HomeMy WebLinkAboutCT 93-09A; Ocean Bluff; Tentative Map (CT) (11)C
RECORDING REQUESTED BY:
FIRST AMERICAN TITLE
INSURANCE COMPANY
WHEN RECORDED, MAIL TO:
JACKSON, DeMARCO &
PECKENPAUGH (FSJ)
4 Park Plaza, 16th Floor
Post Office Box 19704
Irvine, CA 92623-9704
(Space Above for Recorder's Use)
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CANTAMAR
A PLANNED RESIDENTIAL DEVELOPMENT
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TABLE OF CONTENTS
FOR
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CANTAMAR
DESCRIPTION PAGE
1. Definitions 2
1.1. Annexable Territory 2
1.2. ARC 2
1.3. Articles 2
1.4. Assessment, Annual 2
1.5. Assessment, Capital Improvement 2
1.6. Assessment, Reconstruction 3
1.7. Assessment, Special 3
1.8. Association 3
1.9. Association Maintenance Funds 3
1.10. Beneficiary 3
1.11. Board or Board of Directors 3
1.12. Budget 3
1.13. Bylaws 3
1.14. City 3
1.15. Close of Escrow 4
1.16. Common Area 4
1.17. Common Expenses 4
1.18. County 4
1.19. Declarant 4
1.20. Declaration 5
1.21. Deed of Trust. 5
1.22. ORE 5
1.23. Family 5
1.24. FHA 5
1.25. FHLMC 5
1.26. Fiscal Year 5
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DESCRIPTION PAGE
1.27. FNMA 5
1.28. GNMA 5
1.29. Improvement. 5
1.30. Lot 6
1.31. Manager 6
1.32. Member, Membership 6
1.33. Mortgage 6
1.34. Mortgagee, Mortgagor 6
1.35. Notice and Hearing 6
1.36. Notice of Addition 6
1.37. Owner 6
1.38. Person 6
1.39. Phase 1 7
1.40. Phase of Development 7
1.41. Properties 7
1.42. Record, File, Recordation 7
1.43. Residence 7
1.44. Restrictions 7
1.45. Rules and Regulations 7
2. Easements and Owner's Property Rights 7
2.1. Owners' Easements of Enjoyment 7
2.2. Easements for Public Service Use 7
2.3. Waiver of Use 8
2.4. Easements for Water and Utility Purposes 8
2.5. Easements for Drainage 8
2.6. Taxes 8
2.7. Easement for Declarant Over Common Area 8
2.8. Delegation of Use 8
3. Cantamar Carlsbad Association 9
3.1. Organization of Association 9
3.2. Duties and Powers 9
3.3. Membership 9
3.4. Transfer 9
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DESCRIPTION PAGE
4. Voting Rights 10
4.1. Classes of Voting Membership. 10
4.2. Voting Rights 10
5. Jurisdiction of Association 11
5.1. Commencement of Association Maintenance Obligations 11
5.2. Authority of Association 11
6. Covenant for Maintenance Assessments 12
6.1. Creation of Assessment Obligation 12
6.2. Maintenance Funds of Association 13
6.3. Purpose of Annual Assessments 13
6.4. Limitations on Annual Assessment Increases 14
6.5. Capital Improvements 16
6.6. Uniform Rate of Assessment 16
6.7. Date of Commencement of Annual Assessments 16
6.8. Exempt Property 17
7. Nonpayment of Assessments; Remedies 18
7.1. Nonpayment of Assessments; Remedies 18
7.2. Notice of Delinquent Assessment 18
7.3. Foreclosure Sale 19
7.4. Curing of Default 19
7.5. Cumulative Remedies 19
7.6. Mortgage Protection 19
7.7. Priority of Assessment Lien 19
7.8. Receivers 20
7.9. Alternative Dispute Resolution 20
8. Architectural Control 21
8.1. Members of Committee 21
8.2. Review of Plans and Specifications 21
8.3. Meetings of the ARC 22
8.4. No Waiver of Future Approvals 23
8.5. Compensation of Members 23
8.6. Inspection of Work 23
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DESCRIPTION
8.7. Scope of Review 23
8.8. Variance 24
8.9. Appeals 24
8.10. Exterior Colors 24
8.11. Submittal to Public Agencies - Right of ARC to Review 24
8.12. Approval of City 25
8.13. Conflicts Between City and ARC 25
9. Maintenance and Repair Obligations 25
9.1. Maintenance Obligations of Owners 25
9.2. Maintenance Obligations of Association 25
9.3. Party Walls 26
9.4. Damage to Common Area by Owners 26
9.5. Damage to Residences-Reconstruction 27
9.6. Inspection 27
10. Use Restrictions 28
10.1. Single Family Residence 28
10.2. Business or Commercial Activity 28
10.3. Nuisances 30
10.4. Signs 30
10.5. Parking and Vehicular Restrictions 31
10.6. Animal Restrictions 32
10.7. Trash 33
10.8. Temporary Buildings 33
10.9. Common Area Facilities 33
10.10. Outside Installations 33
10.11. Antennae 34
10.12. Drilling 34
10.13. Further Subdivision 34
10.14. Drainage 35
10.15. Water Supply Systems 35
10.16. Inside Installations 35
10.17. View Obstructions 36
10.18. Solar Energy Systems 36
10.19. Rights of Disabled 36
10.20. Sight Distance Corridor 36
10.21. Post Tension Concrete Slab System 36
10.22. Installation of Landscaping 37
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DESCRIPTION PAGE
11. Damage and Condemnation 37
12. Insurance 38
12.1. Casualty Insurance 38
12.2. Insurance Obligations of Owners 38
12.3. Waiver of Subrogation 39
12.4. Liability and Other Insurance 39
12.5. Notice of Expiration Requirements 40
13. Rights of Mortgagees 40
14. Declarant Exemption 42
15. General Provisions 43
15.1. Enforcement of Restrictions 44
15.2. Severability 46
15.3. Term 46
15.4. Interpretation 46
15.5. Termination and Amendment 46
15.6. No Public Right or Dedication 48
15.7. Constructive Notice and Acceptance 48
15.8. Reservation of Easements 48
15.9. Notices 49
15.10. Enforcement of Bonded Obligations 49
15.11. Nonliability and Indemnification 50
15.12. Priorities and Inconsistencies 51
15.13. Mergers or Consolidations 51
15.14. Dispute Resolution 51
15.15. Additional Provisions 53
15.16. Marketing Name 53
16. Annexation of Additional Property 54
16.1. Additions by Declarant 54
16.2. Other Additions 54
16.3. Rights of Added Territory Members 54
16.4. Notice of Addition 54
16.5. Deannexation and Amendment 55
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17. Conditions of City 55
17.1. Public Transit Information 55
17.2. General Enforcement by City 56
17.3. Failure of Association to Maintain 56
17.4. Special Assessments Levied by City 56
17.5. Open Space Restrictions 56
17.6. Restrictions on Specified Lots 57
17.7. Further Subdivision or Development of Properties 57
17.8. Disclosures 57
EXHIBIT "A" - ARTICLES OF INCORPORATION OF THE ASSOCIATION
EXHIBIT "B" - BYLAWS OF THE ASSOCIATION
EXHIBIT "C" - LEGAL DESCRIPTION OF ANNEXABLE TERRITORY
EXHIBIT "D" - DRAWING SHOWING LOCATION OF COMMON AREA IN PHASE 1
EXHIBIT "E" - DRAWING SHOWN LOCATION OF SIGHT DISTANCE CORRIDORS
IN THE PROPERTIES
EXHIBIT "F" - DRAWING SHOWING LOCATION OF RESTRICTED PORTIONS OF
LOTS 5 AND 6, LOTS 15 TO 21, LOTS 78 TO 84 AND LOT 86 OF
TRACT NO. 93-09
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DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
CANTAMAR
THIS DECLARATION is made by CATELLUS RESIDENTIAL GROUP, INC., a
California corporation ("Declarant").
PREAMBLE:
A. Declarant is the Owner of real property ("Phase 1") in the City of Carlsbad,
County of San Diego, State of California, described as follows:
Lots 11 to 13, inclusive, and Lots 66 to 90, inclusive, f^ of j
Carlsbad Tract No. 93-09 PJ Ocean Bluff, P} as shown on Map
No. (the "Map"), which was recorded on
F4 , 1998, as File No. 1998- , in
the Office of the San Diego County Recorder.
B. Declarant has deemed it desirable, for the efficient preservation of the values and
amenities in the Properties (as hereinafter defined), to create a "planned development," within the
meaning of Section 1351(k) of the California Civil Code, pursuant to the Davis-Stirling Common
Interest Development Act. The Properties are planned to constitute a "subdivision" as defined in
Section 11000 of the California Business and Professions Code. The general plan of
development of the Properties will include a corporation formed pursuant to the California
Nonprofit Mutual Benefit Corporation Law to which will be assigned the powers of (1) owning,
maintaining and administering the Common Area, (2) administering and enforcing the
Restrictions, and (3) collecting and disbursing the assessments and charges hereinafter created.
Declarant will or has caused such corporation, the Members of which will be the Owners of Lots
in the Properties, to be formed to exercise such powers, as required by Section 1363 of the
California Civil Code.
C. Declarant intends to develop and convey all of the Properties pursuant to a general
plan and subject to the protective covenants, conditions, restrictions, rights, reservations,
easements, equitable servitudes, liens and charges set forth herein, pursuant to the Davis-Stirling
Common Interest Development Act. Declarant may execute, acknowledge and Record a
Supplemental Declaration of Restrictions ("Supplemental Declaration") affecting solely a Phase
of Development, so long as Declarant owns all of the real property to be affected by such
Supplemental Declaration. Such Supplemental Declaration shall not conflict with the provisions
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of this Declaration, but may impose further conditions, covenants and restrictions for the
operation, protection and maintenance of that Phase of Development.
D. Declarant hereby declares that the Properties shall be held, sold, conveyed,
encumbered, hypothecated, leased, used, occupied and improved subject to the easements,
restrictions, reservations, rights, covenants, conditions and equitable servitudes contained in this
Declaration, all of which are for the purpose of enhancing and protecting the value, attractiveness
and desirability of the Properties, in furtherance of a general plan for the protection, maintenance,
subdivision, improvement and sale of the Properties or any portion thereof. The covenants,
conditions, restrictions, rights, reservations, easements and equitable servitudes set forth herein
shall (1) run with and burden the Properties and shall be binding upon all Persons having or
acquiring any interest in the Properties or any part thereof, their heirs, successors and assigns; (2)
inure to the benefit of every portion of the Properties and any interest therein; and (3) inure to the
benefit of and be binding upon Declarant, and its successors-in-interest, each Owner and each
Owner's successors in interest; and (4) may be enforced by Declarant as long as Declarant is an
Owner, any Owner and the Association.
ARTICLE I
1. Definitions.
Unless otherwise expressly provided, the following words and phrases when used herein have the
following specified meanings.
1.1. Annexable Territory.
Annexable Territory means the real property described in Exhibit "C" attached hereto and
incorporated herein by this reference, all or any portion of which may be made subject to this
Declaration pursuant to the provisions of Article XVI hereof.
1.2.
ARC means the Architectural Review Committee created pursuant to Article VIII hereof.
1.3. Articles.
Articles means the Articles of Incorporation of the Association as amended or restated. A copy
of the Articles is attached hereto as Exhibit "A" and incorporated herein by this reference.
1.4. Assessment. Annual.
Annual Assessment means a charge against the Owners and their Lots, representing a portion of
the Common Expenses, which is to be levied as provided herein.
1.5. Assessment. Capital Improvement.
Capital Improvement Assessment means a charge which the Board may levy against the Owners
and their Lots, representing a portion of the cost to the Association for installation or
construction of any capital Improvements on the Common Area. Such charge shall be levied in
the same proportion as Annual Assessments.
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1.6. Assessment. Reconstruction.
Reconstruction Assessment means a charge which the Board may levy against the Owners and
their Lots, representing a portion of the Association's cost to reconstruct any Improvements on
the Common Area. Such charge shall be levied in the same proportion as Annual Assessments.
1.7. Assessment. Special.
Special Assessment means a charge against a particular Owner directly attributable to, or
reimbursable by, that Owner, equal to the cost incurred by the Association for corrective action
performed pursuant to the Restrictions, or a reasonable fine or penalty assessed by the Board,
plus interest and other charges on such Special Assessments as provided for herein. Special
Assessments shall not include any late payment penalties, interest charges or costs (including
attorneys' fees) incurred by the Association in the collection of Annual, Capital Improvement or
Reconstruction Assessments.
1.8. Association.
Association means Cantamar Carlsbad Association, a California nonprofit corporation (formed
pursuant to the California Nonprofit Mutual Benefit Corporation Law), its successors and
assigns. The Association is an "association" as defined in Section 1351 (a) of the California Civil
Code.
1.9. Association Maintenance Funds.
Association Maintenance Funds means the accounts created for Association receipts and
disbursements pursuant to Article VI hereof.
1.10. Beneficiary.
Beneficiary means a Mortgagee under a Mortgage or a Beneficiary under a Deed of Trust and the
assignees of such Mortgagee or Beneficiary.
1.11. Board or Board of Directors.
Board or Board of Directors means the Association's Board of Directors.
1.12. Budget.
Budget means a written, itemized estimate of the Association's income and Common Expenses
prepared pursuant to the Bylaws.
1.13. Bylaws.
Bylaws means the Bylaws of the Association as adopted by the Board initially in the form of
Exhibit "B" attached hereto and incorporated herein by this reference, as amended or restated.
1.14. City.
City means the City of Carlsbad, in the County of San Diego, State of California, and its various
departments, divisions, employees and representatives.
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1.15. Close of Escrow.
Close of Escrow means the date on which a deed is Recorded conveying a Lot pursuant to a
transaction requiring the issuance of a Final Subdivision Public Report by the DRE. The term
"Close of Escrow" shall not include the Recordation of a deed between Declarant and any
successor to any rights of Declarant hereunder.
1.16. Common Area.
Common Area means all the real property and Improvements which are owned by the
Association in fee or easement within the Properties, including without limitation, public streets,
natural open spaces, landscaped and manufactured slopes, the forty (40) foot landscaped setback
and the trail easement on Lots 78 through 84 and 86, irrigation, monuments, storm drain
improvements, and perimeter block walls (except surfaces facing the interior of Lots). The
approximate location of the Common Area in Phase 1 is shown on Exhibit "D" attached hereto,
and includes nonexclusive easements for purposes of access, ingress, egress, maintenance, repair,
support and drainage. Additional Common Area may be annexed to the Properties pursuant to
Article XVI hereof.
1.17. Common Expenses.
Common Expenses means those expenses for which the Association is responsible under this
Declaration, including the actual and estimated costs of: maintaining, managing, operating,
repairing and replacing the Common Area; unpaid Special Assessments, Reconstruction
Assessments and Capital Improvement Assessments; any commonly metered utilities and other
commonly metered charges for the Properties; managing and administering the Association
including, but not limited to, compensation paid by the Association to managers, accountants,
attorneys and other employees; all utilities, gardening, trash pickup and other services benefiting
the Common Area, fire, casualty and liability insurance, worker's compensation insurance, and
other insurance covering the Properties and the directors, officers and agents of the Association;
bonding the members of the management body; taxes paid by the Association; and all other items
incurred by the Association for any reason whatsoever in connection with the Properties, for the
common benefit of the Owners.
1.18. County.
County means the County of San Diego in the State of California, and its various departments,
divisions, employees and representatives.
1.19. Declarant.
Declarant means CATELLUS RESIDENTIAL GROUP, INC., a California corporation, its
successors and any Person to which it shall have assigned any rights hereunder by express
written assignment. As used in this Section, "successor" means a Person who acquires Declarant
or substantially all of its assets, or who merges with Declarant, by sale, merger, reverse merger,
consolidation, sale of stock or assets, or who merges with Declarant, by sale, merger, reverse
merger, consolidation, sale of stock or assets, operation of law or otherwise.
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1.20. Declaration.
Declaration means this instrument as may be amended or restated from time to time.
1.21. Deed of Trust.
Deed of Trust means a Mortgage as defined herein.
1.22. ORE.
DRE means the California Department of Real Estate and its successors.
1.23. Family.
Family means (a) one or more natural persons related to each other by blood, marriage or
adoption, or (b) a group of natural persons not all so related, but who maintain a common
household in a Residence on a Lot.
1.24. FHA.
FHA means the Federal Housing Administration of the United States Department of Housing and
Urban Development and any department or agency of the United States government which
succeeds to FHA's function of insuring notes secured by Mortgages on residential real estate.
1.25. FHLMC.
FHLMC means the Federal Home Loan Mortgage Corporation created by Title II of the
Emergency Home Finance Act of 1970, and its successors.
1.26. Fiscal Year.
Fiscal Year means the fiscal accounting and reporting period of the Association selected by the
Board.
1.27. FNMA.
FNMA means the Federal National Mortgage Association, a government-sponsored private
corporation established pursuant to Title VIII of the Housing and Urban Development Act of
1968, and its successors.
1.28. GNMA.
GNMA means the Government National Mortgage Association administered by the United
States Department of Housing and Urban Development, and its successors.
1.29. Improvement.
Improvement means any structure or appurtenance thereto, including, but not limited to,
buildings, walkways, sprinkler pipes, carports, roads, driveways, parking areas, fences, screening
walls, retaining walls, stairs, decks, landscaping, antennae, the paint on all exterior surfaces,
hedges, windbreaks, patio covers, railings, plantings, planted trees and shrubs, poles, signs,
storage areas, exterior air conditioning and water-softening fixtures or equipment.
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1.30. Lot.
Lot means any residential Lot or parcel of land shown upon any Recorded subdivision map or
Recorded parcel map of any portion of the Properties.
1.31. Manager.
Manager means the Person employed by the Association as an employee, an agent or an
independent contractor, to perform functions of the Association as limited by the Restrictions
and the terms of the agreement between the Association and said Person.
1.32. Member. Membership.
Member means any Person holding a Membership. Membership means the property, voting and
other rights and privileges of Members as provided in the Restrictions, together with the
correlative duties and obligations contained therein.
1.33. Mortgage.
Mortgage means any Recorded mortgage or deed of trust or other conveyance of one or more
Lots or other portion of the Properties to secure the performance of an obligation, which will be
reconveyed upon the completion of such performance.
1.34. Mortgagee. Mortgagor.
Mortgagee means a Person to whom a Mortgage is made and includes the Beneficiary of a Deed
of Trust. Mortgagor means a Person who mortgages his or her Lot to another (i.e., the maker of
a Mortgage), and includes the Trustor of a Deed of Trust. The term "Trustor" is synonymous
with the term "Mortgagor" and the term "Beneficiary" is synonymous with the term
"Mortgagee."
1.35. Notice and Hearing.
Notice and Hearing means written notice and a hearing before the Board as provided in the
Bylaws.
1.36. Notice of Addition.
Notice of Addition means an instrument Recorded pursuant to Article XVI hereof to annex
additional real property to the Properties.
1.37. Owner.
Owner means the Person or Persons, including Declarant, holding fee simple interest of record to
any Lot. The term "Owner" includes a seller under an executory contract of sale but excludes
Mortgagees.
1.38. Person.
Person means a natural individual or any other entity with the legal right to hold title to real
property.
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1.39. Phase 1.
Phase 1 means all of the real property described in Paragraph A of the Preamble of this
Declaration.
1.40. Phase of Development.
Phase of Development or Phase means each of the following: (a) Phase 1 and (b) all the real
property covered by a Notice of Addition, for which a Final Subdivision Public Report has been
issued by the DRE, unless otherwise defined in such Notice of Addition.
1.41. Properties.
Properties means (a) Phase 1, and (b) each Phase of Development described in a Notice of
Addition. The Properties are a "common interest development" and a "planned development" as
defined in Sections 1351(c) and 1351(k), respectively, of the California Civil Code.
1.42. Record. File. Recordation.
Record, File, or Recordation means, with respect to any document, the recordation or filing of
such document in the office of the San Diego County Recorder.
1.43. Residence.
Residence means a building located on a Lot designed and intended for use and occupancy as a
residence by a single Family.
1.44. Restrictions.
Restrictions means this Declaration, the Articles, Bylaws and the Rules and Regulations of the
Association.
1.45. Rules and Regulations.
Rules and Regulations means the rules and regulations adopted by the Board pursuant to this
Declaration or the Bylaws, as amended.
ARTICLE II
2. Easements and Owner's Property Rights.
2.1. Owners' Easements of Enjoyment.
Every Owner has a right and easement of ingress and egress and of enjoyment in, to and over the
streets in the Properties, and such easement is appurtenant to and shall pass with title to every
Lot.
2.2. Easements for Public Service Use.
In addition to the foregoing easements over the Common Area, Declarant hereby reserves
easements over the Properties for public services of the City, including but not limited to, the
right of law enforcement and fire protection personnel to enter upon any part of the Properties for
the purpose of carrying out their official duties.
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2.3. Waiver of Use.
No Owner may exempt himself from personal liability for assessments duly levied by the
Association, nor release his Lot from the liens and charges hereof, by waiving the use and
enjoyment of the Common Area or any facilities thereon or by abandonment of such Owner's
Lot.
2.4. Easements for Water and Utility Purposes.
In addition to the foregoing easements over the Common Area, Declarant hereby reserves
easements over the Properties for public and private utility purposes, including but not limited to,
the right of any public utility or mutual water district of ingress or egress over the Common Area
for purposes of reading and maintaining meters, and using and maintaining fire hydrants located
in the Properties.
2.5. Easements for Drainage.
Declarant hereby reserves for the benefit of the Association and all Owners nonexclusive
easements over all Lots and the Common Area for purposes of drainage from one Lot onto
another Lot, or from a Lot onto the Common Area and vice versa.
2.6. Taxes.
Each Owner shall take such action as the Association may reasonably specify to obtain separate
real estate tax assessment of each Lot. If any taxes or assessments may, in the Association's
opinion, become a lien on the Common Area or any part thereof, the Association may pay them
as a Common Expense.
2.7. Easement for Declarant Over Common Area.
Declarant hereby expressly reserves for the benefit of Declarant, its agents, subcontractors,
invitees, employees and contractors, and for. the benefit of its successors and assigns, a
nonexclusive easement appurtenant to the Annexable Territory, in, to, and over the Common
Area for access, ingress, egress, use and enjoyment, in order to show the Properties or Annexable
Territory to prospective purchasers, or to develop, construct, market, sell, lease or otherwise
dispose of the Properties or the Annexable Territory. Such easement shall continue until the last
Close of Escrow in the Properties and the Annexable Territory has occurred; provided, however,
that such use shall not unreasonably interfere with the rights of enjoyment of the other Owners as
provided herein.
2.8. Delegation of Use.
Any Owner entitled to the right and easement of use and enjoyment of the Common Area may
delegate those rights and easements to such Owner's tenants, contract purchasers or subtenants
who reside in such Owner's Residence, subject to reasonable regulation by the Board.
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ARTICLE III
3. Cantamar Carlsbad Association.
3.1. Organization of Association.
The Association is or shall be incorporated under the name of CANTAMAR CARLSBAD
ASSOCIATION, as a corporation not for profit organized under the California Nonprofit Mutual
Benefit Corporation Law, as required by Section 1363 of the California Civil Code.
3.2. Duties and Powers.
The Association has the duties and powers set forth in the Restrictions and also has the general
and implied powers of a nonprofit mutual benefit corporation, generally to do all things that a
corporation organized under the laws of the State of California may lawfully do which are
necessary or proper in operating for the peace, health, comfort, safety and general welfare of its
Members, subject only to the limitations upon the exercise of such powers set forth in the
Restrictions.
3.3. Membership.
Every Owner shall automatically be a Member and shall remain a Member until such Owner's
Lot ownership ceases, at which time such Owner's Membership shall automatically cease.
Ownership of a Lot is the sole qualification for Membership. Memberships are not assignable
except to the Person to whom title to the Lot has been transferred, and every Membership is
appurtenant to and may not be separated from the fee ownership of such Lot.
3.4. Transfer.
The Membership of any Owner may not be transferred, pledged or alienated in any way, except
upon the transfer or encumbrance of such Owner's Lot, and then only to the transferee or
Mortgagee of such Lot. A prohibited transfer is void and will not be reflected upon the books
and records of the Association. A Class A Member who has sold his Lot to a contract purchaser
under an agreement to purchase may delegate his Membership rights to the contract purchaser.
The delegation must be in writing and must be delivered to the Board before the contract
purchaser may vote. The contract seller shall remain liable for all charges and assessments
attributable to the contract seller's Lot which accrue before fee title to the Lot is transferred. If an
Owner fails or refuses to transfer his Membership to the purchaser of such Owner's Lot upon
transfer of fee title thereto, the Board may record the transfer upon the Association's books.
Until satisfactory evidence of such transfer has been presented to the Board, the purchaser will
not be entitled to vote at Association meetings. The Association may levy a reasonable transfer
fee against a new Owner and such Owner's Lot (which fee shall be paid through escrow or added
to the Annual Assessment chargeable to such new Owner) to reimburse the Association for the
administrative cost of transferring the Membership to the new Owner on the Association's
records. Such fee may not exceed the Association's actual cost involved in changing its records.
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ARTICLE IV
4. Voting Rights.
4.1. Classes of Voting Membership.
The Association classes of voting Membership are as follows:
Class A. Class A Members are all Owners except Declarant for so long as there exists a
Class B Membership. Class A Members are entitled to one (1) vote for each Lot owned by such
Class A Members which is subject to assessment. Declarant shall become a Class A Member
upon conversion of Declarant's Class B Membership as provided below. When more than one
(1) Person owns any Lot, all such Persons are Members. The vote for such Lot shall be exercised
in accordance with Section 4.2, but no more than one (1) Class A vote may be cast for any Lot.
Class B. The Class B Member is Declarant. The Class B Member is entitled to three (3)
votes for each Lot owned by Declarant which is subject to assessment. The Class B Membership
shall be converted to Class A Membership upon the first to occur of the following events:
(a) The second anniversary of the first Close of Escrow in the most
recent Phase; or
(b) The fourth anniversary of the first Close of Escrow in Phase 1.
4.2. Voting Rights.
(a) All voting rights.are subject to the Restrictions. Except as
provided in Section 15.11 hereof and Section 4.8 of the Bylaws, as long as there
exists a Class B Membership, any provision of the Restrictions which expressly
requires a vote or written consent of a specified percentage (i.e., other than actions
requiring merely the vote or written consent of a majority of a quorum) of the
Association's voting power before action may be undertaken shall require the
approval of such specified percentage of the voting power of each class of
Membership. Except as provided in Section 15.11 hereof and Section 4.8 of the
Bylaws, upon termination of the Class B Membership, any provision of the
Restrictions which expressly requires a vote or written consent of Owners
representing a specified percentage (i.e., other than actions requiring merely the
vote or written consent of a majority of a quorum) of the Association's voting
power before action may be undertaken shall then require the vote or written
consent of Members representing such specified percentage of both (1) the
Association's total voting power and (2) the Association's voting power residing
in Members other than Declarant.
(b) Class A Members are entitled to one (1) vote for each Lot in which
they hold the interest required for Membership. When more than one (1) Person
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holds such interest in any Lot ("co-owner"), all such co-owners are Members and
may attend any Association meetings, but only one (1) such co-owner shall be
entitled to exercise the vote to which the Lot is entitled. Co-owners owning the
majority interests in a Lot may designate in writing one (1) of their number to
vote. Fractional votes shall not be allowed, and the vote for each Lot shall be
exercised, if at all, as a unit. Where no voting co-owner is designated or if the
designation has been revoked, the vote for the Lot shall be exercised as the
co-owners owning the majority interests in the Lot agree. Unless the Board
receives a written objection in advance from a co-owner, it shall be conclusively
presumed that the corresponding voting co-owner is acting with his co-owners'
consent. No vote may be cast for any Lot if the co-owners present in person or by
proxy owning the majority interests in such Lot cannot agree to said vote or other
action. The nonvoting co-owner or co-owners are jointly and severally
responsible for all of the obligations imposed upon the jointly owned Lot and are
entitled to all other benefits of ownership. All agreements and determinations
lawfully made by the Association in accordance with the voting percentages
established in the Restrictions are binding on all Owners and their successors in
interest.
ARTICLE V
5. Jurisdiction of Association.
5.1. Commencement of Association Maintenance Obligations.
The Association's obligation to maintain the Common Area in any Phase in which a Lot is
located shall commence on the date Annual Assessments commence on Lots in such Phase.
Until commencement of Annual Assessments on Lots in a Phase in which a Lot is located,
Declarant shall maintain the Common Area in such Phase. The Association's obligation to
maintain the Common Area in a Phase comprised solely of Common Area shall commence upon
conveyance of such Common Area to the Association.
5.2. Authority of Association.
The Association has:
(a) The power and duty to accept, maintain, repair and otherwise
manage the Common Area in accordance with Articles VI and IX hereof.
(b) The power and duty to obtain, for the benefit of the Properties, all
commonly metered water, gas and electric services, and the power but not the
duty to provide for refuse collection and cable or master television service.
(c) The power and duty to grant easements and rights of way in
portions of the Common Area, to the extent any such grant is reasonably required
for utilities and sewer facilities to serve the Common Area and the Lots, or for
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purposes of conformity with the as-built location of Improvements installed by
Declarant.
(d) The power but not the duty to grant or quitclaim easements,
licenses or rights of way in, on or over the Common Area for purposes consistent
with the intended use of the Properties as a planned residential development.
(e) The power and duty to maintain liability and fire insurance with
respect to the Common Area as provided herein in furthering the purposes of and
protecting the interests of the Association and Members and as directed by the
Restrictions.
(f) The power but not the duty, after Notice and Hearing, to enter upon
any Lot, without being liable to any Owner except for damage caused by such
entry, in order to (i) enforce by peaceful means the provisions hereof, or (ii)
maintain or repair any Lot if for any reason the Owner thereof fails to perform
such maintenance or repair as required by this Declaration. The cost of such
enforcement, maintenance and repair shall be a Special Assessment enforceable as
set forth herein. The Owner shall promptly pay all amounts due for such work,
and the costs and expenses of collection may be added, at the option of the Board,
to the amounts specially assessed against such Owner. If an emergency occurs,
such entry upon a Lot by or on behalf of the Board shall be permitted without
Notice and Hearing.
(g) The power but not the duty to establish uniform Rules and
Regulations for the use of the Common Area.
(h) The power but not the duty to enter into contracts with Owners or
other persons to provide services or to maintain and repair Improvements within
the Properties and elsewhere which the Association is not otherwise required to
provide or maintain pursuant to this Declaration; provided, however, that any such
contract shall provide for reimbursement of the Association for the costs of
providing such services or maintenance.
ARTICLE VI
6. Covenant for Maintenance Assessments.
6.1. Creation of Assessment Obligation.
Declarant, for each Lot owned by it, hereby covenants to pay, and each Owner, by acceptance of
a deed to a Lot, whether or not it shall be so expressed in such deed, is deemed to covenant to
pay to the Association (a) Annual Assessments, (b) Capital Improvement Assessments, (c)
Special Assessments, and (d) Reconstruction Assessments; such assessments to be established
and collected as provided herein. The Association may not levy or collect any Annual
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Assessment, Capital Improvement Assessment, Special Assessment or Reconstruction
Assessment that exceeds the amount necessary for the purpose or purposes for which it is levied.
Except as provided in this Section 6.1, all such assessments (other than Special Assessments),
together with interest, costs and reasonable attorneys' fees for the collection thereof, are a charge
and a continuing lien upon the Lot against which such assessment is made. Each such
assessment (including Special Assessments), together with interest, costs and reasonable
attorneys' fees, is also the personal obligation of the Person who was the Owner of the Lot at the
time when the assessment fell due. The personal obligation for delinquent assessments may not
pass to any new Owner ("Purchaser") unless expressly assumed by the Purchaser.
6.2. Maintenance Funds of Association.
The Board shall establish no fewer than two (2) separate Association Maintenance Fund accounts
into which shall be deposited all monies paid to the Association and from which disbursements
shall be made, as provided herein, in the Association's performance of functions under this
Declaration. The Association Maintenance Funds may be established as trust accounts at a
banking or savings institution and shall include: (a) an Operating Fund for current Common
Expenses, (b) an adequate Reserve Fund for the deposit of Reserves attributable to the repair or
replacement of Improvements within the Common Area (which would not reasonably be
expected to recur on an annual or more frequent basis), and for payment of deductible amounts
for insurance policies which the Association obtains as provided in Section 12.4 hereof, and (c)
any other Funds which the Board may establish to the extent necessary under the Declaration's
provisions. Nothing contained herein precludes the establishment of additional Maintenance
Funds by the Association, so long as the amounts assessed, deposited into, and disbursed from
any such Fund are designated for purposes authorized by this Declaration.
6.3. Purpose of Annual Assessments.
The Assessments shall be used exclusively to (a) promote the Owners' health, safety, recreation
and welfare, (b) improve and maintain the Common Area, and (c) discharge any other
Association obligations under the Declaration. All amounts deposited into the Maintenance
Funds must be used solely for the common benefit of all of the Owners for purposes authorized
by this Declaration. Disbursements from the Reserve Fund shall be made by the Board only for
the purposes specified in this Article VI and in Section 1365.5(c) of the California Civil Code, as
amended. If the Association decides to use or transfer reserve funds to pay for litigation, the
Association must notify its Members of the decision the next available mailing. Such notice
shall provide an explanation of why the litigation is being initiated or defended, why operating
funds cannot be used, how and when the reserve funds will be replaced, and a proposed budget
for the litigation. The notice must state that the Members have a right to review an accounting
for the litigation which will be available at the Association's office. The accounting shall be
updated monthly. Disbursements from the Operating Fund shall be made by the Board only for
such purposes as are necessary for the discharge of its responsibilities herein for the common
benefit of all of the Owners, other than those purposes for which disbursements from the Reserve
Fund are to be used. Association assessments or funds may not be used to abate any nuisance or
annoyance emanating from outside the boundaries of the Properties, or in support of Federal,
State or local political activities intended to influence governmental action affecting areas outside
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the boundaries of the Properties (e.g., endorsement or support of political candidates, legislative
or administrative actions by any governmental agency). Annual Assessments shall be used to
satisfy Common Expenses as provided herein and in the Bylaws.
6.4. Limitations on Annual Assessment Increases.
The Board shall levy Annual Assessments as follows:
(a) Maximum Authorized Annual Assessment for Initial Year of
Operations. Until the first day of the Fiscal Year immediately following the
Fiscal Year in which Annual Assessments commence, the Board may levy an
Annual Assessment per Lot in an amount which exceeds one hundred twenty
percent (120%) of the amount of Annual Assessments disclosed for the Properties
in the most current Budget filed with and approved by DRE at the time Annual
Assessments commence only if the Board first obtains the approval of Members
casting a majority of votes at a meeting or election of the Association in which
more than fifty percent (50%) of the Members are represented ("Increase
Election"). Notwithstanding the foregoing, this Section does not limit Annual
Assessment increases necessary for addressing an "Emergency Situation" as
defined in Section 6.4(e).
(b) Maximum Authorized Annual Assessment for Subsequent Fiscal
Years. Starting with the first Fiscal Year immediately following the Fiscal Year
in which Annual Assessments commence, the Board may levy Annual
Assessments which exceed the Annual Assessments for the immediately
preceding Fiscal Year only as follows:
(i) If the increase, in Annual Assessments is less than or
equal to twenty percent (20%) of the Annual Assessments for the
immediately preceding Fiscal Year, then the Board must either (a)
have distributed the Budget for the current Fiscal Year in
accordance with Section 1365(a) of the California Civil Code, or
(b) obtain the approval of Members casting a majority of votes in
an Increase Election;
(ii) If the increase in Annual Assessments is greater
than twenty percent (20%) of the Annual Assessments for the
immediately preceding Fiscal Year, then the Board must obtain the
approval of Members casting a majority of votes in an Increase
Election.
Notwithstanding the foregoing, this Section does not limit Annual Assessment increases
necessary for addressing an "Emergency Situation" as defined in Section 6.4(e).
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(c) Supplemental Annual Assessments. If the Board determines that
the Association's important and essential functions may be properly funded by an
Annual Assessment in an amount less than the maximum authorized Annual
Assessment described above, it may levy such lesser Annual Assessment. If the
Board determines that the estimate of total charges for the current year is or will
become inadequate to meet all Common Expenses, it shall immediately determine
the approximate amount of the inadequacy. Subject to the limitations described in
Sections 6.4(a) and (b) above and (e) below, the Board may levy a supplemental
Annual Assessment reflecting a revision of the total charges to be assessed against
each Lot.
(d) Automatic Assessment Increases. Notwithstanding any other
provisions of this Section 6.4, upon Declarant's annexation of any portion of the
Annexable Territory pursuant to Article XVI, the Annual Assessment shall be
automatically increased by the additional amount, if any, necessary to maintain
the Common Area in or abutting such Annexable Territory. Such increase shall
occur only if (i) the annexation of such Annexable Territory is permitted byPRE ,
and (ii) the amount of such increase does not result in the levy of an Annual
Assessment which is greater than the maximum potential Annual Assessment
disclosed in all Final Subdivision Public Reports for the Properties previously
issued by the DRE.
(e) Emergency Situations. For purposes of Sections 6.4(a), 6.4(b) and
6.5, an "Emergency Situation" is any one of the following:
(i) An extraordinary expense required by an order of a
court;
(ii) An extraordinary expense necessary to repair or
maintain the Properties or any portion thereof for which the
Association is responsible where a threat to personal safety on the
Properties is discovered; and
(iii) An extraordinary expense necessary to repair or
maintain the Properties or any portion thereof for which the
Association is responsible that could not have been reasonably
foreseen by the Board when preparing the Budget. Prior to the
imposition or collection of an assessment pursuant to this
Subparagraph (iii), the Board shall adopt a resolution containing
written findings as to the necessity of the extraordinary expense
involved and why the expense was not or could not have been
reasonably foreseen in the budgeting process. The resolution shall
be distributed to the Members with the Notice of Assessment.
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6.5. Capital Improvements.
The Board may levy, in any Fiscal Year, a Capital Improvement Assessment or Reconstruction
Assessment applicable to that Fiscal Year only to defray, in whole or in part, the cost of any
construction, reconstruction, repair or replacement of a capital Improvement or other such
addition upon the Common Area including fixtures and personal property related thereto. No
Capital Improvement Assessments in any Fiscal Year which, if added to the Capital
Improvement Assessments already levied during such Fiscal Year, exceed five percent (5%) of
the Association's Budgeted gross expenses for such Fiscal Year, may be levied without the vote
or written consent of Members casting a majority of votes at an Increase Election.
Notwithstanding the foregoing, the Board may levy in any Fiscal Year, a Capital
Improvement Assessment applicable to that Fiscal Year which exceeds five percent (5%) of the
Association's Budgeted gross expenses for such Fiscal Year if such increase is necessary for
addressing an Emergency Situation as defined in Section 6.4(e).
6.6. Uniform Rate of Assessment.
Annual Assessments, Capital Improvement Assessments and Reconstruction Assessments shall
be assessed uniformly and equally against all Owners and their Lots based upon the number of
Lots owned by each Owner except as may be otherwise provided in a Notice of Addition. The
Association may, subject to the provisions of Section 9.4 and Article XI hereof, levy Special
Assessments against selected Owners who have caused the Association to incur special expenses
due to willful or negligent acts of said Owners, their tenants, families, guests, invitees or agents.
All installments of Annual Assessments shall be collected in advance on a regular basis by the
Board, at such frequency as the Board shall determine.
6.7. Date of Commencement of Annual Assessments.
Annual Assessments shall commence on all Lots in a Phase on the first day of the first calendar
month following the first Close of Escrow in such Phase. The first Annual Assessment shall be
adjusted according to the number of months remaining in the Fiscal Year. The Board shall fix
the amount of the Annual Assessment against each Lot at least thirty (30) days in advance of
each Annual Assessment period. However, unless otherwise established by the Board, the initial
Annual Assessments shall be assessed in accordance with the most recent Budget on file with
and approved by DRE. Written notice of any change in the amount of any Annual Assessment,
Capital Improvement Assessment or Reconstruction Assessment shall be sent via first-class mail
to every Owner subject thereto not less than thirty (30) nor more than sixty (60) days prior to the
increased assessment becoming due. The due dates shall be established by the Board. The
Association shall, upon demand and for a reasonable charge, furnish a certificate signed by an
Association officer or agent setting forth whether the assessments on a specified Lot have been
paid. A properly executed certificate as to the status of assessments against a Lot is binding upon
the Association as of the date of its issuance.
Each installment of Annual Assessments may be paid by the Member to the Association
in one check or payment or in separate checks as payments attributable to specified Association
Maintenance Funds. If any payment of an Annual Assessment installment (a) is less than the
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amount assessed and (b) does not specify the Association Maintenance Fund or Funds into which
it should be deposited, then the amount received shall be credited in order of priority first to the
Operating Fund, until that portion of the Annual Assessment has been satisfied, and second to the
Reserve Fund.
The Board may determine that funds remaining in the Operating Fund at the end of a
Fiscal Year be retained and used to reduce the following Fiscal Year's Annual Assessments.
Upon dissolution of the Association incident to the abandonment or termination of the Properties
as a planned development, any amounts remaining in any of the Maintenance Funds shall be
distributed to or for the benefit of the Members in the same proportions as such monies were
collected from the Members.
Notwithstanding any other provisions of this Declaration, until the earlier to occur of (a)
the Recordation of a notice of completion of a Residence, or (b) occupation or use of the
Residence, each Owner (including Declarant) shall be exempt from paying that portion of any
Annual Assessment which is for the purpose of defraying expenses and reserves directly
attributable to the existence and use of the Residence. Such exemption may include, but shall
not necessarily be limited to, the following: walkway and carport lights, refuse disposal, cable
television and paint and roof reserves.
Notwithstanding any other provisions of this Declaration, until the earlier to occur of (a)
the Recordation of a notice of completion of an Improvement on the Common Area or (b) the
placement into use of such Improvement, each Owner (including Declarant) shall be exempt
from paying that portion of any Annual Assessment which is for the purpose of defraying
expenses and reserves directly attributable to the existence and use of such Improvement.
Notwithstanding any other provisions of this Declaration or the Bylaws regarding the
term and termination of contracts with Declarant for providing services to the Association,
Declarant may enter into a written maintenance agreement with the Association under which
Declarant shall pay all or any portion of the operating Common Expenses and perform all or any
portion of the Association's maintenance responsibilities in exchange for a temporary suspension
of Annual Assessments. Such maintenance agreement shall extend for a term and shall be on
such conditions as are approved by the DRE, and may require Owners to reimburse Declarant,
through the Association, for a portion of the costs expended in satisfaction of Common
Expenses.
6.8. Exempt Property.
The following property subject to this Declaration is exempt from the assessments herein:
(a) All portions of the Properties dedicated to and accepted by a local
public authority; and
(b) The Common Area owned by the Association in fee or easement.
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ARTICLE VII
7. Nonpayment of Assessments: Remedies.
7.1. Nonpayment of Assessments: Remedies.
Any installment of an assessment is delinquent if not paid within fifteen (15) days of the due date
established by the Board. Any installment of Annual Assessments, Capital Improvement
Assessments, Special Assessments, or Reconstruction Assessments not paid within thirty (30)
days after the due date, plus all reasonable costs of collection (including attorneys' fees) and late
charges as provided herein bears interest at the maximum rate permitted by law commencing
thirty (30) days from the date the assessment becomes due until paid. The Board may also
require the delinquent Owner to pay a late charge in accordance with California Civil Code
Section 1366(d)(2). The Association may bring an action at law against the Owner personally
obligated to pay the same, or foreclose the lien against the Lot. The Association need not accept
any tender of a partial payment of an assessment installment and all costs and attorneys' fees
attributable thereto, and any acceptance of any such tender does not waive the Association's right
to demand and receive full payments thereafter. Before the Association may place a lien upon an
Owner's Lot to collect a past due assessment, the Association shall send a written notice to the
Owner by certified mail which contains the following information: (i) the fee and penalty
procedure of the Association, (ii) an itemized statement of the charges owed by the Owner,
including the principal owed, any late charges and the method of calculation, any attorney's fees,
(iii) the collection practices used by the Association, and (iv) a statement that the Association
may recover the reasonable costs of collecting past due assessments.
7.2. Notice of Delinquent Assessment.
No action may be brought to enforce any assessment lien created herein unless at least thirty (30)
days has expired following the date a Notice of Delinquent Assessment is deposited in the United
States mail, certified or registered, postage prepaid, to the Owner of the Lot, and a copy thereof
has been Recorded by the Association. Such Notice of Delinquent Assessment must recite (a) a
good and sufficient legal description of any such Lot, (b) the record Owner or reputed Owner
thereof, (c) the amount claimed (which may at the Association's option include interest on the
unpaid assessment and late charges as described above plus reasonable attorneys' fees and
expenses of collection in connection with the debt secured by said lien), (d) the Association's
name and address, and (e) in order for the lien to be enforced by nonjudicial foreclosure, the
name and address of the trustee authorized by the Association to enforce the lien by sale. A
monetary penalty imposed by the Association as a disciplinary measure for failure of an Owner
to comply with the Restrictions may not become a lien enforceable by non-judicial foreclosure
against such Owner's Lot; provided, however, that monetary penalties imposed for late payments
and as a means of reimbursing the Association for costs incurred for the repair of damage to
Common Area for which an Owner or an Owner's guests or tenants were responsible may
become a lien against such Owner's Lot enforceable by the sale of the Lot in accordance with
Section 7.3. Said lien is prior to any declaration of homestead Recorded after the date on which
this Declaration is Recorded. The lien continues until paid or otherwise satisfied. The Notice of
Delinquent Assessment must be signed by an authorized Association officer or agent and must be
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mailed in the manner set forth in Section 2924b of the California Civil Code to the Owner of
record of the Lot no later than ten (10) calendar days after recordation.
7.3. Foreclosure Sale.
A sale to foreclose an Association lien may be conducted by the Board, its attorneys or other
persons authorized by the Board in accordance with the provisions of Sections 2924,2924a,
2924b, 2924c and 2924f of the California Civil Code, or in accordance with any similar statute
hereafter enacted applicable to the exercise of powers of sale in Mortgages, or in any other
manner permitted by law. The Association, through duly authorized agents, may bid on the Lot
at foreclosure sale, and acquire and hold, lease, mortgage and convey the same. Upon
completion of the foreclosure sale, the Association or the purchaser at the sale may file suit to
secure occupancy of the defaulting Owner's Lot, and the defaulting Owner shall be required to
pay the reasonable rental value of the Lot during any period of continued occupancy by the
defaulting Owner or any persons claiming under the defaulting Owner.
7.4. Curing of Default.
Upon the timely curing of any default for which the Association Filed a Notice of Assessment,
the Association's officers shall Record an appropriate Release of Lien upon payment by the
defaulting Owner of a reasonable fee, to be determined by the Board, to cover the cost of
preparing and Recording such release. A certificate executed and acknowledged by any two (2)
members of the Board stating the indebtedness secured by the liens upon any Lot created
hereunder shall be conclusive upon the Association and the Owners as to the amount of such
indebtedness as of the date of the certificate, in favor of all persons who rely thereon in good
faith. Such certificate shall be furnished to any Owner upon request at a reasonable fee, to be
determined by the Board.
7.5. Cumulative Remedies.
The assessment liens and the rights to foreclosure and sale thereunder shall be in addition to and
not in substitution for all other rights and remedies which the Association may have hereunder
and by law, including a suit to recover a money judgment for unpaid assessments, as above
provided.
7.6. Mortgage Protection.
No lien created under this Article VII, nor any breach of this Declaration, nor the enforcement of
any provision hereof defeats or renders invalid the rights of the Beneficiary under any Recorded
first Deed of Trust (meaning any deed of trust with first priority over other deeds of trust) upon a
Lot made in good faith and for value. After a Beneficiary or other Person obtains title to a Lot
by judicial foreclosure or by means set forth in a Deed of Trust, the Lot shall remain subject to
the Declaration and the payment of all installments of Assessments accruing after the date the
Beneficiary or other Person obtains title.
7.7. Priority of Assessment Lien.
Mortgages Recorded before a Notice of Assessment have lien priority over the Notice of
Assessment. Sale or transfer of any Lot does not affect the assessment lien, except that the sale
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or transfer of any Lot pursuant to judicial or nonjudicial foreclosure of a first Mortgage
extinguishes the lien of such assessments as to payments which became due prior to such sale or
transfer. No sale or transfer relieves such Lot from lien rights for any assessments thereafter
becoming due. No Person who obtains title to a Lot pursuant to a judicial or nonjudicial
foreclosure of the first Mortgage is liable for the share of the Common Expenses or assessments
chargeable to such Lot which became due prior to the acquisition of title to the Lot by such
Person. Such unpaid share of Common Expenses or assessments is a Common Expense
collectible from all of the Owners including such Person.
7.8. Receivers.
In addition to the foreclosure and other remedies granted the Association herein, each Owner, by
acceptance of a deed to such Owner's Lot, hereby conveys to the Association all of such Owner's
right, title and interest in all rents, issues and profits derived from and appurtenant to such Lot,
subject to the right, power and authority of the Association to collect and apply such rents, issues
and profits to any delinquent Assessments owed by such Owner, reserving to the Owner the
right, prior to any default by the Owner in the payment of Assessments, to collect and retain such
rents, issues and profits as they may become due and payable. Upon any such default the
Association may, upon the expiration of thirty (30) days following delivery to the Owner of the
"Notice of Assessment" described herein, either in person, by agent or by receiver to be
appointed by a court, and without regard to the adequacy of any security for the indebtedness
secured by the lien described herein, (a) enter in or upon and take possession of the Lot or any
part thereof, (b) in the Association's name sue for or otherwise collect such rents, issues and
profits, including those past due and unpaid, and (c) apply the same, less allowable expenses of
operation, to any delinquencies of the Owner hereunder, and in such order as the Association
may determine. The entering upon and taking possession of the Lot, the collection of rents,
issues and profits and the application thereof, shall not cure or waive any default or notice of
default hereunder or invalidate any act done pursuant to such notice
7.9. Alternative Dispute Resolution.
An Owner may dispute the assessments imposed by the Association if such Owner pays in full
(i) the amount of the assessment in dispute, (ii) any late charges, (iii) any interest, and (iv) all
fees and costs associated with the preparation and filing of a Notice of Delinquent Assessment
(including mailing costs and attorneys' fees not to exceed four hundred twenty-five dollars
($425), and states by written notice that such amount is paid under protest, and the written notice
is mailed by certified mail not more than thirty (30) days from the Recording of a Notice of
Delinquent Assessment. Upon receipt of such written notice, the Association shall notify the
Owner in writing that the dispute may be submitted to alternative dispute resolution in
accordance with Civil Code Section 1354.
The right of any Owner to utilize alternative dispute resolution under this Section may
not be exercised more than two times in any single calendar year, and not more than three times
within any five calendar years. Nothing within this section shall preclude any Owner and the
Association, upon mutual agreement, from entering into alternative dispute resolution in excess
of the limits set forth herein. An Owner may request and be awarded through alternative dispute
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resolution reasonable interest to be paid by the Association in the total amount paid under items
(i) through (iv) above, if it is determined that the assessment levied by the Association was not
correctly levied.
ARTICLE VIII
8. Architectural Control.
8.1. Members of Committee.
The Architectural Review Committee, sometimes referred to herein as the "ARC," shall be
comprised of three (3) members. The initial members of the ARC shall be representatives of
Declarant until one (1) year after the original issuance of the Final Subdivision Public Report
("Public Report") for Phase 1 ("First Anniversary"). After the First Anniversary the Board may
appoint and remove one (1) member of the ARC, and Declarant may appoint and remove a
majority of the members of the ARC and fill any vacancy of such majority, until the earlier to
occur of (a) Close of Escrow for the sale of ninety percent (90%) of all the Lots in the Properties
and the Annexable Territory, or (b) the fifth anniversary of the original issuance of the Public
Report for Phase 1, after which the Board may appoint and remove all of the members of the
ARC. ARC members appointed by the Board must be Members, but ARC members appointed
by Declarant need not be Members. The ARC has the right and duty to promulgate reasonable
standards against which to examine any request made pursuant to this Article in order to ensure
that the proposed plans conform harmoniously to the exterior design and existing materials of the
buildings in the Properties. Board members may also serve as ARC members.
8.2. Review of Plans and Specifications.
The ARC shall consider and act upon all plans and specifications submitted for its approval
under this Declaration and perform such other duties as the Board assigns to it, including
inspection of construction in progress to assure conformance with plans approved by the ARC.
No construction, installation or alteration of an Improvement, including landscaping, in the
Properties may be commenced or maintained until the plans and specifications therefor showing
the nature, kind, shape, height, width, color, materials and location thereof have been submitted
to and approved in writing by the ARC; provided, however, that any Improvement may be
repainted without ARC approval so long as the Improvement is repainted the identical color
which it was last painted. Without limiting the generality of the foregoing, the provisions of this
Article VIII apply to the construction, installation and alteration of solar energy systems, as
defined in Section 801.5 of the California Civil Code, subject to the provisions of California
Civil Code Section 714, the City Building Code, applicable zoning regulations, and associated
City ordinances. The Owner submitting the plans and specifications ("Applicant") shall obtain a
written, dated receipt therefor from an authorized agent of the ARC. Until changed by the Board,
the address for submission of such plans and specifications is the Association's principal office.
The ARC shall approve plans and specifications submitted for its approval only if it determines
that (a) the installation, construction or alterations contemplated thereby in the locations
indicated will not be detrimental to the appearance of the surrounding area of the Properties as a
whole, (b) the appearance of any structure affected thereby will be in harmony with the
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surrounding structures, (c) the installation, construction or alteration thereof will not detract from
the beauty, wholesomeness and attractiveness of the Common Area or the enjoyment thereof by
the Members, and (d) the maintenance thereof will not become a burden on the Association.
Declarant and any Person to whom Declarant may assign all or a portion of its exemption
hereunder are not required to obtain ARC approval of any Improvements constructed on the
Properties by Declarant or its assignees.
The ARC may condition its approval of proposals or plans and specifications for any
Improvement upon any of the following: (1) the Applicant's furnishing the Association with
security acceptable to the Association against any mechanic's lien or other encumbrance which
may be Recorded against the Properties as a result of such work, (2) such changes therein as it
deems appropriate, (3) the Applicant's agreement to grant appropriate easements to the
Association for the maintenance of the Improvements, (4) the Applicant's agreement to install (at
its sole cost) water, gas, electrical or other utility meters to measure any increased consumption,
(5) the Applicant's agreement to reimburse the Association for the cost of such maintenance, or
(6) the Applicant's agreement to complete the proposed work within a stated period of time, and
may require submission of additional plans and specifications or other information prior to
approving or disapproving material submitted. The ARC may also issue rules or guidelines
setting forth procedures for the submission of plans for approval, requiring a fee to accompany
each application for approval, or stating additional factors which it will consider in reviewing
submissions. The ARC may provide that the amount of such fee be uniform, or that it be
determined in any other reasonable manner, such as by the reasonable cost of the construction,
alterations or installations contemplated. The ARC may require such detail in plans and
specifications submitted for its review as it deems proper, including, without limitation,
landscape plans, floor plans, site plans, drainage plans, elevation drawings and descriptions or
samples of exterior material and colors. Until receipt by the ARC of any required plans and
specifications, the ARC may postpone review of any plans submitted for approval. The ARC
shall transmit its decision and the reasons therefor to the applicant at the address set forth in the
application for approval within forty-five (45) days after the ARC receives all required materials.
Any application submitted pursuant to this Section 8.2 shall be deemed approved unless the ARC
transmits written disapproval or a request for additional information or materials to the Applicant
within forty-five (45) days after the date the ARC receives all required materials. The Applicant
shall meet any review or permit requirements of the City prior to making any construction,
installation or alterations permitted hereunder.
8.3. Meetings of the ARC.
The ARC shall meet as necessary to perform its duties. The ARC may, by resolution
unanimously adopted in writing, designate an ARC representative (who may, but need not, be
one of its members) to take any action or perform any duties for and on behalf of the ARC except
the granting of variances pursuant to Section 8.8. In the absence of such designation, the vote or
written consent of a majority of the ARC constitutes an act of the ARC.
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8.4. No Waiver of Future Approvals.
The ARC's approval of any proposals or plans and specifications or drawings for any work done
or proposed or in connection with any other matter requiring the ARC's approval does not waive
any right to withhold approval of any similar proposals, plans and specifications, drawings or
matters subsequently or additionally submitted for approval.
8.5. Compensation of Members.
The ARC's members shall receive no compensation for services rendered, other than
reimbursement for expenses incurred by them in performing their duties.
8.6. Inspection of Work.
The ARC or its duly authorized representative may inspect any work for which approval of plans
is required under this Article VIII ("Work"). The right to inspect includes the right to require any
Owner to take such action as may be necessary to remedy any noncompliance with the
ARC-approved plans for the Work or with the requirements of this Declaration
("Noncompliance").
(a) Time Limit. The ARC's right to inspect the Work and notify the
responsible Owner of any Noncompliance shall terminate sixty (60) days after the
Work has been completed and the ARC has received written notice from the
Owner that the Work has been completed. If the ARC fails to send a notice of
Noncompliance to an Owner before this time limit expires, the Work shall be
deemed to comply with the approved plans.
(b) Remedy. If an Owner fails to remedy any Noncompliance within
sixty (60) days from the date of notification from the ARC, the ARC shall notify
the Board in writing of such failure. Upon Notice and Hearing, the Board shall
determine whether there is a Noncompliance and, if so, the nature thereof and the
estimated cost of correcting or removing the same. If a Noncompliance exists, the
Owner shall remedy or remove the same within a period of not more than
forty-five (45) days from the date that notice of the Board ruling is given to the
Owner. If the Owner does not comply with the Board ruling within that period,
the Board may Record a Notice of Noncompliance (if permitted by law) and
commence a lawsuit for damages or injunctive relief, as appropriate, to remedy
the Noncompliance.
8.7. Scope of Review.
The ARC shall review and approve, conditionally approve or disapprove all plans submitted to it
for any proposed construction, installation or alteration solely on the basis of aesthetic
considerations, consistency with this Declaration, and the overall benefit or detriment which
would result to the immediate vicinity and the Properties generally. The ARC shall consider the
aesthetic aspects of the architectural designs, placement of buildings, landscaping, color
schemes, exterior finishes and materials and similar features. The ARC's approval or disapproval
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shall be based solely on the considerations set forth in this Article VIII. The ARC is not
responsible for reviewing, nor may its approval of any plan or design be deemed approval of, any
plan or design from the standpoint of structural safety or conformance with building or other
codes.
8.8. Variance.
The ARC may authorize variances from compliance with any of the architectural provisions of
this Declaration, including without limitation, restrictions upon height, size, floor area or
placement of structures, or similar restrictions, when circumstances such as topography, natural
obstructions, hardship, aesthetic or environmental consideration may require. Such variances
must be evidenced in writing, must be signed by a majority of the ARC, and become effective
upon Recordation. After Declarant has lost the right to appoint a majority of the ARC's
members, the Board must approve any variance recommended by the ARC before any such
variance becomes effective. If such variances are granted, no violation of the covenants,
conditions and restrictions contained in this Declaration shall be deemed to have occurred with
respect to the matter for which the variance was granted. The granting of such a variance does
not waive any of the terms and provisions of this Declaration for any purpose except as to the
particular property and particular provision hereof covered by the variance, nor does it affect the
Owner's obligation to comply with all applicable governmental ordinances affecting the use of
his Lot and Residence.
8.9. Appeals.
For so long as Declarant has the right to appoint and remove a majority of the ARC's members,
the ARC's decisions are final, and there is no appeal to the Board. When Declarant is no longer
entitled to appoint and remove a majority of the ARC's members, the Board may adopt policies
and procedures for the appeal of ARC decisions to the Board. The Board has no obligation to
adopt or implement any appeal procedures, and in the absence of Board adoption of appeal
procedures, all ARC decisions are final.
8.10. Exterior Colors.
All structures and roofs within the Properties shall be in such colors which will reduce visual
impacts, according to the color boards approved by the City and enforced by the ARC.
8.11. Submittal to Public Agencies - Right of ARC to Review.
Upon obtaining the written approval of the ARC, the Owner shall thereafter submit plans and
specifications to the City, provided that the proposed Improvements require the issuance of a
building or other permit or certification by the City. If all approvals of the City necessary for the
issuance of a building permit are not obtained within six (6) months from the date of approval by
the ARC, the ARC shall have the right, but not the obligation, to review all previously approved
plans and specifications. In addition, if the City requires modifications to the plans and
specifications previously approved by the ARC, the Owner shall submit to the ARC all
modifications to the plans and specifications previously approved by the ARC, which shall have
the right to review and to impose further conditions on any such modifications.
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8.12. Approval of Citv.
Approval of any proposed or existing Improvement, or completion of an Improvement, by the
ARC or the Board shall not be construed to warrant or represent in any way that the
Improvement was approved by or complies with the minimum standards of the City. Similarly,
approval of any proposed or existing Improvement by the City shall not be construed to
constitute approval of such Improvement by the ARC or the Board.
8.13. Conflicts Between City and ARC.
If there are any conflicts in the conditions of approval or any proposed Improvements imposed
by the City and the ARC, the more restrictive of such conditions shall be controlling. Further,
nothing herein shall limit the ARC from imposing conditions of approval for any proposed
Improvements which are more restrictive than conditions imposed by the City.
ARTICLE IX
9. Maintenance and Repair Obligations.
9.1. Maintenance Obligations of Owners.
Each Owner shall, at the Owner's sole expense, subject to the provisions of this Declaration
requiring ARC approval, maintain, repair, replace and restore all Improvements located on the
Owner's Lot and the Lot itself, except for those portions of the Lot which the Association has
nonexclusive easements over as Common Area, in a neat, sanitary and attractive condition. Such
maintenance responsibilities include, but are not limited to, the maintenance of the entire
Residence on the Lot, landscaping (except for Common Area), wrought iron fences (subject to
Section 9.2 hereof) and the surface of any perimeter block wall facing an Owner's Lot
constructed on the lot line abutting any Common Area, adjacent property, or public property.
Each Owner whose Lot utilizes a sewer system lateral is responsible for the maintenance and
repair of that portion of the lateral which exclusively serves such Owner's Lot. If any Owner
permits any Improvement which such Owner is responsible for maintaining, to fall into disrepair
or to become unsafe, unsightly or unattractive, or to otherwise violate this Declaration, the Board
may seek any remedies at law or in equity which it may have. In addition, the Board may, after
Notice and Hearing, enter upon such Owner's Lot to make such repairs or to perform such
maintenance and charge the cost thereof to the Owner. Said cost shall be a Special Assessment
enforceable as set forth herein.
9.2. Maintenance Obligations of Association.
After the completion of the construction or installation of Common Area by Declarant, no
improvement, excavation or work which in any way alters the Common Area may be made or
done by any person other than the Association or its authorized agents. Unless otherwise
expressly provided in this Declaration, upon commencement of Annual Assessments on the Lots
in a Phase the Association shall maintain, paint, repair and replace all completed Common Area
in a safe, sanitary and attractive condition and in good order and repair, and shall likewise
provide for the commonly metered utilities (if any) serving the Common Area. With respect to
the trail easement on Lots 78 to 84 and 86, inclusive, it shall be maintained by the Association as
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a private trail, if the City does not accept its dedication. With respect to walls and fences, the
Association is only responsible for maintaining perimeter block walls (except for the surfaces
facing the interior of Lots) abutting Common Areas. However, in order to assure that the
wrought iron fences abutting the Common Area are uniformly maintained, the Association shall
notify each Owner on whose Lot any such wrought iron fencing is located the time period within
which such maintenance and painting must occur. Each such Owner will be given the
opportunity to paint and maintain such wrought iron when required by the Association or shall
allow the Association to paint and maintain such wrought iron at the same time that adjacent
wrought iron fencing is maintained to enhance uniform aesthetics. The Association shall levy a
Special Assessment against each Owner (and the Owner's Lot) for whom the Association
maintains such wrought iron to reimburse the Association for such cost. The Board shall
determine, in its sole discretion, the level and frequency of maintenance of the Common Area.
The Association may add or remove any landscaping Improvements to or from the Common
Area and shall ensure that the landscaping thereon is maintained free of weeds and disease. The
Association is not responsible for the maintenance of any portions of the Common Area which
have been dedicated to and accepted for maintenance by a state, local or municipal governmental
agency or entity. All of the foregoing Association obligations shall be discharged when and in
such manner as the Board shall determine in its judgment to be appropriate. The Association
shall indemnify, defend and hold harmless the Owner of any Lot against whom
liability for personal injury or for damage or destruction of property is sought to be imposed as a
result of improper or negligent Association acts or omissions in connection with maintenance of
Common Area located on such Owner's Lot.
9.3. Party Walls.
Each wall or fence which is placed on the dividing line between the Lots (excluding Common
Area walls or fences) is a "Party Wall," and, the general rules of law regarding party walls and
liability for property damage due to negligence or willful acts or omissions apply thereto, as
further specified as follows.
(a) Sharing of Repair and Maintenance. The cost of reasonable repair
and maintenance of a Party Wall shall be shared equally by the Owners of the
Lots connected by such Party Wall. However, each Owner shall be solely
responsible for repainting the side of any Party Wall facing his Lot.
(b) Right to Contribution Runs With Land. The right of any Owner to
contribution from any other Owner under this Article is appurtenant to the land
and passes to such Owner's successors in title.
9.4. Damage to Common Area by Owners.
The Board may levy the cost of any maintenance, repairs or replacements by the Association
within the Common Area (including retaining walls, block walls, tubular steel fencing and
drainage facilities) arising out of or caused by the willful or negligent act of an Owner, his
tenants, or their families, guests or invitees as a Special Assessment against such Owner after
Notice and Hearing.
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9.5. Damage to Residences-Reconstruction.
If all or any portion of any Lot or Residence is damaged or destroyed by fire or other casualty,
the Owner of such Lot shall rebuild, repair or reconstruct the Lot and the Residence thereon in a
manner which will restore them substantially to their appearance and condition immediately prior
to the casualty or as otherwise approved by the ARC. The Owner of any damaged Lot or
Residence and the ARC shall proceed with all due diligence, and the Owner shall cause
reconstruction to commence within six (6) months after the damage occurs and to be completed
within twelve (12) months after damage occurs, unless prevented by causes beyond such Owner's
reasonable control. A transferee of the Lot which is damaged or upon which is located a
damaged Residence shall commence and complete reconstruction in the respective periods which
would have remained for the performance of such obligations if the Owner of the Lot at the time
of the damage still held title to the Lot. However, no such transferee may be required to
commence or complete such reconstruction in less than thirty (30) days from the date such
transferee acquired title to the Lot.
9.6. Inspection.
The Board shall have the Common Area and all Improvements thereon inspected at least once
every three (3) years in order to (a) determine whether the Common Area is being maintained
adequately in accordance with the standards of maintenance established in Section 9.2 hereof, (b)
identify the condition of the Common Area and any Improvements thereon, including the
existence of any hazards or defects, and the need for performing additional maintenance,
refurbishment, replacement, or repair, and (c) recommend preventive actions which may be taken
to reduce potential maintenance costs to be incurred in the future. The Board may employ such
experts and consultants as necessary to perform the inspection and make the report required by
this Section.
The Board shall prepare a report of the results of the inspection required by this Section.
The report shall be furnished to Owners within the time set forth for furnishing Owners with the
Budget. The report must include at least the following:
(a) a description of the condition of the Common Area, including a list
of items inspected, and the status of maintenance, repair and need for replacement
of all such items;
(b) a description of all maintenance, repair and replacement planned
for the ensuing Fiscal Year and included in the Budget;
(c) if any maintenance, repair or replacement is to be deferred, the
reason for such deferral;
(d) a summary of all reports of inspections performed by any expert or
consultant employed by the Board to perform inspections;
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(e) a report of the status of compliance with the maintenance,
replacement and repair needs set forth in the inspection report for preceding years;
and
(f) such other matters as the Board deems appropriate.
ARTICLE X
10. Use Restrictions.
The Properties shall be held, used and enjoyed subject to the following restrictions and the
exemptions of Declarant set forth in this Declaration.
10.1. Single Family Residence.
Each Lot shall be used as a residence for a single Family and for no other purpose. No Owner
shall be permitted to rent or lease his Lot for transient or hotel purposes, or for a period of less
than thirty (30) days. No Owner may rent or lease less than the entire Lot. All rental and lease
agreements shall be in writing and shall provide that the terms of such agreement shall be subject
in all respects to the provisions of the Restrictions and that any failure by the tenant or lessee to
comply with the terms of the Restrictions shall constitute a default under such agreement.
Any Owner who rents or leases a Residence shall promptly notify the Secretary of the
Association in writing of the names of all tenants, lessees, and members of such tenants or
lessees' family occupying the Residence, and shall provide the Secretary of the Association with
a copy of the rental or lease agreement. All Owners shall thereafter promptly notify the
Secretary of the Association of the address and telephone number where such Owner can be
reached. Any failure of a tenant or lessee to comply with the Restrictions shall constitute a
default under the lease or rental agreement, regardless of whether the lease or rental agreement so
provides. In the event of any such default, the Owner shall immediately take all actions to cure
the default including, if necessary, eviction of the tenant or lessee.
If any tenant or lessee is found to be in violation of the provisions of the Restrictions, the
Association may bring an action in its own name or in the name of the Owner to have the tenant
or lessee evicted and to recover damages. To the fullest extent permitted by law, the Association
may recover all of its costs, including court costs and reasonable attorneys' fees incurred in
prosecuting the unlawful detainer action. The Association shall give the tenant or lessee and the
Owner notice in writing of the nature of the violation of the Restrictions, and twenty (20) days
from the mailing of the notice in which to cure the violation before the Association may file for
eviction.
10.2. Business or Commercial Activity.
No part of the Properties may ever be used for any business, commercial (including auctions or
similar events), manufacturing, mercantile, storage, vending or other nonresidential purposes,
including without limitation any activity for which the provider is compensated or receives any
consideration, regardless of whether the activity is engaged in full or part-time, generates or does
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not generate a profit, or requires or does not require a license; except Declarant may use any
portion of the Properties for a model home site and display and sales offices in accordance with
Article XIV hereof. This Section 10.2 does not preclude an Owner from operating a home based
business or occupation in his or her Residence ("Home Business"), so long as such Owner
complies with City Ordinance 21.10.010(7), which prescribes the following conditions:
(a) A Home Business shall only be conducted as a secondary use of
the Residence.
(b) Owners may not employ additional persons to work in the
Residence.
(c) All Home Business activities shall be conducted within the
Residence, except for permitted agricultural or horticultural uses.
(d) Owners may not alter or modify the exterior of the Residence in
such a manner which would reflect the existence of a Home Business.
(e) Owners may not store materials, goods, equipment or stock in a
manner visible from the exterior of the Residence. No deliveries or pickups by
heavy duty commercial vehicles shall be permitted.
(f) Sale of goods or services shall not be conducted on the Owner's
Lot, except for agricultural goods grown on the premises.
(g) Home Business activities shall not cause any external effects which
are inconsistent with the residential nature of the Properties or disrupt the
neighborhood, including but not limited to, noise from equipment, traffic,
lighting, offensive odors or electrical interference.
(h) Advertising, signs or displays of any kind indicating the existence
of a Home Business are prohibited.
(i) A Home Business shall not cause the elimination of required off-
street parking.
(j) A Home Business may not utilize an area greater than twenty
percent of the combined total floor area of the Residence, including the garage
and any other structures constructed on the Lot.
(k) Owners must obtain a license from the City prior to operating a
Home Business.
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10.3. Nuisances.
No noxious or offensive activities may be carried on upon the Properties or on any public street
abutting or visible from the Properties. No horns, whistles, bells or other sound devices, except
security devices used exclusively to protect the security of a Residence and its contents, may be
placed or used on any Lot. Noisy, unsightly, unusually painted or smoky vehicles, large power
equipment and large power tools (excluding lawn mowers and other equipment utilized in
connection with ordinary landscape maintenance), noisy off-road motor vehicles or items which
may unreasonably interfere with television or radio reception to any Lot, and objects which
create or emit loud noises or noxious odors may not be located, used or placed in the Properties
or on any public street abutting the Properties, or exposed to the view of other Owners without
the Board's prior written approval. The Board is entitled to determine if any noise, odor, or
activity producing such noise or odor constitutes a nuisance. No Owner may (a) permit or cause
anything to be done or kept on the Properties or on any public street abutting the Properties
which may (i) increase the rate of insurance in the Properties, (ii) result in the cancellation of
such insurance, or (iii) obstruct or interfere with the rights of other Owners, or (b) commit or
permit any nuisance thereon or violate any law. Each Owner shall comply with all requirements
of the local or state health authorities and with all other applicable governmental ordinances
regarding occupancy and use of a Residence. Each Owner is accountable to the Association and
other Owners for the conduct and behavior of persons residing in or visiting his Lot. Any
damage to the Common Area, personal property of the Association or property of another Owner
caused by such persons shall be repaired at the sole expense of the Owner of the Lot where such
persons are residing or visiting.
10.4. Signs.
Subject to Civil Code Sections 712 and 713, no sign, poster, billboard, balloon advertising device
or other display of any kind shall be displayed within the Properties or on any public street
within or abutting the Properties except for the following signs, so long as they comply with
applicable City ordinances:
(a) signs (regardless of size or configuration) used by Declarant in
connection with construction, alteration or development of the Properties and the
Annexable Territory or sale, lease or other disposition of Lots in the Properties or
the Annexable Territory;
(b) entry monuments, community identification signs, or traffic or
parking control signs maintained by the Association;
(c) one (1) nameplate or similar Owner name or address identification
sign for each Lot which complies with ARC rules;
(d) one (1) sign for a Lot advising of the existence of security services
protecting a Lot which complies with ARC rules;
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(e) one (1) sign which may be displayed on each Lot advertising the
Lot for sale or lease; provided that such for sale or lease signs comply with the
following requirements:
(i) the sign is not larger than eighteen inches (18") by
thirty inches (30") in size;
(ii) the sign is attached to the ground by a conventional,
single vertical stake which does not exceed two inches (2") by
three inches (3") in diameter (i.e. posts, pillars, frames or similar
arrangements are prohibited);
(iii) the top of the sign is not more than three feet (3') in
height above the ground level;
(iv) the sign is of a color and style authorized by the
ARC; and
(f) other signs or displays authorized by the ARC.
10.5. Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles are Authorized
Vehicles: standard passenger vehicles, including without limitation automobiles,
passenger vans designed to accommodate ten (10) or fewer people, motorcycles
and pick-up trucks having a manufacturer's rating or payload capacity of one (1)
ton or less. Authorized Vehicles may be parked in any portion of the Properties
intended for parking of motorized vehicles; provided, however, that no Owner
park his or her vehicle in such a manner which either restricts the passage of
pedestrians or vehicles over the streets within the Properties, or extends beyond
the limits of the space where the vehicle is parked.
(b) Prohibited Vehicles. The following vehicles are Prohibited
Vehicles: (i) commercial-type vehicles (e.g., stakebed trucks, tank trucks, dump
trucks, step vans, concrete trucks, limousines, etc.), (ii) buses or vans designed to
accommodate more than ten (10) people, (iii) vehicles having more than two (2)
axles, (iv) trailers, inoperable vehicles or parts of vehicles, (v) aircraft, other
similar vehicles or any vehicle or vehicular equipment deemed a nuisance by the
Board. Prohibited Vehicles may not be parked, stored or kept on any public or
private street within, adjacent to or visible from the Properties or any other
Common Area parking area except for brief periods for loading, unloading,
making deliveries or emergency repairs. Prohibited Vehicles may only be parked
within an Owner's fully enclosed garage with the door closed so long as their
presence on the Properties does not otherwise violate the provisions of this
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Declaration. Notwithstanding the foregoing, Owners are prohibited from parking
recreational vehicles any where within the Properties, except on those Lots
designated by Declarant or the Board as recreational vehicle storage Lots with
sideyards of a minimum level area of two hundred (200) square feet and a
minimum width often (10) feet. Owners whose Lots are designated for
recreational vehicle parking shall adequately screen their recreational vehicle from
the view of adjacent Lot Owners, subject to the review and approval of the ARC
and in accordance with any guidelines adopted by the ARC or the Board.
(c) General Restrictions. If a vehicle qualifies as both an Authorized
Vehicle and a Prohibited Vehicle, then the vehicle is presumed to be a Prohibited
Vehicle, unless expressly authorized in writing by the Board. Subject to the
restriction on Prohibited Vehicles, all vehicles owned or operated by or within the
control of an Owner or a resident of an Owner's Lot and kept within the Properties
must be parked in the assigned garage of that Owner to the extent of the space
available; provided that each Owner shall ensure that any such garage
accommodates at least two (2) Authorized Vehicles. With respect to garages
constructed for three (3) vehicles, Owners may use one space for purposes other
than vehicle parking, so long as (i) such use is not prohibited by the Restrictions
or by law, and (ii) the garage continues to accommodate two (2) vehicles. No
repair, maintenance or restoration of any vehicle may be conducted on the
Properties except within an enclosed garage when the garage door is closed,
provided such activity is not undertaken as a business, and provided that such
activity may be prohibited entirely by the Board if the Board determines that it
constitutes a nuisance.
(d) Parking Regulations. The Board may establish additional
regulations regarding any parking areas not assigned to individual Lots, including
without limitation designating "parking," "guest parking," and "no parking" areas
thereon; and may enforce all parking and vehicle use regulations applicable to the
Properties, including removing violating vehicles from the Properties pursuant to
California Vehicle Code Section 22658.2 or other applicable ordinances or
statutes. If the Board fails to enforce any of the parking or vehicle use
regulations, the City may enforce such regulations in accordance with applicable
laws and ordinances.
10.6. Animal Restrictions.
In accordance with City Ordinance 21.53.084, ordinary household pets, including but not limited
to dogs and cats, may be kept in the Properties; provided, however, that not more than three (3)
adult dogs or cats in any combination are permitted in each Residence, together with offspring
under four months of age. The Board may prohibit maintenance of any animal which, in the
Board's opinion, constitutes a nuisance to any other Owner. Animals belonging to Owners,
occupants or their licensees, tenants or invitees within the Properties must be either kept within
an enclosure or on a leash held by a person capable of controlling the animal. Any Owner shall
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be liable to each and all remaining Owners, their families, guests, tenants and invitees, for any
unreasonable noise or damage to person or property caused by any animals brought or kept upon
the Properties by such Owner or by such Owner's family, tenants or guests. Each Owner shall
clean up after such Owner's animals which have used any portion of the Properties or public
street abutting or visible from the Properties. Any Owner who maintains any animal within the
Properties, whether in compliance with or in violation of the Restrictions, shall indemnify,
defend and hold harmless the Association, its officers, directors, contractors, agents and
employees from any claim brought by any person against the Association, its officers, directors,
agents and employees for personal injuries or property damage caused by such animal.
10.7. Trash.
No trash may be kept or permitted upon the Properties or on any public street abutting or visible
from the Properties, except in sanitary containers located in appropriate areas screened from
view, and no odor may be permitted to arise therefrom so as to render the Properties or any
portion thereof unsanitary, unsightly, offensive or detrimental to any other property in the
vicinity thereof or to its occupants. Such containers may be exposed to the view of neighboring
Lots only when set out for a reasonable period of time (not to exceed twelve (12) hours before
and after scheduled trash collection hours). No exterior fires are permitted, except barbecue fires
contained within receptacles therefor and fire pits in enclosed areas and designed in such a
manner that they do not create a fire hazard. No clothing, household fabrics or other unsightly
articles may be hung, dried or aired on or over any Lot. No plants or seeds infected with noxious
insects or plant diseases may be brought upon, grown or maintained upon the Properties.
10.8. Temporary Buildings.
No outbuilding, tent, shack, shed or other temporary building or Improvement may be placed
upon any portion of the Properties either temporarily or permanently, without the prior written
consent of the ARC. No garage, carport, trailer, camper, motor home, recreation vehicle or other
vehicle may be used as a residence in the Properties, either temporarily or permanently.
10.9. Common Area Facilities.
The Common Area may not be altered without the Board's prior written consent.
10.10. Outside Installations.
No projections of any type may be placed or permitted to remain above the roof of any building
within the Properties, except one or more chimneys and vent stacks originally installed, if at all,
by Declarant. No basketball backboard or other fixed sports apparatus may be constructed or
maintained in the Properties without the ARC's prior approval. No fence or wall may be erected,
altered or maintained on any Lot except with the ARC's prior approval. No patio cover, wiring,
or air conditioning fixture, water softeners, or other devices may be installed on the exterior of a
Residence or be allowed to protrude through the walls or roof of the Residence (with the
exception of those items installed during the original construction of the Residence) unless the
ARC's prior written approval is obtained and such installation is not prohibited by the City
Municipal Code.
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10.11. Antennae.
Unless approved by the ARC, Owners may not install any antennae on the exterior of a
Residence for any purpose, except for an "Authorized Antenna." For purposes of this Section, an
"Authorized Antenna" means (i) an antenna that is designed to receive direct broadcast satellite
service, including direct-to-home satellite service, that is one meter or less in diameter, (ii) an
antenna that is designed to receive video programming service, including multichannel
multipoint distribution service, instructional television fixed service, and local multipoint
distribution service, that is one meter or less in diameter or diagonal measurement, or (iii) an
antenna that is designed to receive television broadcast signals. The installation of an Authorized
Antenna shall be subject to the following provisions:
(a) The proposed location for installation of an Authorized Antenna
shall be reviewed by the ARC in order to ensure that the visibility of the Authorized Antenna is
minimized with respect to other Owners. Such review by the ARC shall not (1) unreasonably
delay or prevent installation maintenance or use of an Authorized Antenna, (2) unreasonably
increase the cost of installation, maintenance or use of an Authorized Antenna, or (3) preclude
reception of an acceptable quality signal.
(b) If an Owner proposes to install an Authorized Antenna on the
property of another Owner, such installation must be approved in advance by the ARC.
(c) The Board may adopt additional restrictions on installation or use
of an Authorized Antenna as a part of the Association's Rules and Regulations so long as such
restrictions do not (1) unreasonably delay or prevent installation, maintenance or use of an
Authorized Antenna, (2) unreasonably increase the cost of installation maintenance or use of an
Authorized Antenna, or (3) precludes reception of an acceptable quality signal.
(d) The Board may prohibit the installation of an Authorized Antenna
if the installation, location or maintenance of such Authorized Antenna unreasonably affects the
safety of managers, agents or employees of the Association and other Owners.
10.12. Drilling.
No oil drilling, oil, gas or mineral development operations, oil refining, geothermal exploration
or development, quarrying or mining operations of any kind may be conducted upon the
Properties, nor are oil wells, tanks, tunnels or mineral excavations or shafts permitted upon the
surface of any Lot or within five hundred feet (500') below the surface of the Properties. No
derrick or other structure designed for use in boring for water, oil, geothermal heat or natural gas
may be erected, maintained or permitted upon any Lot.
10.13. Further Subdivision.
Subject to Section 17.7 below, no Owner may further partition or subdivide his Lot, including
without limitation, any division of such Owner's Lot into time-share estates or time-share uses.
This provision does not limit the right of an Owner to (a) rent or lease his entire Lot by means of
a written lease or rental agreement subject to this Declaration; (b) sell such Owner's Lot; or (c)
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transfer or sell any Lot to more than one Person to be held by them as tenants-in-common, joint
tenants, tenants by the entirety or as community property. Any failure by the lessee of such Lot
to comply with the Restrictions constitutes a default under the lease or rental agreement.
10.14. Drainage.
No one may interfere with or alter the established drainage pattern over any Lot unless an
adequate alternative provision is made for proper drainage with the ARC's prior written approval.
For the purpose hereof, "established" drainage means the drainage which exists at the time that
such Lot is conveyed to a purchaser from Declarant and includes drainage from (i) the Lots onto
the Common Area, (ii) from the Common Area onto the Lots, and (iii) from one Lot onto another
Lot. If a slough wall is constructed with the approval of the ARC at the base of any slope, then
the Owner must ensure that there are adequate holes in the wall to allow for seepage onto the
Owner's Lot and to avoid diverting slope drainage onto another Owner's Lot.
Each Owner, by accepting a grant deed to his Lot, acknowledges and understands that in
connection with the development of the Properties, Declarant may have installed one or more
"sub-drains" beneath the surface of such Owner's Lot. The sub-drains and all appurtenant
improvements constructed or installed by Declarant ("Drainage Improvements"), if any, provide
for subterranean drainage of water from and to various portions of the Properties. To ensure
adequate drainage within the Properties, it is essential that the Drainage Improvements, if any,
not be modified, removed or blocked without having first made alternative drainage
arrangements. Therefore, no Owner may alter, modify, remove or replace any Drainage
Improvements located within such Owner's Lot without receiving prior written approval from the
ARC in accordance with Article VIII hereof. In connection with obtaining such approval, the
Owner must submit a plan to the ARC for alternative drainage acceptable to the ARC.
Notwithstanding ARC approval, any modification, removal or replacement of Drainage
Improvements must comply with applicable governmental requirements.
10.15. Water Supply Systems.
No individual water supply, sewage disposal or water softener system is permitted on any Lot
unless such system is designed, located, constructed and equipped in accordance with the
requirements, standards and recommendations of any applicable water district, the City, the
ARC, and all other applicable governmental authorities.
10.16. Inside Installations.
No window in any Residence may be partially or completely covered, inside or outside, with
aluminum foil, newspaper, paint, reflective tint or any other material the ARC deems
inappropriate for such use; provided, however, that an Owner may use plain clean white sheets to
cover windows for a period not to exceed six (6) months after the Close of Escrow pending the
installation of drapes, curtains, shutters or other appropriate interior window coverings.
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10.17. View Obstructions.
Each Owner acknowledges that any construction or installation by Declarant may impair the
view of such Owner and hereby consents to such impairment. Declarant expressly disclaims any
guarantee of the presence of or continued existence of any view from a Lot.
10.18. Solar Energy Systems.
Each Owner may install a solar energy system on his Lot which serves his Residence so long as
(a) the design and location of the solar energy system meet the requirements of all applicable
governmental ordinances and (b) said design and location receive the prior written approval of
the ARC.
10.19. Rights of Disabled.
Subject to the provisions of Article VIII hereof, each Owner may modify his Residence and the
route over the Lot leading to the front door of his Residence, at his sole expense, in order to
facilitate access to his Residence by persons who are blind, visually impaired, deaf or physically
disabled, or to alter conditions which could be hazardous to such persons, in accordance with
California Civil Code Section 1360 or any other applicable law or ordinance.
10.20. Sight Distance Corridor.
No structure, fence, wall, tree, shrub, sign, or other object over thirty (30) inches above the street
level may be placed or permitted to encroach within the area identified as a "Sight Distance
Corridor" in accordance with City Standard Public Street-Design Criteria, Section 8.B.3. The
underlying property owner shall maintain this condition. The Lots affected by Sight Distance
Corridors are Lots as shown on Exhibit "E" attached hereto.
10.21. Post Tension Concrete Slab System.
By acceptance of a deed to a Lot, each Owner acknowledges and understands that, due to varying
soil conditions, some Residences have been constructed using post tension concrete slab system
("System"), which involves placing a grid of steel cables under high tension in the concrete slab
foundation beneath each Residence. Any attempt to modify, alter or otherwise tamper with the
foundation (for example, saw cutting, drilling or installing a subterranean safe) is very hazardous
and might result in serious injury or damage. By accepting a deed to a Lot that has been
constructed with the System, each Owner hereby specifically covenants and agrees that the
Owner:
(a) Shall not cut into or otherwise tamper with the System;
(b) Shall not knowingly permit or allow any other Person to cut into or
tamper with the System so long as such Owner owns any interest in the
Residence;
(c) Shall disclose the existence of the System to any tenant or lessee of
the Residence; and
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(d) Shall indemnify and hold Declarant, and its respective officers,
employees, contractors and agents, harmless from and against any and all claims,
damages, losses or other liability (including attorneys' fees) arising from the
modification or alteration thereof.
10.22. Installation of Landscaping.
Each Owner of a Lot shall be responsible for installing the landscaping on his or her Lot in a neat
and attractive condition within ninety (90) days of the date of the Close of Escrow for the sale of
such Owner's Lot, if Declarant has not installed such landscaping within such time period. The
Board may adopt rules and regulations proposed by the ARC to regulate the type of landscaping
permitted on Owners' Lots. The landscaping plans shall be subject to review and approval by the
ARC prior to installation. If an Owner (i) fails to install or maintain landscaping in conformance
this provision or any rules and regulations, or (ii) allows the landscaping to deteriorate to a
dangerous or unsightly condition, the Board, upon thirty (30) days notice to such Owner, shall
have the right to either seek any remedies at law or in equity, or enter upon such Owner's Lot for
the purpose of correcting such condition after Notice and Hearing. The cost of such corrective
action undertaken by the Association shall be a Special Assessment attributable to such Owner.
This Section 10.22 shall not apply to Declarant.
ARTICLE XI
11. Damage and Condemnation.
Damage to or destruction of all or any portion of the Common Area and condemnation of all or
any portion of the Common Area shall be handled in the following manner:
(a) If the Common Area is damaged or destroyed, the Association shall
cause the Common Area to be repaired and reconstructed substantially in accordance
with the original plans and specifications, and any restoration or repair of the
Common Area shall be performed substantially in accordance with the original plans
and specifications. If the cost of effecting total restoration of the Common Area
exceeds the amount of insurance proceeds, then the Association shall levy a
Reconstruction Assessment against the Lots and their respective Owners equal to the
difference between the total restoration cost and the insurance proceeds.
(b) Each Owner is liable to the Association for any damage to the
Common Area which it is the responsibility of the Association to repair, but
which is not fully reimbursed to the Association by insurance proceeds (including
without limitation any deductible amounts under any insurance policies against
which the Association files a claim for such damage) which may be sustained due
to the negligence or willful misconduct of said Owner or the persons deriving
their right and easement of use and enjoyment of the Common Area from said
Owner, or of such Owner's family and guests. The Association may, after Notice
and Hearing, (i) determine whether any claim shall be made upon the insurance
maintained by the Association and (ii) levy against such Owner a Special
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Assessment equal to any deductible paid and the increase, if any, in the insurance
premium directly attributable to the damage caused by such Owner or the persons
for whom such Owner may be liable as described herein. If a Lot is jointly
owned, the liability of its Owners is joint and several, except to the extent that the
Association has previously contracted in writing with such joint Owners to the
contrary. After Notice and Hearing, the cost of correcting such damage, to the
extent not reimbursed to the Association by insurance, shall be a Special
Assessment against such Owner.
(c) If all or any portion of the Common Area is taken by right of
eminent domain or by private purchase in lieu of eminent domain, the award in
condemnation shall be paid to the Association and deposited in the Operating
Fund. No Owner may participate as a party, or otherwise, in any proceedings
relating to such condemnation.
ARTICLE XII
12. Insurance.
12.1. Casualty Insurance.
The Board shall obtain and maintain fire and casualty insurance with extended coverage for loss
or damage to all insurable Improvements installed by Declarant or by the Association on the
Common Area for the full replacement cost thereof without deduction for depreciation or
coinsurance, and may obtain insurance against such other hazards and casualties as the
Association may deem desirable. The Association may also insure any other real or personal
property it owns against loss or damage by fire and such other hazards as the Association may
deem desirable, with the Association as the owner and beneficiary of such insurance. The
policies insuring the Common Area must be written in the name of, and the proceeds thereof
must be payable to the Association. Unless the applicable insurance policy provides for a
different procedure for the filing of claims, all claims made under such policy must be sent to the
insurance carrier or agent, as applicable, by certified mail and be clearly identified as a claim.
The Association shall keep a record of all claims made. Subject to Article XI(b) and XIII(d)
hereof, the Association shall use insurance proceeds to repair or replace the property for which
the insurance was carried. Premiums for all insurance carried by the Association are a Common
Expense.
12.2. Insurance Obligations of Owners.
Each Owner is responsible for insuring his personal property and all other property and
Improvements within his Residence for which the Association has not purchased insurance in
accordance with Section 12.1 hereof. Each Owner is also responsible for carrying public liability
insurance in the amount such Owner deems desirable to cover such Owner's individual liability
for damage to person or property occurring inside such Owner's Residence or elsewhere upon
such Owner's Lot. Such policies shall not adversely affect or diminish any liability under any
insurance obtained by or on behalf of the Association, and duplicate copies of such other policies
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shall be deposited with the Board upon the Board's request. If any loss intended to be covered by
insurance carried by or on behalf of the Association occurs and the proceeds payable thereunder
are reduced due to insurance carried by any Owner, such Owner shall assign the proceeds of such
insurance to the Association, to the extent of such reduction, for application by the Board to the
same purposes as the reduced proceeds are to be applied.
12.3. Waiver of Subrogation.
All policies of physical damage insurance the Association maintains must provide, if reasonably
possible, for waiver of: (a) any defense based on coinsurance; (b) any right of setoff,
counterclaim, apportionment, proration or contribution due to other insurance not carried by the
Association; (c) any invalidity, other adverse effect or defense due to any breach of warranty or
condition caused by the Association, any Owner or any tenant of any Owner, or arising from any
act or omission of any named insured or the respective agents, contractors and employees of any
insured; (d) any rights of the insurer to repair, rebuild or replace, and, if any Improvement is not
repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less
than the replacement value of the Improvements insured; (e) notice of the assignment of any
Owner of its interest in the insurance by virtue of a conveyance of any Lot; (f) any denial of an
Owner's claim because of negligent acts by the Association or other Owners; or (g) prejudice of
the insurance by any acts or omissions of Owners that are not under the Association's control.
As to each policy of insurance the Association maintains which will not be voided or impaired
thereby, the Association hereby waives and releases all claims against the Board, the Owners, the
Manager, Declarant, and the agents and employees of each of the foregoing, with respect to any
loss covered by such insurance, whether or not caused by negligence or breach of any agreement
by such persons, but only to the extent that insurance proceeds are received in compensation for
such loss.
12.4. Liability and Other Insurance.
The Association shall obtain comprehensive public liability insurance, including medical
payments and malicious mischief, in such limits as it deems desirable with such minimum limits
as are set forth in Section 1365.9 of the California Civil Code, insuring against liability for
bodily injury, death and property damage arising from the Association's activities or with respect
to property the Association maintains or is required to maintain including, if obtainable, a
cross-liability endorsement insuring each insured against liability to each other insured. The
Association may also obtain Worker's Compensation insurance and other liability insurance as it
may deem desirable, insuring each Owner, the Association, Board and Manager, against liability
in connection with the Common Area, the premiums for which are a Common Expense. The
Board shall review all insurance policies at least annually and increase the limits in its discretion.
The Board may also obtain such errors and omissions insurance, indemnity bonds, fidelity bonds
and other insurance as it deems advisable, insuring the Board, the Association's officers and the
Manager against any liability for any act or omission in carrying out their obligations hereunder,
or resulting from their membership on the Board or on any committee thereof. However, fidelity
bond coverage which names the Association as an obligee must be obtained by or on behalf of
the Association for any person or entity handling Association funds, including, but not limited to,
Association officers, directors, trustees, employees and agents and Manager employees, whether
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or not such persons are compensated for their services, in an amount not less than the estimated
maximum of funds, including reserve funds, in the Association's or Manager's custody during the
term of each bond. The aggregate amount of such bonds may not be less than one-fourth (1/4) of
the Annual Assessments on all Lots in the Properties, plus reserve funds. In addition, the
Association shall continuously maintain in effect such casualty, flood and liability insurance and
fidelity bond coverage meeting the requirements for planned unit developments established by
FNMA, GNMA and FHLMC, so long as any of them is a Mortgagee or an Owner of a Lot in the
Properties, except to the extent such coverage is not reasonably available or has been waived in
writing by FNMA, GNMA and FHLMC, as applicable. The Association shall, upon issuance or
renewal of insurance, but no less than annually, provide the Owners with the notice required by
Section 1365.9(c) of the California Civil Code.
12.5. Notice of Expiration Requirements.
If available, each insurance policy the Association maintains must contain a provision that said
policy may not be canceled, terminated, materially modified or allowed to expire by its terms,
without ten (10) days' prior written notice to the Board and Declarant and to each Owner and
Beneficiary, insurer and guarantor of a first Mortgage who has filed a written request with the
carrier for such notice, and every other Person in interest who requests such notice of the insurer.
ARTICLE XIII
13. Rights of Mortgagees.
Notwithstanding any other provision of this Declaration, no amendment or violation of the
Declaration defeats or renders invalid the rights of the Beneficiary under any Deed of Trust upon
one (1) or more Lots made in good faith and for value, provided that after the foreclosure of any
such Deed of Trust such Lot(s) will remain subject to this Declaration. For purposes of this
Declaration, "first Mortgage" means a Mortgage with first priority over other Mortgages or
Deeds of Trust on a Lot, and "first Mortgagee" means the Beneficiary of a first Mortgage. For
purposes of any provisions of the Restrictions which require the vote or approval of a specified
percentage of first Mortgagees, such vote or approval is determined based upon one (1) vote for
each Lot encumbered by each such first Mortgage. In order to induce VA, FHA, FHLMC,
GNMA and FNMA to participate in the financing of the sale of Lots, the following provisions
are added hereto (and to the extent these added provisions conflict with any other provisions of
the Restrictions, these added provisions control):
(a) Each Beneficiary, insurer and guarantor of a first Mortgage
encumbering one or more Lots, upon filing a written request for notification with
the Board, is entitled to written notification from the Association of:
(1) any condemnation or casualty loss which affects
either a material portion of the Properties or the Lot(s) securing the
respective first Mortgage; and
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(2) any delinquency of sixty (60) days or more in the
performance of any obligation under the Restrictions, including
without limitation the payment of assessments or charges owed by
the Owner(s) of the Lot(s) securing the respective first Mortgage,
which notice each Owner hereby consents to and authorizes; and
(3) a lapse, cancellation, or material modification of
any policy of insurance or fidelity bond maintained by the
Association.
(b) Each Owner, including each first Mortgagee of a Mortgage
encumbering any Lot which obtains title to such Lot pursuant to the remedies
provided in such Mortgage, or by foreclosure of such Mortgage, or by deed or
assignment in lieu of foreclosure, shall be exempt from any "right of first refusal"
created or purported to be created by the Restrictions.
(c) Each first Mortgagee of a first Mortgage encumbering any Lot
which obtains title to such Lot pursuant to the remedies provided in such
Mortgage or by foreclosure of such Mortgage, shall take title to such Lot free and
clear of any claims for unpaid assessments or charges against such Lot which
accrued prior to the time such Mortgagee acquires title to such Lot in accordance
with Section 7.7.
(d) All Beneficiaries, insurers and guarantors of first Mortgages, upon
written request to the Association, shall have the right to:
(1) examine current copies of the Association's books,
records and financial statements and the Restrictions during normal
business hours; and
(2) receive written notice of all meetings of Owners;
and
(3) designate in writing a representative who shall be
authorized to attend all meetings of Owners.
(e) First Mortgagees may, jointly or singly, pay taxes or other charges
which are in default and which may or have become a charge against any
Common Area property and may pay any overdue premiums on hazard insurance
policies, or secure new hazard insurance coverage on the lapse of a policy, for
Common Area property, and first Mortgagees making such payments shall be
owed immediate reimbursement therefor from the Association.
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(f) All intended Improvements in any Phase of Development other
than Phase 1 shall be substantially consistent with the Improvements in Phase 1 in
structure type and quality of construction. The requirements of this Section 13(f)
are for the benefit of and may be enforced only by FNMA.
(g) The Board may enter into such contracts or agreements on behalf
of the Association as are required in order to satisfy the guidelines of FHLMC,
FNMA, GNMA or any similar entity, so as to allow for the purchase, insurance or
guaranty, as the case may be, by such entities of first Mortgages encumbering
Lots with Residences thereon. Each Owner hereby agrees that it will benefit the
Association and its Members, as a class of potential Mortgage borrowers and
potential sellers of their Lots, if such agencies approve the Properties as a
qualifying subdivision under their respective policies, rules and regulations. Each
Owner hereby authorizes his Mortgagees to furnish information to the Board
concerning the status of any Mortgage encumbering a Lot.
ARTICLE XIV
14. Declarant Exemption.
Declarant or its successors or assigns intends, but is not obligated, to construct Residences and
develop all of the Lots in the Properties. The completion of that work and sale, resale, rental and
other disposal of Lots is essential to the establishment and welfare of the Properties as a quality
residential community. As. used in this Article and its subparagraphs, the words "its successors
or assigns" specifically do not include purchasers of Lots pursuant to transactions requiring the
issuance of a Final Subdivision Public Report. In order that such work may be completed and
the Properties be established as a fully occupied residential community as rapidly as possible, no
Owner nor the Association may do anything to interfere with, and nothing in this Declaration
may be understood or construed to:
(a) Prevent Declarant or its respective, successors, assigns, contractors
or subcontractors, from doing on any Lot owned by them whatever they determine
to be necessary or advisable in connection with the completion of such work,
including without limitation altering of construction plans and designs as
Declarant deems advisable in the course of development; or
(b) Prevent Declarant or its successors, assigns, or representatives,
from erecting and maintaining on any portion of the Properties owned or
controlled by them, or their respective successors, assigns, contractors or
subcontractors, such structures as may be reasonably necessary to conduct the
business of completing such work and establishing the Properties as a residential
community and disposing of the same by sale, resale, lease or otherwise; or
(c) Prevent Declarant or its successors, assigns, contractors or
subcontractors, from conducting on any Lot, or any portion thereof, owned or
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controlled by any of them, or their successors or assigns, the business of
developing, altering, subdividing, grading and constructing Residences and other
Improvements on the Properties as a residential community and of disposing of
Residences thereon by sale, lease or otherwise; or
(d) Prevent Declarant or its successors, assigns, contractors or
subcontractors, from maintaining such signs on any portion of the Properties
owned, leased or controlled by any of them as may be necessary in connection
with the sale, lease or marketing of Lots and Residences in the Properties; or
(e) Prevent Declarant at any time prior to acquisition of title to a Lot
by a purchaser to establish on that Lot additional licenses, reservations and
rights-of-way to itself, to utility companies, or to others as may from time to time
be reasonably necessary to the proper development and disposal of the Properties;
or
(f) Prevent Declarant from unilaterally modifying its development
plan for the Properties and the Annexable Territory, including without limitation
designating and redesignating Phases and constructing Residences of larger or
smaller sizes, values or of different types.
Declarant need not seek or obtain ARC approval of any Improvement Declarant
constructs or places on the Properties. Declarant, in the exercise of their rights under this Article,
may not unreasonably interfere with any other Owner's use of the Common Area. The
Association shall provide Declarant with all notices and other documents to which a Beneficiary -
is entitled pursuant to this Declaration, provided that Declarant shall be provided such notices
and other documents without making written request therefor. Commencing on the date on
which Declarant no longer has an elected representative on the Board, and continuing until the
later to occur of the date on which Declarant (i) no longer owns a Lot in the Properties or (ii)
cannot unilaterally annex property to the Properties, the Association shall provide Declarant with
written notice of all meetings of the Board as if Declarant were an Owner and Declarant shall be
entitled to have a representative present at all such Board meetings ("Declarant's
Representative"). The Declarant's Representative shall be present in an advisory capacity only
and shall not be a Board member or have any right to vote on matters coming before the Board.
ARTICLE XV
15. General Provisions.
All disputes arising under this Declaration, other than those described in Section 15.14 or
regulated by Civil Code Section 1375, shall be resolved as follows:
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15.1. Enforcement of Restrictions.
(a) Violations Identified by the Association. If the Board determines
that there is a violation of the Restrictions, or the ARC determines that an
Improvement which is the maintenance responsibility of an Owner needs
installation, maintenance, repair, restoration or painting, then the Board shall give
written notice to the responsible Owner identifying (i) the condition or violation
complained of, and (ii) the length of time the Owner has to remedy the violation
including, if applicable, the length of time the Owner has to submit plans to the
ARC and the length of time the Owner has to complete the work proposed in the .
plans submitted to the ARC.
If an Owner does not perform such corrective action as is required by the
Board and the ARC within the allotted time, the Board, after Notice and Hearing,
may remedy such condition or violation complained of, and the cost thereof shall
be charged to the Owner as a Special Assessment.
If the violation involves nonpayment of any type of Assessment, then the
Board may collect such delinquent Assessment pursuant to the procedures set
forth in Article VII.
(b) Violations Identified by an Owner. If an Owner alleges that
another Owner, his family, guests or tenants, is violating the Restrictions (other
than nonpayment of any type of Assessment), the complaining Owner must first
submit the matter to the Board for Notice and Hearing before the complaining
Owner may resort to alternative dispute resolution, as required by Section 1354 of
the California Civil Code, or litigation for relief.
(c) Alternative Dispute Resolution. If a dispute exists between or
among (i) Declarant, its builders, general contractors or brokers, or their agents or
employees, and any Owner(s) or the Association, or (ii) any Owner and another
Owner, or (iii) the Association and any Owner, including any claim based on
contract, tort, or statute, arising out of or relating to the rights or duties of the
parties under the Restrictions or the design or construction of the Project
(excluding disputes relating to the payment of any type of Assessments), if the
disputing parties agree and subject to Section 1354 of the California Civil Code,
the matter will be submitted to alternative dispute resolution so long as the
requirements of Sections 15.1 (a) and (b) above have been met, if they are
applicable.
(d) Legal Proceedings. Failure to comply with any of the terms of the
Restrictions by an Owner, his family, guests, employees, invitees or tenants, is
grounds for relief which may include, without limitation, an action to recover
sums due for damages, injunctive relief, foreclosure of any lien, or any
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combination thereof; provided, however, that the procedures established in
Section 1354 of the California Civil Code and in Sections 15.1 (a), (b) and (c)
above must first be followed, if they are applicable.
(e) Limitation on Expenditures. The Association may not incur
litigation expenses, including without limitation attorneys' fees, where the
Association initiates legal proceedings or is joined as a plaintiff in legal
proceedings unless it has obtained the approval of a majority of the Association's
voting power (excluding the voting power of any Owner who would be a
defendant in such proceedings), and complied with the requirements of Section
1354 of the California Civil Code. Such approval is not necessary if the legal
proceedings are initiated to (i) enforce the use restrictions contained in Article X
hereof, (ii) enforce the architectural control provisions contained in Article VIII
hereof, or (iii) collect any unpaid assessments levied pursuant to this Declaration.
(i) Additional Remedies. The Board may adopt a schedule of
reasonable fines or penalties which, in its reasonable discretion, it may assess
against an Owner for the failure of such Owner, or of a resident of or visitor to
such Owner's Lot, to comply with the Restrictions. Such fines or penalties may
only be assessed after Notice and Hearing. After Notice and Hearing, the Board
may direct the officers of the Association to Record a notice of noncompliance (if
permitted by law) against a Lot owned by any Member of the Association who
has violated any provision of this Declaration. The notice shall include a legal
description of the Lot and shall specify the provision of the Declaration that was
violated, the violation committed, and the steps required to remedy the
noncompliance. Once the noncompliance is remedied or the noncomplying
Owner has taken such other steps as reasonably required by the Board, the Board
shall direct the officers of the Association to record a notice that the
noncompliance has been remedied.
(g) No Waiver. Failure to enforce any provision hereof does not waive
the right to enforce that provision, or any other provision hereof.
(h) Right to Enforce. The Board or any Owner (not at the time in
default hereunder) may enforce the Restrictions as described in this Article,
subject to Section 1354 of the California Civil Code. Each Owner has a right of
action against the Association for the Association's failure to comply with the
Restrictions. Each remedy provided for in this Declaration is cumulative and not
exclusive or exhaustive.
(i) Attorneys' Fees. Any judgment rendered in any action or
proceeding pursuant to this Declaration shall include a sum for attorneys' fees in
such amount as the court or arbitrator, as applicable, may deem reasonable, in
favor of the prevailing party, as well as the amount of any delinquent payment,
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interest thereon, costs of collection and costs of court or alternative dispute
resolution, as applicable.
15.2. Severability.
The provisions hereof are independent and severable, and a determination of invalidity or partial
invalidity or unenforceability of any one provision or portion hereof by a court of competent
jurisdiction does not affect the validity or enforceability of any other provision hereof.
15.3. Term.
This Declaration continues in full force unless a Declaration of Termination satisfying the
requirements of an amendment to the Declaration as set forth in Section 15.5 is Recorded.
15.4. Interpretation.
This Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan
for the development of a residential community and for the maintenance of the Common Area,
and any violation of this Declaration is a nuisance. The Article and Section headings have been
inserted for convenience only, and may not be considered or referred to in resolving questions of
interpretation or construction. As used herein, the singular includes the plural and the plural the
singular; and the masculine, feminine and neuter each include the other, unless the context
dictates otherwise.
15.5. Termination and Amendment.
(a) Notice of the subject matter of a proposed amendment to, or
termination of, this Declaration in reasonably detailed form shall be included in
the notice of any meeting or election of the Association at which a proposed
amendment or termination is to be considered. The resolution can only be
adopted by the vote, in person or by proxy, or written consent of Members
representing not less than (i) sixty-seven percent (67%) of the voting power of
each class of Members, and (ii) sixty-seven percent (67%) of the Association's
voting power residing in Members other than Declarant and Merchant Builders;
provided that the specified percentage of the Association's voting power necessary
to amend a specified Section or provision of this Declaration may not be less than
the percentage of affirmative votes prescribed for action to be taken under that
Section or provision. In addition, Article XIV hereof may not be amended, nor is
any amendment effective which would be counter to Article XIV or any other
rights of Declarant, without the prior written consent of Declarant for so long as
Declarant is an Owner or entitled to add Annexable Territory to the Properties
without the vote or consent of Owners.
(b) In addition to the notices and consents required by Section 15.5(a),
the Beneficiaries of fifty-one percent (51%) of the first Mortgages on all the Lots
in the Properties who have requested the Association to notify them of proposed
action requiring the consent of a specified percentage of first Mortgagees must
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approve any amendment to this Declaration which is of a material nature, as
follows:
(1) Any amendment which affects or purports to affect
the validity or priority of Mortgages or the rights or protection
granted to Beneficiaries, insurers and guarantors of first Mortgages
as provided in this Declaration.
(2) Any amendment which would necessitate a
Mortgagee, after it has acquired a Lot through foreclosure, to pay
more than its proportionate share of any unpaid assessment or
assessments accruing after such foreclosure.
(3) Any amendment which would or could result in a
Mortgage being cancelled by forfeiture, or in a Lot not being
separately assessed for tax purposes.
(4) Any amendment relating to the insurance provisions
as set out in Article XII hereof, or to the application of insurance
proceeds as set out in Article XI hereof, or to the disposition of any
money received in any taking under condemnation proceedings.
(5) Any amendment which would subject any Owner to
a right of first refusal or other such restriction if such Lot is
proposed to be sold, transferred or otherwise conveyed.
(c) Termination of this Declaration shall require approval by the
Members as provided in subsection (a) of this Section 15.5.
(d) Each Beneficiary of a first Mortgage on a Lot in the Properties
which receives proper written notice of a proposed amendment or termination of
this Declaration by certified or registered mail with a return receipt requested shall
be deemed to have approved the amendment or termination if the Beneficiary fails
to submit a response to the notice within thirty (30) days after the Beneficiary
receives the notice.
(e) A copy of each amendment shall be certified by at least two (2)
Association officers, and the amendment will be effective when a Certificate of
Amendment is Recorded. The Certificate, signed and sworn to by at least two (2)
officers of the Association that the requisite number of Owners have either voted
for or consented in writing to any termination or amendment adopted as provided
above, when Recorded, is conclusive evidence of that fact. The Association shall
maintain in its files the record of all such votes or written consents for at least four
(4) years. The certificate reflecting any termination or amendment which requires
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the written consent of any of the Beneficiaries of first Mortgages must include a
certification that the requisite approval of such first Mortgagees has been
obtained.
(f) Notwithstanding any other provisions of this Section 15.5, at any
time prior to the first Close of Escrow in Phase 1, Declarant may unilaterally
amend or terminate this Declaration by Recording a written instrument which
effects the amendment or termination and is signed and acknowledged by
Declarant.
(g) Notwithstanding any other provisions of this Section 15.5, for so
long as Declarant owns any portion of the Properties or the Annexable Territory,
Declarant may unilaterally amend this Declaration by Recording a written
instrument signed by Declarant in order to conform this Declaration to the
requirements of VA, FHA, ORE, FNMA, GNMA or FHLMC.
15.6. No Public Right or Dedication.
Nothing contained in this Declaration constitutes a gift or dedication of all or any part of the
Properties to the public, or for any public use.
15.7. Constructive Notice and Acceptance.
Every person who owns, occupies or acquires any right, title, estate or interest in or to any Lot or
other portion of the Properties does hereby consent and agree, and shall be conclusively deemed
to have consented and agreed, to every limitation, restriction, easement, reservation, condition
and covenant contained herein, whether or not any reference to these restrictions is contained in
the instrument by which such person acquired an interest in the Properties or any portion thereof.
15.8. Reservation of Easements.
Declarant hereby reserves for the benefit of each Owner and such Owner's Lot reciprocal,
nonexclusive easements over the adjoining Lot or Lots for the control, maintenance and repair of
the utilities serving such Owner's Lot. Declarant expressly reserves for the benefit of all of the
real property in the Properties, and for the benefit of all of the Lots, the Association and of the
Owners, reciprocal, nonexclusive easements over all Lots and the Common Area, as necessary,
for maintenance and repair of utility services, for drainage from the Lots of water resulting from
the normal use of adjoining Lots, for repair and maintenance of Common Area, and for
maintenance and repair of any Residence. If any Residence encroaches upon the Common Area
and Improvements thereon as a result of construction by Declarant or as a result of
reconstruction, repair, shifting, settlement or movement of any portion of the Properties, a valid
easement for minor encroachment and for its maintenance shall exist so long as the minor
encroachment exists. Declarant and the Owners of each Lot on which there is constructed a
Residence along or adjacent to such Lot line shall have an easement appurtenant to such Lot over
the Lot line to and over the adjacent Lot for the purposes of accommodating any natural
movement or settling of any Residence located on such Lot, any encroachment of any Residence
due to minor engineering or construction variances, and any encroachment of eaves, roof
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overhangs and architectural features comprising parts of the original construction of any
Residence located on such Lot.
15.9. Notices.
Except as otherwise provided herein, notice to be given to an Owner must be in writing and may
be delivered personally to the Owner. Personal delivery of such notice to one (1) or more
co-owners of a Lot or to any general partner of a partnership owning a Lot constitutes delivery to
all co-owners or to the partnership, as the case may be. Personal delivery of such notice to any
officer or agent for the service of process on a corporation constitutes delivery to the corporation.
In lieu of the foregoing, such notice may be delivered by regular United States mail, postage
prepaid, addressed to the Owner at the most recent address furnished by such Owner to the
Association or, if no such address has been furnished, to the street address of such Owner's Lot.
Such notice is deemed delivered three (3) business days after the time of such mailing, except for
notice of a meeting of Members or of the Board, in which case the notice provisions of the
Bylaws control. Any notice to be given to the Association may be delivered personally to any
member of the Board, or sent by United States mail, postage prepaid, addressed to the
Association at such address as may be fixed from time to time and circulated to all Owners.
15.10. Enforcement of Bonded Obligations.
If (a) the Common Area Improvements in any Phase are not completed prior to the issuance of a
Final Subdivision Public Report for such Phase by DRE, and (b) the Association is obligee under
a bond or other arrangement ("Bond") required by the DRE to secure performance of Declarant's
commitment to complete such Improvements, then the following provisions of this Section will
be applicable:
(i) The Board shall consider and vote on the question of action by the
Association to enforce the obligations under the Bond with respect to any such
Improvement for which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for that Improvement in the Planned
Construction Statement appended to the Bond. If the Association has given an
extension in writing for the completion of any Common Area Improvement, then
the Board shall be directed to consider and vote on the aforesaid question if a
Notice of Completion has not been filed within thirty (30) days after the
expiration of the extension.
(ii) A special meeting of Members for the purpose of voting to
override a decision by the Board not to initiate action to enforce the obligations
under the Bond or on the Board's failure to consider and vote on the question shall
be held no fewer than thirty-five (35) nor more than forty-five (45) days after the
Board receives a petition for such a meeting signed by Members representing five
percent (5%) of the Association's total voting power. A vote of a majority of the
Association's voting power residing in Members other than Declarant and
Merchant Builders to take action to enforce the obligations under the Bond shall
be deemed to be the decision of the Association, and the Board shall thereafter
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implement such decision by initiating and pursuing appropriate action in the
Association's name.
15.11. Nonliability and Indemnification.
(a) Nonliability.
(i) General Rule. No Person is liable to any other
Person (other than the Association or a party claiming in the name
of the Association) for injuries or damage resulting from such
Person's acts or omissions within what such person reasonably
believed to be the scope of the Person's Association duties
("Official Acts"), except to the extent that such injuries or damage
result from the Person's willful or malicious misconduct. No
Person is liable to the Association (or to any party claiming in the
name of the Association) for injuries or damage resulting from
such Person's Official Acts, except to the extent that such injuries
or damage result from such Person's negligence or willful or
malicious misconduct. The Association is not liable for damage to
property in the Properties unless caused by the negligence of the
Association, the Board, the Association's officers, the manager or
the manager's staff.
(ii) Nonliability of Volunteer Board Members and
Officers. A volunteer Board member or volunteer Association
officer shall not be personally liable to any Person who suffers
injury, including without limitation bodily injury, emotional
distress, wrongful death or property damage or loss as a result of
the tortious act or omission of the volunteer officer or Board
member if all of the applicable conditions specified in Section
1365.7 of the California Civil Code, as modified, amended, or
replaced, are met.
(b) Indemnification.
(i) For Association Representatives. The Association
has the power and the duty to indemnify Board members,
Association officers, ARC members, and all other Association
committee members for all damages and pay all expenses incurred
by, and satisfy any judgment or fine levied against, any Person as a
result of any action or threatened action against such Person
brought because of performance of an Official Act to the fullest
extent authorized by California law. Board members, Association
officers, ARC members, and all other Association committee
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members are deemed to be agents of the Association when they are
performing Official Acts for purposes of obtaining indemnification
from the Association pursuant to this Section. The entitlement to
indemnification hereunder inures to the benefit of the estate,
executor, administrator, heirs, legatees, or devisees of any person
entitled to such indemnification.
(ii) For Other Agents of the Association. The
Association has the power, but not the duty, to indemnify any other
Person acting as an agent of the Association for any damages and
pay all expenses incurred by, and satisfy any judgment or fine
levied against, any Person as a result of any action or threatened
action against such Person because of an Official Act as authorized
by California law.
(iii) Provided by Contract. The Association, acting
through the Board, also has the power, but not the duty, to contract
with any Person to provide indemnification beyond the scope of
indemnification authorized by applicable law on such terms and
subject to such conditions and the Board may impose.
15.12. Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration and either the Articles or the
Bylaws, then the provisions of this Declaration shall prevail.
15.13. Mergers or Consolidations.
Upon a merger or consolidation of the Association with another association, its properties, rights
and obligations may, by operation of law, be transferred to another surviving or consolidated
association or, alternatively, the properties, rights and obligations of another association may, by
operation of law, be added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association may
administer and enforce the covenants, conditions and restrictions established by this Declaration
governing the Properties, together with the covenants and restrictions established upon any other
property, as one (1) plan.
15.14. Dispute Resolution.
Any disputes between the Association, any Owners and the Declarant or any director, officer,
partner, employee, contractor, subcontractor, design professional or agent of the Declarant
(collectively "Declarant Parties") arising under this Declaration or relating to the Project, shall be
subject to the following provisions:
(a) Construction Defect Disputes. Prior to the commencement of any legal
action by the Association or any Owner against the Declarant or Declarant Party based upon a
claim for defects in the design or construction of any Residence, Common Area or Improvements
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thereon, the Association or Owner must first comply with the requirements of Civil Code Section
1375 (notwithstanding the fact that Section 1375 does not apply to Owners by its terms). If the
parties are unable to resolve their dispute in accordance with the procedures established under
Civil Code Section 1375, the dispute shall be resolved in accordance with subsection (c) below,
and the parties shall be responsible for bearing their own attorneys' fees in such proceeding.
(b) Other Disputes. Any other disputes arising under this Declaration or
otherwise between the Association, any Owner and the Declarant or a Declarant Party shall be
resolved in accordance with subsection (c) below, except for actions brought by the
Association against Declarant for delinquent assessments and completion bonds. The
dispute resolution procedure in subsection (c) for resolution of disputes under this subsection (b)
shall be deemed to satisfy the alternative dispute requirements of Civil Code Section 1354, as
applicable.
(c) Judicial Reference. Any unresolved disputes under subsections (a) and (b)
above, shall be submitted to general judicial reference pursuant to California Code of Civil
Procedure Sections 638(1) and 641-645.1 or any successor statutes thereto. The parties shall
cooperate in good faith to ensure that all necessary and appropriate parties are included in the
judicial reference proceeding. Declarant shall not be required to participate in the judicial
reference proceeding unless it is satisfied that all necessary and appropriate parties will
participate. The parties shall share equally in the fees and costs of the referee, unless the referee
orders otherwise but the parties shall bear their own attorneys' fees.
The general referee shall have the authority to try all issues, whether of fact or
law, and to report a statement of decision to the court. The parties shall use the procedures
adopted by Judicial Arbitration and Mediation Services/ENDISPUTE ("JAMS") for judicial
reference (or any other entity offering judicial reference dispute resolution procedures as may be
mutually acceptable to the parties), provided that the following rules and procedures shall apply
in all cases unless the parties agree otherwise:
(1) The proceedings shall be heard in the county in which the Project is
located;
(2) The referee must be a retired judge or a licensed attorney with substantial
experience in relevant real estate matters;
(3) Any dispute regarding the selection of the referee shall be resolved by
JAMS or the entity providing the reference services, or, if no entity is
involved, by the court with appropriate jurisdiction;
(4) The referee may require one or more pre-hearing conferences;
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(6) A stenographic record of the trial shall be made, provided that the record
shall remain confidential except as may be necessary for post-hearing
motions and any appeals;
(7) The referee's statement of decision shall contain findings of fact and
conclusions of law to the extent applicable; and
(8) The referee shall have the authority to rule on all post-hearing motions in
the same manner as a trial judge.
The statement of decision of the referee upon all of the issues considered by the
referee is binding upon the Parties, and upon filing of the statement of decision with the clerk of
the court, or with the judge where there is no clerk, judgment may be entered thereon. The
decision of the referee shall be appealable as if rendered by the court. This provision shall in no
way be construed to limit any valid cause of action which may be brought by any of the parties.
The parties acknowledge and accept that they are waiving their right to a jury trial.
(d) Miscellaneous. Notwithstanding any other provision herein to the
contrary, in any dispute between the Association and/or any Owner and the Declarant, each party
shall bear its own attorneys fees. 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 matter shall be considered communications undertaken in
the course of effecting a settlement or compromise as such shall not be admissible as an
admission on the part of any party or any representative or agent of that party to be utilized for
any such purpose in any action or proceeding.
15.15. Additional Provisions.
Notwithstanding the provisions contained in the Restrictions, the Association and the Owners
should be aware that there may be provisions of various laws, including without limitation the
Davis-Stirling Common Interest Development Act codified at Sections 1350 et seq. of the
California Civil Code and the federal Fair Housing Act codified at Title 42 United States Code,
Sections 3601 et seq.. which may supplement or override the Restrictions. Declarant makes no
representations or warranties regarding the future enforceability of any portion of the
Restrictions.
15.16. Marketing Name.
The Property shall be marketed under the name "Cantamar," unless and until changed by
Declarant in its sole and absolute discretion from time to time. Declarant shall notify the DRE of
any change in the name of the Property under which it is marketed by Declarant.
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ARTICLE XVI
16. Annexation of Additional Property.
Additional real property may be annexed to Phase 1 and such additional real property may
become subject to this Declaration by any of the following methods:
16.1. Additions by Declarant.
Declarant may add the Annexable Territory, or any portion or portions thereof (including any
Common Area located therein), to the Properties and bring such added territory within the
general plan of this Declaration without the approval of the Association, the Board, or Members
so long as Declarant is the sole owner of the portion of the Annexable Territory to be annexed.
As each Phase is developed, Declarant may, with respect thereto, Record a supplemental
declaration ("Supplemental Declaration") which may supplement this Declaration with such
additional covenants, conditions, restrictions, reservations and easements as Declarant may
deem appropriate for that Phase.
16.2. Other Additions.
In addition to the provisions for annexation specified in Section 16.1 above, additional real
property may be annexed to the Properties and brought within the general plan of this
Declaration upon the approval by vote or written consent of Members entitled to exercise no less
than two-thirds (2/3rds) of the Association's voting power.
16.3. Rights of Added Territory Members.
Subject to the provisions of Section 16.4, upon the Recording of a Notice of Addition containing
the provisions as set forth in this Section, all provisions contained in this Declaration will apply
to the real property described in such Notice of Addition (the "added territory") in the same
manner as if it were originally covered by this Declaration. Thereafter, the rights, powers and
responsibilities of the parties to this Declaration with respect to the added territory will be the
same as with respect to the property originally covered hereby, and the rights, powers and
responsibilities of the Owners, lessees and occupants of Lots within the added territory, as well
as within the property originally subject to this Declaration, will be the same as if the added
territory were originally covered by this Declaration. From and after the first day of the first
month following the first Close of Escrow in the added territory, the Owners of Lots located in
the added territory shall share in the payment of assessments to the Association to meet Common
Expenses of the entire Properties as provided in Section 6.7 hereof. Voting rights attributable to
the Lots in the added territory do not vest until Annual Assessments have commenced as to such
Lots.
16.4. Notice of Addition.
The additions authorized under Sections 16.1 and 16.2 must be made by Recording a Notice of
Addition, or other similar instrument (which notice or instrument may contain the Supplemental
Declaration, if any, affecting each such Phase), with respect to the added territory ("Notice of
Addition") which will extend the general plan of this Declaration to such added territory. The
Notice of Addition for any addition under Section 16.1 must be signed by Declarant. The Notice
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of Addition for any addition under Section 16.2 must be signed by at least two (2) officers of the
Association to certify that the requisite Member approval under Section 16.2 was obtained. The
Recordation of said Notice of Addition effectuates the annexation of the added territory
described therein, and thereupon said added territory will constitute a part of the Properties,
become subject to this Declaration and encompassed within the general plan of covenants,
conditions, restrictions, reservation of easements and equitable servitudes contained herein, and
become subject to the Association's functions, powers and jurisdiction; and the Owners of Lots in
the added territory will automatically become Members. Such Notice of Addition may contain a
Supplemental Declaration with such additions and modifications of the covenants, conditions,
restrictions, reservation of easements and equitable servitudes contained in this Declaration as
may be necessary to reflect the different character, if any, of the added territory, or as Declarant
deems appropriate in the development of the added territory, and as are not inconsistent with the
general plan of this Declaration. In no event, however, may such Notice of Addition or
Supplemental Declaration revoke, modify or add to the covenants, conditions, restrictions,
reservation of easements, or equitable servitudes established by this Declaration as the same
pertain to the real property originally covered by this Declaration. Concurrently with the first
Close of Escrow for the sale of a Lot in any Phase annexed to the Properties in accordance
herewith, Declarant shall pay to the Association an appropriate amount (as determined by DRE)
for reserves for replacement or deferred maintenance of the Common Area in such Phase
necessitated by or arising out of the use and occupancy of the Residences in such Phase under a
rental program conducted by Declarant if such rental program was in effect for at least one (1)
year prior to such first Close of Escrow.
16.5. Deannexation and Amendment.
Declarant may amend a Notice of Addition or delete all or a portion of a Phase from coverage of
this Declaration and the Association's jurisdiction so long as Declarant is the owner of all of such
Phase and provided that (a) an amending instrument or a Notice of Deletion of Territory, as
applicable, is Recorded in the same manner as the applicable Notice of Addition was Recorded,
(b) Declarant has not exercised any Association vote with respect to any portion of such Phase,
(c) assessments have not yet commenced with respect to any portion of such Phase, (d) Close of
Escrow has not occurred for the sale of any Lot in such Phase, (e) the Association has not made
any expenditures or incurred any obligations with respect to any portion of such Phase.
ARTICLE XVII
17. Conditions of City.
17.1. Public Transit Information.
The Association shall obtain and distribute to Owners annual information from Caltrans and
North County Transit regarding the availability of public transportation, ride-sharing, and
transportation pooling services in the area.
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17.2. General Enforcement by City.
The City shall have the right, but not the obligation, to enforce those covenants set forth in this
Declaration in favor of, or in which the City has an interest.
17.3. Failure of Association to Maintain.
If the Association fails to maintain the Common Area as provided in Section 9.2, the City shall
have the right, but not the obligation, to perform the necessary maintenance by giving written
notice to the Association, with a copy thereof to Owners, setting forth with particularity the work
of maintenance or repair 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. If the
Association fails to carry out such maintenance or repair within the period specified by the City's
notice, the City shall be entitled to cause such work to be completed and shall be entitled to
reimbursement from the Owners, as provided in Section 17.4.
17.4. Special Assessments Levied by City.
If the City performs maintenance of the Common Areas provided in Section 17.2, the City shall
submit a written invoice to the Association for all costs incurred by the City to perform such
maintenance of the Common Area Lots and or Association's Easements. The City shall provide
a copy of such invoice to each Owner in the Project, together with a statement that if the
Association fails to pay such invoice in full 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 the Association within twenty (20) days of receipt by the
Association. If the Association shall fail to pay such invoice in full within the period specified,
payment shall be deemed delinquent and shall be subject to a late charge in an amount equal to
six percent (6%) of the amount of the invoice. Thereafter the City may pursue collection from
the Association by means of any remedies available at law or in equity. Without limiting the
generality of the foregoing, in addition to all other rights and remedies available to the City, the
City may levy a special assessment against the Owners of each Lot in the Project for an equal
prorata share of the invoice, plus the late charge. Such special assessment shall constitute a
charge on the land and shall be a continuing lien upon each Lot against which the special
assessment is levied. Each Owner in the Project hereby vests the City with the right and power
to levy such special assessment, to impose a lien upon their respective Lot and to bring all legal
actions and/or pursue lien foreclosure procedures against any Owner and his/her respective Lot
for purposes of collecting such special assessment in accordance with the procedures set forth in
Articles 6 and 7 of this Declaration.
17.5. Open Space Restrictions.
Removal of native vegetation and development of the Open Space areas in the Properties,
including but not limited to fences, walls, decks, storage buildings, pools, spas, stairways, and
landscaping, is specifically prohibited, except upon written order of the Carlsbad Fire
Department for fire prevention purposes, or upon written approval of the Planning Director (and
the Coastal Commission if in Coastal Zone), and based on a request from the Association
accompanied by a report from a qualified arborist/botanist indicating the need to remove
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specified trees or plants because of disease or impending danger to adjacent habitable dwelling
units. For areas containing native vegetation the report accompanying the request shall be
prepared by a qualified biologist.
17.6. Restrictions on Specified Lots.
Owners are prohibited from constructing or installing any improvements, including but not
limited to fences, walls, decks, storage buildings, pools, spas, stairways, and landscaping (other
than City approved landscaping), within the areas on Lots 5 and 6 and on Lots 15 to 21,
inclusive, or within the forty foot (40') landscaped setback adjacent to Poinsettia Lane Lots 78 to
84, inclusive, and Lot 86 within the Properties, as depicted on Exhibit "F" attached hereto.
17.7. Further Subdivision or Development of Properties.
Chapter 21.90 of the Carlsbad Municipal Code establishes a Growth Management Control Point
for each General Plan land use designation. Further subdivision and development of the
Properties may not exceed the Growth Control Point except as provided by Chapters 21.90 and
21.53 allowing density increases upon City Council approval. The land use designation for the
Properties is RLM. The Growth Control Point for this designation is 3.2 dwelling units per
nonconstrained acre.
17.8. Disclosures.
(a) Park Site. The Properties are located in close proximity to a
community park located on Hidden Valley Road. Facilities for the community
park include, but are not limited to, a lighted baseball field. Owners and other
residents within the Properties may experience, among other things, glare from
bright lights, noise and increased traffic in connection with the public's use of the
park.
(b) Future School Site. The Properties are located in close proximity
to a proposed school site. As presently planned, the school site is on Hidden
Valley Road. Owners and other residents within the Properties may experience,
among other things, glare from bright lights, noise and increased traffic in
connection with the public's use of the school. There are no assurances if or when
the proposed school will be completed nor the facilities that may be included as
part of the school.
(c) Proximity to Agricultural Lands. The Properties are located on
lands which were previously used for agricultural purposes, and is located in close
proximity to certain lands which are presently used for agricultural purposes. By
reason of such agricultural use, the Owners and other residents within the
Properties may be subject to dust, noise and odors and may be exposed to
pesticides, herbicides, insecticides and other chemicals. Each Owner, for and on
behalf of himself, and the members of his family, his tenants, lessees, guests and
invitees, expressly approve all of the foregoing conditions and risks, and waives
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all causes of action and covenants not to sue the City, the Declarant, and their
respective directors, officers, employees, agents and consultants for any damages
or injuries which may arise from or relate to any of such conditions and/or risks.
(d) Transportation Corridor. The Properties are adjacent to the
proposed Poinsettia Lane Transportation Corridor ("Corridor"). Owners and
residents within the Properties may experience noise, dust and other
environmental impacts associated with the construction and eventual use of the
Corridor. The Corridor may or may not be extended to Black Rail Road, and the
Corridor may or may not be extended beyond Black Rail Road. Declarant has no
control over the operations of the Corridor including the types of vehicles, trips
and traffic, nor the frequency of the trips.
(e) Palomar Airport. The Properties are in close proximity to
McClellan-Palomar Airport may be subject to overflight, sight and sound of
public, military and private aircraft operating from the Airport. Declarant has no
control over the operations of the Airport, including the types of aircraft, flights,
the flight patterns of the aircraft, nor the frequency of the flights.
(f) Reclaimed Water for Common Area Maintenance. The
Association may be required by the City to utilize reclaimed water for the
irrigation and maintenance of landscaping on the Common Area.
(g) Community Facilities District No. 3. Each Lot in the Properties is
subject to a special tax, which is in addition to the regular property taxes and any
other charges, fees, special taxes and benefit assessments on the parcel. It is
imposed because the Project is a new development, and may not be imposed
generally upon property outside of this new development. If an Owner fails to
pay this tax when due each year, such Owner's Lot may be foreclosed upon and
sold. The tax is used to provide public facilities that are likely to particularly
benefit the Property. Owners should take this tax and the benefits from the
facilities for which it pays into account in deciding whether to buy this property.
The authorized facilities which are being paid for by the special taxes, and by the
money received from the sale of bonds which are being repaid by the special taxes, are
schools and related facilities and other incidental expenses thereto, and other facilities as
defined in the Mello Roos Community Facilities Act of 1982 (Government Code Section
3331, et seq.); and providing such facilities, planning and design work and incidental
expenses without bonds. These facilities may not yet have all been constructed or
acquired, and it is possible that some may never be constructed or acquired.
Owners may obtain a copy of the resolution of formation which authorized
creation of the community facilities district, and which specifies more precisely how the
special tax is apportioned and how the proceeds of the tax will be used, from the
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Assistant Superintendent of Business Services of the Carlsbad Unified School District by
calling (619) 729-9291. There may be a charge for this document not to exceed the
reasonable cost of providing the document.
(h) NPDES Permit. Declarant has complied with the City's
requirements of the National Pollutant Discharge Elimination System (NPDES)
permit. Declarant shall provide best management practices as referenced in the
"California Storm Water Best Management Practices Handbook" to reduce
surface pollutants to an acceptable level prior to discharge to sensitive areas.
Plans for such improvements shall be approved by the City Engineer. Said plans
shall include but not be limited to notifying prospective Owners and tenants of the
following:
(i) All Owners and tenants shall coordinate efforts to
establish or work with established disposal programs to remove
and properly dispose of toxic and hazardous waste products.
(ii) Toxic chemicals or hydrocarbon compounds such as
gasoline, motor oil, antifreeze, solvents, paints, paint thinners,
wood preservatives, and other such fluids shall not be discharged
into any street, public or private, or into storm drain or storm water
conveyance systems. Use and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers and other such chemical
treatments shall meet Federal, State, County and City requirements
as prescribed in their respective containers.
(iii) Best Management Practices shall be used to
eliminate or reduce surface pollutants when planning any changes
to the landscaping and surface Improvements.
fSIGNA TURES ON FOLLOWING PAGE]
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ISIGNATURES TO
DECLARATION OF COVENANTS. CONDITIONS. RESTRICTIONS
AND RESERVATION OF EASEMENTS
CANTAMAR
A PLANNED RESIDENTIAL DEVELOPMENT!
This Declaration is dated for identification purposes , 199_.
CATELLUS RESIDENTIAL GROUP, INC., a
California corporation
By:
Its:
By: _
Its:
"Declarant"
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 199_, before me, ,
personally appeared and ,
personally known to me (or 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.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
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EXHIBIT "A"
ARTICLES OF INCORPORATION OF THE ASSOCIATION
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EXHIBIT "B"
BYLAWS OF THE ASSOCIATION
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EXHIBIT "C"
LEGAL DESCRIPTION OF ANNEXABLE TERRITORY
Certain real property located in the City of Carlsbad, County of San Diego,
California, described as follows:
Parcel One:
Lots to , inclusive, as shown on Map No. P} 93-09(A), recorded on
199_, as File No. 199 - in the Office of the San Diego County Recorder.
Parcel Two:
[Insert legal for Roesch property adjacent]
Parcel Three:
[Insert legal for Dejund property adjacent]
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EXHIBIT "D"
DRAWINGS SHOWING LOCATION OF
COMMON AREA IMPROVEMENTS IN PHASE 1
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EXHIBIT "E"
DRAWING SHOWING LOCATION OF SIGHT
DISTANCE CORRIDORS IN THE PROPERTIES
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EXHIBIT "F"
DRAWING SHOWING LOCATION OF RESTRICTED
PORTIONS OF LOTS 5 AND 6, LOTS 15 TO 21,
LOTS 78 TO 84 AND LOT 86 OF TRACT NO. 93-09
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