be
amended from time to time.
ARTICLE Ill
PROPERTY RIGHTS
3.1 Association Prooertv. Title to or a legal ownership interest in Association
Property shall be conveyed to the Association prior to or concurrently with the conveyance of
the first Lot within a particular Phase to an Owner. The Association shall be deemed to have
accepted the Association Property conveyed to it when (i) a grant deed conveying title to the
Association Property has been recorded in the Official Records of the County, and (ii)
Assessments have commenced pursuant to Article IX of this Declaration. The Association
Property shall be Maintained by the Association as provided in Article V, Section 5.1 of this
Declaration. When Association Property is conveyed by Declarant, an easement shall be
deemed automatically reserved over the Association Property in favor of Declarant for drainage
T007015611611557-4 -7-01/07/14
and encroachment purposes and for ingress and egress from the Association Property for the
purpose of completing Improvements thereon or for the performance of necessary repair work.
Said easement in favor of Declarant shall automatically terminate ten (10) years after the
recordation of this Declaration.
3.2 Association Maintenance Areas. The Association shall be conveyed non-
exclusive easements to the Association Maintenance Areas prior to or concurrently with the
conveyance of the first Lot within a particular Phase to an Owner. The Association Maintenance
Areas shall be maintained by the Association as provided in Article V, Section 5.2 of this
Declaration.
3.3 Lot. Each Owner of a Lot, and all Improvements thereon, shall be conveyed fee
title to said Lot.
3.4 Partition Prohibited. Except as provided in California Civil Code § 4610, there
shall be no judicial partition of Association Property or of any part thereof. Each Owner
specifically waives and abandons all rights, interests, and causes of action for judicial partition
of the Association Property. Each Owner agrees that no action for judicial partition of the
Association Property shall be instituted, prosecuted or reduced to judgment, except in
compliance with California Civil Code§ 4610. If a Lot is owned by two or more Owners as
partners, tenants-in-common, or joint tenants, or as community property, nothing contained in
this Section shall be deemed to prevent a judicial partition of their co-ownership.
3.5 Annexation and Deannexation Rights. Real property may be annexed or
deannexed pursuant to this Section.
3.5.1 Annexation Pursuant to Approval. Additional Property may be added to
the Project by Declarant as one or more subsequent Phases without the approval of the
Association or any Owner if the annexation is in substantial conformance with the
detailed plan of phased development submitted to the BRE with the Phase 1 Final Public
Report application. Otherwise, any other Additional Property may be annexed to the
Project only with the approval of two-thirds (%) of each class of Members; provided,
however, any annexation made while there are two (2) classes of membership requires
the prior approval of the FHA and/or the VA, if either are First Mortgagees.
3.5.2 Procedure for Annexation. In addition to any required approval by
Members, a final subdivision map(s) or final parcel map(s) and a Declaration of
Annexation for the property to be annexed must be recorded. The Declaration of
Annexation shall (i) describe the portion of property to be annexed; (ii) describe any
Association Property and/or Association Maintenance Areas with the property to be
annexed; (iii) set forth the ownership of any such Association Property and/or
Association Maintenance Areas; and (iv) specify that all of the covenants, conditions and
restrictions of this Declaration shall apply to the annexed property in the same manner
as if it were originally covered by this Declaration. The Declaration of Annexation may
also provide, at the option and discretion of Declarant, modify, alter, supersede or
change the dispute resolution procedures set forth in Sections 14.3 and 14.4 of Article
XIV of this Declaration as it pertains to Lots, Association Property and/or Association
Maintenance Areas, and that such modified, altered, superseded or changed dispute
resolution procedures shall apply to the real property described and identified in the
Declaration of Annexation. The Declaration of Annexation shall also provide that if and
only if at the time of the first conveyance of a Lot in a Phase the Declarant has rented or
T007015611611557-4 -8-01/07/14
leased Lots in that Phase for a period of at least one (1) year after the most recent
review of a budget for that Phase by the BRE, Declarant shall either issue a written
commitment to pay or pay to the Association the following amount: an amount equal to
that portion of the Regular Assessment which would have been attributable to each Lot
in that Phase and which would have been allocable to reserves for replacement and
deferred Maintenance of Association Property, Association Maintenance Areas and
other Improvements had Regular Assessments in that Phase commenced at the time of
the most recent review of a budget for that Phase. Such amount, if any, shall be paid to
the Association prior to or concurrently with the first conveyance of a Lot in that Phase.
3.5.3 Effect of Annexation. After complying with the procedures for annexation
and upon the commencement of Assessments for Lots in the annexed Phase, Owners of
Lots in the annexed Phase shall be Members, shall be subject to this Declaration, and
shall be entitled to use all Association Property and Association Maintenance Areas in
the Project. The Association shall reallocate the Regular Assessments so as to assess
each Owner in the Project for an equal and proportionate share of the Common
Expenses of the Project. All Owners shall have ingress and egress to all portions of the
Association Property and Association Maintenance Areas throughout the Project, subject
to the provision of this Declaration, the Bylaws of the Association and the Association
Rules in effect from time to time.
3.5.4 De annexation. Subject to the restrictions, limitations and provisions of this
Declaration, Declarant or the Association may remove any property in the Project by
executing and recording a Declaration of Deannexation. Declarant may deannex
property only if (a) no escrows have closed on the annexed Phase, (b) no Assessments
have commenced on any portion of the annexed Phase, (c) Declarant has not exercised
any votes attributable to the annexed Phase, and (d) a Declaration of Deannexation is
recorded in the same manner as the Declaration of Annexation was recorded. If the
Association desires to deannex property within the Project, the approval of Members
constituting at least two-thirds (%) of each class of Members is required; provided,
however, any deannexation made while )here are two (2) classes of membership
requires the approval of the FHA and/or the VA, if either are First Mortgagees.
3.6 Easements. In addition to any and all other easements contained in this
Declaration, the Project shall be subject to the following easements:
3.6.1 Architectural Control Committee Easements. The ACC and its duly
authorized agents and representatives shall have a non-exclusive right and easement as
is necessary to perform its duties and obligations set forth in this Declaration, including
the right to enter any Lot or Residence, subject to the limitations contained in this
Declaration.
3.6.2 Association Easements. There shall be reserved in favor of the
Association, an easement across, over, in and on any Lot or Residence to Maintain,
repair or replace those areas as set forth in this Declaration, including Association
Maintenance Areas.
3.6.3 Clustered Mailbox Easements. Declarant reserves non-exclusive
easements over, across and upon the Project for (a) placement of mailbox clusters in
locations required by the United States Postal Service and local governmental agencies
with jurisdiction over the Project; (b) delivery, deposit and pickup of United States mail;
T0070156/1611557-4 -9-01/07/14
and (c) access to and maintenance and replacement of the mailbox clusters by the
Association. The actual locations of the easements referred to herein shall be
determined by the as-built location of each mailbox cluster. The easements reserved
hereby are appurtenant to each Lot in the Project, as necessary to ensure the Owner's
reasonable access to their respective mailboxes.
3.6.4 Declarant's Reservation of Easements. Declarant hereby reserves
easements over the Association Property for common driveway purposes, for drainage
and encroachment purposes, for ingress and egress from buildings for the purpose of
completing Improvements thereon, for the performance of necessary repair work and for
compliance with requirements of any governmental agency, for the purposes of
reasonable ingress and egress from, over and across the Project, including private roads
and pathways; and for inspection of the Association Property and each Lot and
Residence to ensure that the Project and all Improvements thereon are being
Maintained in accordance with the provisions of this Declaration. Said easements in
favor of Declarant shall automatically terminate ten (1 0) years after the conveyance of
the first Lot.
3.6.5 Easements for Utilities and Maintenance. Easements over and under the
Project for the installation, repair and Maintenance of electric, telephone, water, gas and
sanitary sewer lines and facilities, heating facilities, cable or master television antenna
lines, drainage facilities, walkways, and landscaping, as shown on the Map and/or as
installed or constructed, and as may be hereafter required or needed to service the
Projecl, are hereby reserved by Declarant and its successors and assigns, including the
Association and appurtenant utility companies, together with the right to grant and
transfer the same. No Owner or occupant shall commit any act that would interfere with
the operation of any drainage system (including drainage swales, filterra systems,
bioretention areas, etc.) installed in the Project.
3.6.6 Easements on the Map. The Project is subjecl to the easements and
rights of way shown on the Map, but not limited to, Public Utility Easements ("PUE") and
Emergency Vehicle Access Easements ('EVAE"). Limitations on the construclion and
installation of Improvements within the easements and rights of way set forth on the Map
are as outlined on said Map and incorporated herein by reference as if set forth in full.
3.6.7 Encroachment Easements. Each Lot is hereby declared to have an
easement over any adjoining Lot or Association Property for the purpose of
accommodating any encroachment due to minor engineering errors, minor errors in
original construction, settlement or shifting of the Residence, or any other cause. There
shall be valid easements for the Maintenance of said encroachments as long as they
shall exist, and the rights and obligations of Owners shall not be altered in any way by
said encroachment, settlement or shifting; provided, however, that in no event shall a
valid easement for encroachment be created in favor of an Owner or Owners if said
encroachment occurred due to the willful misconduct of said Owner or Owners. In the
event a structure is partially or totally destroyed, and then repaired or rebuilt, the Owners
agree that minor encroachments over adjacent Lots and the Association Property
adjoining the lot due to minor engineering errors, minor errors in construction, or
settlement or shifting of the Residence, shall be permitted and that there shall be valid
easements for the Maintenance of said encroachments so long as they shall exist.
TOo7015S/1511557-4 -10-01107114
3.6.8 Owners' Easements. Every Owner shall have a right and nonexclusive
easement of enjoyment in and to the Association Property and Improvements located
thereon, including ingress and egress to and from his/her Lot. Each such nonexclusive
easement shall be appurtenant to and shall pass with the title to the Lot, subject to the
following provisions:
(a) Article X, Section 10.2 of this Declaration authorizes the Board to
impose monetary penalties, temporarily suspend an OWner's rights as a Member
of the Association or other impose appropriate discipline for failure to comply with
the Project Documents provided that the established procedures are followed for
Notice and Hearing which satisfy the minimum requirements of California
Corporations Code§ 7341 with respect to the accused Member before a decision
to impose discipline is reached. These procedures are set out in Article XIII of the
Bylaws.
(b) The right of the Association to dedicate or transfer all or any part
of the Association Property to any public agency, authority, or utility for such
purposes and subject to such conditions as may be agreed to by the Members.
No such dedication or transfer shall be effective unless an instrument signed by
two thirds (%) of the Members agreeing to such dedication or transfer has been
recorded, provided, however, that no such dedication shall impair the ingress and
egress to any Lot.
3.6.9 Partv Wall Easements. Each Owner of a Lot containing a Party Wail and
the Lot upon which such Party Wall is located shall have a reciprocal, non-exclusive
easement over and across such portions of any adjacent and contiguous Lot as is
necessary to Maintain, repair and/or replace the Party Wall.
3.6.10 Reciprocal Maintenance Easements. Each Owner of a Lot shall have a
reciprocal non-exclusive maintenance easement over and across such portions of any
adjacent or contiguous Lot or Association Property as is necessary to Maintain and
repair the Lot and/or any lmprovement(s) on the Lot including, but not limited to,
retaining walls, fences, subsurface drainage, landscaping and irrigation.
3.6.11 Right of Entry. The Board may authorize its agents and employees to
enter upon any Lot or in any Residence when necessary in connection with any
Maintenance, landscaping or construction for which the Association is responsible, to
effect emergency repairs, to effect necessary repairs which the OWner has failed to
perform as required by this Declaration, or to inspect and/or make a determination
whether an Owner is complying with the provisions of this Declaration. Such entry shall
be made with as little inconvenience to the OWner as practicable and any damage
caused thereby shall be repaired by the Board at the expense of the Association. Except
in case of emergencies, twenty-four (24) hour advance notice shall be given to the
Owner or occupant.
3.6.12 Street and Curb Maintenance Easements. There shall be reserved in
favor of the Association an easement across, over and upon each Lot, as shown on the
Maps, that borders the private streets and parking areas within the Project for the
purpose of Maintaining, repairing and replacing the private streets and curbs.
T0070156/1611557-4 -11-01/07/14
3. 7 Provisions Restricting Delegation of Use. Any Owner may delegate their rights of
use and enjoyment of the Project to the members of their family, their guests, tenants,
employees, and invitees, and to such other persons as may be permitted by the Bylaws and the
Association Rules, subject however, to this Declaration. However, if an Owner has sold his/her
Lot to a contract purchaser or has leased or rented it, the Owner, members of the Owner's
family, guests, tenants, employees, and invitees shall not be entitled to use and enjoy any of
such rights in the Project while the Owner's lot is sold to a contract purchaser or rented to
tenants. Instead, the contract purchaser, or tenants, while occupying such lot and Residence,
shall be entitled to use and enjoy such rights and can delegate the rights of use and enjoyment
in the same manner as if such contract purchaser or tenants were an Owner during the period
of their occupancy. Each Owner shall notify the Secretary of the Association of the names of
any contract purchasers of such Owner's lot or tenants of such Owner's Residence. Each
Owner, contract purchaser, or tenant also shall notify the Secretary of the Association of the
names of all persons to whom such Owner, contract purchaser, or tenant has delegated any
rights of use and enjoyment and the relationship that each such person bears to the Owner,
contract purchaser, or tenant. Any delegated rights of use and enjoyment are subject to
suspension to the same extent as are the rights of Owners. No such delegation shall relieve an
Owner from liability to the Association or to other Owner for payment of Assessments or
performance of the covenants, conditions and restrictions contained in this Declaration. Any
lease, rental agreement or contract of sale entered into between an Owner and a tenant or
contract purchaser of a Lot shall require compliance by the tenant or contract purchaser with all
of the covenants, conditions and restrictions contained in this Declaration, which provision shall
be for the express benefit of the Association and each Owner. The Association and each
Owner shall have a right to action directly against any tenant or contract purchaser of an Owner,
as well as against the Owner, for nonperformance of any of the provisions of this Declaration to
the same extent that such right of action exists against such Owner.
3.8 No Restriction on Owner's Right to Ingress and Egress. Except as allowed in
Article XVI, Section 16.9, there shall be no restriction upon any Owner's right to ingress and
egress to his/her Lot, which right shall be perpetual and appurtenant to his/her lot ownership.
ARTICLE IV
USE RESTRICTIONS
4.1 Alterations. Except as otherwise specifically provided in this Declaration, no
Alteration may be made to any Lot or Residence until plans have been submitted and approved
by the ACC, as set forth in Article VI of this Declaration. Declarant shall be exempt from
obtaining approval from the ACC.
4.2 Animals. An Owner may keep a reasonable number (as may be determined by
the Board in its sole discretion) of customarily uncaged household pets within the Owner's Lot.
Each Owner may also maintain a reasonable number of small caged animals, birds or fish. No
other animals are permitted in the Project. No animals may be kept for commercial purposes.
No animals, livestock or poultry of any kind shall be raised, bred or kept in any lot or
Residence, except that dogs, cats, and other household pets may be kept, provided that they
are not kept, bred or maintained for any commercial purpose. Notwithstanding the foregoing, no
pets may be kept on any lot, in any Residence or anywhere in the Project that results in an
annoyance or nuisance to other Owners. The Association may prohibit the keeping of any
animal that in the sole and exclusive opinion of the Board constitutes a nuisance to any other
Owner. No pets shall be allowed in Association Property or Association Maintenance Areas
T0070156/1611557-4 -12-01/07/14
except as may be permitted by Association Rules. No dog shall enter Association Property or
Association Maintenance Areas except while on a leash that is held by a person capable of
controlling it. Owners shall prevent their pets from soiling any portion of the Association Property
or Association Maintenance Areas and shall clean up after their pets in the Association Property
or Association Maintenance Areas.
4.3 Antenna and Satellite Dish Equipment. No Owner shall install any Antenna
Equipment (i) on any real property which such Owner is not entitled to exclusively use or
control, as provided in any Antenna Laws, (ii) in a particular location if, in the Association's or
ACC's opinion, the installation, location or maintenance of such Antenna Equipment
unreasonably affects the safety of the Owners or any other person, or for any other safety-
related reason established by the Association, or (iii) that is of a size larger than is permitted
under the Antenna Laws. Reasonable restrictions which do not significantly increase the cost of
the Antenna Equipment or significantly decrease its efficiency or performance may be imposed.
No Antenna Equipment may be installed on a Lot, except as follows: (a) Antenna Equipment
that is one (1) meter or less in length or diameter or diagonal measurement, provided that the
location, color and screening requirements shall be in accordance with any guidelines imposed
by the Association or the ACC referenced in this Declaration, which guidelines shall comply with
all applicable Antenna Laws, or (b) Antenna Equipment not covered under subpart (a) above,
the installation of which shall be approved in advance by the Association or ACC. Nothing
herein shall be construed to restrict in any manner the Declarant's or government agency's right
to authorize a cable television franchisee or other provider of similar services to provide cable
television, radio or other similar services to the Project.
4.4 Buminq. Only barbecue fires and fires contained within receptacles designed for
such purposes may be allowed in the exteriors of Lots with the exception of garages. Propane
or electric powered barbecues or other similar equipment may be used so long as such use
does not create a nuisance to neighboring Lots and Residences. No Owner or resident shall
permit any condition to exist on his/her Lot or in his/her Residence, including, without limitation,
trash piles or weeds, which create a fire hazard or is in violation of local fire regulations.
4.5 Compliance with Project Documents. Each Owner, contract purchaser, lessee,
tenant, guest, invitee or other occupant of a Lot or Residence or user of the Association
Property shall comply with the provisions of the Project Documents, including the Association
Rules.
4.6 Disclosure -Right to Farm. The Project is within one mile of a farm or ranch
land designated on the current county-level GIS "Important Farmland Map," issued by the
California Department of Conservation, Division of Land Resource Protection, which requires all
affected buyers to receive the following "Notice of Right to Farm":
NOTICE OF RIGHT TO FARM
This property is located within one mile of a farm or ranch land designated on the
current county-level GIS "Important Farmland Map," issued by the California
Department of Conservation, Division of Land Resource Protection. Accordingly,
the property may be subject to inconveniences or discomforts resulting from
agricultural operations that are a normal and necessary aspect of living in a
community with a strong rural character and a healthy agricultural sector.
Customary agricultural practices in farm operations may include, but are not
limited to, noise, odors, dust, light, insects, the operation of pumps and
T007015611611557-4 -13-01107/14
machinery, the storage and disposal of manure, bee pollination, and the ground
or aerial application of fertilizers, pesticides, and herbicides. These agricultural
practices may occur at any time during the 24-hour day. Individual sensitivities to
those practices can vary from person to person. You may wish to consider the
impacts of such agricultural practices before you complete your purchase. Please
be advised that you may be barred from obtaining legal remedies against
agricultural practices conducted in a manner consistent with proper and accepted
customs and standards pursuant to Section 3482.5 of the Civil Code or any
pertinent local ordinance.
4. 7 Drainage. There shall be no alteration of the drainage patterns initially installed
and constructed by Declarant including, without limitation, drainage swales, drain pipes, area
drains, catch basins or connections thereto, and as established by the grading and natural
course of surface and subsurface water run-off without the prior approval of the ACC, and any
all necessary governmental approvals and permits. Drainage patterns may not be altered or
modified without prior approval from the City.
This Declaration provides notice to the Association and each Owner to devote great care
and attention to grading and to establish or Maintain positive drainage away from the entire
foundation line of the buildings. Positive drainage is achieved by shaping grades, establishing
drainage "swales" or installing underground area drains. The swales and drains provide a
receptacle and conduit to drain water away from the foundation, and the rear, side and front of
the buildings to offsite drainage disposal. Swales also prevent drainage water from moving
across Lots or other property. This Declaration also provides notice to each Owner that if
existing drainage swales established on or around your building are interrupted, blocked, filled,
or otherwise altered serious damage can result. Drainage must not be allowed to pond in a yard
or run against or under a building, foundation, garage floor, driveway or other Improvements.
Serious damage may result even during a short period of time.
If a Residence constructed by Declarant has a roof gutter system and downspouts which
are directly connected to the Project's storm drainage system, the Residence shall remain
connected to the Project storm drainage system at all times; the Association and the Owners
may not perform any Alteration which results in additional roof waters draining anywhere other
than directly into the Project's storm drainage system.
4.8 Exterior Apparatus. No exterior clotheslines or other outside clothes drying or
airing facility shall be erected or Maintained on any Lot in any location where the same would be
visible from any street, Association Property, Lot or Residence. Further, no clothes washers,
clothes dryers, refrigerators or freezers may be kept, stored, or operated from any exterior area
of a Lot.
4.9 Garages. Each Owner shall keep his/her garage area in a neat and orderly
condition with any storage areas completely enclosed. Garage doors shall be kept closed when
not in use. Garages are to be used for the parking of Authorized Vehicles, and boats or the
storage of similar items of personal property so long as such storage of boats and personal
property will not necessitate or result in the parking of vehicles in other Permitted Parking Areas
within the Project. Furthermore, garages shall not be converted to living quarters, workshops or
storage which will preclude the parking of the number of Authorized Vehicles for which the
garage was designed to hold.
T0070156/1611557-4 -14-01/07/14
4.10 Invitees. Each Owner shall be responsible for compliance with the provisions of
this Declaration by the Owner's Invitees.
4.11 Landscaping. All Owners are required to submit landscape plans to the ACC (or
the Board if the ACC is not yet established), pursuant to Article VI of this Declaration for his/her
Lot within sixty (60) days after the close of escrow, unless installed by Declarant. Installation of
the approved landscaping Improvements shall be completed within sixty (60) days after
approval from the ACC (or the Board if the ACC is not yet established), or as extended in writing
by the Association. It is expressly understood that this provision is intended to apply only to
original purchasers of the Lot from Declarant with respect to the installation of permanent
landscape Improvements on the Lot until all Lots in the Project are sold by Declarant.
4.12 Liability of Owners for Damages. Each Owner shall be liable to the Association
for all damages to the Association Property and/or Improvements thereon caused by such
Owner, or any occupant or guest, regardless if that portion of said damage, if any, is fully
covered by insurance of the Association. A Reimbursement Assessment (as set forth in Article
IX of this Declaration) may be imposed on an Owner and his/her Lot for all damages to the
Association Property. Liability of an Owner shall be established only after notice to the Owner
and hearing before the Board, as set forth in Article XIII of the Bylaws.
4.13 Mailboxes. There shall be no exterior newspaper tubes or freestanding
mailboxes placed on any Lot or Residence.
4.14 Mineral and Water Exploration. Owners are prohibited from exploring the Project
for or to remove any water, oil, hydrocarbons or minerals of any kind.
4.15 Nuisances. No noxious, illegal or offensive activity shall be carried on upon any
Lot, Residence, or in any part of the Project, nor shall anything be done thereon which may be
or may become an annoyance or nuisance to or in any way interferes with the quiet enjoyment
of each Owner's Lot, Residence or the Association Property, or which may increase the rate of
insurance for the Project or for any Lot, or cause any insurance policy to be canceled or to
cause a refusal to renew the same, or which will impair the structural integrity of any building,
structure or Improvement.
4.16 Parking.
(a) Authorized Vehicles shall not be parked anywhere in the Project except in
Permitted Parking Areas, as set forth in this Declaration. All Permitted Parking Areas
shall be used solely for the parking of motor vehicles used for personal transportation, as
described in this Section.
(b) Guest parking spaces are for the temporary parking of Authorized
Vehicles of guests or invitees of Owners/residents. For purposes of this Declaration,
"guest parking spaces" are those uncovered parking spaces within the boundaries of the
Project but excluding driveways located on a Lot. The Board may, in its sole discretion,
enact Association Rules that control the number and use of guest parking spaces by
Owner or tenants. However, absent any such Association Rules, Owners or tenants of
Residences are strictly prohibited from parking Authorized Vehicles in guest parking
spaces within the Project. There shall be no parking (other than in guest parking
spaces) on the private streets within the Project, temporarily or otherwise.
T0070156/1611557-4 -15-01107/14
(c) No boat, trailer, camper, off-road vehicle, golf cart, commercial vehicle,
mobile home, motor home, bus, other recreational vehicle or any dilapidated vehicle
shall be parked or stored in any Permitted Parking Area.
(d) Garage doors shall remain closed, except when the garage is in use.
Garages shall be kept sufficiently clear so as to permit parking of the number of
Authorized Vehicles for which the garage was designed to hold.
(e) Commercial Vehicles shall not be parked within the Permitted Parking
Areas or the Project except for purposes of loading or unloading, and then for periods
not in excess of six (6) hours. This restriction shall not apply to Commercial Vehicles
involved in construction activities in the Project or Commercial Vehicles owned and
operated by persons providing services during the time when the services are being
rendered.
(f) In addition to the remedies available under Article X, Section 10.2 of this
Declaration, the Association may establish and implement rules and procedures from
time to time under the California Vehicle Code and other statutes for the issuance of
citations for violations of parking or vehicle restrictions set forth herein, for enforcement
of civil penalties resulting from such citations through government authorities, if
applicable, and for the removal and towing of any vehicles based on, but not limited to,
California Vehicle Code § 22658.
(g) The Board shall also have the authority to promulgate as part of the
Association Rules such further rules and restrictions regarding parking and vehicles
within the Project as may be deemed prudent and appropriate.
4.17 Power Equipment and Car Maintenance. No non-electrically powered power
equipment, workshops (other than workshops that can be housed in a garage without
necessitating or resulting in the parking of vehicles on the driveway, streets or other Permitted
Parking Areas in violation of Section 4.16, above) or major car maintenance (defined as any
repair or other work on a car that takes in excess of two (2) hours to complete) of any nature
shall be permitted on the Project without prior written approval of the Board. In deciding to grant
approval, the Board shall consider the effects of noise, air pollution, dirt or grease, fire hazard,
interference with radio or television reception, and similar objections. The washing of any
vehicles or equipment anywhere in the Project is strictly prohibited. Owners and residents are
also prohibited from performing any repair or maintenance of vehicles and equipment in areas
exposed to precipitation and storm flows. The Association shall be obligated to enforce these
provisions. Nothing in this Section shall prohibit the use and storage of hand gardening tools
reasonably necessary for routine household and yard Maintenance and upkeep.
4.18 Prohibition of Dumping Oil and Chemicals. Owners and residents are strictly
prohibited from disposing of crank case oil and other chemicals in storm drains. Owners and
residents are also cautioned in the practice of fertilizing and then over watering lawns and
landscaping resulting in run-off into the storm drains. Owners and residents shall exercise the
best methods to prevent the disposal of crank case oil and other chemicals and run-off from
over watering lawns and landscaping because of the adverse environmental effects of such
actions.
4.19 Rental of Lots and Residences. Except where expressly prohibited by some
other agreement or written instrument including, but not limited to, an owner occupancy
T0070156/1611557-4 -16-01/07/14
agreement, Owners may lease or rent his/her lot. However, no lot or Residence may be
rented or leased for transient or hotel purposes which shall include, bul not be limited to, rental
for any period less than thirty (30) days. Initial lease terms shall be no less than six (6) months.
All leases must be in writing and be expressly subject to the Project Documents, including the
Association Rules, and the breach of any provision shall be a default under the lease or rental
agreement. Subject to the foregoing restrictions, Owners shall have the right to lease their Lot
and Residence, provided that the Board is notified of the name of the tenant and the duration of
the lease. The Owner shall provide the tenant/lessee with a copy of the Project Documents.
4.20 Restrictions on Business. Except for uses on or within Lots or Residences
permitted by local ordinances, the construction of Improvements and the business of Declarant
in completing the development and sale of lots in the Project, no business of any kind shall be
established, maintained, operated, permitted or constructed in any portion of the Project.
4.21 Signs and Flags. Subject to the provisions of California Civil Code§§ 4705 and
4710, as amended from time to time, and the Association Rules, no signs or flags of any kind
shall be displayed from view on or from any Lot, Residence, Association Property or any portion
of the Project without the approval of the Association, except as follows (subject to any
Association Rules):
(a) Noncommercial signs or posters not to exceed nine (9) square feet in size
may be displayed from a Lot or Residence;
(b) Noncommercial flags or banners not to exceed fifteen (15) square feet in
size may be displayed from a Lot or Residence;
(c) One sign of customary and reasonable dimensions, not to exceed four (4)
feet in height and four (4) feet in width, advertising a Lot for sale, lease, rent or exchange
may be displayed from a lot or Residence;
(d) Such signs as may be used by Declarant or its assignees in connection
with the Project and sale of lots; or
(e) Such other signs or notices as are required by law.
4.22 Solar Energy Systems. Declarant does not warrant, promise, represent or
guarantee that the Residence will be "solar-ready" for any particular type or manufacturer of
solar energy systems, or that it will be compatible for solar energy systems in the future.
Declarant shall not be responsible for any damage caused to or resulting from any solar energy
system installed on the Residence if installed by someone other than Declarant or authorized by
Declarant. Notwithstanding, if an Owner does not install a solar energy system through
Declarant (pursuant to California Public Resources Code § 25405.5, as amended from time to
time), in accordance with California Civil Code §§ 714 and 714.1 each Owner may install or use
a solar energy system, as defined in California Civil Code § 801.5, on the Owner's Lot to serve
his or her domestic needs, so long as (a) the design and location of the solar energy system
meets the requirements of all applicable governmental ordinances and regulations, and (b) the
design and location receives the prior written approval of the ACC (or the Board, if the ACC
does not exist).
4.23 Sports Apparatus. No basketball standard, fixed sports apparatus, skateboard or
bicycle ramps or similar equipment shall be attached to the exterior of any Residence or
T0070156/1611557-4 -17-01107114
erected, constructed or placed on a Lot or in any Association Property. Portable sports
apparatus shall be kept out of view from Association Property or the Lots when not in use, and
its use, including hours and locations, shall be subject to any Association Rules. The purpose of
this restriction is to maintain uniformly high aesthetic standards, and to preserve the quiet
enjoyment of the respective Residences by the OWners thereof.
4.24 Storage of Waste Materials. Garbage, trash andfor recycling containers shalf be
kept out of view and contained within the garages andlor in specified locations so that the
parking of the maximum number of vehicles in the garage is not impeded. Garbage, trash
andfor recycling containers shall be placed only designated areas not more than twenty-four
(24) hours prior to collection on the designated pick-up day, and shall be removed from the
designated areas within twenty-four (24) hours after collection. No rubbish, trash, garbage or
other waste material shall be kept or permitted in any Lot or Residence except in appropriate
sanitary containers, and shall be regularly removed from the Project. All storage piles shall be
kept screened and concealed from view of other Lots, Residences, streets and Association
Property.
4.25 Use and Occupancv. Except as may be allowed by local ordinance, no Lot or
Residence, or any portion thereof, shall be occupied and used except for single family
residential purposes by the OWners, their contract purchasers, lessees, tenants, or social
guests. No trade, retail business or commercial activity shall be carried on or conducted within
any Lot, Residence or Association Property, except that Declarant, its successors or assigns,
may use any Lot, Residence or Association Property in the Project owned by Declarant for a
model home site and display and sales office during construction and until the last Lot is sold by
Declarant. The provisions of this Section shall not prohibit home offices so long as they are
merely incidental to the use of the Lot and Residence as a dwelling, are permitted by local law,
are conducted in such a manner as to not adversely affect other Owner's use and enjoyment of
the Project, and have received prior written approval of the Board.
4.26 Window Coverings. Windows shall be covered by drapes, shades, shutters or
other window coverings and shall not be painted or covered by foil, cardboard or other similar
material. Any drapes or other window covering installed in compliance with the Design
Guidelines may remain for the useful life thereof. Window coverings must be installed on all
windows visible from the streets serving the Project within ninety (90) days after conveyance of
title to the Lot by Declarant, unless the Design Guidelines provide otherwise. All window
coverings visible from other Lots or Association Property shall be of a material, design and color
which, in the opinion of the Board or ACC, is compatible with the exterior design and coloration
of adjacent portions of the Project, including other Lots and Residences.
ARTICLE V
MAINTENANCE OBLIGATIONS
5.1 Maintenance of Association Property. The Association shall Maintain or provide
for the Maintenance, repair and replacement of all Association Property and Improvements
located thereon including, but not liinited to, bio-retention basins, vegetated swales, and private
storm drains. The Association shall keep the Association Property and Improvements thereon in
good condition and repair, and provide for all necessary services and cause all acts to be done
which may be necessary or proper to assure the Maintenance of the Association Property in first
class condition. If any Maintenance or repair work identified in this Section (including blockage
of private sewer lines) is necessitated by the acts and/or omissions of the Owner, his/her family,
T0070156/1611557-4 -18-01107/14
guests or invitees, regardless if said acts and/or omissions were willful or negligent, the costs of
such special restoration or repairs shall be chargeable to the Owner as a Reimbursement
Assessment as provided in Article IX. A non-exclusive list of Association Property to be
Maintained by the Association is attached hereto as Exhibit A. The Association's Maintenance
Obligations include, but are not limited to the following:
5.1.1 Trees within Association Property shall not be severely pruned, topped or
pollarded. Any trees that are pruned in this matter shall be replaced with a tree species
selected by, and size determined by a landscape architect.
5.1.2 Street lights and pedestrian lighting within the Project shall be Maintained
by the Association. Sidewalks, streets and parking areas shall be swept regularly to
prevent the accumulation of litter and debris.
5.1.3 Any landscaping in the Association Property shall be Maintained in an
orderly, live, healthy and relatively weed-free condition, in accordance with the City-
approved specific landscape plan for the Project.
5.1.4 The Association shall Maintain, repair and replace the sanitary sewer line
system, storm drain system, domestic water lines, electric power service, asphalt paved
area and fire protection lines located within Association Property and through Lots up to
the meters, splice boxes, or other connections that will exclusively serve a Residence,
with the exception of items and services provided by the City. Thereafter, the Owners of
the Lot and Residence are responsible for the Maintenance of such services.
5.1.5 The Association shall also Maintain, repair and replace any
Improvements in Association Property located within private storm drainage easements
and private sanitary sewer easements, wherever said Improvements are constructed
and installed in the Project, including removal of blockages in private sewer lines so long
as the blockage is in the Association Property.
5.1.6 The Association shall Maintain, repair and replace all walls (including
retaining walls) and fences on the perimeter of the Project {i.e., that separates the
Project from public streets, adjacent neighborhoods and properties), and all walls and
fences located within Association Property. Specifically, the Association shall Maintain,
repair and replace the retaining walls along Old Rancho Santa Fe Road, the "combo
walls" that run parallel to Rancho Santa Fe Road and Paseo Lupino.
5.2 Maintenance of Association Maintenance Areas. The Association shall Maintain
or provide for the Maintenance, repair and replacement of all Association Maintenance Areas.
The Maintenance Obligations described herein shall be in a manner consistent with other similar
residential developments in the vicinity of the Project. A non-exclusive list of Association
Maintenance Areas to be Maintained by the Association is attached hereto as Exhibit A.
5.3 Maintenance of Lots and Residences.
5.3.1 Scope of Maintenance Obligations. Except as otherwise set forth in
Declaration and in addition to other provisions herein, each Owner shall be responsible
to Maintain, repair and replace all Improvements on a Lot, including, but not limited to,
roofs, downspouts, siding, windows, doors, and the interior and exterior of the
Residence, in good condition and repair, including all fixtures, appliances,
T007Q156/1611557-4 -19-01/07114
appurtenances and fireplaces, if any. The Maintenance Obligations hereunder of each
Owner includes, but is not limited to, the responsibility to (i) Maintain, repair, paint,
paper, panel, plaster, tile and finish the interior surfaces of the ceilings, floors, and the
perimeter walls of his/her Residence, and the bearing walls within his/her Residence; (ii)
repair, paint, finish, alter, substitute, add or remove any fixtures and utility connections
attached to ceilings, floor or walls, including fireplaces, toilets, showers, bathtubs, sinks,
kitchen appliances, lighting and plumbing fixtures, telephone facilities, doors and
windows within the Residence; (iii) Maintain, repair, replace and clean the interiors and
exteriors of any skylights, windows, sliding glass doors, and other glass surfaces of
his/her Residence; (iv) Maintain, repair and replace doors, hardware, locks and screens
covering doors and windows of his/her Residence, and garage doors; (v) Maintain,
repair and replace all water lines after it reaches the water meter; (vi) front, side and rear
yard landscape Improvements, as applicable; and (vii) Maintain repair and replace any
fencing or walls that may enclose front, side and rear yard area; provided, however, that
if the wall or fence enclosing the rear yard is an Association-Maintained wall or fence,
the Owner shall be responsible for cosmetic maintenance and repair to the surface of
the wall or fence that faces towards the Lot and Residence. Each Owner shall also
Maintain any and all surface and sub-surface drainage systems and appurtenances
thereto, retaining walls, Party Walls and all other Improvements located on the Lot.
Owners shall be responsible for public liability in case of injury in connection with PUEs,
and for the Maintenance of utility trenches in PUEs within each Owner's Lot. A non-
exclusive list of Improvements to be Maintained by each Owner is attached hereto as
Exhibit A.
5.3.2 Failure of Owner to Maintain. If an Owner fails to Maintain his/her Lot or
Residence, as provided herein, in a manner which the Board reasonably deems
necessary to preserve the safety, appearance and/or value of the Project, the Board
may notify the Owner of the work required and request that it be done within a
reasonable and specific period. If the Owner fails to perform such Maintenance and/or
repairs within said period, the Board shall, subject to the notice and hearing
requirements set forth in the Bylaws, have the right to enter the Lot and/or Residence to
cause such Maintenance and/or repair work to be performed. The costs of any such
repair or Maintenance shall be charged as a Reimbursement Assessment to the Owner
as provided in Article IX hereof. Notwithstanding the foregoing, in the event of an
emergency arising of the failure of an Owner to Maintain his/her Lot and/or Residence,
the Board shall have the right, through its agents and employees, to immediately enter
the Lot and/or Residence to abate the emergency and individually charge the cost
thereof to such Owner.
5.4 Maintenance of Party Walls. The Owners shall be responsible for the
Maintenance, repair and replacement of Party Walls with the costs to be shared equally by the
Owners who share the Party Wall; provided, however, that all costs of any Maintenance, repair
or replacement necessitated by the negligent or willful action of an Owner shall be borne by that
Owner. In the absence of negligent or willful conduct, any necessary Maintenance, repair or
replacement performed by an Owner shall entitle that Owner to a right of contribution from the
other Owner(s) of the Party Wall. The right of contribution shall be appurtenant to the Lot and
shall pass to the successor(s) in interest to the Owner entitled to contribution.
5.5 Maintenance of Stormwater Systems. The Association (with respect to
Association Property and Association Maintenance Areas) and each Owner (with respect to
his/her Lot and Residence) shall be required to comply with and fulfill all requirements and
T0070156/1611557-4 -20-01107/14
standards, as set forth herein, for maintenance of all Improvements within the Project so as to
preserve and keep in good working condition the stormwater systems throughout the Project.
The requirements and standards (as depicted on Exhibit C hereto) that the Association and
each Owner shall be required to satisfy, comply with and obey include, but are not be limited in
any manner, to the following:
5.5.1 Best Management Practices. BMPs shall be incorporated as part of the
Association's and each Owner's duties and obligations for the stormwater pollution
prevention plan for the Project. BMPs shall include, but are not limited to, pollution
treatment practices or devices, erosion control to prevent silt runoff during any
construction, general housekeeping practices, pollution prevention and education
practices, maintenance procedures, and other management practices or devices to
prevent or reduce the discharge of pollutants to stormwater, receiving water or
stormwater conveyance system to the maximum extent practicable. The Association
shall inspect and Maintain the on-site stormwater treatment measures (swales,
bioretention ponds, media filters, etc.) and storm drain system on an annual basis and
provide maintenance and repairs, as required. The Association shall Maintain an
inspection and maintenance record on file that shall be made available to the City upon
request. Storm drains shall be cleaned at least annually before commencement of the
rainy season (before October 15th of each year).
5.5.2 Water and Debris Runoff. Debris from pressure washing of sidewalks,
streets, and walkways shall be collected to prevent entry into the storm drain system.
Wash water containing any cleaning agent or degreaser shall be collected and
discharged to the sanitary sewer and not discharged to a storm drain.
5.5.3 Minimize Impervious Surfaces. The Association and each Owner shall
keep to a minimum the impervious surfaces so as to protect and not disturb the open
space and landscaped areas of the Project. ·
5.5.4 Prohibition on Disconnecting Discharges. Roof drains shall discharge to
adjacent landscape areas, where feasible, and shall not be disconnected. Most of the
proposed sidewalks are being designed with a landscaped parkway between the
sidewalks and curbs to allow runoff to drain over adjacent landscape areas, and shall be
kept in this manner.
5.5.5 Conserve Natural Areas. Although the Project is not located within or
adjacent to any conserved natural areas, the Association and each Owner shall
conserve natural areas, soils and vegetation and buffer areas to discharge runoff to filter
pollutants prior to discharge from the Project.
5.5.6 Stenciling Inlets and Signage. The curb inlets along the main drive will be
stenciled with prohibitive language such as "No Dumping -I Live Downstream" or
similarly approved language. The stenciling at the inlets shall be inspected at the
beginning and end of each rainy season and re-stenciled, repaired and/or replaced, as
needed.
5.5. 7 landscape Design. landscape plans for Association Property,
Association Maintenance Areas, lots and Residences shall be prepared that uses
drought-tolerant species in accordance with the City's landscape manual. Native trees
and shrubs will be preserved over the majority of the Project in order to maximize
T007015611611557-4 -21-01/07/14
canopy interception and promote water conservation. The Association and all Owners
shall only use water as needed to support the landscaping. Landscaping and irrigation
systems shall be Maintained in a healthy, weed-free condition at all times. Landscaping
shall be Maintained using minimum or no pesticides where possible.
5.5.8 Water Efficient Irrigation. Irrigation systems throughout the Project and for
each Unit shall be designed to match the water requirements for each landscaped area
to avoid over irrigation. The irrigation system shall be inspected and Maintained on a
regular basis, and shall occur during routine maintenance activities. All valves, heads,
shutoff devices, lines, etc., shall be kept in a properly functioning condition. Any
defective parts shall be replaced immediately. The irrigation system shall be adjusted to
prevent excessive runoff from landscape areas. The irrigation schedule shall be
adjusted based on seasonal needs (for example, rain shutoff devices shall be used to
prevent irrigation after rain events).
5.5.9 Protection of Slopes And Channels: Erosion Control. The grading of
slopes within the Project shall not include large slopes or channels, and shall be
designed to prevent runoff from water flowing uncontrolled over the tops of
manufactured slopes. The slopes will be landscaped with native or drought tolerant
vegetation to the extent allowed by the resources agencies. Riprap energy dissipaters
will be used at storm drain outfalls.
5.5.10 Trash Receptacles. Each Residence will have personal, covered trash
receptacles, and shall otherwise comply with Section 4.26 of this Declaration.
5.5.11 Material Storage Areas. There shall not be any outdoor, uncovered
material storage areas. Any required material storage shall be kept under cover, as
approved by the ACC or Board.
5.5.12 Basins and Swales. The drainage outlet from basins shall be inspected
monthly and after large storm events. Debris, sediment, and other obstructions shall be
removed immediately from the outlet, and the basins shall be inspected annually and
replanted as needed to maintain an adequate cover. Landscaped and vegetated swales
shall be Maintained using qualified landscaping personnel. The vegetation will be
Maintained and inspected on a monthly basis by landscape maintenance staff and will
be replaced or replanted, as necessary, to Maintain a dense, healthy cover. The
vegetation will also be inspected after major storm events. Maintenance shall include
periodic mowing, weed control, irrigation, reseeding/replanting of bare areas, and
clearing of debris. A design grass height of 6 inches is recommended. Grass clippings
shall not be left in grass swales. The location of the bio retention basins and vegetated
swales are depicted on Exhibit 0, attached hereto. The private drainage system shall
be kept clear of debris and inspected prior to and during the rainy season to ensure it is
free-flowing.
5.5.13 Disposing of Hazardous Wastes. Suspected hazardous wastes shall be
analyzed to determine disposal options. Hazardous materials are not expected to nor
should they be generated on-site; however, if discovered, hazardous materials shall be
handled and disposed of according to local, state, and federal regulations. A solid or
liquid waste is considered a hazardous waste if it exceeds the criteria listed in the
California Code of Regulations, Title 22, Article 11 (State of California, 1985)
T0070156/1611557-4 -22-01/07/14
5.5.14 Training. Testing and Maintenance. Association representatives, as may
be appointed by the Board or volunteers, shall receive training by a licensed civil
engineer who is familiar and knowledgeable with the BMPs and their intended function
for this Project. Association, through these trained representatives, shall take
appropriate steps and precautions that Owners/residents are aware of. follow and
comply with the BMPs, and that any contractors, landscapers and workers within the
Project are aware of, follow and comply with the BMPs set forth herein, including
requiring that contractors, landscapers and workers within the Project receive
appropriate training on complying with the storm· water measures set forth herein.
Association shall perform, or cause to have performed, all testing and maintenance of
the storm water measures, as set forth in this Declaration, and obtain third party
verification or certification that the Association and the Owners/residents are complying
with the storm water measures set forth herein.
5.6 Landscape Maintenance Responsibilities. The landscape Maintenance
Obligations of the Owners (as to each Owner's Lot) and the Association are set forth on Exhibit
B to this Declaration.
5. 7 Utility Bills. Payment of any Association Property and/or Association
Maintenance Area water, electricity and street lighting bills are the obligation of the Association.
5.8 Other Association Obligations. The Association shall contract with a professional
management firm to handle Maintenance operations.
5.9 Inspection and Maintenance Guidelines. The Association and each Owner shall
adopt and comply with the inspection and Maintenance guidelines for all Improvements
(including, but not limited to, Lots, Residences, Association Maintenance Areas and Association
Property, etc.) for the periodic inspection and Maintenance of the Association Property
Improvements and any other Improvements that the Association is obligated to Maintain. The
Association's inspection and Maintenance guidelines shall include a plan for litter control, street
sweeping and cleaning of all storm drain inlets.
ARTICLE VI
ARCHITECTURAL REVIEW AND APPROVAL PROCEDURES
6.1 Formation and Composition of ACC. The ACC shall be formed and shall consist
of at least three (3) but no more than five (5) Members. Until the first anniversary of the
issuance of the original Final Public Report for the Project, Declarant may appoint all of the
original members and any replacements of the ACC after which the Board shall have the power
to appoint one member to the ACC. The Declarant shall have the power to appoint a majority of
the members of the ACC until ninety percent (90%) of all Lots in the Project have been sold or
until the fifth (5th) anniversary of the original issuance of the Final Public Report for the Project,
whichever occurs first. Upon the sale of ninety percent (90%) of all Lots in the Project or the
fifth (5th) anniversary date of the original issuance of the Final Public Report, whichever occurs
first, the Board shall have the power to appoint all of the members of the ACC. In the event of
death or resignation of any member of the ACC, the successor shall be appointed by the
person, entity or group which appointed such member until Declarant no longer has the right to
appoint any members to the ACC, and thereafter the Board shall have the full authority to
designate such a successor. The members of the ACC shall not be entitled to any
compensation for services performed pursuant hereto.
T0070156/1611557-4 -23-01/07/14
6.2 Duties of the ACC. The ACC shall review and approve, conditionally approve, or
deny all plans, submittals, applications and requests made or tendered to it by Owners or their
agents for any Alterations, pursuant to the provisions of this Declaration. In connection
therewith, the ACC may investigate and consider the architecture, design, layout, landscaping,
energy conservation measures, water conservation measures, fence detail, and other features
of the proposed Alteration, modification or Improvement. With the consent of the Board, the
ACC may hire and the Association shall pay consulting architects, landscape architects, urban
designers, engineers, inspectors, and/or attorneys in order to advise and assist the ACC in
performing its duties, the costs of which may be passed on to the Owner submitting an
application to the ACC for approval.
6.3 Design Guidelines. The ACC, from time to time and in its sole discretion, may
adopt Design Guidelines which may impose specific requirements on individual Lots and/or
Residences if those requirements are reasonable in light of specific Lot topography, visibility or
other factors. Adoption, repeal or modification of Design Guidelines shall comply with the
provisions of California Civil Code § 4340, et seq. The Design Guidelines shall interpret and
implement the provisions of this Declaration by setting forth the standards and procedures for
architectural materials, landscaping, fences, and similar features which may be used in the
Project; provided, however, that the Design Guidelines shall not be in derogation of the
minimum standards established by this Declaration. The Design Guidelines may include a
schedule of fees for processing submittals (which shall not exceed the amount necessary to
defray all costs incurred by the ACC in processing the submittals) and establish the time and
manner in which such fees shall be paid. The Design Guidelines shaU constitute Association
Rules.
6.4 Submission of Plans. No Alterations, building, fence, wall, obstruction, screen,
window, awning, landscape change or structure of any kind shall be commenced, erected or
Maintained upon the Lot or Residence by any Owner(s), including Alterations to facilitate access
for persons who are blind, visually handicapped, deaf or physically disabled, nor shall any
Alterationll or modification of Declarant-installed Improvements by any Owner(s) of any kind be
made to the exterior thereto until the same has been approved in writing by the ACC. Plans and
specifications showing the nature, kind, shape, color, size, materials and location of such
Improvements, Alterations, etc., shall be submitted to the ACC for approval as to quality of
workmanship and design and harmony of external design with existing structures, and as to
location in relation to surrounding structures, topography, and finish grade elevation. No Owner
shall construct or place, and the ACC shall not approve, any building, fence, wall, obstruction,
screen, window, awning, landscaping or structure of any kind that blocks or materially interferes
with the views from any other Owner's Lot or Residence. Owners are prohibited from installing,
constructing, altering or modifying the exteriors of Lots and/or the Residences without the
express written approval of the ACC and the Board. All proposed Alterations contained in this
Article shall meet the Design Guidelines, and the Conditions of Approval of the City.
6.5 Basis for Review. The ACC may approve the proposal or application only if the
ACC finds that (a) the plans and specifications conform to this Declaration and to the Design
Guidelines in effect at the time the proposal was submitted, and (b) the proposed Alteration,
modification or addition will be consistent with the standards of the Project and the provisions of
this Declaration as to harmony of exterior design, visibility with respect to existing structures and
environment, and location with respect to topography and finished grade elevation.
6.6 Form of Approvals, Conditional Approvals and Denials. All approvals, conditional
approvals and denials shall be in writing. Any denial must state the reasons for the decision.
T0070156/1611557-4 -24-01107114
The failure of the majority of the ACC to act within sixty (60) days after the plans have been
submitted to it shall constitute approval.
6. 7 Reconsideration of Denial of APPlication. If the ACC denies an application for
Alterations, modifications, etc., to a Lot or Residence, the decision may be appealed to the
Board of Directors for reconsideration, unless the denial was made by the Board exercising the
duties of the ACC, as set forth in Section 6.2, above, in which case, there shall be no right to
reconsideration of the denial. An appeal by an Owner whose application was denied by the
ACC shall follow the procedures set forth below:
(a) The appeal shall be in writing and must identify the grounds upon which
the appeal or reconsideration is made to the Board.
(b) The appeal shall be delivered (pursuant to California Civil Code § 4035)
to the Board within sixty (60) days after the date of the ACC's written notice to the Owner
denying the proposed Alterations, modifications, etc.
(c) The Board shall schedule a meeting within forty-five (45) days of receipt
of the written appeal to allow the Owner an opportunity to be heard on his/her request for
reconsideration, unless the parties mutually agree to a date beyond or less than the
forty-five (45) day period.
(d) Unless expressly requested by an Owner, the meeting with the Board
concerning the appeal of the ACC's decision shall not be held in executive session.
· (e) The Board shall issue its decision in writing to the Owner within thirty (30)
days after the date of the meeting, and said written decision shall be delivered in any
manner allowed by California Civil Code § 4040.
(f) The Board's decision on appeal shall be final, and not subject to further
reconsideration by the Board.
6.8 Proceeding with and Completion of Work. Upon approval of the ACC, the Owner
shall diligently proceed with commencement and completion of all work so approved. Work
must be commenced within one (1) year from the date of approval. All work approved by the
ACC must be completed within eighteen (18) months from the date of approval. If the Owner
fails to comply with the provisions of this Section 6.8, the approval given shall be deemed
revoked unless the ACC extends the time for commencement. Any request for an extension,
and decision, shall be in writing. No extension shall be granted unless the ACC finds that there
has been a material change in the circumstances under which the original approval was
granted, or completion is impossible, or would result in great hardship to the Owner due to
strikes, fires, national emergencies, natural calamities or other supervening forces beyond the
Owner's control.
6.9 Compliance with Approval. If the ACC determines that an Owner has not
constructed the Alterations or Improvements consistent with the specifications of the approval
granted or within the time permitted for completion and if the Owner fails to remedy such non-
compliance in accordance with the directives or orders of the ACC, the Board shall provide
Notice and Hearing, pursuant to the Bylaws, to consider the Owner's continuing non-
compliance. If the Board finds that there is no valid reason for the continuing non-compliance,
the Owner shall have forty-five (45) days from the date of the Board's decision to remedy or
T0070156/1611557-4 -25-01/07/14
remove the non-compliance. If the Owner fails to comply with the Board's directive or order, the
Board, in its discretion, may either remove the non-complying Improvement or Alteration,
remedy the non-compliance, or compel compliance pursuant Article X, Section 10.2 of this
Declaration. The costs of such action shall be assessed against the Owner as a
Reimbursement Assessment.
6.10 Compliance with Governmental Agency Procedures. Each Owner who seeks
approval for Alterations shall first obtain written approval from the ACC prior to any approvals,
permits, etc., required by the City, County or any other governmental agency for permission to
permitting the start grading, demolition, construction, landscaping and/or any other work.
6.11 Waiver. Approval or conditional approval of any plans, drawings or specifications
for any Alterations proposed, or for any other matter requiring approval shall not be deemed to
constitute a waiver of any right to deny approval of any similar plan, drawing, specification or
matter subsequently submitted for approval.
6.12 No Liability. Neither Declarant, the Association, the Board or the ACC nor the
members or designated representatives thereof shall be liable for damages to anyone
submitting plans and specifications to them for approval, or to any Owner of property affected by
this Declaration by reason of mistake in judgment, negligence, or nonfeasance arising out of or
in connection with the approval or disapproval or failure to approve or disapprove any such
plans or specifications for Alterations, or for any defect, whether in design or construction, in any
structure constructed from such plans and specifications. Neither the Declarant, Association,
Board or ACC nor any member or representative thereof, shall be responsible for reviewing or
approving any plans with respect to the adequacy of engineering design. Every person who
submits plans or specifications to the ACC for approval agrees, by submission of such plans or
specifications, and every Owner of said property agrees that he or she will not bring any action,
suit or claim against Declarant, Association, Board or the ACC or any members or designated
representatives thereof with respect to any matters for which such persons or entities are
relieved of liability pursuant to this Section 6.12.
ARTICLE VII
ASSOCIATION ADMINISTRATION. MEMBERSHIP AND VOTING
7.1 Association to Manage Project. The management of the Project shall be vested
in the Association in accordance with the Project Documents, and all applicable laws,
regulations and ordinances of any governmental or quasi-governmental body or agency having
jurisdiction over the Project.
7.2 Membership. Each Owner shall be a Member of the Association, and shall
remain a Member thereof until such time as ownership ceases for any reason, at which time
such membership in the Association shall automatically cease.
7.3 Transferred Membership. Membership in. the Association shall not be
transferred, pledged, or alienated in ariy way, except upon the sale or encumbrance of the Lot
to which it is appurtenant, and then only to the purchaser, in the case of a sale, or Mortgagee, in
the case of an encumbrance of such Lot. A Mortgagee does not have membership rights until it
becomes an owner by foreclosure or deed in lieu thereof. Any attempt to make a prohibited
transfer is void. Any person or entity acquiring fee title or equitable title to a Lot, whether by
reason of a deed from the Owner or through a foreclosure, shall within fifteen (15) days of
T007015611611557-4 -26-01/07/14
acquiring such title inform the Association in writing of the date such title transferred and the
name or names in which title is held.
7.4 Voting. Any action required by law or by the Project Documents to be approved
by the Owners, the Members or each class of Members, shall be approved, if at all, in
accordance with the procedures set forth in the Bylaws and any Association Rules.
7.5 No Proxies. For all matters required by law or the Project Documents in which
Members are required to vote, including, but not limited to, those matters set forth in California
Civil Code§ 5100, and except as specifically allowed by law, the Project Documents, or a court
of law, proxies shall not be allowed, counted towards, or recognized by the Association in any
election, for attendance at any meeting and/or establishing a quorum.
7.6 Classes of Membership and Voting. The Association shall have two (2) classes
of voting Members:
(a) Class A. Class A Members shall be all Owners except Declarant and
shall be entitled to one {1) vote for each Lot owned, as applicable. When more than one
person or entity owns a Lot, all such persons and entities shall be Members and the vote
for such Lot shall be exercised as they among themselves determine, but in no event
shall more than one (1) vote be cast with respect to any Lot.
(b) Class B. The Class B Member shall be the Declarant and shall be
entitled to exercise both of the following voting rights:
(i) For Matters Other Than Election of Directors. Except for the
election of directors as provided hereinbelow, the Declarant shall be entitled to
cast three (3) votes for each Lot or it owns and is paying the Assessments levied
by the Association. This voting right shall cease and Declarant shall
automatically become a Class A Member entitled to cast one {1) vote for each
Lot it owns and is paying the Assessments levied by the Association upon the
first to occur of the following events:
(1) The second (2"") anniversary of the first close of escrow for
the sale of a Lot pursuant to the original issuance by the BRE of the most
recently issued Final Public Report for a Phase of the Project; or
(2) The fourth (4th) anniversary of the first close of escrow for
the sale of a Lot pursuant to the original issuance by the BRE of the Final
Public Report for the first Phase of the Project.
(ii) Declarant Rights to Elect a Majority of the Board. Without regard
to whether Declarant owns a Lot subject to a levy of Assessment, and
notwithstanding expiration of Class B voting rights as set forth above, Declarant
shall be entitled, by its sole vote, to elect a majority of the members of the Board
of Directors of the Association until the first to occur of the following:
T007015611611557-4
(1) Seventy five percent (75%) of the estimated total number
of Lots in the Project (currently estimated to be twenty-four (24) reflecting
32 Lots multiplied by 75%) have been conveyed to Class A Members;
-27-01107114
(2) The third (3'd) anniversary of the first close of escrow for
the sale of a Lot pursuant to the original issuance by the BRE of the most
recently issued Final Public Report for a Phase in the Project; or
(3) The fifth (5th) anniversary of the first close of escrow for the
sale of a Lot pursuant to a Final Public Report issued by the BRE for the
first Phase of the Project.
7.7 Special Voting Rights of Class A Members for Election of Directors. So long as
the Declarant shall be entitled to exercise the Class B voting right to elect a majority of the
members of the Board of Directors of the Association, as provided above, the Class A Members
shall be entitled to solely elect at least twenty percent (20%) of the members of the Board.
7.8 Commencement of Voting Rights. Voting rights attributable to Lots shall not vest
until Assessments against those Lots have been levied by the Association. The power to cast a
particular Member's vote may be exercised by the Member's conservator, guardian, the
parent(s) entitled to custody of a Member if the Member is a minor, or the executor or
administrator of a deceased Member's estate if the Member's interest in the Lot is subject to
estate administration.
7.9 Secret Ballot Voting. All voting on matters specified in California Civil Code §
5100 shall be done by secret ballot and be in compliance with the Association Rules for
elections and any and all other statutory provisions.
ARTICLE VIII
POWERS. DUTIES AND LIMITATIONS OF THE ASSOCIATION
8.1 Powers and Duties of Association. In addition to the powers and duties
enumerated in its Articles and Bylaws or elsewhere provided for herein, and without limiting the
generality thereof, the Association and the Board shall have the following powers and duties:
8.1.1 Delegation of Powers. To delegate all powers to committees, officers or
employees of the Association as expressly authorized by the Project Documents.
8.1.2 Managing Agent. To employ a managing agent and to contract with
independent contractors to perform all or any part of the duties and responsibilities of the
Association, provided that any contract with a firm or person appointed as a managing
agent or any other contract providing for services of the Declarant, developer, sponsor or
builder shall not exceed a one (1) year term renewable by the parties for successive one
year periods and shall provide for the right of the Association to terminate the same at
the first annual meeting of the Members of the Association, to terminate the same for
cause on thirty (30) days written notice, and either party may terminate without cause
and without payment of a termination fee on sixty (60) days written notice.
8.1.3 Maintenance. To Maintain the Project as required by the provisions of
this Declaration.
8.1.4 Supervision. To supervise all officers, agents and employees of the
Association and see that their duties are properly performed.
T0070155/161 1557-4 -28-01/07114
8.1.5 Assessments. Liens. and Fines. To levy and collect Assessments and as
provided in the Project Documents, impose fines or take disciplinary action against an
Owner for failure to pay Assessments or for violation of any provision of the Project
Documents. Penalties may include, but are not limited to: fines, temporary suspension
of voting rights or rights to use of the facilities on the Association Property, or other
appropriate discipline for failure to comply with the Project Documents, provided that the
accused Member is given notice and the opportunity to be heard by the Board with
respect to the alleged violations before a decision to impose discipline is reached. Such
notice and hearing procedures shall satisfy the minimum requirements of California
Corporations Code § 7341, which are set forth in Article XIII of the Bylaws.
8.1.6 Enforcement of Project Documents. To enforce applicable provisions of
the Project Documents for the ownership, management and control of the Project.
8. 1. 7 Adoption of Association Rules. To adopt, amend and repeal reasonable
rules consistent with this Declaration relating to the use of Association Property and all
facilities thereon, and the conduct of Owners and their tenants and guests with respect
to the Project and other Owners, in compliance with California Civil Code §§ 4040, 4045,
4050 and/or 4055. A copy of the Association Rules as adopted, amended or repealed
shall be mailed or otherwise delivered to each Owner and a copy shall be posted in a
conspicuous place within the Association Property. Any modifications, changes, or
repeal of the Association, Rules shall follow these procedures:
(a) The Board shall provide written notice to its Members not less
than thirty (30) days prior to making the rule change. The written notice shall
include the text of the proposed rule change (or deletion, as the circumstances
may warrant). and a description of the purpose and effect of the change. The
written notice is not required if the Board determines that· an immediate rule
change is necessary to address an imminent threat to public safety or imminent
risk of substantial economic loss.
(b) The decision on the proposed rule change shall be made at a
meeting of the Board after consideration of any comments made by Members.
(c) Not more than fifteen (15) days after making the rule change, the
Board shall deliver the modifications, changes or repeal of Association Rules to
every Member in the manner allowed by California Civil Code § 4045, unless the
rule change was made on an emergency basis and in such an emergency basis
the notice shall include the text of the change, a description of the purpose and
effect of the rule change, and that the emergency rule change shall be in effect
for not more than one hundred twenty (120) days.
8.1.8 Records. Cause to be kept a complete record of all its acts and corporate
affairs and to present a statement thereof to the Members at the annual meeting of the
Members, or at any special meeting when such statement is requested in writing by five
percent (5%) or more of the total voting power of the Association; keep adequate and
correct books and records of account, minutes of proceedings of its Members, Board
and committees, and a record of its Members giving their names and addresses and
classes of membership.
T0070156/1611557-4 -29-01/07/14
8.1.9 Water and Other Utilities. To acquire, provide and pay for water, sewer,
garbage disposal, refuse and rubbish collection, electrical, telephone, gas and other
utility services as necessary for the Association Property and other areas of the Project
Maintained by the Association pursuant to this Declaration.
8.1.1 0 Granting of Easements. To grant easements where necessary for utilities
and sewer facilities over the Association Property to serve the Association Property,
Association Maintenance Areas, Lots and Residences.
8.1.11 Exercise of Easements. To exercise all easement rights as granted to it
in this Declaration for the purpose of performing the Maintenance authorized herein or
for any other purpose reasonably related to the performance by the Association or the
Board of their responsibilities, the Association's agents or employees.
8.1.12 Contracts. To contract for goods and/or services for the Association
Property facilities and interests, for other areas of the Project that is Maintained by the
Association, or for the Association, subject to limitations elsewhere set forth in the
Project Documents.
8.1.13 Limit Number of Guests. To limit the number of an Owner's guests who
may use any facilities on the Association Property.
8.1.14 Title to Association Property. To accept title to the Association Property
conveyed to it by Declarant.
8.1.15 Acquisition of Property. To acquire (by gift, purchase or otherwise), own,
hold, improve, build upon, operate, Maintain, convey, sell, lease, transfer, dedicate for
public use or otherwise dispose of real or personal property in connection with the affairs
of the Association.
8.1.16 Budgets. To prepare budgets and financial statements for the
Association as prescribed in this Declaration.
8.1.17 Legal and Accounting. To obtain and pay the cost of legal, accounting
and other professional services necessary or proper for the Maintenance and operation
of the Project and the enforcement of the Project Documents.
8.1.18 Emergency Repairs. To enter upon any Lot or Residence as necessary
in connection with construction, maintenance or emergency repair for the benefit of the
Association Property or the Owners in common.
8.1.19 Election of the Board of Directors. To elect the Members of the Board.
8.1.20 Filling Vacancies. To fill vacancies on the Board created by the removal
or resignation of a Board Member.
8.2 Property Taxes and Assessments. Each Owner shall be obligated to pay any
taxes or assessments levied by the County Assessor against his/her Lot and personal property.
To the extent not assessed to or paid directly by the Owners, the Association shall pay all real
and personal property taxes and assessments levied upon any portion of the Association
Property or other property owned by the Association. The Association shall prepare and file
T007015611611557-4 -30-01/07/14
annual tax returns with the federal government and the State of California and make such
elections as may be necessary to reduce or eliminate the tax liability of the Association.
8.3 Discharge of liens. The Association shall discharge by payment, if necessary,
any lien against the Association Property, and assess the cost thereof to the OWners
responsible for the existence of said lien.
8.4 Payment of Expenses. The Association shall pay all expenses and obligations
incurred by the Association in the conduct of its business including, without limitation, all
licenses, taxes or governmental charges levied or imposed against the property of the
Association.
8.5 Dispute Resolution. In any dispute in which the Association is a party, the
Association may perform any act reasonably necessary to resolve any such civil claim or action
through dispute resolution proceedings found in Article XIV, as applicable.
ARTICLE IX
ASSESSMENTS
9.1 Agreement to Pay. Declarant, and its successor in interest, if any, for each Lot
owned by it, and each OWner, by acceptance of a deed therefore, whether or not it shall be so
expressed in such deed, covenants and agrees to pay to the Association: (i) Regular Annual
Assessments; (ii) Special Assessments for capital improvements or unusual expenses to be
established and collected as hereinafter provided; and, (iii) Reimbursement Assessments andlor
Additional Charges levied against an OWner, to be established and collected as provided in this
Declaration and in the other Project Documents.
9.1.1 liability for Payment. All Assessments and Additional Charges, together
with any late charges, interest, collection costs and reasonable attorney's fees incurred
in collecting delinquent Assessments and Additional Charges, as provided in California
Civil Code§ 5650(b), shall be the obligation of the Owner of such Lot at the time when
the Assessments or Additional Charges fell due. If more than one person or entity was
the Owner of a Lot at the time the Assessments or Additional Charges fell due, the
obligation to pay each Assessment and Additional Charge shall be joint and several.
The obligation for delinquent Assessments and Additional Charges shall not pass to any
transferee unless expressly assumed by himlher. No Owner may exempt himself from
liability for hislher Assessments or Additional Charges obligation by waiver of the use or
enjoyment of any of portion of the Project.
9.1.2 Funds Held in Trust. The Assessments collected by the Association shall
be held by the Association for and on behalf of each OWner and shall be used solely for
the operation, care and Maintenance of the Project as provided in this Declaration.
9.1.3 No Offsets. No offsets against any Assessment shall be permitted for any
reason including, without limitation, any claim that the Association is not properly
discharging its duties.
9.1.4 Assessments in Dispute. If an OWner has a dispute with the Association
regarding an Assessment levied by the Association, the OWner shall have the option of
(a) paying the disputed amount of the Assessment under protest and filing a small
T007015611611557-4 -31-01/07114
-------·----
claims action (California Civil Code § 5658), (b) request a meeting with the Board to
discuss the possibility of a payment plan, if applicable (California Civil Code § 5665), (c)
request to participate in the "meet and confer" program (California Civil Code § 5900, et
seq.), or (d) or request that the dispute be resolved by alternative dispute resolution with
a neutral third party (California Civil Code § 5925, el seq.), or any combination of the
above.
9.2 Purpose of Assessments. The Assessments levied by the Association shall be
used exclusively for paying the costs of and creating reserves for the costs of all obligations
which the Association is authorized or obligated to perform as described in this Declaration.
9.3 Exemptions from Regular Assessments. Notwithstanding any other provisions of
this Declaration, Declarant and any other Owner may be exempt from the payment of that
portion of any Regular Assessment:
9.3.1 Which is for the purpose of defraying expenses and reserves directly
attributable to the existence and use of Association Property Improvements that are not
complete at the time Assessments commence. Any exemption from the payment of
Assessments shall be in effect only until (a) a Notice of Completion of the Association
Property has been recorded (if required); or, (b) the common facility has been placed
into use, whichever occurs earliest; and/or
9.3.2 Which is for the purpose of defraying expenses and reserves directly
attributable to the existence and use of Association Maintenance Areas on Lots (for
which the Association is obligated to Maintain, repair and/or replace), and which are not
complete and/or installed at the time Assessments commence. The obligation to pay
that portion of Assessments attributable to the Association Maintenance Areas shall
commence upon the date that the Improvements within the Association Maintenance
Areas are complete and no one other than the association has any obligation to
Maintain, repair and/or replace the Improvements in the Association Maintenance Areas.
9.4 Regular Assessments. Regular Assessments shall be payable in equal monthly
installments, due on the first day of each month, unless the Board adopts some other basis for
collection. Notwithstanding any other provisions contained in this Article, the Board may
increase Assessments necessary for emergency situations pursuant to California Civil Code §
5610. If before expiration of any fiscal year the Association fails to fix Regular Assessments for
the next fiscal year, the Regular Assessments established for the preceding year shall continue
until a new Regular Assessment is fixed. Regular Assessments shall include costs and
expenses for the Maintenance, repair and replacement of Association Property and other
portions of the Project that the Association is required to Maintain, repair and replace as set
forth in Article V of this Declaration, and for the management and operation of the Project and
Association, which shall be assessed equally to each Lot.
9.5 Special Assessments. Special Assessments may be levied in addition to
Regular Assessments for (i) constructing capital Improvements, (ii) correcting an inadequacy in
the Current Operating Account; (iii) defraying, in whole or in part, the costs of any construction,
reconstruction, unexpected repair or replacement of Improvements in the Association Property
or in any other areas for which the Association is obligated to Maintain, or (iv) paying for such
other matters as the Boar may deem appropriate for the Project. In addition, the Board may
also levy Special Assessments, as circumstances warrant, to raise funds for unexpected
operating or reserve funds, or the Association's Maintenance, repair and/or replacement of
T0070156/1611557-4 -32-01/07/14
portions of the Association Property. Special Assessments shall be levied in the same manner
as Regular Assessments. Notwithstanding any other provisions contained in this Article, the
Board may impose Special Assessments necessary for emergency situations pursuant to
California Civil Code§ 5610.
9.6 Reimbursement Assessments. The Association shall levy a Reimbursement
Assessment against an Owner to (a) reimburse the Association for the costs of repairing
damage caused by that Owner or that Owner's Invitee, or (b) if a failure to comply with the
Project Documents has necessitated an expenditure of monies, including attorneys' fees, by the
Association to bring the Owner or the OWner's Lot, Residence or Improvements into compliance
or resulted in the imposition of a fine or penalty. A Reimbursement Assessment shall be due
and payable to the Association when levied. A Reimbursement Assessment shall not be levied
by the Association until Notice and Hearing has been given in accordance with the Bylaws.
Reimbursement Assessments described in subpart (a) may be enforced by lien after Declarant
no longer owns any portion of the Project. Reimbursement Assessments described in subpart
(b) may not be enforced by lien.
9. 7 Commencement of Assessments. The right to levy Assessments shall
commence as to all Lots in a Phase on the close of escrow fir the first conveyance of a Lot in
the Phase. Regular Assessments shall commence as to all Lots in a Phase on the first day of
the month following the first conveyance of a Lot under authority of a Final Public Report.
Thereafter, Regular Assessments shall be levied on the first day of each month. After
annexation of each Phase, the allocation and Assessment charges for Common Expenses shall
be reallocated equally among all Lots, including those in the annexed Phase of the Additional
Property. For Model Home Lots, Assessments shall commence on the first day of the first
month following the conveyance of the first Lot to an OWner (other than Declarant) under
authority of a Final Public Report in a Phase of the Project shown in the budget submitted to
and by the BRE; provided, however, if at any time prior to such conveyance, a Model Home Lot
ceases to be used as a Model Home Lot prior to the conveyance of the first lot in the last Phase
of the Project, then Declarant shall provide notice to the Association and the Association shall
make appropriate adjustments to the budget for the Project which is submitted to and approved
by the BRE as may be required to reflect the commencement of Assessments for the Model
Home Lots.
9.8 Accounts. Assessments collected by the Association shall be deposited into at
least two (2) separate accounts with a responsible financial institution, which accounts shall be
clearly designated as (a) the Current Operating Account and (b) the Reserve Account. The
Board shall deposit those portions of the Assessments collected for current maintenance and
operation into the Current Operating Account and shall deposit those portions of the
Assessment collected as reserves for replacement and deferred Maintenance of major
components which the Association is obligated to repair, restore, replace or Maintain into the
Reserve Account.
9.8.1 Reserve Account. Withdrawal of funds from the Reserve Account shall
require the signature of either two (2) Directors or one (1) Director and one (1) Officer of
the Association who is not a Director. The Association may expend funds from the
Reserve Account only for the purposes set forth in California Civil Code§ 5510(b).
9.8.2 Current Operating Account. All other costs properly payable by the
Association shall be paid from the Current Operating Account.
T0070156/1611557-4 -33-01107114
9.9 Enforcement of Assessments. Pursuant to California Civil Code §§ 5300, 5305,
5310, 5320, 5565 and 5730, the Board shall distribute a statement of the Association's policies
and practices in enforcing its remedies against Owners for defaults in the payment of Regular
and Special Assessments, including the recording and foreclosing of liens against Owners' Lots.
In addition to all other remedies provided by law, including, but not limited to, California Civil
Code § 5720, the Association or its authorized representative may enforce the obligations of the
Owners to pay each Assessment provided for in this Declaration in any manner provided by law
or by either or both of the following procedures:
(a) By Suit. The Association may commence and maintain a suit at law
against any Owner personally obligated to pay a delinquent Assessment. The suit shall
be maintained in the name of the Association. Any judgment rendered in any action
shall include the amount of the delinquency, and such Additional Charges, costs, fees,
charges, and expenditures and any other amounts as the court may award. A
proceeding to recover a judgment for unpaid Assessments may be maintained without
the necessity of foreclosing or waiving the lien established herein.
(b) By Lien. The Association or a trustee nominated by the Association may
commence and maintain proceedings to establish and/or foreclose Assessment liens.
No action shall be brought to foreclose a lien until the lien is created by recording a
Notice of Lien. Prior to recording a Notice of Lien, the Association shall comply with the
provisions of California Civil Code § 5705, as may be amended from time to time, or any
successor statute. The Notice of Lien must be authorized by the Board, signed by an
authorized agent and recorded in the Official Records of the County. No later than ten
(10) days after recordation of the Notice of Lien, copies of the Notice of Lien shall be
mailed to all record Owners of the Lot in the manner set forth in California Civil Code §§
2924b and 5710(b). After expiration of the thirty (30) days following the recording of a
Notice of Lien, the lien may be foreclosed subject to the right of redemption as set forth
in California Civil Code§ 5715(b).
9.10 Satisfaction of Lien. All amounts paid by an Owner toward a delinquent
Assessment shall be credited first to reduce the principal amount of the debt. Upon payment or
other satisfaction of a delinquent Assessment for which a Notice of Lien was recorded, the
Association shall record a certificate stating the satisfaction and release of the Assessment lien.
9.11 Lien Eliminated by Foreclosure. If the Association has recorded a Notice of Lien
and the lien is eliminated as a result of a foreclosure of a Mortgage or transfer pursuant to the
remedies provided in the Mortgage, the new Owner of the Lot shall pay to the Association a pro-
rata share of the Regular Assessment for each month remaining in the Association's fiscal year
after the date of the foreclosure or transfer pursuant to the remedies provided in the Mortgage.
9.12 Waiver of Homestead Protections. Each Owner does hereby waive, to the extent
permitted by law, the protections of any declared homestead or homestead exemption or
redemption laws under the laws of the State of California as applied to any action to enforce or
collect Assessments levied by the Association.
9.13 Subordination of Lien. Notwithstanding any provision to the contrary, the liens for
Assessments created pursuant to this Declaration shall be subject and subordinate to and shall
not affect the rights of the holder of a First Mortgage made in good faith and for value. Upon the
foreclosure of any First Mortgage on a Lot, any lien for Assessments which became due prior to
such foreclosure shall be extinguished; provided, however, that after such foreclosure there
T007015611611557-4 -34-01/07/14
shall be a lien on the interest of the purchaser at the foreclosure sale to secure al Assessments,
whether Regular or Special, charged to such Lot after the date of such foreclosure sale, which
lien shall have the same effect and shall be enforced in the same manner as provided herein.
For purposes of this Section, a Mortgage may be given in good faith or for value even though
the Mortgagee has constructive or actual knowledge of the Assessment lien provisions of this
Declaration.
ARTICLE X
AMENDMENT AND ENFORCEMENT OF RESTRICTIONS
1 0.1 Amendment of Declaration.
10.1.1 Prior to First Close of Escrow. Prior to the close of escrow on the
conveyance of the first Lot, Declarant may amend or revoke this Declaration subject to
the requirements of California Business and Professions Code §§ 11012 and 11018.7.
1 0.1.2 After First Close of Escrow. After conveyance of the first Lot, this
Declaration may be amended or revoked only by the affirmative vote (in person or by
proxy) or written consent of Members representing a majority of the voting power of each
class of Members of the Association and, if applicable, by Mortgagees. If only one class
of membership exists at the lime an amendment is proposed, then it must be approved
by at least a bare majority of the total voting power of the Association, which shall
include at least a bare majority of the votes of Members other than Declarant. The
percentage of the voting power necessary to amend a specific clause or provision of this
Declaration shall not be less than the prescribed percentage of affirmative votes required
for action to be taken under that clause or provision. If the approval of two (2) classes of
membership is required, prior approval must be obtained from the FHA and/or VA if
either are First Mortgagees. Any amendment shall be executed by the President and
Secretary of the Association and must be recorded and shall become effective only upon
being recorded in the County Recorder's Office.
10.1.3 Amendments Requiring City Consent -Notice. A copy of any proposed
amendment of this Declaration shall be provided to the City in advance. If the proposed
amendment affects the City, City shall have the right to disapprove. A copy of the final
approved amendment shall be transmitted to City within thirty (30) days for the official
record.
1 0.1.4 Amendments Requiring Institutional Mortgagee Consent. Approval of any
proposed amendment to the Project Documents by Mortgagees shall be implied if a
Mortgagee fails to submit a response to any written proposal for an amendment within
sixty (60) days after it receives proper notice or the proposal, provided the notice to the
Mortgagee was delivered by certified or registered mail, with a 'return receipt"
requested.
(a) Any amendments to the Project Documents of a 'material adverse
nature" to Mortgagees shall require approval of at least fifty-one percent (51%) of
Mortgagees and sixty-seven percent (67%) Owners. Amendments of a 'material
adverse nature" include the following:
(i) Voting rights;
T0070156/1611557-4 -35-01/07/14
(ii) Increases in Assessments that raise previously assessed
amount by more than twenty-five percent (25%), Assessment liens, or the
priority of Assessment liens;
(iii) Reductions in reserves for Maintenance, repair and
replacement of Association Property;
(iv) Responsibility for Maintenance and repairs;
(v) Reallocation of interests in the Association Property or
rights to their use;
(vi) Redefinition of any Lot boundary;
(vii) Convertibility of Lots into Association Property or vice
versa;
(viii) Expansion or contraction of the Project, or the addition,
annexation (except for the Additional Property) or withdrawal of real
property to or from the Project;
(ix) Hazard or fidelity insurance requirements;
(x) Imposition of any restrictions on the leasing of Lots or
Residences;
(xi) Imposition of any restrictions on an Owner's right to sell or
transfer his or her Lot;
(xii) A decision by the Association to establish self-
management when professional management had been required by the
Project Documents or by an Institutional Mortgagee;
(xiii) Restoration or repair of the Project (after damage or partial
condemnation) in a manner other than that specified in the Project
Documents;
(xiv) Any provisions that expressly benefit Mortgage holders,
insurers or guarantors; or
(xv) Any action to terminate the legal status of the Project for
any reason whatsoever.
(b) Prior approval of at least sixty-seven percent (67%) of Mortgagees
and sixty-seven percent (67%) of Owners other than Declarant shall be requited
before the Association may do any of the following:
(i) By act or omission, seek to abandon or terminate the
Project, other than after substantial destruction or condemnation occurs;
(ii) By act or omission, abandon, partition, subdivide,
encumber, sell or transfer any property or Improvements owned, directly
T0070156/1611557-4 -36-01/07/14
or indirectly, by the Association for the benefit of the Lots and Owners
(excepting therefrom, the granting of easements for public utilities or for
other public purposes consistent with the intended use of the Project);
(iii) By act or omission, change, waive or abandon any scheme
of regulations or enforcement thereof pertaining to architectural design or
exterior appearance of Lots, the exterior Maintenance of Lots and
Residences, or the upkeep of laws, plantings or other landscaping in the
Project;
(iv) By act or omission, change the method of determining the
obligations, Assessments, dues or other charges that may be levied
against and Owner;
(v) Fail to maintain the fire and extended coverage insurance
on insurable portions of Association Property on a current replacement
cost basis in an amount not less than one hundred percent (1 00%) of the
insurable value based on current replacement cost; and
(vi) Use hazard insurance proceeds for losses to any property
or Improvements owned by the Association other than for the repair,
replacement or reconstruction of the property and Improvements.
10.1.5 Unilateral Right to Amend the Declaration. The Declarant (at any time
prior to the sale of all Lots in the Project and subject to the provisions of California
Business & Professions Code § 11018. 7) or the Association (upon Declarant's sale of all
Lots in the Project) shall have the unilateral right to amend this Declaration without the
approval of Members in order to bring this Declaration into compliance with all
requirements and regulations of the City, County any Federal or state agency, an insurer
or governmental guarantor of a First Mortgage, or federally insured Mortgagee and/or
lender including, but not limited to, FHA, VA, FNMA and/or FHLMC, or correct any
errors, mistakes or conflicts in the provisions in this Declaration.
10.2 Enforcement.
10.2.1 Generally. The Association, any Owner, including Declarant as an
Owner, or the City as a third party beneficiary, shall have the right, but not the obligation,
to enforce compliance with the Project Documents in any manner provided by law or in
equity, or in bringing an action for damages, an action to enjoin the violation or to
specifically enforce the provisions of the Project Documents, to enforce the liens
provided for herein (except that no Owner shall have the right to enforce independently
of the Association any Assessment. Additional Charges or Assessment lien created
heron) and any statutory lien provided by law, including the foreclosure of any such lien
and the appointment of a receiver for an Owner and the right to take possession of the
Lot in the manner provided by law. In the event the Association or any Owner shall
employ an attorney to enforce the provisions of the Project Documents against any
Owner, the prevailing party shall be entitled to reasonable attorney's fees and costs in
addition to any other amounts due as provided for herein. All sums payable hereunder
by an Owner shall bear interest at the maximum rate permitted by law from the due date
less any grace period provided, or if advanced or incurred by the Association or any
other Owner pursuant to authorization contained in the Project Document commencing
T0070156!1611557-4 -37-01107/14
fifteen (15) days after repayment is demanded. Except as otherwise provided, the
Association or any Owner(s) shall have the right, but not the obligation, to enforce, in
any manner permitted by law or in equity, any and all of the provisions of this
Declaration.
10.2.2 Enforcement by Declarant. Declarant shall have the right, but not the
obligation, to enforce the provisions of this Declaration while it is still a record owner of at
least one (1) Lot, including any decision made by the ACC, in any manner provided by
law or in equity, and in any manner provided in this Declaration. The provisions of this
Declaration are equitable servitudes and covenants running with the land, enforceable
by Declarant against the Association and/or an Owner, tenant or occupant of any Lot in
the Project. Declarant has no obligation to enforce any provision of this Declaration.
Declarant may elect to enforce any provision of this Declaration at any time against the
Association, or any Owner and no such action shall be construed to imply any obligation
on the part of Declarant to enforce the same provision against another Owner.
1 0.2.3 General Enforcement by the City. Notwithstanding the above, the City
shall have the right, but not any duty or obligation, to enforce the terms and conditions of
this Declaration in favor of, or in which the City has an interest. In addition, the City shall
be entitled to the following rights:
(a) Failure of Association to Maintain. In the event that the
Association fails to Maintain Association Property and/or Association
Maintenance Areas, as provided in Article V, Sections 5.1 and 5.2 of this
Declaration, 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 Project, 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
and/or Association Maintenance Areas within the period specified by the City's
notice, the City shall be entitled to cause such work to be completed and shall be
entitled to reimbursement with respect thereto from the Owners as provided
herein.
(b) Special Assessments Levied by the City. In the event the City has
performed the necessary maintenance to either Association Property and/or
Association Maintenance Areas, the City shall submit a written invoice to the
Association for all costs incurred by the City to perform such maintenance of
Association Property and/or Association Maintenance Areas. The City shall
provide a copy of such invoice to each Owner in the Project, together with a
statement that if the Association fails to pay such invoice in full withih the time
specified, the City will pursue collection against the Owners in the Project
pursuant to the provisions of this Section. Said invoice shall be due and payable
by the Association within twenty (20) days of receipt by the Association. If the
Association shall fail to pay such invoice in full within the period specified,
payment shall be deemed delinquent and 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
T007015611611557 -4 -38-01/07/14
other rights and remedies available to the City, the City may levy a special
assessment against the Owners of each Lot in the Project 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 Lot
against which the special assessment is levied. Each Owner in the Project
hereby vests the City with the right and power to levy such special assessment,
to impose a lien upon their respective Lot and to bring all legal actions and/or to
pursue lien foreclosure procedures against any Owner and his/her respective Lot
for purposes of collecting such special assessment in accordance with the
procedures set forth in Article IX of this Declaration.
10.2.4 Violation of Law. The Association may treat any Owner's violation of any
state, municipal or local law, ordinance or regulation which creates a nuisance to other
Owners in the Project or to the Association or pertaining to the ownership, occupation or
use of any property, Lot, Residence or Association Property, within the Project is hereby
declared to be a violation of the Project Documents and subject to any or all of the
enforcement procedures set forth in this Declaration as long as the Associations
complies with the Notice and Hearing requirements.
10.2.5 Remedies Cumulative. Each remedy provided by this Declaration is
cumulate and not exclusive.
10.2.6 No Waiver. The failure to enforce the provisions of any covenant,
condition or restriction contained in this Declaration shall not constitute a waiver of any
right to enforce any such provisions or any other provisions of this Declaration for the
same or different violation thereof.
ARTICLE XI
BUDGETS AND FINANCIAL STATEMENTS
11.1 Preparation and Distribution of Budget. The Board shall annually prepare, adopt
and distribute a Budget in accordance with the requirements of California Civil Code §§ 5300,
5305, 5320, and 5565. A summary of the Budget may be distributed in lieu of the entire Budget
if the requirements set forth in California Civil Code § 5300 are satisfied.
11.2 Annual Report. The Board shall annually prepare and distribute an annual report
in accordance with the requirements of California Civil Code §§ 5300, 5305, 5310, 5320, 5565
and 5730.
11.3 Quarterly Reconciliation. Pursuant to California Civil Code § 5500, at least
quarterly, the Board shall: {i) cause a current reconciliation of the Association's Current
Operating Account{s) to be made and review the same: (ii) cause a current reconciliation of the
Association's Reserve Account to be made and review the same; (iii) review the current year's
actual reserve revenues an expense compared to the current year's Budget; (iv) review the
most current account statements prepared by the financial institution where the Association has
its Current Operating and Reserve Accounts; and (v) review an income and expense statement
for the Association's Current Operating and Reserve Accounts.
11.4 Reserve Account Study. The Board shall (i) cause a study of the Reserve
Account to be conducted, (ii) review the study annually, and (iii) consider and implement
T0070156/1611557-4 -39-01/07/14
necessary adjustments to the Board's analysis of the Reserve Account requirements as a result
of that review in compliance with the provisions of California Civ11 Coda § 5550.
11.5 Notice of Increased Assessments. The Board shall provide notice by first-class
mail to the Owners of any increase in Regular Assessments or the levy of any Special
Assessments in accordance with the provisions of California Civil Code§ 5615.
11.6 Statement of Outstanding Charges. Wrthin ten (1 0) days of a written request by
an Owner, the Association shall provide to the Owner a written statement which sets forth the
amounts of delinquent Assessments, penalties, attorney's fees and other Additional charges
against that Owner's Lot. A charge for the statement may be made by the Association, not to
exceed the reasonable costs of preparation and reproduction of the statement.
11.7 Owner's Right to Conduct an Independent Audit. Each Owner shall have the
right to conduct an independent audit of the Association's financial records at the Owner's
expense. The financial records that may be made available to the requesting Owner shall
comply with California Civil Code§§ 5200, et seq.
ARTICLE XII
INSURANCE. DESTRUCTION AND CONDEMNATION
12.1 Insurance. The Association shall maintain casualty, liability and other insurance
on behalf of the Association as required by the provisions of this Declaration. The amount, term
and coverage of any policy required hereunder (including the type of 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 satisfy the minimum
requirements for the Project by the FNMA, FHLMC, or any successor to either of those entities
(with the exception of earthquake insurance which the Board shall have complete discretion to
purchase). If the FNMA or FHLMC requirements conflict, the more stringent requirements shall
be met. If FNMA and FHLMC do not impose requirements on any policy required hereunder,
the term, amount and coverage of such policy(ies) shall be no less than that which is customary
for similar policies on similar projects in the area. If the Association is unable to purchase a
policy or if the Association believes that the cost of the policy is unreasonable, the Board shall
call a special meeting of Members to determine what action to take.
12.2 General Provisions and Limitations. All insurance policies shall be subject to
and, where applicable, shall contain he following provisions and limitations:
12.2.1 Underwriter. All policies (except earthquake insurance) shall be written
with a company legally qualified to do business in the State of California and holding a
"B" or better general policyholder's rating and a "6" or better financial performance index
rating as established by Best's Insurance Reports, reinsured by a company described
above, or if such a company is not available, the best rating possible or its equivalent.
12.2.2 Named Insured. Unless otherwise provided in this Section, the named
insured shall be the Association or its authorized representative, as trustee for the
Owners. However, all policies shall be for the benefit of Owners and their Mortgagees,
as their interests may appear.
T007015611611557-4 -40-01/07/14
12.2.3 Authoritv to Negotiate. Exclusive authority to adjust losses under policies
obtained by the Association shall be vested in the Board or its authorized representative
as trustee who shall have exclusive authority to negotiate losses under any policy
provided property or liability insurance to perform such other functions as are necessary
to accomplish this purpose; provided, however, that no Mortgagee having an interest in
such losses may be prohibited from participating in any settlement negotiations related
thereto.
12.2.4 Contribution. In no event shall the insurance coverage obtained and
maintained by the Association be brought into contribution with insurance purchased by
Owners or their Mortgagees.
12.2.5 General Provisions. To the extent possible, the Board shall make every
reasonable effort to secure insurance policies providing for the following:
(a) A waiver of subrogation by the insurer as to any claims against the
Board, the manager, the Owners and their respective servants, agents and
guests;
(b) That the policy will be primary, even if an Owner has other
insurance which covers the same loss;
(c) That no policy may be canceled or substantially modified without
at least ten (10) days prior written notice to the Association and to each First
Mortgagee listed as a scheduled holder;
(d) An agreed amount endorsement, if the policy contains a
coinsurance clause;
(e) A guaranteed replacement cost or replacement cost endorsement;
and
(f) An inflation guard endorsement.
12.2.6 Term. The period of each policy shall not exceed three (3) years. Any
policy for a term greater than one ( 1) year must permit short rate cancellation by the
insureds.
12.2.7 Deductible. The policy may contain a reasonable deductible and the
amount of the deductible shall be added to the face amount of the policy in determining
whether the insurance equals replacement cost.
12.3 Types of Coverage. Unless the Association determines otherwise pursuant to
Section 12.1, the Board shall obtain at least the following insurance policies in the amounts
specified:
12.3.1 Prooertv Insurance. A Special Form or "All Risk" policy of property
insurance for all insurable Association Property Improvements and Association
Maintenance Areas, including fixtures and building service equipment, against loss or
damage by fire or casualty, in an amount equal to the full replacement cost (without
respect to depreciation) of the Association Property, and exclusive of land, foundations,
T0070156/1611557-4 -41-01/07/14
excavation and other items normally excluded from coverage. A replacement cost
endorsement shall be part of the policy.
12.3.2 Liability Insurance. A combined single limited policy of liability insurance
in an amount not less than Two Million Dollars ($2,000,000) covering the Association
Property and all damage or injury caused by the negligence of the Association, the
Board or any of its agents, or the Owners against any liability to the public or to any
Owner incident to the use of or resulting from any accident or intentional or unintentional
act of an Owner or a third party occurring in or about any Association Property. If
available, each policy shall contain a cross liability endorsement in which the rights of
the named insured shall not be prejudiced with respect to any action by one named
insured against another named insured.
12.3.3 Worker's Compensation. Worker's compensation insurance to the extent
necessary to comply with all applicable laws of the State of Califomia or the regulations
of any governmental body or authority having jurisdiction over the Project.
12.3.4 Fidelity Bond. A fidelity bond naming the Board, the Owners, the
Association and such other persons as the Board may designate as obliges, in an
amount equal to at least one-fourth (Y.) of the total sum budgeted for the Current
Operating Account and Reserve Account for the current fiscal year. The fidelity bond
shall contain a waiver of any defense based on the exclusion of person serving without
compensation.
12.3.5 Directors and Officers. Errors and omissions insurance coverage
individual liability of Directors and Officers for their negligent acts or omissions while
acting in their capacities as Directors and Officers in an amount equal to at least the
minimum amount specified in California Civil Code§ 5800(a)(4).
12.3.6 Other Insurance. Other types of insurance as the Board may determine
in its sole discretion to be necessary to fully protect the interests of the Owners and
Association.
12.4 Waiver of Subrogation. All insurance carried by the Association, or the owners,
shall contain provisions whereby the insurer waives rights of subrogation as to the Association,
Directors, Officers, Declarant, Owners, occupants of Lots or Residences, their family, guests,
agents and employees.
12.5 Insurance by Owner. Each Owner shall obtain and maintain, at his/her expense,
fire and casualty coverage as may be required by the Owner's individual Mortgagee, or if no
Mortgagee encumbers a Lot, fire and casualty coverage as may be determined by the Board,
with respect to damage or destruction to Improvements within Owner's Lot and Residence,
provided, however, that no Owner shall be entitled to maintain insurance coverage in a manner
so as to decrease the amount which the Association, on behalf of all Owner and their
Mortgagees, may realize under any insurance policy which the Association may have in effect at
any time. All such individually carried insurance shall also contain a waiver of subrogation rights
by the carrier as to ather Owners, the Association, Declarant and Eligible First Mortgagee of
such Lot. Each Owner is strongly urged to contact an insurance specialist to determine the
appropriate type and amount of insurance including insurance to cover those portions of the Lot
and Residence not covered by the policy held by the Association. If a policy carried by the
Association offers coverage for a claim made by an Owner as a result of damage to any
T0070156/1611557-4 -42-01/07/14
Improvement or personal property within a Lot or Residence, the Owner shall be responsible for
paying any deductible, if the Owner wishes to adjust the claim under the Association's policy.
12.6 Annual Review of Policies. The Board shall review the adequacy of all
insurance, including the amount of liability coverage and the amount of property damage
coverage, at least once a year. At least once every three (3) years, the review shall include a
replacement cost appraisal of all insurable Association Property Improvements, Association
Maintenance Areas, and Improvements that the Association is obligated to Maintain without
respect to depreciation. The Board shall adjust the policies to provide the amounts and types of
coverage and protection that are customarily carried by prudent owners of similar property in the
area in which the Project is situated.
12.7 Payment of Premiums. Premiums on insurance maintained by the Association
shall be a component of Common Expenses funded by Assessments levied by the Association.
12.8 Damage or Destruction.
12.8.1 Association. The Board shall have the duty to repair and reconstruct the
Association Property and Association Maintenance Areas without the consent of
Members and irrespective of the amount of available insurance proceeds or other funds,
in all instances of partial damages destruction where the estimated cost of repair and
reconstruction does not exceed five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year. If there is total damage or destruction of any
Improvement, including Association Property or Association Maintenance Areas, which
are insured under an insurance policy held by the Association, the Association shall
proceed with the filing and adjustment of all claims arising under the existing policies to
restore, rebuild and reconstruct such Improvements to substantially the same condition
and appearance in which it existed prior to the damage or destruction. The insurance
proceeds shall be paid to and held by the Association.
(a) Bids. Whenever restoration, rebuilding or reconstruction is to be
performed pursuant to this Section 12.8.1, the Board shall obtain such bids from
responsible licensed contractors to restore the damaged Improvements as the
Board deems reasonable, and the Board, on behalf of the Association, shall
contract with the contractor whose bid the Board deems to be the most
reasonable.
(b) Proceeds. The costs of restoring, rebuilding or reconstructing the
damaged Improvements shall be funded pursuant to the provisions and in the
priority established in this Section 12.8.1. A lower priority procedure shall be
utilized only if the aggregate amount of funds then available pursuant to the
procedures of higher priority as insufficient to restore the damaged
Improvements. The priorities are as follows:
10070156/1611557-4
(i) Any and all insurance proceeds paid to the Association
under existing insurance policies.
(ii) Any and all reserve account funds designated for the
repair or replacement of the lmprovement(s) that has been damaged or
destroyed.
-43-01/07/14
(iii) Any funds raised by a Special Assessment against all
Owners levied by the Board up to the maximum amount permitted without
approval of the Members as allowed by law.
(iv) Any funds raised by a Special Assessment against all
Owners levied by the Board pursuant to a vote of the Members pursuant
to Section 12.8.1(c) below.
(c) Additional Special Assessment. If the total funds available
pursuant to Section 12.8.1 (b) are insufficient to restore, rebuild or reconstruct the
damaged or destroyed lmprovement(s). then a special meeting of the Members
shall be called for the purpose of voting whether to impose an additional Special
Assessment and deciding upon the amount thereof. The Board shall then
contract for the restoration, rebuilding or reconstruction of the damaged
lmprovement(s) as described above, making use of all funds available to it.
12.8.2 Owners. If all or any portion of a Lot or Residence is damaged or
destroyed by fire or other casualty and the loss is not covered by an insurance policy
held by the Association, the Owner(s) of the Improvement shall either (a) restore the
damaged Improvements or (b) remove all damaged Improvements, including foundation
and leave the Lot in a clean and safe condition. Any restoration, rebuilding or
reconstruction under subdivision (a) above must be performed so that the Improvements
are in substantially the same condition in which they existed prior to the damage or
destruction, unless the Owner complies with the provisions of Article VI of this
Declaration. Unless extended by the Board, the Owner must commence such work
within one hundred twenty (120) days after the damage occurs and must complete the
work within one (1) year thereafter.
12.9 Condemnation.
12.9.1 Condemnation Affecting Association Property.
(a) Sale in Lieu. If an action for condemnation of all or a portion of
Association Property is proposed or threatened by an entity having the right to
eminent domain, then on the unanimous written consent of all of the Owners, and
subject to the rights of all Mortgagees, if any, Association Property, or a portion
of it, may be sold by the Board. Subject to California Corporations Code § 8724,
the proceeds of the sale shall be distributed among the Lots on the same basis
as their Regular Assessment obligations and between the Owners and their
Mortgagees as their respective interests shall appear; provided, however, there
shall be no reallocation of interests in Association Property resulting from a
partial condemnation or partial destruction of the Project may be effected without
approval of at least fifty-one percent (51%) of Eligible First Mortgagees.
(b) Award. If Association Property, or a portion of it, is not sold, but is
instead taken, the judgment of condemnation shall by its terms apportion the
award among the Owners and their respective Mortgagees. If the judgment of
condemnation does not apportion the award, then the award shall be distributed
as provided above.
T0070156/1611557-4 -44-01/07/14
12.9.2 Condemnation Affecting Lots. If an action for condemnation of all or a
portion of, or otherwise affecting a Lot is proposed or threatened, the Owner and the
Mortgagees of the affected Lot, as their respective interests shall appear, shall be
entitled to the proceeds of any sale or award relating to the affected Lot. If any Lot
and/or Residence is rendered irreparably uninhabitable as a result of such a taking, the
Lot shall be deemed deleted from the Project and the Owners and Mortgagees of the
affected Lot, upon receiving the award and any portion of the reserve funds of the
Association reserved for the Lot, if any, shall be released from the applicability of the
Project Documents and deemed divested of any interest in the Association Property.
Any restoration or repair of the Residence after a partial condemnation or damage due
to an insurable hazard shall be substantially in accordance with the Declaration and the
original plans and specifications unless approval of fifty-one percent (51%) of the First
Mortgagees is obtained. Any action to terminate the Project after substantial destruction
or condemnation of the Project occurs or for other reasons to be agreed to by
Mortgagees shall require approval of at least fifty-one percent (51%) of Mortgagees.
ARTICLE XIII
MORTGAGEE PROTECTIONS
13.1 Mortgages Permitted. Any Owner may encumber his/her Lot with Mortgages.
13.2 Priority of Mortgage. Notwithstanding any other provision of this Declaration, it is
hereby provided that a breach of any of the conditions contained in the Project Documents by
any Owner or of any re-entry by reason of such breach shall not defeat or render invalid the lien
thereof. Any lien which the Association may have on any Lot in the Project for the payment of
Assessments attributable to such Lot will be subordinate to the lien or equivalent security
interest of any First Mortgage on the Lot recorded prior to the date of recordation of a Notice of
Lien.
13.3 Rights of Institutional Mortgagees. Any Institutional Mortgagee who obtains title
to a Lot pursuant to the remedies provided in the First Mortgage, including judicial foreclosure
under a power of sale (but excluding voluntary conveyance to the First Mortgagee). shall not be
liable for the Lot's unpaid Regular Assessments, including Additional Charges, accrued prior to
acquisition of title by the Institutional Mortgagee. Thereafter, the Institutional Mortgagee, as
Owner of the Lot shall be obligated to pay any and all future Assessments levied against the Lot
as long as the Institutional Mortgagee remains in title, including any Special Assessments levied
by the Association to raise funds needed because of uncollected delinquent Assessments, as
long as the Special Assessment is allocated among all of the Lots as provided in Article IX of
this Declaration.
13.4 Rights of Mortgagees Upon Default of Mortgagor. In the event of a default by
any Owner in any payment due under the terms of any Mortgage held by an Institutional
Mortgagee encumbering a Lot, or the promissory note secured by the Mortgage, the Mortgagee
or his or her representative, upon giving written notice to such defaulting Owner and the
Association, and placing of record a notice of default, is hereby granted a proxy and may
exercise the voting rights of such defaulting Owner attributable to such Lot at any regular or
special meeting of the Association held during such time as such default may continue. Unless
such written notice is provided to the defaulting Owner and the Association, any Mortgagee may
appear (but cannot vote) at meetings of Members and the Board to draw attention to violations
T007015611611557-4 -45-01/07/14
of this Decl;;~ration that have not been corrected or made the subject of remedial proceedings or
Reimbursement Assessments.
13.5 Payment of Taxes or Premiums by Mortgagees. Mortgagees may, jointly or
singly, pay taxes or other charges which are in default and which may or have become a charge
against the Association Property, unless such taxes or charges are separately assessed against
the Owners, in which case the rights or Mortgagees shall be governed by the provisions of their
Mortgages. Mortgagees may, jointly or singly, also pay overdue premiums on hazard insurance
policies or secure new hazard insurance coverage on the lapse of a pol icy for the Association
Property and Mortgagees making such payments shall be owed immediate reimbursement
therefor from the Association. Entitlement to such reimbursement shall be reflected in an
agreement in favor of any Mortgagee which requests the same to be executed by the
Association.
13.6 Effect of Breach. No breach of any provision of this Declaration shall invalidate
the lien of any Mortgage made in good faith and for value, but all of the covenants, conditions
and restrictions shall be binding on any Owner whose title is derived through foreclosure sale,
trustee's sale, or otherwise.
13.7 Conflict with Declaration. To the extent that any of the provisions of this
Declaration conflict with the rules and regulations of FNMA, FHA, VA and/or FHLMC for those
Lots in which these entities are either holders, insurers or guarantors of a First Mortgage on said
Lot, the rules and regulations of FNMA, FHA, VA and/or FHLMC shall control.
13.8 Notice to Mortgagees. First Mortgagees are entitled to timely written notice from
the Association, if requested, of (a) any condemnation or casualty loss that affects a material
portion of the Project or the Lot securing the Mortgage; (b) any sixty (60) day delinquency in the
payment of Assessments or Additional Charges owed by the Owner of any Lot on which it holds
the Mortgage if the delinquency is not cured within sixty (60) days after its due date; (c) a lapse,
cancellation or material modification of any insurance policy maintained by the Association; (d)
any proposal to take any action specified in this Article, or Article XII, Sections 12.8 and 12.9;
(e) any default by the Owner of a Lot that is subject to a First Mortgage held by the First
Mortgagee in the performance of his or her obligations under this Declaration or the Bylaws
which is not cured within sixty (60) days; and (f) any proposed action that requires the consent
of a specified percentage of First Mortgagees.
13.9 Inspect Books and Records. Any Owner, First Mortgagee and insurers of any
First Mortgage shall be entitled to inspect and copy the books, records, financial statements, the
Declaration, Bylaws and Association Rules of the Association. The Association shall also make
available to prospective purchasers of Lots current copies of the Declaration, Bylaws.
Association Rules and the most recent annual audited financial statement, if any is prepared.
The Association must provide an audited financial statement for the immediately preceding
fiscal year if the First Mortgagee submits a written request for it. Said financial statement shall
be furnished by the Association within a reasonable time following such request.
ARTICLE XIV
DISPUTE RESOLUTION PROCEDURES
14.1 In General. This Article XIV contains procedures concerning disputes between
Owners, the Association and the Declarant related to the Project or each other. The procedures
T0070156/1611557-4 -46-01/07/14
in this Article XIV do not apply to Declarant's normal customer service procedures, and Owners
are encouraged to resolve any potential disputes or claims through Declarant's normal customer
service procedures prior to initiating the procedures in this Article. This Article contains
alternative dispute resolution procedures that include a waiver of a trial by a jury. Each
Owner is advised to read these procedures carefully and consult with legal counsel if
there are any questions.
14.2 Disputes Between Association and Owners. All disputes, controversies, claims
and demands between the Association and any Owner pertaining to the subject areas described
in California Civil Code § 5900 shall be governed by the procedures set forth in this Section
14.2.
14.2.1 Election of Statutory Procedures. Except as excused by law, prior to the
initiation of a Request for Resolution or any legal proceeding, the Association and any
Owner shall "meet and confer" using the procedures set forth in California Civil Code §§
5900-5920, as amended from time to time, and any successor statute.
14.2.2 Request for Resolution. If the Association and Owner are unable to
resolve their dispute, controversy, claim or demand through the "meet and confer"
procedures of California Civil Code §§ 5900-5920, and to the extent applicable, prior to
the initiation of any legal proceeding action, the parties shall comply with the Request for
Resolution procedures set forth at California Civil Code§§ 5925, et seq.
14.2.3 Attorney's Fees and Costs. In any action, including arbitration andtor civil
action, between the Association and any Owner to enforce the Project Documents
(excluding Declarant), the prevailing party shall be entitled to recover reasonable
attorney's fees and costs, pursuant to California Civil Code§ 5975.
14.3 Notice of Non-Adversarial Procedures.
14.3.1 Right to Repair Act. California Civil Code§§ 895 et seq., contained in the
Right to Repair Act governs standards and procedures for the resolution of construction
defect matters in residential developments and became effective as of January 1, 2003.
The legislative intent of the Right to Repair Act is. in part, to "improve the procedures for
the administration of civil justice, including standards and procedures for early
disposition of construction defects.· The Right to Repair Act seeks to afford both
homeowners and builders the opportunity for quick and fair resolution of construction
defect claims. The Right to Repair Act (a) establishes statutory definitions and
"functionality standards' for construction defects based upon how a home, common area
and its components should function ("Performance Standards'); (b) divides the
Performance Standards into categories such as water intrusion, structural and soils
related issues, fire protection issues, plumbing and sewer issues, electrical systems and
other areas of construction; (c) specifies that the components of a home must meet the
Performance Standards for specified periods that range from one (1) year to ten (10)
years as set forth in the Right to Repair Act; (d) excuses a builder from its obligations
under the Right to Repair Act if a homeowner fails to properly maintain the home, the
homeowners association fails to properly maintain common area, fails to promptly notify
lhe builder of damage, fails to permit builder access to inspect the home or common
area, or if damage to a component is caused by a third party or act of nature or under
certain other circumstances specified in the Right to Repair Act; (e) provides builders an
absolute right to repair violations of the Performance Standards before the homeowner
T007015611611557-4 -47-01/07/14
or homeowners association may file a suit or initiate alternative dispute resolution; (f)
establishes specific 'pre-litigation" or "non-adversarial' procedures for handling claims
for the violation of the Performance Standards (California Civil Code §§ 910 through
938, inclusive) ("Act Dispute Procedures") and strict time periods for a homebuilder to
respond to a claim; and (g) requires builders to maintain and provide to homeowners
and homeowners associations under certain circumstances specified information such
as plans, specifications, reports and maintenance guidelines.
14.3.2 Copy of Right to Repair Act. Pursuant to the Right to Repair Act
(California Civil Code § 912(g)), Declarant is required to provide and has provided to
each OWner and the Association a copy of Part 2 of Division 2 of the California Civil
Code which contains the Right to Repair Act (California Civil Code §§ 895 through
945.5, inclusive). The Right to Repair Act impacts the legal rights of each OWner and
the Association. The general description of certain provisions of the Right to Repair Act
set forth in Section 14.3.1 above is only a brief list, and Declarant recommends that each
Owner and the Association carefully read the entire text of the Right to Repair Act to
understand all terms and conditions.
14.3.3 Notice of Compliance with the Standards. The Performance Standards
include forty-five {45) separate standards in seven (7) different categories and provide
broad protection for California homeowners. Under the Right to Repair Act Declarant is
entitled to adopt performance standards other than the Performance Standards;
however, Declarant has elected not to adopt such alternate standards and to comply
with the Performance Standards. Therefore the Performance Standards shall govern
the rights and obligations of the owners and homeowners association, on the one hand,
and Declarant, on the other hand, with respect to any construction defect claims
regarding the Project, Association Property and/or Lots.
14.3.4 Notice of Claims !Aqentl: Access. The Act Dispute Procedures require
that if an Owner or the Association makes a claim for damages arising from the violation
of any of the Performance Standards, the claimant shall provide (a) the required notice
to Declarant's agent for notice of claims under the Right to Repair Act at the following
address:
Taylor Morrison of California, LLC
Attn: Tom Baine
81051rvine Center Drive, Suite 1450
Irvine, CA 92618
(See California Civil Code § 910) by certified mail, overnight mail or personal delivery,
and (ii) access to the Property in accordance with the Right to Repair Act for Declarant
to conduct inspections and testing and to perform repairs. The failure of a claimant to
provide Declarant with reasonable and timely access for inspections and repairs may
limit claimant's ability to recover damages for a claim (California Civil Code § 945.5(b)).
The foregoing notice requirements do not preclude a claimant from seeking redress
through Declarant's normal customer service procedures or under Declarant's Warranty
and any manufacturers' limited warranties (California Civil Code§ 910(b)).
14.3.5 Notice of Compliance with Act Dispute Procedures. Although the Right to
Repair Act allows Declarant to "opt out" of the Act Dispute Procedures and to require the
use of alternative non-adversariai contractual provisions (California Civil Code § 914),
T0070156/1611557-4 -48· 01/07/14
Declarant has elected to be governed by the Act Dispute Procedures. If, for any reason,
a dispute governed by the Right to Repair Act is not resolved by the Act Dispute
Procedures, each Owner or the Association, as applicable, and Declarant agree to have
such dispute resolved in accordance with the binding arbitration procedures set forth
below in Section 14.4. Declarant also requires ~s subcontractors, consultants and
suppliers to (a) comply with the Right to Repair Act pursuant to the terms of its contracts
with such parties, and (b) cooperate in good faith with Declarant in resolving disputes
governed by the Right to Repair Act. Each Owner and the Association has
acknowledged that Declarant has provided this notice that the parties will be bound by
the Act Dispute Procedures for the resolution of construction defect claims regarding the
Project, Association Property, Lot and Residence, notice of the existence of the Act
Dispute Procedures and notice that such procedures impact the legal rights of the
Owners and the Association, as applicable, as required by California Civil Code§ 912(!).
14.3.6 Receipt of Documents. Each Owner and the Association acknowledge
that they have received and may in the future receive certain agreements, disclosures
and documents in connection with the Lot, Residence, Association Property and/or the
Project, as applicable (collectively, the "Documents'). Each Owner and the Association
shall maintain a full and complete copy of the Documents. Each Owner shall provide
any subsequent buyer of the Lot a complete copy of the Documents as required by the
Right to Repair Act (California Civil Code§ 912(h)), including, without limitation, a copy
of the Homeowners Manual or other maintenance or preventative maintenance
information provided or to be provided by Declarant to Owners; all manufactured
products maintenance, preventative maintenance and limited warranty information
provided by Declarant to each Owner and the Warranty provided by Declarant. Each
Owner shall instruct subsequent buyers of the Lot to provide to their subsequent buyers
a complete copy of the Documents. The Association shall provide any subsequent
board of directors or other governing body a complete copy of the Documents as
required by the Right to Repair Act (California CivH Code § 912(h)), including, without
limitation, a copy of any maintenance or preventative maintenance information provided
or to be provided by Declarant; all manufactured products maintenance, preventative
maintenance and limited warranty information provided by Declarant and the Warranty
provided by Declarant. The board of directors shall instruct subsequent boards of
directors to provide to their subsequent boards of directors a complete copy of the
Documents.
14.3.7 Maintenance and Preventative Maintenance Schedules and Obligations.
Each Owner and the Association acknowledge that Declarant has provided them with
the maintenance and preventative maintenance schedules and obligations pertaining to
the Lots, Residences and/or Association Property, as applicable. Notwithstanding the
foregoing, Declarant reserves the right, by written notice, to supplement and/or amend
such maintenance and preventative maintenance schedules and obligations from time to
time. Each Owner and the Association also acknowledge that by law, they are obligated
to follow all reasonable maintenance and preventative maintenance schedules and
obligations communicated in writing by Declarant as well as all commonly accepted
maintenance practices. Each Owner and the Association covenant to faithfully follow all
maintenance and preventative maintenance schedules and obligations applicable to the
Lots, Residences and/or Association Property, as applicable, and shall require and
cause any tenant or lessee of the Lots and/or Association Property, to follow all such
schedules and obligations.
T007015511611557·4 -49-01/07/14
14.3.8 Manufactured Products Maintenance and Limited Warranty Information.
Each Owner and the Association acknowledge that Declarant has provided them with
the manufactured product maintenance. preventative maintenance and limited warranty
information pertaining to the Lots, Residences and/or Association Property, as
applicable. Notwithstanding the foregoing, Declarant reserves the right, by written
notice, to supplement and/or amend such manufactured product maintenance,
preventative maintenance and limited warranty information from time to time. Each
Owner and the Association also acknowledge that by law, they are obligated to follow all
reasonable maintenance and preventative maintenance schedules and obligations
communicated in writing from Declarant as well as commonly accepted maintenance
practices. Each Owner and the Association covenant to faithfully follow all such
maintenance and preventative maintenance schedules and obligations contained in all
such manufactured product maintenance, preventative maintenance and limited
warranty information, and shall require and cause any tenant or lessee of the Lots and/or
Association Property to follow all such schedules and obligations.
14.3.9 No Enhanced Protection Agreement. Nothing in this Section 14.3 is
intended to constitute, or shall be interpreted to constitute, an "enhanced protection
agreement" as defined in Section 901 of the California Civil Code.
14.3.10 lndemnitv of Declarant. Each Owner and the Association shall
indemnify, defend and hold Declarant harmless for any loss, cost or damages arising
from an Owner's or the Association's failure to carry out their respective obligations
under the terms of this Section 14.3 as to the Lots and/or Association Property.
14.3.11 Purpose of Section 14.3 Notice. The provisions of this Section
14.3 were prepared for the purpose of recordation of notice of non-adversarial
procedures that apply to certain claims relating to Lots, Residences, Association
Property and/or the Project and notice of the obligation of purchasers of any portion of
the Project to provide copies of the Documents to subsequent purchasers.
14.3.12 Amendment or Revocation. Prior to the close of escrow of any
Unit within the Project, Declarant shall have the unilateral right to revoke or amend this
Section 14.3 as it relates to such Lot or Association Property by recording an
instrument amending or revoking Section 14.3 and any such amendment or revocation
shall not impair the effect of this Section 14.3 as to any other portion of the Project not
covered by the amendment or revocation. No consent from any Institutional Mortgagee shall
be required as a condition to any such revocation or amendment.
14.4 Disputes Between Association/Owner and Declarant.
14.4.1 Applicability. ANY AND All CLAIMS, CONTROVERSIES,
BREACHES OR DISPUTES BY OR BETWEEN THE ASSOCIATION OR ANY
OWNER(S), ON THE ONE HAND, AND DECLARANT, ON THE OTHER HAND,
ARISING OUT OF OR RELATED TO THE PURCHASE AGREEMENT, THE LOT,
RESIDENCE, ASSOCIATION PROPERTY, THE PROJECT OR COMMUNITY OF
WHICH THE LOT, RESIDENCE, AND ASSOCIATION PROPERTY ARE A PART, THE
SALE AND CONVEYANCE OF LOTS, RESIDENCES AND ASSOCIATION
PROPERTY BY DECLARANT, OR ANY TRANSACTION RELATED HERETO,
WHETHER SUCH DISPUTE IS BASED ON CONTRACT, TORT, STATUTE, OR
EQUITY, INCLUDING WITHOUT LIMITATION, ANY DISPUTE OVER (a) THE
T0070156/1611557-4 -50-01/07/14
DISPOSITION OF ANY DEPOSITS, (b) BREACH OF CONTRACT, (c) NEGLIGENT
OR INTENTIONAL MISREPRESENTATION OR FRAUD, (d) NONDISCLOSURE, (e)
BREACH OF ANY ALLEGED DUTY OF GOOD FAITH AND FAIR DEALING, (f)
ALLEGATIONS OF LATENT OR PATENT DESIGN OR CONSTRUCTION DEFECTS,
INCLUDING WITHOUT LIMITATION, PURSUANT TO THE RIGHT TO REPAIR ACT,
BUT ONLY TO THE EXTENT NOT RESOLVED BY THE RIGHT TO REPAIR ACT
DISPUTE PROCEDURES AS PROVIDED THEREIN, (g) THE PROJECT, INCLUDING
WITHOUT LIMITATION, THE PLANNING, SURVEYING, DESIGN, ENGINEERING,
GRADING, SPECIFICATIONS, CONSTRUCTION OR OTHER DEVELOPMENT OF
THE PROJECT, THE LOT/TRACT OR THE COMMUNITY OF WHICH THE PROJECT
IS A PART, (h) DECEPTIVE TRADE PRACTICES OR (I) ANY OTHER MATTER
ARISING OUT OF OR RELATED TO THE INTERPRETATION OF ANY TERM OR
PROVISION OF THE PURCHASE AGREEMENT BETWEEN DECLARANT AND ANY
OWNER, OR ANY DEFENSE GOING TO THE FORMATION OR VALIDITY OF THE
PURCHASE AGREEMENT, OR ANY PROVISION OF THE PURCHASE
AGREEMENT, INCLUDING DEPOSIT DISPUTES, THIS ARBITRATION PROVISION,
ALLEGATIONS OF UNCONSCIONABILITY, FRAUD IN THE INDUCEMENT, OR
FRAUD IN THE EXECUTION, WHETHER SUCH DISPUTE ARISES BEFORE OR
AFTER THE CLOSE OF ESCROW (EACH A "DISPUTE''), SHALL BE ARBITRATED
PURSUANT TO THE FEDERAL ARBITRATION ACT AND SUBJECT TO THE
PROCEDURES SET FORTH AS FOLLOWS:
(a) THIS ARBITRATION PROVISION SHALL BE DEEMED TO BE A
SELF-EXECUTING ARBITRATION PROVISION. ANY DISPUTE
CONCERNING THE INTERPRETATION OR THE ENFORCEABILITY OF THIS
ARBITRATION PROVISION, INCLUDING WITHOUT LIMITATION, ITS
REVOCABILITY OR VOIDABILITY FOR ANY CAUSE, ANY CHALLENGES TO
THE ENFORCEMENT OR THE VALIDITY OF THE PURCHASE AGREEMENT
BETWEEN DECLARANT AND ANY OWNER, OR THIS ARBITRATION
PROVISION, OR THE SCOPE OF ARBITRABLE ISSUES UNDER THIS
ARBITRATION PROVISION, AND ANY DEFENSE RELATING TO THE
ENFORCEMENT OF THIS ARBITRATION PROVISION, INCLUDING WITHOUT
LIMITATION, WAIVER, ESTOPPEL, OR LACHES, SHALL BE DECIDED BY
AN ARBITRATOR IN ACCORDANCE WITH THIS ARBITRATION PROVISION
AND NOT BY A COURT OF LAW.
{b) IN THE EVENT THAT A DISPUTE ARISES BETWEEN THE
PARTIES, SUCH DISPUTE SHALL BE RESOLVED BY AND PURSUANT TO
THE ARBITRATION RULES AND PROCEDURES OF JUDICIAL
ARBITRATION AND MEDIATION SERVICES ("JAMS") IN EFFECT AT THE
TIME THE REQUEST FOR ARBITRATION IS SUBMITTED SO LONG AS THE
RULES AND PROCEDURES ARE EQUIVALENT TO THE RULES AND
PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA").
IN THE EVENT JAMS IS FOR ANY REASON UNWILLING OR UNABLE TO
SERVE AS THE ARBITRATION SERVICE, THEN THE PARTIES SHALL
SELECT ANOTHER REPUTABLE ARBITRATION SERVICE WITH RULES
AND PROCEDURES EQUIVALENT TO THE RULES AND PROCEDURES OF
THE AAA. IF THE PARTIES ARE UNABLE TO AGREE ON AN
ALTERNATIVE SERVICE, THEN EITHER PARTY MAY PETITION ANY
COURT OF COMPETENT JURISDICTION IN THE COUNTY IN WHICH THE
PROJECT IS LOCATED TO APPOINT SUCH AN ALTERNATIVE SERVICE,
T0070156/1611557-4 -51-01/07/14
WHICH SHALL BE BINDING ON THE PARTIES. THE RULES AND
PROCEDURES OF SUCH ALTERNATIVE SERVICE IN EFFECT AT THE TIME
THE REQUEST FOR ARBITRATION IS SUBMITTED MUST BE EQUIVALENT
TO THE RULES AND PROCEDURES OF THE AAA AND SHALL BE
FOLLOWED.
(c) Association and each Owner, on behalf of themselves and their
successors and assigns, expressly acknowledge that the purchase, sale and/or
conveyance of the real property and Improvements herein involves and concerns
interstate commerce and is governed by the provisions of the Federal Arbitration
Act (9 U.S.C. § 1, et seq.) now in effect and as the same may from time to time
be amended, to the exclusion of any different or inconsistent state or local law,
ordinance, regulation, or judicial rule. Accordingly, any and all Disputes as
defined in this Section 14.4 shall be arbitrated -which arbitration shall be
mandatory and binding -pursuant to the Federal Arbitration Act.
(d) These arbitration provisions shall inure to the benefit of, and be
enforceable by, Declarant and Declarant's affiliated and related entities, and
each of their respective employees, officers, directors, agents, representatives,
contractors, subcontractors, consultants, agents, vendors, suppliers, design
professionals, insurers and any other person whom the Association or any
Owner contends is responsible for any alleged defect in or to the Project,
Association Property, the Lot, Residence or any Improvement or appurtenance
thereto. The parties contemplate the inclusion of such parties in any arbitration
of a dispute and agree that the inclusion of such parties will not affect the
enforceability of these arbitration provisions.
(e) In the event any Dispute arises under the terms of the purchase
agreement or in the event of the bringing of any arbitration action by a party
hereto against another party hereunder by reason of any breach of any of the
covenants, agreements or provisions on the part of the other party arising out of
the purchase agreement, then all fees and costs shall be borne separately
between the parties, including but not limited to all attorneys' fees and expert
witness costs resu~ing from the Dispute. The foregoing provision does not
modify any provision of any contract between Declarant and any third party
requiring indemnification or establishing a different allocation of fees and costs
between Declarant and such third party. In the event Declarant is the prevailing
party, the individual signing the purchase agreement, whether on the individual's
behalf or on behalf of an entity or non-natural person, entity shall also be
personally liable for Declarant's fees and costs as aforesaid notwithstanding any
indication that such individual is signing in a corporate capacity.
(f) The arbitrator shall be authorized to provide all recognized
remedies available in law or in equity for any cause of action that is the basis of
the arbitration.
(g) The decision of the arbitrator shall be final and binding.
Association and/or Owner and Declarant expressly agree that should either party
fail to satisfy the arbitrator's decision within thirty (30) days of receipt of notice of
the decision, then an application to confirm, vacate, modify, or correct an award
T0070156/1611557-4 -52-01/07/14
rendered by the arbitrator shall be filed in any court of competent jurisdiction in
the County in which the Project is located.
(h) To the extent that any state or local law, ordinance, regulation, or
judicial rule is inconsistent with any provision of the rules of the arbitration service
under which the arbitration proceeding shall be conducted, the latter rules shall
govern the conduct of the proceeding.
(i) The participation by any party, or any party whom Association
and/or any Owner contends is responsible for a Dispute, in any judicial
proceeding concerning this arbitration provision or any matter arbitrable
hereunder shall not be asserted or accepted as a reason to delay, to refuse to
participate in arbitration, or to refuse to compel arbitration, including instances in
which the judicial proceeding involves parties not subject to this arbitration
provision and/or who cannot otherwise be compelled to arbitrate.
0) The filing fees to initiate the arbitration shall be advanced by
Declarant, based on the particular claim in accordance with the JAMS, or AAA
equivalent fee schedule. The fees and costs of the arbitration and/or the
arbitrator shall be borne equally by the parties to the arbitration; provided,
however, that the fees 11nd costs of the arbitr!ltion and/or the !lrbitrator ultimately
shall be allocated and borne as determined by the !lrbitrator. Notwithstanding
the foregoing, the parties shall each be solely responsible for their own attorneys'
fees and expert witness costs.
(k)
individual.
The arbitrator appointed to serve shall be a neutral and impartial
(I} The venue of the arbitration shall be in the County where the
Project is located unless the parties agree in writing to another location.
(m) If any provision of this arbitration provision sh!lll be determined to
be unenforceable or to have been waived, the remaining provisions shall be
deemed to be severable therefrom and enforceable according to their terms.
(n) The parties to the arbitration shall have the right to conduct !I
reasonable amount of discovery, including written discovery, depositions and
inspections and testing, all as approved and coordinated by the arbitrator.
(o) If any provision of this Section 14.4 is in conflict with or is different
than any alternative dispute resolution provision of any other declaration or any
other common interest development association that may apply to the Project,
Association Property, Lot and/or Residence, the provisions set forth in this
Section 14.4 shall control. However, any and all disputes between Declarant and
the Association arising from or related to the Project, Association Property,
Declaration or any other agreements between Declarant and the Association
shall be resolved in accordance with this Declaration.
14.4.2 Notification. Association and any Owner agrees to provide Declarant with
written notice of any matters relating to a Dispute as soon as is reasonably possible after
Association or an Owner becomes aware, or should have become aware, of such
T007015611611557-4 -53-01/07/14
matters and Dispute. Notice to Declarant under this Section does not constitute notice of
a claim, or any other notice, under the Right to Repair Act.
14.4.3 Applicability to California Civil Code§ 6000. Any Dispute covered by this
Section 14.4 that involves the Project, Association Property, Lot, Residence, or any
other areas of the Project that the Association is required to Maintain, repair or replace,
as set forth in this Declaration, and prior to the commencement of any arbitration
proceedings as set forth in Section 14.4.1, above, the Association shall serve on
Declarant a "Notice of Commencement of Legal Proceedings' as set forth in California
Civil Code § 6000, as may be amended from lime to time. Except as modified herein
(and specifically, Section 14.4.4, below, allowing access and repair rights to Declarant)
or as may be precluded by Section 910, ef seq., of the Right to Repair Act, Association
and Declarant agree that Disputes within the purview and scope of California Civil Code
§ 6000 between Association and Declarant, the pre-litigation procedures of California
Civil Code § 6000 shall control prior to the commencement of the arbitration proceedings
in this Section 14.4. However, because Declarant has elected to utilize the provisions of
the Right to Repair Act, pursuant to California Civil Code § 910, et seq., such access
and repair protocol shall take precedence and, to the extent allowed by law, be part of
and included within the pre-litigation procedures of California Civil Code § 6000 to avoid
duplication.
14.4.4 Cooperation: Access: Repair. Association and each Owner, on behalf of
themselves, successors and assigns, expressly agree to provide Declarant and its
representatives, contractors, and others as Declarant may request, with prompt,
reasonable cooperation, which may, for example, include access to all portions of the
Project, Association Property, Lot andlor Residence, in order to facilitate Declarant's
investigation regarding a Dispute including, without limitation, for purposes of inspecting,
testing, repairing, replacing, correcting, or otherwise addressing matters related to the
Dispute. If the Dispute arises out of or relates to the planning, surveying, design,
engineering, grading, specifications, construction, or other development of the Project,
Association Property, Lot and/or Residence, Declarant is hereby granted the irrevocable
right, but is under no obligation, to inspect, repair and/or replace any and all affected
parts of the Project, Association Property, Lot andlor Residence. Declarant's right, but
not obligation, to access, inspect, repair and/or replace any and all affected parts of the
Project, Association Property, Lot andlor Residence may be exercised by Declarant at
any time prior to the initiation of arbitration proceedings as set forth above.
14.4.5 NOTICE: BY ACCEPTING ANY AND ALL DEEDS TO ASSOCIATION
PROPERTY, INDIVIDUAL GRANT DEEDS ANDIOR ACKNOWLEDGEMENT OF
RECEIPT OF THE PROJECT DOCUMENTS, ASSOCIATION AND EACH OWNER,
ALONG WITH DECLARANT, AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE
MATIERS INCLUDED IN THIS SECTION 14.4 OF THIS ARTICLE XIV DECIDED BY
NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION
ACT, AND ASSOCIATION, EACH OWNER AND DECLARANT ARE GIVING UP ANY
RIGHTS ASSOCIATION, EACH OWNER AND DECLARANT MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. IN ADDITION,
ASSOCIATION, EACH OWNER AND DECLARANT ARE GIVING UP THEIR
RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE
RIGHTS ARE SPECIFICALLY INCLUDED IN THIS ARBITRATION AGREEMENT. IF
T007015611511557·4 -54-01107114
ASSOCIATION, ANY OWNER AND/OR DECLARANT REFUSE TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, SAID REFUSING PARTY
MAY BE COMPELLED TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT
AND THE CALIFORNIA ARBITRATION ACT, THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION
ACT. THE PARTIES' AGREEMENT TO THIS ARBITRATION PROVISION IS
VOLUNTARY.
14.5 Affirmative Defenses Applicable to Right to Repair Act Disputes. Declarant shall
have available to it, without limitation, the following non-exclusive list of affirmative defenses in
response to a claimed violation of the provisions of the Right to Repair Act, or any other
standards, laws, ordinances, rules or regulations, pursued by the Association or any Owner
under this Article XIV of this Declaration.
14.5.1 Unforeseen Acts of Nature. To the extent any obligation, damage, Joss or
liability is caused by an unforeseen act of nature which caused the Improvement not to
meet the standard. For purposes of this section, an "unforeseen act of nature· means a
weather condition, earthquake, or manmade event such as war, terrorism, or vandalism,
in excess of the design criteria expressed by the applicable building codes, regulations,
and ordinances in effect at the time of original construction.
14.5.2 Failure to Mitigate. To the extent any obligation, damage, loss or liability
is caused by the unreasonable failure to minimize or prevent those damages in a timely
manner, including the failure to allow reasonable and timely access for inspections and
repairs under this section. This includes the failure to give timely notice to the Declarant
after discovery of a violation, but does not include damages due to the untimely or
inadequate response of Declarant to the claim.
14.5.3 Failure to Maintain. To the extent any obligation, damage, loss or liability
is caused by an Owner, his/her agent, employee, subcontractor, independent contractor,
or consultant by virtue of their failure to follow Declarant's or manufacturer's
recommendations, or commonly accepted Maintenance Obligations.
14.5.4 Alterations. Misuse. Abuse or Neglect To the extent any obligation,
damage, loss or liability is caused by any Owner, his/her agent's or an independent third
party's alterations, ordinary wear and tear, misuse, abuse, or neglect, or by the
Improvement's use for something other than its intended purpose.
14.5.5 Statutes of Limitation. To the extent that the time period for filing actions
bars the claimed violation.
14.5.6 Release of Declarant As to a particular violation for which Declarant has
obtained a valid release.
14.5.7 Successful Repair by Declarant. To the extent that Declarant's repair
was successful in correcting the particular violation of the applicable standard.
14.5.8 Wear and Tear. To the extent that the damage caused by or due to
ordinary wear and lear.
T0070156/1611557-4 -55-01/07/14
14.5.9 Materials Furnished or Installed by Owner. Any damage caused by or
due to materials or Improvements furnished or installed by or at the request of Owner,
including any work done by anyone other than Declarant or the employees, agents, or
subcontractors expressly selected by Declarant
14.5. 10 Variations in Natural Materials. Variations in natural materials,
such as stone, marble, wood grain and color of stained wood used in cabinets, paneling,
siding, doors and wood trim. These variations are inherent characteristics of natural
materials and are not a defect
14.5.11 Failure to Give Timely Notice. Any defect, loss or damage caused
or made worse by Owner's failure to timely notify Declarant of any such defect, loss or
damage.
14.5.12 Refusal to Allow Repair. Any defect, loss or damage caused by
the Owner's failure and refusal to allow reasonable and timely access for inspections
and/or repairs.
14.5.13 Owner or Third Party Negligence. Any defect, loss or damage
caused or made worse by the negligence of Owner (or his/her agents, employees,
subcontractors, independent contractors or consultants) or a third party (such as a guest
or invitee).
14.6 Exceptions: Admissibility of Communications: Statute of Limitations. The
procedures set forth in Sections 14.2 through 14.4 above shall not apply to any action taken by
the Association against Declarant for delinquent Assessments, which shall be governed by
Article IX entitled "Assessments", or in any action involving any Association Property
Improvement bonds, which shall be governed by the provisions of Article XV entitled
"Enforcement of Bonded Obligations." Any and all communications by and between the parties,
whether written or oral, which are delivered by the parties or their attorneys or other
representatives in an effort to settle the claim shall be considered communications undertaken
in the course of effecting a settlement or compromise and as such shall not be admissible as
the admission on the part of any party or any representative or agent of the party to be utilized
for any such purpose in any action or proceeding. Nothing herein shall be considered to reduce
or extend any applicable statute of limitations.
14.7 Legal Proceeding Against Declarant Not later than thirty (30) days prior to the
filing of any legal proceeding by the Association against the Declarant for alleged damage to
Association Property or other Improvements that the Association is obligated to Maintain or
repair, the Board shall provide written notice to each Eligible First Mortgagee and Member of the
Association. This notice shall specify all of the following: (i) that a meeting will take place to
discuss problems that may lead to the filing of a legal proceeding; (ii) the options, including civil
actions, that are available to address the problems; and, (iii) the time and place of this meeting.
In addition, the notice also shall specify the following: (a) a good faith estimate of the costs to
repair the alleged defects prepared by a licensed contractor who has submitted a bid to perform
the necessary repair work; (b) how the necessary repairs will be funded; (c) the name of the
attorney whom the Association is contemplating ret'!ining and an estimate of the attorney's fees,
consultant's fees and any other costs to be incurred to prosecute such proceedings; (d) how
such fees and costs will be funded; (e) each Member's duty to disclose to prospective
purchasers the alleged defects; and (f) the potential impact the proceedings may have on the
marketability and availability of financing and/or insurance for the Lots in the Project
T0070156/1611557-4 -56-01/07/14
Notwithstanding, if the Association has reason to believe that the applicable statute of limitations
will expire before the Association files the legal proceeding, the Association may give the notice,
as described above, within thirty (30) days after the filing of the legal proceeding.
ARTICLE XV
ENFORCEMENT OF BONDED OBLIGATIONS
15.1 Bonded Obligations. When Association Property Improvements have not been
completed prior to the issuance of the original Final Public Report to which the Association
Property is subject and the Association is the oblige under a Bond to secure performance of the
commitment of Declarant to complete the Association Property Improvements, the following
provisions shall apply:
(a) Completed Improvements. If all Improvements identified in the planned
construction statement appended to the Bond are covered by one or more recorded
notices of completion, the Board shall execute all required documents by the surety to
release the Bond.
(b) Improvements Not Completed. If a notice of completion has not been
filed within sixty (60) days after the completion date specified for that Improvement in the
planned construction statement appended to the Bond, the Board shall consider and
vote on the question of action by the Association to enforce the obligations under the
Bond. If the Association has given an extension in writing for the completion of any
Association Property Improvements, the Board shall consider and vote on the aforesaid
question if a notice of completion has not been filed within thirty (30) days after the
expiration of the extension.
(c) Action by Members. If the Board fails or refuses to initiate action to
enforce the bonded obligations, upon receipt of a petition for a special meeting signed by
Members representing five percent (5%) or more of the total voting power of the
Association, the Board shall call a special meeting of the Members to override the
Board's failure or refusal to act. The special meeting shall be held not less than thirty-
five (35) days nor more than forty-five (45) days after receipt of the petition by the Board.
At the special meeting, the affirmative vote of a majority of Members, excluding any
votes of Declarant, shall be required to take action to enforce the obligations under the
Bond and shall be deemed to be the decision of the Association. The Board shall
thereafter implement the decision by initiating and pursuing appropriate action in the
name of the Association.
15.2 Release of Bond. Upon satisfaction of Declarant's obligation to complete the
Association Property Improvements, the Association shall acknowledge in writing that it
approves the release of the Bond and shall execute any other documents that may be
reasonably necessary to affect the release of the Bond. The Association may not condition its
approval on the satisfaction of any condition other than completion of the Association Property
Improvements. If the Association breaches any of the foregoing obligations, it will be liable to
Declarant for any damages incurred thereby, including reasonable attorney's fees. Any dispute
between Declarant and the Association shall be resolved in accordance with the provisions of
the escrow instructions which accompany the Bond.
T0070156/1611557-4 -57-01107114
ARTICLE XVI
GENERAL PROVISIONS
16.1 Term. The covenants and restrictions of this Declaration shall run with and bind
the Project, and shall inure to the benem of and be binding on the Association and the Owners,
their legal representatives, heirs, grantees, tenants, successors and assigns, subject to this
Declaration, for a term of fifty (50) years from the date this Declaration is recorded. Thereafter,
this Declaration shall be automatically extended for successive periods of ten (1 0) years.
16.2 Owner's Compliance. Each Owner, tenant or occupant of a Lot shall comply with
the provisions of this Declaration, and (to the extent they are not in conflict with the Declaration),
the Project Documents and the decisions and resolutions of the Association or the Board, as
lawfully amended from time to time. Failure to comply with any such provisions, decisions, or
resolutions, shall be grounds for an action to recover all Additional Charges, for damages, for
injunctive relief, or to enforce such provisions, decisions or resolutions. All agreements and
determinations lawfully made by the Association in accordance with the voting percentages
established in the Project Documents shall be deemed to be binding on all Owners, their
successors and assigns.
16.3 Notices. Unless otherwise stated in this Declaration or as allowed by law, any
notice permitted or required by the Project Documents may be delivered in any manner set forth
in California Civil Code §§ 4040, 4045, 4050 and 4055. If delivery is by mail, it shall be deemed
to have been delivered seventy-two (72) hours after a copy of the same has been deposited in
the United States mail, first class or registered, postage prepaid, addressed to the person to be
notified at the current address given by such person to the Secretary of the Board or addressed
to the Lot of such person if no address has been given to the Secretary.
16.4 Notice of Transfer. No later than fifteen (15) days after the sale or transfer of any
Lot whereby the transferee becomes the Owner thereof, the transferee shall notify the
Association in writing of such sale or transfer. Such notice shall set forth: (a) the Lot involved;
(b) the name and address of the transferee and transferor if known; and (c) the date of sale.
Unless and until such notice is given, the Association shall not be required to recognize the
transferee for any purpose, and any action taken by the transferor as an Owner may be
recognized by the Association. Prior to receipt of any such notification by the Association, any
and all communications required or permitted to be given by the Association shall be deemed
duly given and made to the transferee if duly and timely made and given to said transferor.
16.5 Delivery of Project Documents to Transferee. Prior to transfer of title to a Lot, the
transferor shall provide to the prospective transferee a copy of the Project Documents, the
documents identified in Article XIV, Sections 14.3 and 14.4 of this Declaration, and such other
documents and information as are required by California Civil Code §§ 4525 and 4535 at the
close of escrow, buyer shall be deemed to have all of these documents and shall be bound by
them.
16.6 Easements Reserved and Granted. Any easements appurtenant to a Lot
referred to in this Declaration shall be deemed reserved and/or granted by reference to this
Declaration in a deed to said Lot.
16.7 Termination of any Responsibilities of Declarant. If Declarant conveys all of its
right, title and interest in and to the Project to any partnership, individual or corporation, then
T0070156/1611557·4 -58-01/07/14
and in such event, Declarant shall be relieved of the performance of any further duty or
obligation hereunder, and such partnership, individual or corporation shall be obligated to
perform all such duties and obligations of the Declarant.
16.8 Mergers and Consolidations. To the extent permitted by law, the Association
may participate in mergers and consolidations with other non-profit organizations organized for
the same purposes as this Association, provided that any such merger or consolidation shall be
the written consent of all of the Members or the assent by vote of two thirds (%) of the Members
voting in person or by proxy at a meeting duly called for this purpose, written notice of which
shall be given to all Members at least thirty (30) days in advance.
16.g Limitation of Restriction on Declarant. Nothing in this Declaration shall be
understood or construed to (i) prevent Declarant, its contractors, or subcontractors from doing
on the Project or any Lot, Residence or parcel, whatever is reasonably necessary or advisable
in connection with completing the Project as proposed; or, (ii) prevent Declarant or its
representatives from erecting, constructing and Maintaining on any part or parts of the Project,
such structures as may be reasonable and necessary for the conduct of its business of
completing the Project and establishing said Project as a residential community and disposing
of the same in Lots by sale, lease, or otherwise; or, (iii) prevent Declarant from conducting on
any part of the Project its business of completing the Project and of establishing a plan of
ownership and of disposing of said Project in Lots by sale, lease or otherwise; or, (iv) prevent
Declarant from maintaining such sign or signs on any of the Project as may be necessary for the
sale, lease or disposition thereof, provided, however, that the maintenance of any such sign
shall not unreasonably interfere with the use by any OWner of his/her Lot, Residence or the
Association Property. The foregoing limitations of the application of the restrictions to Declarant
shall terminate upon the sale of Declarant's entire interest in the Project, or ten (10) years after
the close of the first escrow, whichever occurs earlier. Any action taken by Declarant pursuant
to any provision of this Article will not unreasonably interfere with the owners' rights and use of
the Project.
16.1 0 Assignment by Declarant. The rights of Declarant in this Declaration may be
assigned by Declarant to any successor to all or any part of Declarant's interest in the Project,
as developer, by an express assignment incorporated in a recorded deed that transfers any
such interest to a successor or to a Mortgagee acquiring Declarant's interest in the Project by
foreclosure or by deed in lieu of foreclosure.
16.11 Severability. Should any provision or portion hereof be declared invalid or in
conflict with any law of the jurisdiction where this Project is located, the validity of all other
provisions and portions hereof shall remain unaffected and in full force and effect.
16.12 Estoppel Certificate. W~hin ten (10) days of the mailing or delivery of a written
request by any OWner, the Board shall provide the Owner with a written statement containing
the following information: (i) whether to the knowledge of the Association, the OWner or the
Owner's Lot or Residence is in violation of any of the provisions of the Project Documents; (ii)
the amount of Regular and Special Assessments, including installment payments, paid by the
Owner during the fiscal year the request is received; and, (iii) the amount of any Assessments
levied against the OWner's Lot that are unpaid as of the date of the statement, including any
Additional Charges, late charges, interest, or cost of collection that as of the date of the
statement are or may be made a lien against the Owner's Lot as provided by the Project
Documents.
T007015611611557-4 -59-01/07/14
-------------
16.13 Successor Statutes. Any reference in the Project Documents to a statute shall
be deemed a reference to any amended or successor statute.
16.14 Conflict with Project Documents. If there is a conflict among or between the
Project Documents, the provisions of this Declaration shall prevail; thereafter, priority shall be
given to Project Documents in the following order: Articles, Bylaws, and Association Rules.
16.15 Exhibits. All exhibits attached to this Declaration are incorporated by this
reference as though fully set forth herein.
16.16 Headings. The headings used in this Declaration are for convenience only and
are not to be used to interpret the meaning of any of the provisions of this Declaration.
16.17 Owner's Acknowledgment. Each Owner shall sign an acknowledgment that
he/she has received and read the Project Documents.
16.18 gonstruction of Provisions. The provisions of this Declaration shall be liberally
construed to effect its purpose of creating a uniform plan for the development and operation of a
common interest development pursuant to the provisions of the Davis-Stirling Common Interest
Development Act, California Civil Code§§ 4000, el seq., as may be supplemented, amended
and/or superseded.
IN WITNESS WHEREOF, the undersigned has executed this Declaration.
Dated: .-:~~niA.~~:.:...YL-'+1---~.IY-_.__. 201 !.f (
T0070156/1611557-4
TAYLOR MORRISON OF CALIFORNIA, LLC,
a California limited liability company,
By:~~ Name: ~ Title: -----.J,~;=,..V..;.,..'1~.~!...___-
-60-01/07/14
STATE OF CALIFORNIA } ss:
COUNTY OF OrCU'\~c
On I /1 S I .f)O IY, before me, t3 . :T?Li;h , a notary
public for the State of California, personally appearedQ rft;, !; fag S
who proved to me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the person, or the
entity on behalf of which the person 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.
' . B. TATE I _ @_.. . commissiOn No. 1998083 ~
~ .-&-< NOTARVPU8LiC.cAUf-.1 !I! · ; .• SAN ,._..oCOUNTY l .. ·· MrCOIMI-EJPNi~t2.:l011
(3.Jo.JU_
SIGNATURE OF NOTARY
'
T0070156/1611557-4 -61-01/07/14
EXHIBIT A
MAINTENANCE RESPONSIBILITY CHART
The following represents a non-exclusive list of Improvements to be Maintained either by the
Owner or Association. Its purpose is to describe maintenance responsibilities over certain items
where there may be some uncertainty as to the responsible maintaining party. The reference to
"HOA" refers to the Association.
lmorovernent Clean Maintain Reoair Reolace Paint Resurface Reoave
Interior doors Owner Owner Owner Owner Owner N/A N/A
and hardware
(locks, hinges,
etc.)
Lot entry door, Owner Owner Owner Owner Owner N/A N/A
hardware and
weather
stripping
Door bells N/A Owner Owner Owner N/A N/A N/A
Garage doors, Owner Owner Owner Owner Owner N/A N/A
openers,
hardware, and
opening
equipment
Windows Owner Owner Owner Owner N/A N/A N/A
Window frame N/A Owner Owner Owner Owner N/A N/A
Sliding glass Owner Owner Owner Owner N/A N/A N/A
doors
Sliding glass Owner Owner Owner Owner Owner NIA NIA
door framE!
Exterior light Owner Owner Owner Owner Owner N/A NIA
fixtures on Lot's
meter
Exterior light HOA HOA HOA HOA HOA N/A NIA
fixtures on
HOA's meter
Light bulb for HOA HOA HOA HOA NIA NIA N/A
address li<1hts
Address light Owner Owner Owner Owner NIA NIA NIA
fixture
Gas, electric Owner Owner Owner Owner NIA NIA NIA
and water
meters serving
a Lot
HOAwater HOA HOA HOA HOA NIA NIA NIA
main
Water and Owner Owner Owner Owner N/A NIA NIA
sewer lines and
pipes on and
serving a lot
T007015611611557-4 EXHIBIT A 01/07/14
lmorovement Clean Maintain Reoair Reolace Paint Resurface Reoave
Plumbing Owner Owner Owner Owner N/A N/A N/A
systems within
and exclusively
servicing a Lot
(including pipes
in interior walls\
Electrical N/A Owner Owner Owner N/A NIA N/A
systems within
and exclusively
servicing a Lot
(including line~)
in interior walls
Fire sprinklers, Owner Owner Owner Owner N/A N/A N/A
smoke
detectors and
carbon
monoxide
detectors
Back up battery N/A Owner N/A Owner N/A N/A N/A
for smoke
detectors and
carbon
monoxide
detectors
Front stoops Owner Owner Owner
and landinas
Owner N/A N/A N/A
Drainage HOA HOA HOA HOA N/A N/A NIA
systems within
Association
Prooertv
All HOA HOA HOA HOA HOA HOA HOA
Improvements
located on
Association
Prooertv
Utility facilities, HOA HOA HOA HOA N/A N/A NIA
equipment,
lines, pipes.
trenches, and
conduits that
exclusively
serve or
provide service
to the
Association
Prooertv
Cluster HOA HOA HOA HOA HOA N/A N/A
mailboxes
(excluding
locks, keys and
door)
T007015611611557-4 EXHIBIT A 01/07/14
------------
lmorovement Clean Maintain ReDair Reolace Paint Resurface ReDave
Project HOA HOA HOA HOA HOA N/A N/A
retaining,
perimeter and
sound walls
and fencinQ
Party Walls Owner Owner Owner Owner Owner N/A N/A
Fences and Owner Owner Owner Owner Owner N/A N/A
walls (not Party
Walls,
perimeter walls
or sound walls)
Balcony and Owner Owner Owner Owner Owner N/A N/A
porch
waterproof
membrane
Balcony and N/A Owner Owner Owner Owner N/A N/A
porch structural
comDonents
HVACsystem Owner Owner Owner Owner N/A N/A N/A
and pad
Private streets HOA HOA HOA HOA N/A HOA HOA
and sidewalks
Roofs Owner Owner Owner Owner N/A N/A N/A
Gutters and Owner Owner Owner Owner Owner N/A N/A
downspouts
Exterior siding Owner Owner Owner Owner Owner N/A N/A
and trim
Structural N/A Owner Owner Owner N/A N/A N/A
components of
Residence
T007015611611557-4 EXHIBIT A 01/07/14
EXHIBIT B
LANDSCAPE MAINTENANCE EXHIBIT
1007015611611557-4 EXHIBIT B 01/07/14
LA COSTA RESIDENTIAL
HOA LANDSCAPE MAINTENANCE MAP
LEGEND
IIIJ!I HOA MAINTAINED LANDSCAPE
RANCHO SANTA FE ROAD -·---------·------
NOT TO SCALE
EXHIBITC
STORMWATER MAINTENANCE CHECKLIST
T0070156/1611557-4 EXHIBITC 01/07/14
EXHIBITC
STORMWATER MAINTENANCE CHECKLIST
Bioretention Basins:
Inspection
0 Monthly and after any large storm event.
Maintenance
0 Remove and debris, sediment, and other obstructions from drainage outlet.
0 Inspect habitat annually and replant as needed to maintain adequate cover
Pervious Pavement:
Inspection
0 Once a month for first 6 months, annually thereafter and after any large storm event.
Maintenance
0 Sweep and/or vacuum every 3 months (street sweepers with vacuum and brushes can be used).
0 Pressure wash after sweeping, keep voids filled with aggregate.
Landscaping and Vegetated Swales:
Inspection
0 Monthly and after any large storm event.
Maintenance
0 Periodic mowing, weed control, irrigation, reseeding/replanting of bare areas and clearing
debris.
0 Design grass to be kept to 6 inches and clippings shall not be left in grass swales or private
drainage systems.
Efficient Irrigation:
Inspection
0 Inspect on a regular basis.
Maintenance
0 Check all valves, heads, shutoff devices, lines, etc. are properly functioning.
0 Replace any defective parts Immediately.
0 Adjust irrigation based on seasonal needs and if runoff occurs.
Inlet Stenciling:
Inspection
0 At the beginning and end of ea'h rainy season
Maintenance
0 Repair or replace as needed.
Hazardous Wastes:
Inspection
0 If discovered, analyze to determine disposal options.
Disposal
0 To be handled and disposed of according to local, state and federal regulations.
EXHIBIT D
LOCATION OF BIO RETENTION BASINS AND VEGETATED SWALES
T0070156/1611557-4 EXHIBIT D 01/07/14
' ' I
'
_,..._, ~\ LEGEND
BIOAETEN110N FACUTEI-
J • 5 • 2
"\ ~· ' %\ \._
\ ..c:-=-'
J4 ---__j___
•• --------·-·""'A r& ttOAD -· .-
..... _.. tuNCHO SIU,. -----· --------·---------·--------..,,.....,..----------.,.... -----~ -----::.---------.....-:-;::;.--------;::;.-------
--------
NfJT 10 $C"AI.£
EXHIBIT D
BORETENTION BASIN EXHB1T