HomeMy WebLinkAboutCT 13-05; State Street Townhomes; Tentative Map (CT) (8)SEAGROVE (STATE STREET) SUBDIVISION
Condition of Aporoval Subiect Matter Reference in CC&Rs
9 Using BMPs Section 5.1.2
17(a) Enforcement of CC&Rs by
City
Section 10.2.3
17(b) Notice and amendment Section 10.1.5
17(c) Failure of HOA to maintain Section 10.2.3
17(d) Special assessments by
City
Section 10.2.3
17(e) Landscape maintenance
responsibilities
Section 5.2.3 and Exhibit C
17(f) No commerciai signage or
storefront displays
Section 4.13.2
18 Minimum rental period Section 4.21
19 Notice of impacts of
transporation corridor
Section 4.6
28 Work area of live/work units
cannot be converted to
separate dwelling
Section 4.13.2
29 No commerciai signage or
displays
Section 4.13.2
34 Maintenance of shared
areas
Section 5.1 and Exhibit B
T0070186/1923436-1
RECORDING REQUESTED BY:
First American Title
AFTER RECORDING RETURN TO:
Glenn Mau, Esq. (SB# 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.archernorris.com
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SEAGROVE
A CONDOMINIUM 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
T0070186/1917451-1 10/14/14
TABLE OF CONTENTS
Page
ARTICLE I
1.1
1.2
1.3
1.4
1.5
ARTICLE 11
RECITALS
Description of Real Property.
Phases ofthe Project
Ownership Interests
Common Plan for Project
Boundary Modifications
DEFINITIONS
ARTICLE 111 PROPERTY RIGHTS ,...:... 10
3.1 Association Property 10
3.2 Common Area 10
3.3 Exclusive Use Area 10
3.4 Non-severability ..V..... 11
3.5 Partition Prohibited 11
3.6 Annexation and Deannexation Rights 11
3.7 Easements 12
3.8 Provisions Restricting Delegation of Use 15
3.9 No Restriction on Owner's Right to Ingress and Egress 15
ARTICLE IV USE RESTRICTIONS ^. 15
4.1 Alterations 15
4.2 Animals 15
4.3 Antenna and Satellite Dish Equipment 16
4.4 Burning. 16
4.5 Compliance with Project Documents..... 16
4.6 Disclosure - Noise from Transportation Corridor 16
4.7 Drainage 17
4.8 Exterior Apparatus 17
4.9 Garages 17
4.10 Invitees. 18
4.11 Landscaping 18
4.12 Liability of Owners for Damages 18
4.13 Live/Work Units 18
4.14 Mailboxes 19
4.15 Mineral and Water Exploration 19
4.16 Nuisances 19
4.17 Outdoor Furniture, Accessories and Equipment 19
4.18 Parking 20
4.19 Power Equipment and Car Maintenance 21
4.20 Prohibition of Dumping Oil, Wastewater and Chemicals 21
4.21 Rental of Units 21
4.22 Restrictions on Business 21
4.23 Restrictions on Decks, Patios and Porches 21
4.24 Signs and Flags 22
4.25 Solar Energy Systems 22
4.26 Sound Transmissions and Attenuation 22
T0070186/1917451-1
TABLE OF CONTENTS
(continued)
Page
4.27
4.28
4.29
4.30
ARTICLE V
5.1
5.2
5.3
5.4
5.5
5.6
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
6.13
6.14
ARTICLE Vll
7.1
7,2
7.3
7.4
7.5
7.6
7.7
7.8
7.9
ARTICLE Vlll
8.1
8.2
8.3
8.4
8.5
Sports Apparatus 22
Storage of Waste Materials 23
Use and Occupancy 23
Window Coverings 23
MAINTENANCE OBLIGATIONS 23
Maintenance of Association Property 23
Maintenance of Exclusive Use Areas 24
Maintenance of Units 25
Utility Bills 25
Other Association Obligations 25
Inspection and Maintenance Guidelines 25
ARCHITECTURAL REVIEW AND APPROVAL PROCEDURES 26
Formation and Composition of ACC 26
Exemption from Architectural Review 26
Duties of the ACC 26
Design Guidelines 26
Submission of Plans 27
Basis for Review 27
Compliance with the City's Conditions of Approval 27
Form of Approvals, Conditional Approvals and Denials 27
Reconsideration of Denial of Appiication 27
Proceeding with and Completion of Work 28
Compliance with Approval 28
Compliance with Governmental Agency Procedures 28
Waiver 28
No Liability 29
ASSOCIATION ADMINISTRATION, MEMBERSHIP AND VOTING 29
Association to Manage Project 29
Membership 29
Transferred Membership 29
Voting 29
No Proxies 29
Classes of Membership and Voting 30
Special Voting Rights of Class A Members for Election of Directors 30
Commencement of Voting Rights 30
Secret Ballot Voting 30
POWERS, DUTIES AND LIMITATIONS OF THE ASSOCIATION 30
Powers and Duties of Association 30
Property Taxes and Assessments 33
Discharge of Liens 33
Payment of Expenses 33
Dispute Resolution 33
T0070186/1917451-1
TABLE OF CONTENTS
(continued)
Page
ARTICLE IX ASSESSMENTS 33
9.1 Agreement to Pay 33
9.2 Purpose of Assessments 34
9.3 Exemptions 34
9.4 Regular Assessments 35
9.5 Special Assessments 35
9.6 Reimbursement Assessments 35
9.7 Commencement of Assessments 35
9.8 Accounts , 36
9.9 Enforcement of Assessments .:... ...L. 36
9.10 Satisfaction of Lien 36
9.11 Lien Eliminated by Foreclosure.......... 37
9.12 Waiver of Homestead Protections 37
9.13 Subordination of Lien .;:;;.„..... 37
ARTICLE X AMENDMENT AND ENFORCEMENT OF RESTRICTIONS 37
10.1 Amendment of Declaration 37
10.2 Enforcement 40
ARTICLE XI BUDGETS AND FINANCIAL STATEMENTS 42
11.1 Preparation and Distribution of Budget 42
11.2 Annual Report 42
11.3 Quarterly Reconciliation 42
11.4 Reserve Account Study 42
11.5 Notice of Increased Assessments 42
11.6 Statement of Outstanding Charges 42
11.7 Owner's Right to Conduct an Independent Audit 42
ARTICLE Xll INSURANCE, DESTRUCTION AND CONDEMNATION 42
12.1
12.2
12.3
12.4
12.5
12.6
12.7
12.8
12.9
ARTICLE Xlll
13.1
13.2
13.3
13.4
13.5
13.6
13.7
Insurance 42
General Provisions and Limitations 43
Types of Coverage 44
Waiver of Subrogation 45
Insurance by Owner 45
Annual Review of Policies 45
Payment of Premiums 45
Damage or Destruction 46
Condemnation 47
MORTGAGEE PROTECTIONS 48
Mortgages Permitted 48
Priority of Mortgage 48
Rights of Institutional Mortgagees 48
Rights of Mortgagees Upon Default of Mortgagor 48
Payment of Taxes or Premiums by Mortgagees 48
Effect of Breach 48
Conflict with Declaration 49
T0070166/1917451-1
TABLE OF CONTENTS
(continued)
Page
13.8 Notice to Mortgagees 49
13.9 Inspect Books and Records 49
ARTICLE XIV DISPUTE RESOLUTION PROCEDURES 49
14.1 In General 49
14.2 Disputes Between Association and Owners..., 49
14.3 Notice of Existence of Non-Adversarial Procedures 50
14.4 Disputes Between Association/Owner and Declarant 53
14.5 Affirmative Defenses Applicable to Right to Repair Act Disputes 57
14.6 Exceptions; Admissibility of Communications; Statute of Limitations 59
14.7 Legal Proceeding Against Declarant 59
ARTICLE XV ENFORCEMENT OF BONDED OBLIGATIONS 59
15.1 Bonded Obligations 59
15.2 Release of Bond 60
ARTICLE XVI GENERAL PROVISIONS 60
16.1 Term 60
16.2 Owner's Compliance 60
16.3 Notices 61
16.4 Notice of Transfer 61
16.5 Delivery of Project Documents to Transferee... 61
16.6 Easements Reserved and Granted 61
16.7 Termination of any Responsibilities of Declarant 61
16.8 Mergers and Consolidations 61
16.9 Limitation of Restriction on Declarant 61
16.10 Assignment by Declarant 62
16.11 Severability 62
16.12 Estoppel Certificate 62
16.13 Successor Statutes 62
16.14 Conflict with Project Documents 62
16.15 Exhibits 62
16.16 Headings 62
16.17 Owner's Acknowledgement 62
16.18 Execution in Counterparts 63
16.19 Construction of Provisions 63
EXHIBIT A - INITIALLY COVERED PROPERTY
EXHIBIT B - MAINTENANCE RESPONSIBILITY CHART
EXHIBIT C - DEPICTION OF LANDSCAPE MAINTENANCE RESPONSIBILITES
T0070186/1917451-1 -jV-
DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
SEAGROVE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
SEAGROVE is made on the date hereinafter set forth by TAYLOR MORRISON OF CALIFORNIA,
LLC, a California limited liability company { "Declarant ).
Seagrove is a mixed-use community in the City of Carlsbad, County of San Diego, State of
California, of forty-seven (47) townhouse-style attached residential condominiums including forty-
one (41) live/work units and six (6) affordable housing units. Declarant's current development
plan for the community is that there will be a maximum of 47 homes, private streets, picnic area,
trellis, benches, barbeque area, paseos, and landscaped areas. However, there is no guarantee
that the community 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 mixed-use community.
ARTICLE I
RECITALS
1.1 Description of Real Propertv. Declarant is the Owner of that certain real property
(the 'Project' as defined herein) in the City of Carlsbad, County of San Diego, State of
California, more particularly described as follows:
Lot 1, as shown on the map of Tract No. 13-05, in the City of Carlsbad, County of
San Diego, State of California, according to Map Thereof No. , filed
in the Office of the County Recorder of San Diego County, on , 201
, as Document No. 201 - of Official Records.
1.2 Phases of the Proiect. Declarant has improved or intends to improve the Project
by subdividing it into Condominiums, Association Property, Common Area, and other
Improvements, as defined hereinbelow. Declarant intends to sell each Unit to a separate party
(each, an "Owner"). Declarant intends to develop the Project in two (2) or more Phases. The
first Phase will consist of the Initially Covered Property, as defined on Exhibit A attached hereto
and incorporated herein by reference. 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 ofthis Declaration.
1.3 Ownership Interests. Each Owner shall receive fee title to his/her Unit, a
fractional ownership interest in Common Area, exclusive easements for use and maintenance of
Exclusive Use Areas, mandatory membership in the Seagrove Homeowners Association, a
California nonprofit mutual benefit corporation, a non-exclusive easement for use, and
enjoyment over the Association Property, and such other interests as are provided herein.
1.4 Common Plan for Proiect. By this Declaration, Declarant intends to establish a
common scheme and plan for the possession, use, enjoyment, repair. Maintenance, restoration
T0070186/1917451-1 -1- 10/14/14
and improvement of the Project and interests therein conveyed and to establish thereon a
common interest development.
1.5 Boundarv 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
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, rnortgaged, 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 the division thereof into Condominiums). Pursuant to California
Civil Code §§ 1468, 4250(a) and 5975, all ofthe 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 respective 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 Propertv" shall mean all real property identified on the Map, and
shown on a Condominium Plan, and the Improvements thereon, exc/uc//ng the Initially Covered
Property, and any other real property and Improvements that may be annexed into the Project,
as provided in Article 111, Section 3.6 ofthis Declaration. However, there is no guarantee that
any of the Additional Property will be annexed into the Project as intended by Declarant.
Additional Property shall also mean any real property and Improvements described as
"Additional Property" in a Declaration of Annexation.
T0070186/1917451-1 -2- 10/14/14
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.
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 Seagrove 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 setforth in Article IX ofthis Declaration.
2.9 "Association" shall mean the Seagrove Homeowners Association, a California
nonprofit mutual benefit corporation, the Members of which shall be the Owners of Units in the
Project, their successors and assigns.
2.10 "Association Propertv" shall mean all the real property shown on a Plan for a
Phase, and all Improvements thereon, but excluding therefrom all "Units" and "Common Area"
as defined herein. The term "Association Property shall also mean any real property and
Improvements described as "Association Property" in a Declaration of Annexation and/or shown
on a Condominium Plan for a particular Phase. Association Property shall be held in fee title by
the Association and is "common area" as that term is defined in California Civil Code § 4095.
2.11 "Association Rules" shall mean rules and regulations regulating the use and
enjoyment of the Project which may be adopted, modified and/or amended by the Board from
time to time.
2.12 "Authorized Vehicles" shall include, but not be limited to, standard passenger
vehicles, motorcycles and trucks (unless othenfl/ise 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 this Section are satisfied.
2.13 "BMPs" shall mean Best Management Practices as it pertains to the
management of stormwater maintenance, as approved by the City for the Project and set forth
in this Declaration.
2.14 "Board" or "Board of Directors" shall mean the Board of Directors of the
Association, appointed or elected as provided in the Bylaws.
T0070186/1917451-1 -3- 10/14/14
2.15 "Bond" shall mean a bond, security or other arrangement to secure performance
of the commitment of Declarant to complete Association Property Improvements.
2.16 "BRE" shall mean the California Bureau of Real Estate, and any successor entity,
agency, department, commission, council and/or bureau.
2.17 "Building" shall mean each of the multiple-dwelling residential structures in the
Phase which contain Units, all as shown on the Plan. While Buildings enclose the residential
and garage elements of the Units, the Buildings are not part of the Units. For purposes of
interpreting the Plan, the term "Building" is intended to include all of the following components:
(a) The shell, including the roof, foundation and exterior surfaces and the
finishes thereon;
(b) Entry doors, windows and the garage door (except for glass portions of
windows and sliding doors at Unit boundaries, all of which are part ofthe Unit);
(c) All structural support elements existing in, on, under and throughout the
Building shell and core that carry ceiling, roof, and floor loads to the foundation, including
all separate or common footings, girders, columns and braces, the foundations and other
standard support elements, and every wall, column, floor, ceiling, footing, or other
vertical or horizontal Improvement in the Building, but the Building does not include
between-room walls or partitions within a Unit that are not necessary for the structural
support of the Building (for purposes hereof, any wall or other structure that carries roof,
ceiling or upper floor loads is "necessary for structural support");
(d) All exterior walls and surfaces of the Building and their surface treatments
(including siding, stone, stucco, plaster, paint and stain);
(e) Fixtures that are outside the boundaries of the Units, including exterior
lighting fixtures, utility cabinets on Building exteriors, utility cabinets and other facilities
for the delivery of utilities to the Project (except for outlets that are located in the Unit);
(f) Utility meters outside the Unit boundaries, and the cables, pipes, conduits
and other Improvements for the delivery of utilities to the Unit;
(g) Fire sprinkler systems serving each Building, including alarms, fire
sprinkler pipes and fire sprinkler heads that protrude into the boundaries ofthe Unit;
(h) Cables and related equipment for the delivery of telecommunications
services to the Project (except for any outlets in the Unit boundaries and except for
connectors, fibers or cables that protrude into the boundaries ofthe Unit); and
(i) All or any portion of mechanical shaft, duct, pipe, line, main, conduit,
lighting, flue, methane mitigation Improvement and any other equipment, fixtures,
machinery, system or apparatus which benefits the entire Building.
time.
2.18 "Bylaws" shall mean the Bylaws of the Association, as amended from time to
2.19 "City" shall mean the City of Carlsbad, the City in which the Project is located.
T0070186/1917451-1 -4- 10/14/14
2.20 "Commercial Vehicle" shall mean any truck or vehicle that bears any signage or
writing that gives information about or advertises any business, company or service, is used
solely for work or employment, and/or qualifies as such a vehicle or truck under the definition in
California Vehicle Code § 15210(b)(1), as amended from time to time. A "Commercial Vehicle"
is also any truck or vehicle that (i) has more than (2) axles, (ii) is longer than twenty-one (21)
feet in length from bumper to bumper, (iii) exceeds 10,000 pounds gross vehicle weight rating,
and/or (iv) is not used for personal transportation.
2.21 "Common Area" shall mean the volume of airspace described in the Plan for
each Phase which shall be owned by Owners in each Phase as tenants-in-common. The
Common Area will consist of a three-dimensional volume of airspace located above the real
property and Improvements within a Phase as described in a Plan, and Is bounded by and
contained within the following boundaries: the upper #rtical boundary extends infinitely into the
heavens; the lower vertical boundary is one hundred feet (100.0') above the pad elevations
shown on the Plan; and the lateral boundaries are vertical planes at the limits of the'horizontal
dimensions ofthe real property and Improvements within a Phase. All Common Are! will consist
solely of a volume of airspace as shown and described in the respective Condominium Plan.
Any references in this Declaration to "Common Area" are references to the Common Area as a
whole and to portions thereof. The Common Area in each Phase of the Project constitutes the
undivided interest-in-common in a portion of real property held by the Owners in the Phase, all
in accordance with California Civil Code § 4125. The term "Commdiri Area" shall also mean any
property described as Common Area in a Declaration of Annexation.
2.22 "Common Expenses" shall mean and jnclude the actual and estimated expenses
of operating the Project and any reasonable reserve {orr s purposes as found and
determined by the Board and all sums designated as Commdh Expenses by or pursuant to the
Project Documents.
2.23 "Conditions of Approval" shall mean City imposed provisions and conditions
applicable to the Project. This includes, but is not limited to. Resolution No. 7048 and the
exhibits attached thereto.
2.24 "Condominium" shall mean an estate in real property consisting of an undivided
interest in common in a portion of a Building, a fee interest in a Unit, rights and easements to
EUA designated to a Unit (if any), and #Sements in portions of the Project as provided in this
Declaration, the Plan and the Map.
2.25 "County" shall mean the County of San Diego, California, the County in which the
Project is located.
2.26 "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.
2.27 "Declaration" shall mean this Declaration, and any amendments, modifications or
supplements thereto.
2.28 "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
T0070186/1917451-1 -5- 10/14/14
specific requirements on individual Units if those requirements are reasonable in light of specific
topography, visibility or other factors. Design Guidelines, if adopted, repealed and/or modified
pursuant to California Civil Code § 4340, ef seq., shall constitute "Association Rules."
2.29 "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 Unit, or address of the Unit encumbered by the Mortgage and requests that the
Association deliver written notice to it of any or all of the events specified in Article Xlll, Section
13.8.
2.30 "Exclusive Use Area" or "EUA" shall mean those portions of Association Property
which are shown on the Plan, as set forth in this Declaration, and/or set aiide for the exclusive
use of a Unit Owner, as defined in this Section.
2.30.1 "HVAC" shall mean the heating, ventilation and air conditioning
equipment which exclusively serves a Unit, wherever it may be located or installed within
Association Property. The HVAC shall include, but shall not be limited to, the condenser
unit, the platform upon which the condenser is located, all mechanical equipment, and all
wires, conduits, pipes and ducting leading up to and through the exterior surface of the
building.
2.30.2 "Deck" shall mean each portion of Association Property which is shown
on the Plan as an individually nUrpbered space with the letter "D" and is generally
located in the rear portion of the Unit. The perimeter boundaries of each Deck are to the
interior unfinished surfaces of the fences and/or railings to the exterior finished surfaces
of any walls enclosing the Deck. The vertical boundaries of each Deck are to the interior
unfinished surface of the floor and to a hol'tzontal plane extended from the ceiling of the
unit which adjoins the Deck. The approximate dimension of each Deck is shown on the
Plan. Each Deck includes the airspace encompassed and any storage areas within its
boundaries.
2.30.3 "Parking Space" shall mean a portion of Association Property which is
shownjpn the Plan as an individually numbered space with the letters "PS". The
perimeter boundaries of the Parking Space are to the boundaries of the striping. The
vertical boundaries of each Parking Space are to the interior unfinished surface of the
paved surface and to a horizontal plane up to the Common Area. The approximate
dimensions of each Parking Space are shown on the Plan. Each Parking Space
includes the airspace encompassed within its boundaries.
2.30.4 "Patio" shall mean each portion of Association Property which is shown
on the Plan as an individually numbered space with the letter "PA," is a covered area
and located in the front portion of the Unit. The perimeter boundaries of each Patio are
to the interior unfinished surfaces of the fences and/or railings and to the exterior
finished surfaces of any walls enclosing the Patio. The vertical boundaries of each Patio
are to the interior unfinished surface of the floor and to a horizontal plane extended from
the ceiling of the Unit which adjoins the Patio. The approximate dimensions of each
Patio are shown on the Plan. Each Patio includes the airspace encompassed and any
storage areas within its boundaries.
T0070186/1917451-1 -6- 10/14/14
2.31 "Final Public Report" shall mean the final subdivision public report issued by the
BRE or any successor state agency pursuant to the Subdivided Lands Act {California Business
& Professions Code §§ 11000, ef seq.) as it may be amended from time to time.
2.32 "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, efc, originally installed by Declarant, and
which sets forth obligations, procedures, operation and schedules pertaining to certain products
manufactured by others and installed on or in the Unit, 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 Unit is aware of and is given the Homeowner's
Manual.
2.33 "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, private open space and park areas, light standards, traffic control signs {i.e.,
stop signs, parking signs, speed limit signs, efc), 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.
2.34 "Initially Covered Propertv" shall mean the real property identified on Exhibit A
attached hereto, and all Improvements thereon.
2.35 "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 Mderal or state laws whose principal business is lending
money on the secufity 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.
2.36 "Live/Work Units" shall mean those Units in which trade, business, or commercial
activity may be carried on or conducted, as may be allowed and set forth in Section 4.13 ofthis
Declaration and as may be authorized by City ordinances and regulations. Units 18 through 23,
inclusive, are excluded from the definition of "Live/Work Units" and shall not be allowed to
conduct any trade, business or commercial activity therein. Unless othenwise identified in this
Declaration, references to "Unit" shall also referto "Live/Work Units."
2.37 "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.
2.38 "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,
T0070186/1917451-1 -7- 10/14/14
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.
2.39 "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: ,
2.40 "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
othenwise 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 Units and Improvements; and (iii) any Maintenance Obligations
and requirements set forth in this Declaration, as amended ahd updated from time to time.
2.41 "Map" shall mean the map of Tract No. 13-05, in the City of Carlsbad, County of
San Diego, State of California, according to Map Thereof No. , filed in the Office of
the County Recorder of San Diego Countv, on , 201 , as Document
No. 201 - of Official Records.
2.42 "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 Unit, the co-owners collectively shall constitute a single Member.
2.43 "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 othenwise have any disciplihary action pending between said Owner and the
Association, as more particularly defined in the Bylaws.
2.44 "Model Home Units" shall mean those Units within the Project which are initially
used by Declarant for the sole purpose of marketing other Units constructed by Declarant and
such Unit is not initially occupied or used for residential purposes. It is intended and anticipated
that the sale of the Model Home Units, which shall be open to the viewing public for business in
the hours during the active sales period, will be in the last Phase ofthe Project.
2.45 "Mortgage" shall mean a mortgage or deed of trust encumbering a Unit 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 Unit 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 Unit 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.
T0070186/1917451-1 -8- 10/14/14
"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 ofthat First Mortgage shall be deemed to be the required approval.
2.46 "Notice of Lien" shall mean a notice of delinquent assessment recorded as a lien
against an Owner's Unit for the failure to pay Assessments as set forth in this Declaration.
2.47 "Owner(s)" shall mean the record holder or holders of title, if more than one, to
any Unit 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 Unit is sold under a recorded
contract of sale (or a recorded memorandum of such contract), the purchaser, rather than the
fee Owner, shall be considered the "Owner."
2.48 "Permitted Parking Areas" shall mean garages and uncovered parkirig spaces
that are designed and established for the parking of Authorized Vehicles. "Permitted Parking
Areas" do not include driveways, driveway aprons or areas in any adjacent development orthe
public streets adjacent to the Project. Use of Permitted Parking Areas is described in Article IV,
Section 4.18 of this Declaration.
2.49 "Phase" shall mean any Uriits, Condominiums, Common Area 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.
2.50 "Plan" or "Condominium Plan" shall mean the recorded plan consisting of (a) a
description or survey map of the real property or portion thereof, which shall refer to or show
monumentation on the ground, (b) a description of the real property or portion thereof, one or
more dimensions of which may extend for an indefinite distance upwards or downwards in
sufficient detail to identify Association Property, Common Area, Exclusive Use Areas, and each
Unit, and (c) a certificate consenting to the recordation thereof signed and acknowledged by the
record owner of fee title to the real property or portion thereof, by either the trustee or the
Mortgagee of each recorded Mortgage encumbering the real property or portion thereof, if any.
The Plan for any Phase may be corrected by Declarant without approval of the Association or
any Owner to correct any technical, mathematical, information and/or typographical errors on a
Plan. Otherwise, amendments to the Plan must comply with the law including, but not limited to,
California Civil Qqde § 4295, as amended from time to time. The Plan for the Initially Covered
Property was recorded on ^ , 201 as Document No. ,
Official Records of the County, California, and is incorporated herein by reference as if set forth
in full.
2.51 "Proiect" shall mean all of the real property shown on the Map and Condominium
Plans, 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.
2.52 "Proiect 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 any and all Declarations of Annexation, the Map,
Articles, Bylaws, Design Guidelines, Association Rules and maintenance manuals provided by
Declarant and/or any manufacturer.
T0070186/1917451-1 -9- 10/14/14
2.53 "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.
2.54 "Riqht to Repair Act" shall refer to California Civil Code §§ 895-945.5, as may be
amended from time to time.
2.55 "Unit" shall mean that portion of a Building which is shown on the Plan as an
individually numbered space and which shall constitute a Separate Interest, as defined in
California Civil Code § 4185. The vertical and horizontal boundaries of each Unit shall be to the
interior unfinished surfaces of the perimeter walls, floors, ceilings, doors and windows, as
described on a Plan. Each Unit includes the airspace encompassed by its boundaries but does
not include load bearing walls and walls containing utility conduits. Utility systems and
components, fixtures and appliances located within the boundaries of a Unit, and which service
only that Unit, are also part of a Unit. Garage doors and garages that are attached to a Unit are
included in the definition of a "Unit." The approximate dimensions of each Unit are shown on
the Plan; however, the existing physical boundaries: pf a Unit as originally constructed or as
reconstructed shall be conclusively presumed to be its tibundaries.
ARTICLE III
PROPERTY RIGHTS
3.1 Association Propertv. 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 Unit within a particular Phase to an Owner. The Association shall be deemed to have
accepted the Association Property conveyed to it when (a) a grant deed conveying title to the
Association Property has been recorded in the Official Records of the County, and (b)
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
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 the deed conveying said Association Property.
3.2 Common Area. Each Owner of a Condominium shall be conveyed an equal
undivided interest in the Common Area as a tenant-in-common with the other Owners of Units in
the same Phase, excluding the Units. The tenancy-in-common interest to be conveyed with
each Condominium shall be determined by a fraction, the numerator of which is one (1) and the
denominator of which is the total number of Units within that particular Phase. Each Owner of a
Unit in the Initially Covered Property will receive a One-Ninth (1/9*) fractional interest in the
Common Area. The specific interests in the Common Area for Condominiums in subsequent
Phases to be conveyed to the Owners within that Phase shall be specified in the Declaration of
Annexation for that particular Phase.
3.3 Exclusive Use Area. Except as limited by other provisions in this Declaration, the
Map and/or the Plan, each Owner of a Condominium shall have an exclusive right and
easement for the use, possession and enjoyment of the EUA applicable to his/her Unit,
designated on the Plan which bears the number that corresponds to that of his/her Unit, and any
other areas defined as EUA, all of which shall be appurtenant to and pass with title to the
T0070186/1917451-1 -10- 10/14/14
Owners' Condominium. All easements to EUA are subject to the right of the Association to
enter in and upon the EUA as provided by and in accordance with the limitations upon such
right as set forth in this Declaration.
3.4 Non-severability. The interests in the Common Area cannot be changed after
conveyance of the first Condominium within a Phase. The undivided interests in the Common
Area, the fee title to the respective Units conveyed therewith and the easements appurtenant
thereto are not separable and may not be separately conveyed unless the Plan is amended in
accordance with California Civil Code § 4295. If the Plan is amended, any conveyances
necessary to cause ownership interests to conform to the amended Plan shall not violate this
section. Each undivided interest in the Common Area and each easement appurtenant to the
Unit shall be deemed to be conveyed or encumbered with the respective Condominium even
though the description in the grant deed or other instrument of conveyance or encumbrance
may refer only to the Condominium. The ownership interests in the Common Area and Units
described in this Article are subject to the easerhents described, granted and reserved in this
Declaration. Each of the easements described, granted and reserved herein shall be
enforceable as equitable servitudes and covenants running with the land for the use and benefit
of the Owners and their Condominiums superior to all other encumbrances applied against or in
favor of any portion of the Project with respect to the operation and management of the Project.
3.5 Partition Prohibited. Except as provided in California Civil Code § 4610, there
shall be no judicial partition of Common Area or of any part thereof. Each Owner specifically
waives and abandons all rights, interests, and causes of action for judicial partition of Common
Area. Each Owner agrees that no action for judicial partition of Common Area shall be
instituted, prosecuted or reduced to judgment, except in cdifipliance with California Civil Code §
4610. If a Unit 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.
3.6 Annexation and Deannexation Rights. Real property may be annexed or
deannexed pursuant to this Section, i *
3.6.1 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. Othenwise, any other Additional Property may be annexed to the
Project only with the approval of two-thirds {Vs) 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.
3.6.2 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
Common Area and/or Association Property with the property to be annexed; (iii) set forth
the ownership of any such Common Area and/or Association Property; 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 shall also provide that if and only if at the time of the first
conveyance of a Unit in a Phase the Declarant has rented or leased Units in that Phase
T0070186/1917451-1 -11- 10/14/14
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 Unit in that Phase and which
would have been allocable to reserves for replacement and deferred Maintenance of
Association Property 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, shali be paid to the Association prior to or concurrently with the first
conveyance of a Unit in that Phase.
3.6.3 Effect of Annexation. After complying with the procedures for annexation
and upon the commencement of Assessments for Units in the annexed Phase, Owners
of Units in the annexed Phase shall be Members, shall be subject to this Declaration,
and shall be entitled to use all Association property 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 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.
3.6.4 Deannexation. Subject to the restrictions, llrnitations and provisions of
this Declaration, Declarant or the Assdciation 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 there are two (2) classes of membership
requires the approval of the FHA and/or the VA, if either are First Mortgagees.
Deannexed property shall remain subject to the Conditions of Approval.
3.7 Easements. In addition to any and all other easements contained in this
Declaration, the Project shall be subject Ip the following easements:
3.7.1 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 Unit, subject to the limitations contained in this Declaration.
3.7.2 Association Easements. There shall be reserved in favor of the
Association, an easement across, over, in and on any Unit to Maintain, repair or replace
those areas as set forth in this Declaration.
3.7.3 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;
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
T0070186/1917451-1 -12- 10/14/14
determined by the as-built location of each mailbox cluster. The easements reserved
hereby are appurtenant to each Unit in the Project, as necessary to ensure the Owner's
reasonable access to their respective mailboxes. Mailboxes shall be Maintained as set
forth in Article V, Section 5.1 ofthis Declaration.
3.7.4 Declarant's Reservation of Easements. Declarant hereby reserves
easements over the Association Property for common drivevvay purposes, for drainage
and encroachment purposes, for ingress and egress frOiti 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 Unit 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 (10) years after the conveyance ofthe first Unit.
3.7.5 Easements for Utilities and Maintenance. Easements over and under the
Prpject for the installation, repair and Maintenance df 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 as may
be hereafter required or needed to service the Project, 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, efc.) installed in
the Project.
3.7.6 Easements on the Map. The Project is subject to the easements and
rights of way shown on the Map including, but not limited to, those for the purposes of
drainage, maintenance, and other purposes. Limitations on the construction 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.
3.7 7 Encroachment Easements. Each Unit is hereby declared to have an
easement over any adjoining Unit or Association Property for the purpose of
accommodating any encroachment due to minor engineering errors, minor errors in
original construction, settlement or shifting of any buildings, 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 Units and the Association Property
adjoining the Unit due to minor engineering errors, minor errors in construction, or
settlement or shifting of the buildings, shall be permitted and that there shall be valid
easements for the Maintenance of said encroachments so long as they shall exist.
3.7.8 Fire Svstem Easements. Each Owner of a Unit and the Association is
granted an easement over and across those portions of Units for a Fire System
Easement. The Fire System Easement shall be generally located within the interior
T0070186/1917451-1 -13- 10/14/14
perimeter walls of each Unit, and shall be used solely for the purpose of
accommodating, maintaining, repairing, replacing and using the lines and conduits for
the fire sprinkler and fire alarm system serving individual Units, as applicable or
necessary. The Association is hereby granted an easement over, across and upon
those portions of Units as are necessary to Maintain, repair and replace the lines and
conduits for the fire sprinkler and fire alarm system. The Project will be equipped with
on-site fire protection facilities and all Units will be provided with automatic fire
sprinklers, the maintenance of which is further described in this Declaration.
3.7.9 Owners' Easements. Every Owner shall have a right and nonexclusive
easement of enjoyment in and to the Association PrPperty and improvements located
thereon, including ingress and egress to and from his/her Unit. Each such nonexclusive
easements shall be appurtenant to and shall paSs with the title to the Unit, 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 Xlll of the
Bylaws
(b) The right of the Association td 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 Onit.
3.7.10 Reciprocal Maintenance Easements. Each Owner of a Unit shall have a
reciprocal non-exclusive maintenance easement over and across such portions of any
adjacent or contiguous Unit or Association Property as is necessary to Maintain and
repair the Unit and/or any Improvement(s) on the Unit.
3.7.11 Right of Entry. The Board may authorize its agents and employees to
enter upon or in any Unit 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.
3.7.12 Utilitv Chase Easements or UCEs. There shall be an easement across,
under and through each Unit in each building in which the Unit is located for the purpose
of accommodating utility lines, pipes, wires and other conduits for the delivery of utility
T0070186/1917451-1 -14- 10/14/14
services to one or more or all of the Units within a building. Owners and occupants of
Units are strictly prohibited from altering, modifying or tampering with any lines, pipes,
wires or other conduits located within these UCEs.
3.8 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 perniitted by the Bylaws and the
Association Rules, subject however, to this Declaration. However, if an Owner has sold his/her
Unit 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 Unit is sold to a contract purchaser or rented to
tenants. Instead, the contract purchaser, or tenants, while occupying such Unit, 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 Unit or tenants of such Owner's Unit. 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 Ipr payment of Assessments or performance of the
covenants, conditions and restrictions containid in this Declaration. Any lease, rental
agreement or contract of sale entered into between an Owner and a tenant or contract
purchaser of a Unit 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.
3.9 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 Unit, which right shall be perpetual and appurtenant to his/her Unit ownership.
ARTICLE IV
USE RESTRICTIONS
4.1 Alterations. Except as othenwise specifically provided in this Declaration, no
Alteration may be made to any Unit until plans have been submitted and approved by the ACC,
as set forth in Article VI of this Declaration. Owners shall comply with Article VI of this
Declaration before commencement of any work on a Unit. Notwithstanding, under no event
shall Owners be allowed to remove retaining walls, install structures such as trellises, decks,
retaining walls and other hardscape, or install any other landscape Improvements. Declarant
shall be exempt from obtaining approval from the ACC for any Improvements it constructs or
installs within the Project.
4.2 Animals. An Owner may keep a reasonable number of customarily uncaged
household pets within the Owner's Unit. 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
T0070186/1917451-1 -15- 10/14/14
may be kept for commercial purposes. No animals, livestock or poultry of any kind shall be
raised, bred or kept in any Unit, 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 or in any Unit 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 ofthe Board constitutes a nuisance
to any other Owner. No pets shall be allowed in Association Property except as may be
permitted by Association Rules. No dog shall enter Association Property except while on a
leash that is held by a person capable of controlling it. Ovvners shall prevent their pets from
soiling any portion of the Association Property and shall clean up after their pets in the
Association Property.
4.3 Antenna and Satellite Dish Equipmeht. 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 Unit, except as follovvs; (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 td restrict in any manner the Declarant's or government agency's right
to authorize a cable televisiori franchisee or other provider of similar services to provide cable
television, radio or other similar services to the Project.
4.4 Burning. Only barbecue fires and fires contained within receptacles designed for
such purpose may be allowed in the exteriors of Units. Propane or electric powered barbecues
or other similar equipment may be used so long as such use does not create a nuisance to
neighboring Units. However, subject to the California Fire Code, as may be adopted by the
City, as amended from time to time, charcoal burners and other open flame cooking devices
shall not be used, operated or stored on combustible Decks, Patios or Porches within ten (10)
feet of combustible construction, unless the building and Deck, Patio and/or Porch is protected
by an automatic sprinkler system. Liquefied Petroleum Gas (LPG) burners having an LPG
container with a water capacity greater than two and one half (2''/4) pounds {i.e., nominal one (1)
pound LPG capacity) shall not be located on combustible Decks, Patios and/or Porches within
ten (10) feet of combustible construction. No Owner or resident shall permit any condition to
exist on or in his/her Unit, including, without limitation, trash piles or weeds, which create a fire
hazard or is in violation of local fire regulations.
4.5 Compliance with Proiect Documents. Each Owner, contract purchaser, lessee,
tenant, guest, invitee or other occupant of a Unit or user of the Association Property shall
comply with the provisions of the Project Documents, including the Association Rules.
4.6 Disclosure - Noise from Transportation Corridor. Each Owner, resident and their
successors and assigns, expressly acknowledge, understand and agree that the Project is close
proximity to South Coast Highway also known as Carlsbad Boulevard and that State Street
T0070186/1917451-1 -16- 10/14/14
(which fronts the Project) serves as an on-ramp and off-ramp to and from South Coast Highway.
Owners and residents may be subject to the effects and conditions inherent in and associated
with its close proximity to the Project including, but not limited to, noise, dust, smoke, air
pollution, traffic, and road maintenance work. Each Owner, on behalf of him/herself, their heirs,
beneficiaries, successors and assigns, hereby acknowledge that Declarant does not have any
control or influence over the uses of the roadways and shall not be liable for any inconvenience,
nuisance or damages that may be suffered by Owners as a result of the Project's proximity to
South Coast Highway. In addition, each Owner and its heirs, beneficiaries, successors and
assigns further agree to waive any claim of liability on the part of Declarant and the City relative
to the City's approval ofthe Project, and any claims of damage due to the Project's proximity to
South Coast Highway. It is the intent that this provision shall be an equitable servitude and
binding on all Owners within the Project and their successors in interest.
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 Buildings 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 othenwise 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 Building constructed by Declarant has a roof gutter system and downspouts which
are directly connected to the Project's storm drainage system, the Building 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 in any Unit or EUA. Further, no clothes washers,
clothes dryers, refrigerators or freezers may be kept, stored, or operated from any exterior area
of a Unit.
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 shall be kept sufficiently clear so as to allow parking of the maximum
number of Authorized Vehicles for which the garage was designed to hold. 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. The
parking of recreational vehicles, motor homes, campers, off-road vehicles, buses, land
T0070186/1917451-1 -17- 10/14/14
conveyances, vessels, aircraft, boats, trailers, trucks and other similar type vehicles in garages
are strictly prohibited.
4.10 Invitees. Each Owner shall be responsible for compliance with the provisions of
this Declaration by the Owner's Invitees.
4.11 Landscaping. Owners may not alter, modify or change any landscaping or
irrigation installed in the Project as these areas are deemed Association Property owned,
managed and Maintained by the Association. Owners may, however, install potted plants,
flowers and other appropriate planting materials on Decks, Patios and/or Porches subject to
approval from the ACC (or the Board if the ACC is not yet established), as set forth below in
Article VI.
4.12 Liabilitv 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 Reimburiernent Assessment (as set forth in Article
IX of this Declaration) may be imposed on an Owner and his/her Unit 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 setforth in Article Xlll ofthe Bylaws.
4.13 Live/Work Units. In addition to the restrictions set forth in this Declaration, the
LiveA/Vork Units shall be subject to all state, federal, County and City statutes, ordinances and
regulations governing said Live/Work Units and which are incorporated herein by reference as if
set forth in full. Only the ground floor area of the Live/Work Units shall be used to conduct
business and commercial operations; i.e., not in the residential area, yard, garage or accessory
structure or in any other areas of the Project. Furthermore, the Live/Work Units shall be subject
to the foltowing:
4.13.1 Allowable Business Activities. The business activities set forth in this
Section 4.13.1 may be allowed upon approval of a business license from the City. Any
additional classifications not specifically listed herein or which deviate from these types
of uses shall require approval of a Zone Clearance or Minor Use Permit based on an
interpretation of the Zoning Administrator of the City and consistent with the home
occupation exceptions listed in the City's Zoning Ordinance:
(a) Accounting/bookkeeping services;
(b) Attorneys;
(c) Artist studio;
(d) Architect, engineer or landscape architecture;
(e) Contractor's office (no storage allowed);
(f) Financial advisors, tax preparation and planning;
(g) Graphic design or commercial artist;
T0070186/1917451-1 -18- 10/14/14
(h) Internet sales, marketing and services (but excluding any aduit-
onented internet sales, marketing or services);
(i) Medical billing;
0 Psychologist or counseling services;
(k) Real estate agents;
(I) Tutoring (one-on-one only); or
(m) Similar administrative and professional office uses.
4.13.2 Additional Restrictions on Live/Work Units. Live/Work Units shall be
subject to the following additional restrictions:
(a) The hours of the businesses Jn which clients are allowed to visit the
LiveAA/ork Units shall be limited to 8:00 am to 6:00 pm.
(b) Client visits shall be by appointment only.
(c) There shall be no business or comiifiercial signage installed
anywhere on the Live/Work Unit dr anywhere in the Project.
(d) No display of any products Or advertisement shall be shown from a
Live/Work Unit.
(e) The defined ground floor "work" area shall not be converted to a
separate residential Unit.
(f) The Association may enact Association Rules to restrict or limit the
number of uncovered parking spaces that the Live/Work Units may utilize for
clients, and the hours in which such uncovered parking spaces may be used by
clients of the Live/Work Units.
4.14 Mailboxes. There shall be no exterior newspaper tubes or freestanding
mailboxes placed on the exterior of any building or Unit, except as installed by Declarant.
4.15 Mineral and Water Exploration. Owners are prohibited from exploring the Project
for or to remove any water, oil, hydrocarbons or minerals of any kind.
4.16 Nuisances. No noxious, illegal or offensive activity shall be carried on upon any
Unit 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 Unit, Building Common Area, Association Property, or which may increase the rate of
insurance for the Project or for any Unit, 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.
4.17 Outdoor Furniture, Accessories and Equipment. With the exception of umbrellas
and appropriately sized patio furniture, there shall be no patio covers, storage sheds or other
T0070186/1917451-1 -19- 10/14/14
accessory structures of any size or dimension, whether temporary or not, permitted on or within
any Deck, Patio and/or Porch.
4.18 Parkinq.
(a) Only Authorized Vehicles shall be parked within Permitted Parking Areas,
as set forth in this Declaration.
(b) Uncovered parking spaces are only for the temporary parking of
Authorized Vehicles of Owners/residents and their guests Or invitees on a "first-come,
first-served" basis, provided, however, that the Association may, in its sole discretion
and authority, create rules, regulations and restrictions on the parking of Authorized
Vehicles in the uncovered parking spaces including, but not limited to, prohibition of
Owners/residents from parking in uncovered pai'king spaces. Authorized Vehicles of
guests may only park in uncovered parking spaces for a maximum of twenty-four (24)
consecutive hours. Other than the specifically marked uncovered parking sfjaces, there
shall be no parking on the private streets or alleys within the Project, temporarily or
othenwise.
(c) All Authorized Vehicles parked in uncovered spaces must be operable,
registered with the Department of Motor Vehicles, and display proper tags and license
plates. If the Association utilizes parking stickers, tags or visitor passes, said stickers,
tags or visitor passes shall be properly displayed or said Authorized Vehicles may be
towed at the owner's expense, as allowed by California Vehicle Code § 22658.
(d) No boat, trailer, camper, off-road vehicle, golf cart. Commercial Vehicle,
mobile home, motor home, bus, other recreational vehicle or any non-operational or
dilapidated vehicle shall be parked or stored in any Permitted Parking Area.
(e) The private streets and alleys shall be designated as required for fire
access which may limit parking on one or both sides of the streets pursuant to the
Carlsbad Valley Fire Protection District ("F/re Departmenf) standards. Signs and/or
curb striping shall be installed and Maintained pursuant to the Fire Department and the
City's fSdlice department and engineering services. At a minimum, any such signs shall
include the local law enforcement agency telephone number and a notification that a
citation may be issued for the violation with vehicle removal at the vehicle owner's
expense.
(f) Commercial Vehicles shall not be parked within the Project except for
purposes of loading or unloading, and then for penods not in excess of six (6) hours.
This restriction shall not apply to Commercial Vehicles involved in construction activities
in the Project or vehicles owned and operated by persons providing services during the
time when the services are being rendered.
(g) 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 vehicles based on, but not limited to,
California Vehicle Code § 22658.
T0070186/1917451-1 -20- 10/14/14
(h) 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.
4.19 Power Eguipment 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 Authorized Vehicles on the driveway, streets or other
Permitted Parking Areas in violation of Section 4.18, 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. Nothing in this
Section shall prohibit the use and storage of hand tools and equipment reasonably necessary
for routine household Maintenance and upkeep. Washing of vehicles or other motorized
equipment within Association Property is strictly prohibited.
4.20 Prohibition of Dumping Oil, Wastewater and Chemicals. Association and all
Owners and residents are strictly prohibited from disposing of crank case oil, run-off from car
washing, motor fluids, paint, pet waste clean-up, run-off from trash/garbage areas, fertilizer and
pesticides, and other chemicals in storm drains. Association, Owners and residents are
cautioned in the practice of fertilizing and then overwatering lawns and landscaping resulting in
run-off into the storm drains. Association, Owners and residents shall exercise the best
methods to prevent such dumping or disposal of these items in the storm drains or other areas
of the Project where it may flow to the storm drains because these contaminants have adverse
effects on the environment.
4.21 Rental of Units. Except where expressly prohibited by some other agreement or
written instrument including, but not limited to, an Owner Occupancy Agreement, Owners may
lease or rent his/her Unit. However, no Unit may be rented or leased for transient or hotel
purposes which shall include, but 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 Unit, 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.
4.22 Restrictions on Business. Excluding the Live/Work Units, uses permitted by local
ordinances, and the construction of Improvements and the business of Declarant in completing
the development and sale of Units in the Project, no business of any kind shall be established,
maintained, operated, permitted or constructed in any portion ofthe Project.
4.23 Restrictions on Decks, Patios and Porches. The Association shall have the
authority to implement Association Rules that regulate items that may be planted, placed,
erected or installed on Decks, Patios, Porches and planters located on the exterior of Units.
Such Association Rules may include, without limitation, that potted plants and flowers shall be
kept in good condition that dead plants and flowers be removed immediately, and/or any
offensive, unsightly or inappropriate items on Decks, Patios, Porches and planters may be
removed by the Association. Owners and residents are prohibited from keeping any storage
containers or bins on Decks, Patios and/or Porches.
T0070186/1917451-1 -21- 10/14/14
4.24 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 Unit, EUA, Association Property, or any portion of
the Project without the approval of the Association, except as follows: (a) Noncommercial signs
or posters not to exceed nine (9) square feet in size may be displayed from a Unit; (b)
Noncommercial flags or banners not to exceed fifteen (15) square feet in size may be displayed
from a Unit; (c) One sign of customary and reasonable dimensions, not to exceed four (4) feet in
height and four (4) feet in width, advertising a Unit for sale, lease, rent or exchange may be
displayed from a Unit; (d) Such signs as may be used by Declarant or its assignees in
connection with the Project and sale of Units; or (e) Such other signs or notices as are required
by law.
4.25 Solar Energv Svstems. Declarant does; not warrant, prorhise, represent or
guarantee that the Unit or any building 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 for the Unit 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 ahd 714.1 each Owner may install
or use a solar energy system, as defined in California Civil Code § 801.5 (but excluding subpart
(a)(2)), on the building in which Owner's Unit is located 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. In every circijmstance, all conditions of approval,
regulations, orders and ordinances of the City and the laws of the State of California with
respect to the Project shall be satisfied with respect to the installation of a solar energy system.
This Section, however, does not entitle any Owner to install a solar energy system on any
building if such installation potentially threatens, impedes or impairs the Association's ability to
Maintain any portion of Association Property, the building or other areas that the Association is
obligated to Maintain pursuant to this Declaration.
4.26 Sound Transmissions and Attenuation. No Unit shall be altered in any manner
that would increase ;Spund transmissions, resonances or reverberations to any adjoining Unit(s)
includirig, but not limited to, replacement, modification or penetration of any flooring, floor
covering, ceiling or wall, installation of r'ecessed lighting, stereo speakers or the penetration of
any floor, ceiling or wall that Jncreases sound transmissions, resonances or reverberations to
any other Unit. Owners are specifically prohibited from installing "built-in" speaker systems that
penetrate ceilings and walls, and mounting any television or video screen to walls that are
directly adjacent to another Unit. Any Alterations to the flooring and floor covenngs (including
hard surface or wood flooring in lieu of carpeting) and/or the installation of televisions, video
screens, speakers or home theater systems in the interior of a Unit by an Owner (other than
Declarant) requires approval from the ACC, as set forth in Article VI of this Declaration, and the
ACC shall not approve any such installation unless there is an appropriate level of acoustical
separation designed and approved by a licensed engineer.
4.27 Sports Apparatus. No basketball standard, fixed sports apparatus or similar
equipment shall be attached to the exterior of any building or erected, constructed or placed in
any Association Property. Portable sports apparatus shall be kept out of view from Association
Property or the Units 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
T0070186/1917451-1 -22- 10/14/14
aesthetic standards, and to preserve the quiet enjoyment ofthe respective Units by the Owners
thereof.
4.28 Storage of Waste Materials. Garbage, trash and/or recycling containers shall be
kept out of view and contained within the garages and/or in specified locations and may not be
placed where visible from the streets except in designated curbside areas on the night before
and day that pick-up is to occur. No rubbish, trash, garbage or other waste material shall be
kept or permitted in any Unit 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 Units and Association Property.
4.29 Use and Occupancv. Excluding the Live/Work Units arid except as may be
allowed by local ordinance or set forth elsewhere in this Declaration, no Unit, 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 Unit, Association Property or
Association Maintenance Area, except that Declarant, its successors or assigns, may use any
Unit, Association Property or Association Maintenance Area in the Project owned by Declarant
for a model home site and display and sales office during construction until the last Unit is sold
by Declarant. The provisions of this Section shall not prohibit home offices so long as they are
merely incidental to the use ofthe Unit 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 pnor written approval ofthe Board.
4.30 Window Coverings. Windows shall be covered by drapes, shades, shutters or
other window coverings apd 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 covenngs must be installed on all
windows visible from the streets serving the Project within ninety (90) days after conveyance of
title to the Unit by Declarant, unless the Design Guidelines provide othenwise. All window
coverings visible from other Units, Association Property or Association Maintenance Area shall
be of a material and design which, in the opinion of the Board or ACC, is compatible with the
exterior desigh and coloration of adjacent portions of the Project, including other Units.
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 Improvements. 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,
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 general, non-exclusive list allocating maintenance
responsibilities of the Association for certain components and areas of the Project are identified
on Exhibit B, attached hereto and incorporated herein by reference. The Association's
Maintenance Obligations shall include, but not be limited to, the following:
T0070186/1917451-1 -23- 10/14/14
5.1.1 Maintenance of the private streets and street lights, landscaping
(including trees and irrigation) Improvements in Association Property, perimeter walls
and fencing within the Project. The private streets, alleys and parking areas shall be
swept on a regular basis, and possibly more frequently nearer to October 15* each year
prior to the rainy season.
5.1.2 BMPs shall be incorporated as part of the Association's duties and
obligations as required by the City, and as part of the Association's Maintenance
Obligations with respect to Association Property to effectively prevent the entry of
pollutants into storm water runoff. Such duties may include, but not be limited to, the
following:
(a) Implementing all non-storrn water management, and materials and
waste management activities, such as monitoring, discharges, general site clean-
up, vehicle and equipment cleaning, spill control, ensuring that no materials other
than storm water are discharged in quantities which will have an adverse effect on
receiving waters or storm drain systems, efc.
(b) Ensuring elimination of all unauthorized discharges, and manage
and report any illicit or illegal discharges.
(c) Maintain the drainage systems within the Project including, but not
limited to the water quality basins. Catch basins and drains shall be inspected and,
if necessary, cleaned prior to the storm season or not later than October 15* each
year prior to the rainy season.
(d) Re-stenciling on catch basins to say "No Dumping - Flows to
Ocean", or its equivalent, as necessary.
5.1.3 Any landscaping in the Association Property shall be designed with an
efficient irrigation system to reduce runoff and promote surface filtration and to minimize
the use of fertilizers, herbicides and pesticides which can contribute to urban runoff
pollution.
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 the Association Property up to the meters,
splice boxes, or other connections that will exclusively serve a Unit, with the exception of
items and services provided by the City.
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, as shown on the Map, including removal of
blockages in private sewer lines so long as the blockage is in the Association Property.
5.2 Maintenance of Exclusive Use Areas. Owners shall perform the cosmetic
maintenance, upkeep, cleaning and sweeping (as needed) to the surfaces and flooring of the
Deck, Patio and/or Porch appurtenant to his/her Unit, as applicable. The Association shall be
responsible for structural repair and/or replacement of the Deck, Patio and/or Porch; provided,
however, that if any recoating, resurfacing, repairs to the coatings/surfaces, structural repair
and/or replacement work is necessitated by the willful or negligent acts of the Owner, his/her
T0070186/1917451-1 -24- 10/14/14
family, guests or invitees, the costs of such special restoration or repairs shall be chargeable to
the Owner as a Reimbursement Assessment as provided in Article IX. In addition, Owners shall
be solely responsible for the maintenance and working condition of the HVAC that serves
his/her/their Unit, including any platform upon which HVAC equipment sits, and any screening
Improvements (fences, walls, landscaping, etc.) that are required to screen the HVAC. The
failure of the Owner to properly Maintain the HVAC, including the screening, may result in the
Association performing said repair and/or maintenance work and charging the Owner a
Reimbursement Assessment, as provided in Article IX, for said costs.
5.3 Maintenance of Units.
5.3.1 Obligation. Each Owner shall Maintain, repair and/or' replace the interior
surfaces of his/her Unit in good condition and repair, including all fixtures, appliances,
appurtenances and fireplaces, if any. The Maintenance Obligations hereunder of each
Owner includes, but is not limited to, the responsibility to (a) Maintain, repair, paint,
paper, panel, plaster, tile and finish the interior surfaces of the ceilings, floors, and the
perimeter walls of his/her Unit, and the bearing walls within his/her Unit; (b) 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 Unit; (ci) Maintain, repair, replace and clean the interiors and exteriors of any
skylights, windows, sliding glass doors, and other glass surfades of his/her Unit; and (d)
Maintain, repair and/or replace doors, hardware, locks and screens covering doors and
windows of his/her Unit, including the garage door. A general, non-exclusive list
allocating maintenance responsibilities of Owners for certain components and areas of
the Units are identified on Exhibit B, attached hereto and incorporated herein by
reference.
5.3.2 Failure of Owner to Maintain. If an Owner fails to Maintain his/her Unit,
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 reguired 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 riotice and hearing requirements set forth in the Bylaws,
have the right to enter the Unit 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 Unit, the Board shall have the right, through its agents and
employees, to immediately enter the Unit to abate the emergency and individually
charge the cost thereof to such Owner.
5.4 Utilitv Bills. Payment of any water, electricity and street lighting bills for
Association Property is the obligation of the Association.
5.5 Other Association Obligations. The Association shall contract with a professional
management firm to handle Maintenance operations and recycling collection procedures.
5.6 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. Units and Association Property, efc.) forthe periodic inspection and
T0070186/1917451-1 -25- 10/14/14
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. The
Association shall maintain City-approved documents relevant to the Project for inspection by
Owners including, but not limited to, the adopted Environmental Document, Planning
Commission Resolution, Project plans, "as-built" plans, and any deed restrictions applicable to
the Project or any portion thereof.
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 Units in the Project have been sold or
until the fifth (5*) 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 Units in the Project or the
fifth (5*) 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 ofthe 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.
6.2 Exemption from Architectural Review. Declarant is exempt from obtaining
approval from the ACC for any Improvements originally installed by them as part of the
construction and developmentof the Project.
6.3 Duties of the ACC. The ACC shall review and approve, conditionally approve, or
deny ajJiplans, 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
therewithf 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.
6.4 Design Guidelines. The Design Guidelines shall interpret and implement the
provisions of this Declaration by setting forth the standards and procedures for architectural
matenals, 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 and/or the Conditions of Approval for the Project issued by the
City or any other government entity or agency. The Design Guidelines may include a schedule
of fees for processing submittals (which shall not exceed the amount necessary to defray all
T0070186/1917451-1 -26- 10/14/14
costs incurred by the ACC in processing the submittals) and establish the time and manner in
which such fees shall be paid.
6.5 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 Unit by any Owner(s), including Alterations to facilitate access for persons
who are blind, visually handicapped, deaf or physically disabled, nor shall any Alterations 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, efc, 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, install 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 Unit; provided, however, no Owner
shall have any nght to a particular view(s) from his/her Unit. Owners are prohibited from
installing, constructing, altering or modifying the exteriors of Units 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.
6.6 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.
6.7 Compliance with the Citv's Conditions of Approval. It shall be the responsibility
of each Owner and the Association to ensure that any changes or modifications to the Project or
any Unit are in compliance with the original City conditions of approval ofthe Project, which are
incorporated herein as if set forth in full, the design standards approved by the City as set forth
in the City's Municipal Code, as applicable.
6.8 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.
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.
6.9 Reconsideration of Denial of Application. If the ACC denies an application for
Alterations, modifications, efc, to a Unit, 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 ofthe
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.
T0070186/1917451-1 -27- 10/14/14
(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, efc.
(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 penod.
(d) Unless expressly requested by an Owner, the meeting with the Board
concerning the appeal ofthe 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.
6.10 Proceeding with and Completion of Work. Upon approval ofthe 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.
6.11 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
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.
6.12 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, efc, 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.
6.13 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
T0070186/1917451-1 -28- 10/14/14
constitute a waiver of any right to deny approval of any similar plan, drawing, specification or
matter subsequently submitted for approval.
6.14 No Liabilitv. 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.
ARTICLE Vll
ASSOCIATION ADMINISTRATION. MEMBERSHIP AND VOTING
7.1 Association to Manage Project. The management ofthe 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-gpvernmental body or agency having
jurisdiction overthe 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 jny vvay, except upon the sale or encumbrance of the Unit
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 Unit. 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 Unit, whether by
reason of a deed from the Owner or through a foreclosure, shall within fifteen (15) days of
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 reguired 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 this Article Vll, 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(a) and 5115(b)-(c), 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.
T0070186/1917451-1 -29- 10/14/14
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 Unit owned, as applicable. When more than
one person or entity owns a Unit, all such persons and entities shall be Members and
the vote for such Unit shall be exercised as they among themselves determine, but in no
event shall more than one (1) vote be cast with respect to any Unit.
(b) Class B. The Class B Member shall be the Declarant and shall be
entitled to cast three (3) votes for each Unit 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 Unit it owns and is
paying the Assessments levied by the Association upon the first to occur of the following
events:
(i) The second (2"*^) anniversary of the first close of escrow for the
sale of a Unit pursuant to the original issuance by the BRE of the most recently
issued Final Public Report for a Phase ofthe Project; or
(ii) The fourth (4*) anniversary of the first close of escrow for the sale
of a Unit pursuant to the original issuance by the BRE of the Final Public Report
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%) ofthe members ofthe Board.
7.8 Commencement of Voting Rights. Voting rights attributable to Units shall not vest
until Assessments against those Units 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 Unit is subject to
estate administration.
7.9 Secret Ballot Voting. All voting on matters specified in California Civil Code §§
5115(a)-(c) shall be done by secret ballot and be in compliance with the Association Rules for
elections and any and all other statutory provisions.
ARTICLE Vlll
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.
T0070186/1917451-1 -30- 10/14/14
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.
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 setforth in Article Xlll ofthe 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 othenwise 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.
T0070186/1917451-1 -31- 10/14/14
(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.
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.
8.1.10 Granting of Easements. To grant easements where necessary for utilities
and sewer facilities over the Association Property to serve the Association Property and
Units.
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 Acguisition of Property. To acquire (by gift, purchase or othenwise), own,
hold, improve, build upon, operate. Maintain, convey, sell, lease, transfer, dedicate for
public use or othenwise 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.
T0070186/1917451-1 -32- 10/14/14
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 ofthe Project Documents.
8.1.18 Emergency Repairs. To enter upon or in any Unit 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 ofthe Board.
8.1.20 Filling Vacancies. To fill vacancies on the Board created by the removal
or resignation of a Board Member.
8.2 Propertv Taxes and Assessments. Each Owner shall be obligatesd to pay any
taxes or assessments levied by the County Assessor against his/her Unit and persohar property.
In addition, if reguired by the City, each Owner shall be reguired to participate in a Landscaping
and Lighting Assessment District if the Project is included in Such a district. 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 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 Pavment 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 govemmental 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 Unit
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
Assessments; (ii) Special Assessments for capital improvements or unusual expenses to be
established and collected as hereinafter provided; and, (iii) Reimbursement Assessments and/or
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 Liabilitv 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
T0070186/1917451-1 -33- 10/14/14
Civil Code § 5650(b), shall be the obligation of the Owner of such Unit at the time when
the Assessments or Additional Charges fell due. If more than one person or entity was
the Owner of a Unit 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 him/her. No Owner may exempt himself from
liability for his/her 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 ofthe 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
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, ef
seg.), or (d) or request that the dispute be resolved by alternative dispute resolution with
a neutral third party {California Civil Code § 5925, ef 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. 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 Property, 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 Property shall commence
upon the date that the Improvements within the Association Property are complete and
no one other than the Association has any obligation to Maintain, repair and/or replace
the Improvements in the Association Property areas.
T0070186/1917451-1 -34- 10/14/14
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 subject to limitations set forth in California Civil Code § 5605, and/or if
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 Assessment 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 Unit.
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 Board 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
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 subject to the limitations set forth in California Civil
Code § 5605, and/or if 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 Unit 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 Heanng has been given in accordance with the Bylaws.
Reimbursement Assessments described in subdivision (a) may be enforced by lien after
Declarant no longer owns any portion ofthe Project. Reimbursement Assessments described in
subdivision (b) may not be enforced by lien.
9.7 Commencement of Assessments. The nght to levy Assessments shall
commence as to all Units in a Phase on the close of escrow for the first conveyance of a Unit in
the Phase. Regular Assessments shall commence as to all Units in a Phase on the first day of
the month following the first conveyance of a Unit 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 Units, including those in the annexed Phase of the Additional
Property. For Model Home Units, Assessments shall commence on the first day of the first
month following the conveyance of the first Unit to an Owner (other than Declarant) under
authority of a Final Public Report in the last Phase of the Project shown in the budget submitted
to and reviewed by the BRE. If a Model Home Unit ceases to be used as Model Home Unit
prior to the conveyance of the first Unit in the last Phase of the Project, then Declarant shall
T0070186/1917451-1 -35- 10/14/14
provide notice to the Association and the Association shall make appropriate adjustments to the
budget for the Project which is submitted to and reviewed by the BRE as may be required to
reflect the commencement of Assessments for the Model Home Units.
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. Withdrawal of funds from the Reserve Account shall require the signatures 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 Fieserve Account only for the purposes
set forth in California Civil Code § 5510(b). All other costs properly payable by the Association
shall be paid from the Current Operating Account.
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 foreclosihg of liens against Owners'
Units. 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 Ci^H 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 Condominium 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 ofthe Assessment lien.
T0070186/1917451-1 -36- 10/14/14
9.11 Lien Eliminated bv 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 Unit 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 Unit, any lien for Assessments which became due prior
to such foreclosure shall be extinguished; provided, however, that after such foreclosure there
shall be a lien on the interest of the purchaser at the foreclosure sale to secure all Assessments,
whether Regular or Special, charged to such Unit 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 actu&l knowledge of the Assessment lien provisions of this
Declaration,
ARTICLE X
AMENDMENT AND ENFORCEMENT OF RESTRICTIONS
10.1 Amendment of Declaration.
10.1.1 Prior to First Close of Escrow. Prior to the close of escrow on the
conveyance of the first Condominium, Declarant may amend or revoke this Declaration
subject to the requirements of California Business and Professions Code §§ 11012 and
11018.7.
10.1.2 After First Close of Escrow. After conveyance of the first Unit, this
Declaration may be amended or revoked only by the affirmative written vote 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 time 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 are required, prior
approval must be obtained from the FHA and/or VA if either are First Mortgagees if the
proposed amendment is of a "material adverse nature" (as further set forth in this
Declaration). 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.
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10.1.3 Amendments Reguiring 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 of 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%) of Owners. Amendments of a "material
adverse nature" include the following:
(i) Voting rights;
(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) Respdrtsibility for Maintenance gnd repairs;
(v) Reallocation of interests in the Association Property or
rights to their use;
(vi) Redefinition of any Lot boundary;
(vii) Convertibility of Units 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 Units;
(xi) Imposition of any restrictions on an Owner's right to sell or
transfer his or her Unit;
(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;
T0070186/1917451-1 -38- 10/14/14
(xiv) Any provisions that expressly benefit Mortgage holders,
insurers or guarantors; or
(xv) Any action to terminate the legal status of the Project after
substantial destruction or condemnation occurs, or 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 required
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
or indirectly, by the Association for the benefit of the Units and Owners
(excepting therefrom, the granting of easements for public utilities or for
other public purposes consistent with the intended use ofthe 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 Units, the exterior Maintenance of Units, 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 an 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 (100%) 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 ofthe property and Improvements..
10.1.4 Unilateral Right to Amend the Declaration. The Declarant (at any time
prior to the sale of all Units in the Project) or the Association (upon Declarant's sale of all
Units in the Project) shall have the unilateral nght to amend this Declaration without the
approval of Members in order to bring this Declaration into compliance with all
requirements and regulations of 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 to correct any errors, mistakes
and/or conflicting provisions.
10.1.5 Submittal of Amendments to the City. A copy of any proposed
amendment shall be provided to the City in advance of not less than sixty (60) days prior
to the vote taken under Section 10.1.2, above. If the proposed amendment affects the
City, City shall have the right to disapprove. A copy of the final approved amendment
T0070186/1917451-1 -39- 10/14/14
shall be transmitted to City within thirty (30) days of recordation in the Official Records of
the County.
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
herein) 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 hght to take possession of the
Unit 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 jDermitted 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 Documents, commencing
fifteen (15) days after repayment is demanded. Except as othenwise 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) Unit, 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 any Owner, tenant or occupant of any Unit
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.
10.2.3 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, as provided in Article V,
Section 5.1 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
T0070186/1917451-1 -40- 10/14/14
of the Association Property within the period specified by the City's notice, the
City shall be entitled to reimbursement with respect thereto from the Owners as
provided herein.
(b) Special Assessments Levied bv the Citv. In the event the City has
performed the necessary maintenance to either Association Property, the City shall
submit a written invoice to the Association for all cOSts incurred by the City to
perform such maintenance of Association Property. The City shall provide a copy
of such invoice to each Owner in the Project, togither with a statement that if the
Association fails to pay such invoice in full within the time specified, the City will
pursue collection against the Owners in the Project pursuant to the provisions of
this Section. Said invoice shall be due and payable by thi Association within
twenty (20) days of receipt by the Association. If the Association shall fail to pay
such invoice in full within the period spdcified, payment shall be deenraed 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 other rights and remedies available to the City,
the City may levy a special assessment against the Owners of each Unit in the
Project for an equal pro rata share of the invoice, plus the late charge. 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 Unit and to bring all
legal actions and/or to pursue lien foreclosure procedures against any Owner and
his/her respective Unit for purposes of collecting such special assessment in
accordance with the procedures set forth in Ari:icle IX of this Declaration.
(c) Landscape Maintenance Responsibilities. The Association's and
individual Unit Owner's landscape maintenance responsibilities shall be as set forth
in Exhibit C.
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. Unit 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 Association complies with the
Notice and Hearing requirements.
10.2.5 Remedies Cumulative. Each remedy provided by this Declaration is
cumulative 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.
T0070186/1917451-1 -41- 10/14/14
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 and 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 Studv. The Board shall (i) cause a study of the Reserve
Account to be conducted, (ii) review the study annually, and (iii) consider and implement
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 Civil Code § 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. Within ten (10) 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 Unit. 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 Riqht 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, ef seg.
ARTICLE Xll
INSURANCE. DESTRUCTION AND CONDEMNATION
12.1 Insurance. The Association shall maintain casualty, liability and other insurance
on behalf ofthe Association as required by the provisions ofthis 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
T0070186/1917451-1 -42- 10/14/14
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 the 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 arid 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 othenwise 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.
12.2.3 Authority 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 ortheir 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;
T0070186/1917451-1 -43- 10/14/14
(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 othenwise pursuant to
Section 12.1, the Board shall obtain at least the following insurance policies in the amounts
specified:
12.3.1 Propertv Insurance. A Special Form or "All Risk" policy of property
insurance for all insurable Association Property Improvements, including fixtures and
building service equipment, against loss or damage, in an amount equal to the full
replacement cost (without respect to depreciation) of Association Property
Improvements, and exclusive of land, foundations, excavation and other items normally
excluded from coverage. The policy shall also cover permanent fixtures within a Unit
originally installed by or on behalf of Declarant including upgrades and any equivalent
replacements thereto, interior walls and doors, ceiling, floor and wall surface materials,
cabinets, built-in appliances, HVAC systems and water heaters, but excluding personal
property within the Unit and any additions or upgrades installed or constructed after
completion of the Unit by Declarant to the extent that the replacement cost exceeds the
replacement costs of the original Improvements as of the date immediately preceding
the damage or destruction of the Improvement. A replacement cost endorsement shall
be part ofthe policy.
12.3.2 Liabilitv Insurance. A combined single limit policy of liability insurance in
an amount not less than Two Million Dollars ($2,000,000.00) 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 California 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 obligees, in an
amount equal to at least one-fourth (%) of the total sum budgeted for the Current
Operating Account and Reserve Account for the current fiscal year. The fidelity bond
T0070186/1917451-1 -44- • 10/14/14
shall contain a waiver of any defense based on the exclusion of persons serving without
compensation.
12.3.5 Directors and Officers. Errors and omissions insurance covering
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 determines 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 Units, 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 Unit, fire and casualty coverage as may be determined by the Board,
with respect to damage or destruction to personal property, upgrades or additions to any fixtures
or Improvements within Owner's Unit that is not covered by Section 12.3.1, above, 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 Owners 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
earner as to other Owners, the Association and Eligible First Mortgagee of such Unit. It is
recommended that Owners Obtain general liability insurance for injuries or damage caused to
any person or personal property or Improvements caused by Owner and loss assessment
coverage in an amount as may be recommended by a qualified consultant. If a Unit is subject
to an FHA-insured Mortgage, the Owner of said Unit shall obtain an HO-6 or "walls-in" coverage
policy if required by an FHA-insured Mortgagee. 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 ofthe Unit 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 Improvement or personal property within a Unit, 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, 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 simiiar 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.
T0070186/1917451-1 -45- 10/14/14
12.8 Damage or Destruction.
12.8.1 Association. The Board shall have the duty to repair and reconstruct the
Association Property without the consent of Members and irrespective of the amount of
available insurance proceeds or other funds, in all instances of partial damage
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 to any Improvement, including Association Property,
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 Improvement 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 amourit Of funds then available pursuant to the
procedures of higher priority as insufficient to restore the damaged Improvements.
The priorities are as follows:
(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 Improvement(s) that has been damaged or
destroyed.
(iii) Any funds raised by a Special Assessment against all
Owners levied by ttie 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 Improvement(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 Improvement(s) as
described above, making use of all funds available to it.
T0070186/1917451-1 -46- 10/14/14
12.8.2 Owners. If all or any portion of a Unit 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 Unit in a clean and safe condition. Any restoration, rebuilding or reconstruction
under (a) preceding 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 dne 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 ali or a portion of the
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, the 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 Units 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 the 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 the 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.
12.9.2 Condemnation Affecting Units. If an action for condemnation of all or a
portion of, or Otherwise affecting ai Unit is proposed or threatened, the Owner and the
Mortgagees of the affected Unit, as their respective interests shall appear, shall be
entitled to the proceeds of any sale or award relating to the affected Unit. If any Unit is
rendered irreparably uninhabitable as a result of such a taking, the Unit shall be deemed
deleted from the Project and the Owners and Mortgagees of the affected Unit, upon
receiving the award and any portion of the reserve funds of the Association reserved for
the Unit, 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 Unit 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 reguire approval
of at least fifty-one percent (51%) of Mortgagees.
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ARTICLE Xlll
MORTGAGEE PROTECTIONS
13.1 Mortgages Permitted. Any Owner may encumber his/her Unit with Mortgages.
13.2 Prioritv 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
of any Mortgage or deed of trust made in good faith and for value as to said Unit, or any part
thereof. Any lien which the Association may have on any Unit in the Project for the payment of
Common Expense Assessments attributable to such Unit will be subordinate to the lien or
equivalent security interest of any First Mortgage on the Unit recorded prior to the date of
recordation of a notice of delinquent Assessment.
13.3 Rights of Institutional Mortgagees. Any Institutional Mortgagee who obtains title
to a Unit 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 forthe Unit's unpaid Regular Assessments, including Additional Charges, accrued priorto
acquisition of title by the Institutional Mortgagee. The Institutional Mortgagee, as Owner of the
Unit shall be obligated to pay any and all future Assessments levied against the Unit 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 Units 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 Unit, 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 Unit 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
of this Declaration that have not been corrected or made the subject of remedial proceedings or
Reimbursement Assessments.
13.5 Pavment 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 of 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 policy 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
T0070186/1917451-1 -48- 10/14/14
and restrictions shall be binding on any Owner whose title is derived through foreclosure sale,
trustee's sale, or othenwise.
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
Units in which these entities are either holders, insurers or guarantors of a First Mortgage on
said Unit, the rules and regulations of FNMA, FHA, VA and/or FHLMC shall control.
13.8 Notice to Mortgagees. Eligible 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 Unit securing the Mortgage; (b) any sixty (60) day
delinquency in the payment of Assessments or Additional Charges owed by the Owner of any
Unit on which it holds the Mortgage if the delinquency ts 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 Xll,
Sections 12.8 and 12.9; (e) any default by the Owner of a Unit that is subject to a First Mortgage
held by the Eligible 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, Eligible 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 Units 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 Eligible 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
(i) an Owner and the Association, and (ii) an Owner and/or the Association and the Declarant,
related to the Project or each other. Regarding disputes between an Owner and the Declarant,
the procedures in this Article XIV do not replace or in any manner modify Declarant's customer
or warranty service procedures, and Owners are encouraged to resolve disputes through those
procedures prior to initiating any procedures hereunder. 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 civil action, the Association and any Owner
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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 Reguest 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, the parties shall comply with the Request for
Resolution procedures set forth at California Civil Code §§ 5925, ef seg.
14.2.3 Attorney's Fees and Costs. In any action, including arbitration and/or civil
action, between the Association and any Owner (excluding Declarant) to enforce the
Project Documents, the prevailing party shall be entitled to recover reasonable attorney's
fees and costs, pursuant to California Civil Code § 5975.
14.3 Notice of Existence of Non-Adversarial Procedures.
14.3.1 Right to Repair Act. California Civil Code §§ 895 ef seg., 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 eariy
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 (d) 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 properiy maintain the home, the
homeowners association fails to properiy maintain common area, fails to promptly notify
the 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
or homeowners association may file a suit or initiate alternative dispute resolution; (f)
establishes fSpecific "pre-litigation" or "non-adversarial" procedures for handling claims
for the violation of the Performance Standards {California Civil Code §§ 910 through
938, inclusive) ("Acf 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 reguired 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
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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 Property.
14.3.4 Notice of Claims (Agent); 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
8105 Irvine Center Drive, Suite 1450
Irvine, CA 92618
(See California Civil Code § 910) by certified mail, overnight mail or personal delivery,
and (b) 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-adversarial contractual provisions {California Civil Code § 914),
Declarant has elected to be governed by the Act Dispute Procedures for ali claims
and disputes subject to the Right to Repair Act in addition to any and all claims or
damages that are alleged to fall outside of the Right to Repair Act by a court of
law. 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 its 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, Unit, and EUA, notice of the
existence of the Act Dispute Procedures and notice that such procedures impact the
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legal rights of the Owners and the Association, as applicable, as required by California
C/w/Code § 912(f).
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 Unit, EUA, 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 Unit 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 Unit to provide to their subsequOnt 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 Civil 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 Units, EUA 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
Units, EUA and/or Association Property, as applicable, and shall require and cause any
tenant or lessee of the Units and/or Association Property, to follow all such schedules
and obligations.
14.3.8 Manufactured Products Maintenance and Limited Warrantv 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 Units, EUA 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
T0070186/1917451-1 -52- 10/14/14
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 Units 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 ofthe California Civil Code.
14.3.10 Indemnity 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 rispective obligations
under the terms of this Section 14.3 as to the Units 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 Units, EUA, Association Property
and/or the Project and notice of the obligation of purchasers of any portion of the Project
to provide copies ofthe 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 Unit 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 UNIT, ASSOCIATION
PROPERTY, THE PROJECT ioR COMMUNITY OF WHICH THE UNIT AND
ASSOCIATION PROPERTY ARE A PART, THE SALE AND CONVEYANCE OF
UNITS 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 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 UNIT/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
T0070186/1917451-1 -53- 10/14/14
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
ASFOLLOWS:
(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, WHICH SHALL BE BINDING ON THE PARTIES.
THE RU CES 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 ef seg.) 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.
T0070186/1917451-1 -54- 10/14/14
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 Unit 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 resulting
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-naturat 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
corporatd 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 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
T0070186/1917451-1 -55- 10/14/14
involves parties not subject to this arbitration provision and/or who cannot
othenwise be compelled to arbitrate.
(j) 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 and costs of the arbitration and/or the arbitrator ultimately shall be allocated
and borne as determined by the arbitrator. Notwithstanding the foregoing, the
parties shall each be solely responsible for their own attorneys' fees and expert
witness costs.
(k) The arbitrator appointed tO serve shall be a neutral and impartial
individual.
(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 shall be determined to be
unenforceable or to have been waived, the remairiing 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 a
reasonable amount of discovery, including written discovery, depositions and
inspections and testing, all as approyed 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 and/or Unit, 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
matters and Dispute. Notice to Declarant under this Subsection 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, Unit, 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 time 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
California Civil Code § 910, ef seg.. Association and Declarant agree that Disputes
within the purview and scope of California Civil Code § 6000 between Association and
T0070186/1917451-1 -56- 10/14/14
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, ef seg., 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 and/or Unit in order to facilitate Declarant's investigation
regarding a Dispute including, without limitation, for purposes of inspecting, testing,
repairing, replacing, correcting, or othenwise 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 and/or Unit, 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 and/or Unit. Declarant's right, but not obligation, to access,
inspect, repair and/or replace any and all affected parts of the Project, Association
Property and/or Unit 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 AND/OR ACKNOWLEDGEMENT OF
RECEIPT OF THE PROJECT DOCUMENTS, ASSOCIATION AND EACH OWNER,
ALONG WITH DECLARANT, AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE
MATTERS INiLUDED 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 ACf 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
RldHTS ARE SPECIFICALLY INCLUDED IN THIS ARBITRATION AGREEMENT. IF
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.
T0070186/1917451-1 -57- 10/14/14
14.5.1 Unforeseen Acts of Nature. To the extent any obligation, damage, loss 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 otherthan 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 bv 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 tear.
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 reguest 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.
T0070186/1917451-1 -58- 10/14/14
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; Statdte 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 ofthe
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 retaining 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 Units in the Project.
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 obligee under a Bond, the following provisions
shall apply:
T0070186/1917451-1 -59- 10/14/14
(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 pf 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 affirrnative vote of a majority of Members, excluding any
votes of Declarant, shall be requii^ed 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 apd 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 effect 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.
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 benefit 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) 10 years.
16.2 Owner's Compliance. Each Owner, tenant or occupant of a Unit 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 ofthe 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
T0070186/1917451-1 -60- 10/14/14
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 othenwise stated in this Declaration or as allowed by law, any
notice permitted or required by the Project Documents may be delivdred 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 Unit 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
Unit 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 Unit 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 pennitted 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 the transfer of title to a
Unit, the transferor shall provide to the prospective transferee a copy ofthe 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 Unit
referred to in this Declaration shall be deemed reserved and/or granted by reference to this
Declaration in a deed to said Unit.
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
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 nonprofit organizations organized for
the same purposes as this Association, provided that any such merger or consolidation shall
have 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.
16.9 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 Unit or parcel, whatever is reasonably necessary or advisable in
connection with completing the Project as proposed; or, (ii) prevent Declarant or its
T0070186/1917451-1 -61- 10/14/14
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 Units by sale, lease, or othenwise; 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 Units by sale, lease or othenwise; or, (iv) prevent
Declarant from maintaining such sign or signs on any ofthe Project as may be necessary forthe
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 Unit 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 eariier. Any action taken by Declarant pursuant to
any provision of this Article will not unreasonably interfere with the Owners' rights and use ofthe
Project.
16.10 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. Within 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 Unit 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 Unit 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 Unit as provided by the Project Documents.
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 Acknowledgement. Each Owner shall sign an acknowledgement that
he/she has received and read the Project Documents.
T0070186/1917451-1 -62- 10/14/14
16.18 Execution in Counterparts. This Declaration may be executed in two or more
counterparts and by separate signature page, each of which shall be an original, but all of which
together shall constitute one Declaration binding on all of the parties notwithstanding that all of
the parties are not signatories to the same counterpart or page.
16.19 Construction of Provisions. The provisions ofthis 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-Stiriing Common Interest
Development Act, California Civil Code §§ 4000, ef seg, as amended or superseded.
[SIGNA TURES ON THE FOLLOWING PA GE]
T0070186/1917451-1 -63- 10/14/14
IN WITNESS WHEREOF, the undersigned have executed this Declaration.
TAYLOR MORRISON OF CALIFORNIA, LLC,
a California limited liability company.
Dated: 201. By:
Name:
Title:
STATE OF CALIFORNIA
COUNTY OF ORANGE
On
Notary Public, personally appeared
}ss.
_, 201 , before me.
who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or
the entity upon behalf of which the person(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph iStrue and correct.
WITNESS my hand and official seal.
Signature,
Notary Name:
My Commission Expires: This area for official notarial seal
Notary Commission Number:
County of Principal Place of Business:
T0070186/1917451-1 -64-10/14/14
EXHIBIT A
INITIALLY COVERED PROPERTY
All that real property located in the City of Carisbad, County of San Diego, State of
California described as follows:
Units 1 through 9, inclusive, located in Building which is on a portion of Lot
1, as shown on the map of Tract No. 13-05, in the City of Carisbad, County of
San Diego, State of California, according to Map Thereof No. , filed
in the Office of the County Recorder of San Diego County, '-.^^ 201
, as Document No. 201 - of Official Records,
"Association Property" and "Common Area^" all of which are depicted and
described on the Condominium Plan for PhaSe 1 recorded on , 201
as Document No. 201 - in the Official Records of
San Diego County, State of California.
T0070186/1917451-1
EXHIBIT B
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.
Improvement Clean Maintain Repair Replace Paint Resurface Repave
Interior doors Owner Owner Owner Owner Owner N/A N/A
and hardware
(locks, hinges,
efc.)
Unit entry Owner Owner Owner Owner HOA N/A N/A
door,
hardware and
(exterior
surface
weather only)
stripping
Door bells N/A Owner Owner Owner N/A N/A N/A
Garage doors, Owner Owner Owner Owner HOA N/A N/A
openers,
hardware, and
(exterior
surface
opening
equipment
only)
Windows Owner Owner Owner Owner N/A N/A N/A
Window frame N/A Owner Owner Owner HOA N/A N/A
Sliding glass Owner Owner Owner Owner N/A N/A N/A
doors
Sliding glass Owner Owner Owner Owner HOA N/A N/A
door frame
Exterior light Owner Owner Owner Owner Owner N/A N/A
fixtures on
Unit's meter
Exterior light HOA HOA HOA HOA HOA N/A N/A
fixtures and
street lights on
HOA's meter
Address lights HOA HOA HOA HOA N/A N/A N/A
Gas and Owner Owner Owner Owner N/A N/A N/A
electric meters
serving a Unit
HOA water HOA HOA HOA HOA N/A N/A N/A
main
Unit water Owner Owner Owner Owner N/A N/A N/A
meter
Exterior utility HOA HOA HOA HOA HOA N/A N/A
closet (meters
and other
equipment)
Utility meters Owner Owner Owner Owner N/A N/A N/A
within exterior
closet for Unit
T0070186/1917451-1
Improvement Clean Maintain Repair Replace Paint Resurface Repave
Plumbing Owner Owner Owner Owner N/A N/A N/A
systems within
and
exclusively
servicing a
Unit (including
pipes in
interior walls)
Electrical N/A Owner Owner Owner N/A ; N/A N/A
systems within
and
exclusively
servicing a
Unit (including
lines in interior
walls)
Fire sprinklers, Owner Owner Owner Owner N/A N/A N/A
smoke
detectors and
carbon
monoxide
detectors
Back up N/A Owner N/A Owner N/A N/A N/A
battery for
smoke
detectors and
carbon
monoxide
detectors
Decks, Patios Owner Owner HOA HOA N/A HOA N/A
and Porches
(as applicable)
HVAC system Owner Owner Owner Owner N/A N/A N/A
and related
equipment
(including pad
or base)
Drainage HOA HOA HOA HOA N/A N/A N/A
systems within
Association
Property
Private HOA HOA HOA HOA HOA HOA HOA
streets, alleys
and parking
spaces
Utility facilities, HOA HOA HOA HOA N/A N/A N/A
equipment,
lines, pipes,
trenches, and
conduits for
Association
Property
T0070186/1917451-1
Improvement Clean Maintain Repair Replace Paint Resurface Repave
Cluster HOA HOA HOA HOA HOA N/A N/A
mailboxes
(excluding
locks, keys
and door)
Perimeter HOA HOA HOA HOA HOA N/A N/A
walls and
fences,
retaining walls,
sound walls
Walkways and HOA HOA HOA HOA N/A HOA HOA
sidewalks
Paseos areas, HOA HOA HOA HOA HOA HOA N/A
associated
hardscape,
landscape and
lighting
Roofs HOA HOA HOA HOA N/A N/A N/A
Gutters and HOA HOA HOA HOA HOA N/A N/A
downspouts
Exterior siding HOA HOA HOA HOA HOA N/A N/A
and trim
Structural N/A HOA HOA HOA N/A N/A N/A
components of
the buildings
T0070186/1917451-1
»1^
EXHIBIT C
DEPICTION OF LANDSCAPE MAINTENANCE RESPONSIBILITIES
[See Attached]
T0070186/1917451-1