HomeMy WebLinkAboutCT 97-04; Calavera Hills Village L-1; Tentative Map (CT) (4)Hofman Planning
Associates
® 9 9
Planning Project Management Fiscal Analysis
DATE: 14 September 1998
TO: Chris DeCerbo
FROM: Hedy Levine
SUBJECT: Calavera Hills Village L-1, CC&Rs
CT 97-04 / CP 97-02 / SDP 97-03
MEMORANDUM
Please see the accompanying copy of the CC&Rs for Calavera Hills Village L-1. I have
tabbed all of the pages and highlighted the particular sections of the CC&Rs that are
part of the Conditions of Approval for this project. The table below summarizes the
location of text within the CC&Rs corresponding to the Conditions of Approval.
Reso. #
4181
4181
4181
4181
4181
4181
4181
4181
4181
4181
4182
Condition #
11(a) ^ ^
11(b) ./
/
11(c) /
11(d)/
11(6) /"
11(f) S
s
26 /
29
30
34
6
Condition
General enforcement by the City
Failure of Association to Maintain
Common Area Lots and Easements
Special Assessments Levied by the City
Prohibits location of trees, shrubs,
flammable structures (Units 3-11, 14 &
15)
Two vehicles parked in garage
Maintenance responsibility to HOA for
open space easement area
Minimum time increment for rental
Maintenance of private easements and
private streets, sidewalks, etc.
Maintenance of concrete terrace drains
Sight distance corridors
Time increment for rental (Same as
4181, condition 26)
CC&R Reference
17.5 page 71 •
8.4.2 page 38
6.23 page 27
7.22 page 32
7. 10 page 30
2.36 page 6
7.3 page 28
2.41 page 7
2.42 page 7
2.41 page 7
7.28 page 35
8.4.1 page 38
7.31 page 36
7.3 page 28
»o t-araaay Avenue ° suite i^u • <^ansoaa • I^A v^uu» ° (o iv; 4jo- iaoo ° i-ax: coivj^jo 2443
I hope that this will satisfy the requirements of the Conditions of Approval regarding the
CC&Rs. Please call me if you have any questions.
cc: Dawn Partin
attachment
RECORDING REQUESTED BY: )
)
WHEN RECORDED MAIL TO: )
)
Luce, Forward, Hamilton & Scripps LLP )
600 West Broadway, Suite 2600 )
San Diego, CA 92101 )
Attn: Nancy T. Scull, Esq. )
Above Space for Recorder's Use
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
THE CLIFFS AT CALAVERA HILLS
TABLE OF CONTENTS
ARTICLE 1 RECITALS 1
1.1 PROPERTY OWNED BY DECLARANT 1
1.2 RIGHT TO ANNEX 1
1.3 NATURE OF PROJECT 1
1.4 DESCRIPTION OF PROJECT 1
ARTICLE 2 DEFINITIONS 2
2.1 ADDITIONAL CHARGES 2
2.2 ADDITIONAL PROPERTY 2
2.3 ANNEXATION 2
2.4 ARCHITECTURAL COMMITTEE 3
2.5 ARCHITECTURAL GUIDELINES 3
2.6 ARTICLES 3
2.7 ASSOCIATION 3
2.8 ASSOCIATION PROPERTY 3
2.9 ASSOCIATION RULES 3
2.10 BOARD 3
2.11 BRUSH MANAGEMENT AREAS 3
2.12 BYLAWS 3
2.13 CAPITAL IMPROVEMENT ASSESSMENTS 3
2.14 CITY 3
2.15 COMMON AREA 3
2.16 CONDOMINIUM 4
2.17 CONDOMINIUM PLAN 4
2.18 COUNTY 4
2.19 DECLARANT 4
2.20 DECLARATION 4
2.21 DECLARATION OF ANNEXATION 4
2.22 ELIGIBLE HOLDER 4
2.23 ENFORCEMENT ASSESSMENTS 4
2.24 FINAL SUBDIVISION MAP 5
2.25 FIRST MORTGAGE 5
2.26 FIRST MORTGAGEE 5
2.27 FRONT YARD MAINTENANCE AREA 5
2.28 IMPROVEMENTS 5
2.29 INSTITUTIONAL MORTGAGEE 5
2.30 INVITEE 5
2.31 MEMBER 5
2.32 MODULE 5
2.33 MORTGAGE 6
2.34 MORTGAGEE 6
(i)
2.35 NOTICE AND HEARING 6
2.36 OPEN SPACE EASEMENT AREA 6
2.37 OWNER 6
2.38 OWNER MAINTENANCE AREA 6
2.39 PHASE 6
2.40 PLANS AND SPECIFICATIONS 6
2.41 PRIVATE STORM DRAIN IMPROVEMENTS 7
2.42 PRIVATE STREETS 7
2.43 PROJECT 7
2.44 PROJECT DOCUMENTS 7
2.45 PROPERTY 7
2.46 PUBLIC REPORT 7
2.47 PUBLIC STORM DRAIN IMPROVEMENTS 7
2.48 RECREATIONAL FACILITIES 7
2.49 REGULAR ASSESSMENTS 7
2.50 RESIDENCE 7
2.51 RESIDENTIAL UNITS 7
2.52 SHARED DRIVEWAY AREA 8
2.53 SPECIAL ASSESSMENTS 8
2.54 STATE 8
2.55 YARD USE AREA 8
ARTICLE 3 OWNERSHIP AND EASEMENTS 8
3.1 OWNERSHIP OF CONDOMINIUM 8
3.2 NO SEPARATE CONVEYANCE 8
3.3 DELEGATION OF USE 9
3.4 RIGHTS IN ASSOCIATION PROPERTY AND COMMON AREA ... 9
3.4.1 Partition °. 9
3.4.2 Declaration Subject to Easements 9
3.4.3 Utilities 9
3.4.4 Encroachment & Support 9
3.4.5 Declarant's Non-Exclusive Easements 10
3.5 EASEMENTS 10
3.5.1 Association Easement 10
3.5.2 Easements on Condominium Plan and Final Subdivision Map . . 10
3.5.3 Easements for Association Property 10
(a) Suspend Rights of Members 10
(b) Dedicate or Grant Easements 10
(c) Right of Access 11
(d) Control Parking 11
(e) Entry by Association 11
(f) Limit Guests 11
(g) Borrow Funds 11
(ii)
(h) Adopt and Enforce Association Rules 11
3.5.4 Perform Association Functions 11
3.5.5 Easement To Declarant For Additional Property 11
3.5.6 City Easement 12
ARTICLE 4 THE ASSOCIATION 12
4.1 THE ORGANIZATION 12
4.2 ASSOCIATION ACTION; BOARD OF DIRECTORS AND
OFFICERS; MEMBERS' APPROVAL 12
4.3 POWERS OF ASSOCIATION 12
4.3.1 Assessments 12
4.3.2 Right of Enforcement and Notice and Hearing 13
(a) Enforcement Actions 13
(b) Notice Requirements 13
(c) Monetary Penalties 13
4.3.3 Delegation of Powers, Professional Management 14
4.3.4 Association Rules 14
4.3.5 Right of Entry and Enforcement 14
4.3.6 Easements and Rights of Way 14
4.3.7 Dedication 14
4.3.8 Capital Improvements 14
4.3.9 Other Property 14
4.3.10 Enter Into Maintenance Agreements 14
4.3.11 Contract for Goods and Services 15
4.4 DUTIES OF THE ASSOCIATION 15
4.4.1 Taxes and Assessments 15
4.4.2 Water and Other Utilities 15
4.4.3 Utilities Suppliers 15
4.4.4 Maintenance of Project 15
4.4.5 Insurance 15
4.4.6 Notice Prior to Litigation 15
4.4.7 Use of Proceeds to Repair 15
4.5 LIMITATIONS ON AUTHORITY OF BOARD 16
4.5.1 Limit on Capital Improvements 16
4.5.2 Limit on Sales of Association Property 16
4.5.3 Limit on Compensation 16
4.5.4 Limit on Third Person Contracts 16
4.6 PERSONAL LIABILITY 17
ARTICLE 5 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION 17
5.1 MEMBERSHIP 17
5.1.1 Qualifications 17
5.1.2 Members' Rights and Duties 17
(iii)
5.1.3 Transfer of Membership 18
5.2 NUMBER OF VOTES 18
5.2.1 Class A Members 18
5.2.2 Class B Members 18
5.2.3 Joint Owner Votes 18
5.2.4 Accrual of Voting Rights 19
ARTICLE 6 ASSESSMENTS AND DUES 19
6.1 CREATION OF LIEN AND PERSONAL OBLIGATION
FOR ASSESSMENTS 19
6.2 FUNDS HELD IN TRUST 19
6.3 PURPOSE OF ASSESSMENTS 19
6.4 REGULAR ASSESSMENTS 20
6.4.1 Payment of Regular Assessments 20
6.4.2 Budgeting 20
6.4.3 Restrictions for Tax Exemption 20
6.4.4 Assessments after Annexation 20
(a) Reallocation of Assessments 20
(b) Revision of Budget 20
6.4.5 Non-Waiver of Assessments 20
6.5 SPECIAL ASSESSMENTS 21
6.5.1 Establishing Special Assessments 21
6.6 CAPITAL IMPROVEMENT ASSESSMENT 21
6.7 ENFORCEMENT ASSESSMENTS 21
6.8 CHANGES TO ASSESSMENTS 22
6.8.1 Limitation on Assessments 22
6.8.2 Automatic Assessment Increases 23
6.8.3 Notice to Owners 23
6.9 UNIFORM RATE OF ASSESSMENT 23
6.10 DATE OF COMMENCEMENT OF REGULAR ASSESSMENTS;
DUE DATES 23
6.11 NOTICE AND ASSESSMENT INSTALLMENT DUE DATES 23
6.12 ESTOPPEL CERTIFICATE 24
6.13 COLLECTION OF ASSESSMENTS, LIENS 24
6.13.1 Right to Enforce 24
6.13.2 Creation of Lien 24
6.13.3 Notice of Default; Foreclosure 25
6.13.4 Payments Under Protest 25
6.14 ADDITIONAL CHARGES 25
6.14.1 Attorneys' Fees 26
6.14.2 Late Charges 26
6.14.3 Costs of Suit 26
6.14.4 Interest 26
(iv)
6.14.5 Other 26
6.15 WAIVER OF EXEMPTIONS 26
6.16 SUBORDINATION OF LIEN TO FIRST MORTGAGES 26
6.17 NO OFFSETS 26
6.18 PERSONAL LIABILITY OF OWNER 26
6.19 TRANSFER OF PROPERTY 27
6.20 FAILURE TO FIX ASSESSMENTS 27
6.21 PROPERTY EXEMPT FROM ASSESSMENTS 27
6.22 INITIAL CAPITAL CONTRIBUTIONS 27
6.23 ASSESSMENTS LEVIED BY CITY 27
ARTICLE 7 USE RESTRICTIONS 28
7.1 RESIDENTIAL USE 28
7.2 COMMERCIAL USE 28
7.3 RENTAL OF CONDOMINIUMS 28
7.4 ANIMALS 29
7.5 INSIDE AND OUTSIDE INSTALLATIONS 29
7.6 USE OF ASSOCIATION PROPERTY 29
7.7 BRUSH MANAGEMENT AREAS 29
7.8 ANTENNAE AND SATELLITE DISHES 30
7.9 FENCES, ETC 30
7.10 PARKING RESTRICTIONS 30
7.11 GARAGES 30
7.12 PAINTING 31
7.13 BASKETBALL STANDARDS 31
7.14 OIL DRILLING 31
7.15 MINERAL EXPLORATION 31
7.16 OFFENSIVE CONDUCT, NUISANCES 31
7.17 SIGNS 31
7.18 RESTRICTED USE OF RECREATION VEHICLES, ETC 31
7.19 TRAILERS, BOATS AND MOTOR VEHICLES AND
REPAIR OF VEHICLES 32
7.20 OUTSIDE DRYING AND LAUNDERING 32
7.21 COMPLIANCE WITH LAWS, ETC 32
7.22 LANDSCAPING 32
7.23 WINDOW COVERINGS 32
7.24 YARD USE AREA EASEMENTS 33
7.24.1 Non-Exclusive Easement 33
7.24.2 Burdened Owner's Access 33
7.25 OWNER MAINTENANCE AREA EASEMENTS 34
7.25.1 Non-Exclusive Easement 34
7.25.2 Use of Owner Maintenance Area 34
7.26 SHARED DRIVEWAY AREA EASEMENTS 34
(v)
7.27 EXTERIOR LIGHTING '. 35
7.28 DRAINAGE 35
7.29 RESTRICTIONS ON THE REAR AND SIDE YARDS 35
7.30 INDEMNIFICATION 35
7.31 SIGHT DISTANCE CORRIDORS 36
ARTICLE 8 MAINTENANCE OBLIGATIONS 36
8.1 MAINTENANCE OF RESIDENTIAL UNITS 36
8.2 MAINTENANCE OF FENCES AND WALLS 36
8.2.1 Residential Unit Perimeter Fence 36
8.2.2 Side Yard Return Fencing 37
8.2.3 Interior Fencing Between Two Residential Units 37
8.2.4 Fencing Between Residential Units and Association Property .. 37
8.2.5 Fencing or Walls Within the Association Property 37
8.2.6 Retaining Walls 37
8.2.7 Liability for Damage 37
8.3 FAILURE TO MAINTAIN 37
8.4 MAINTENANCE OBLIGATIONS OF ASSOCIATION 38
8.4.1 Maintenance of Association Property 38
8.4.2 Failure of Association to Maintain Association Property 38
8.4.3 Maintenance of Brush Management Areas 38
8.4.4 Front Yard Maintenance Area 38
8.4.5 Open Space Easement Area 38
8.4.6 Private Easements and Streets 38
8.5 LIABILITY FOR DAMAGE 39
8.6 FUTURE CONSTRUCTION 39
8.7 LANDSCAPING, IRRIGATION AND DRAINAGE MAINTENANCE
AND INSPECTIONS 39
8.8 MAINTENANCE OBLIGATIONS OF CITY 39
ARTICLE 9 ARCHITECTURAL REVIEW 40
9.1 SCOPE 40
9.2 ARCHITECTURAL GUIDELINES 40
9.3 APPROVAL OF PLANS AND SPECIFICATIONS 40
9.3.1 Preliminary Approval 40
(a) Time Periods for Review 40
(b) Effectiveness of Approval 41
9.3.2 Final Approval 41
(a) Time Periods For Review 41
9.3.3 Approval of Solar Energy Systems 41
9.4 INSPECTION AND CORRECTION OF WORK 41
9.4.1 Right of Inspection During Course of Construction 41
9.4.2 Notice of Completion 42
(vi)
9.4.3 Inspection 42
9.4.4 Non-Compliance 42
9.4.5 Failure to Notify 42
9.4.6 Government Regulations 42
9.5 APPOINTMENT OF ARCHITECTURAL COMMITTEE 43
9.6 DILIGENCE IN CONSTRUCTION 43
9.7 FEE FOR REVIEW 43
9.8 APPLICABILITY TO ARCHITECTURAL COMMITTEE 43
9.9 COMPENSATION 43
9.10 INTERPRETATION AND APPEAL 43
9.11 WAIVER 44
9.12 ESTOPPEL CERTIFICATE 44
9.13 LIABILITY 44
9.14 NON-APPLICABILITY TO DECLARANT 44
9.15 AMENDMENTS 44
9.16 VARIANCES 45
ARTICLE 10 DEVELOPMENT RIGHTS 45
10.1 LIMITATIONS OF RESTRICTIONS 45
10.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION . 45
10.2.1 Access 45
10.2.2 Construct Improvements 45
10.2.3 Grant Easements 46
10.3 SIZE AND APPEARANCE OF PROJECT 46
10.4 MARKETING RIGHTS 46
10.4.1 General Rights 46
10.4.2 Agreement for Extended Use 47
10.5 TITLE RIGHTS 47
10.6 AMENDMENT 47
ARTICLE 11 INSURANCE 47
11.1 LIABILITY INSURANCE 47
11.2 FIRE AND EXTENDED COVERAGE INSURANCE 48
11.2.1 Description of Policy Coverages 48
(a) Association Property 48
(b) Landscaping 48
11.2.2 Covered Cause of Loss 48
11.2.3 Primary 48
11.2.4 Endorsements 48
11.2.5 Waiver of Subrogation 48
11.3 INDIVIDUAL INSURANCE 49
11.4 FIDELITY BOND 49
11.5 WORKER'S COMPENSATION INSURANCE 49
(vii)
11.6 OTHER INSURANCE 49
11.7 COPIES OF POLICIES 49
11.8 REVIEW OF INSURANCE 50
11.9 BOARD'S AUTHORITY TO REVISE INSURANCE COVERAGE .. 50
11.10 ADJUSTMENT OF LOSSES 50
11.11 DISTRIBUTION TO MORTGAGEES 50
11.12 COMPLIANCE WITH FEDERAL REGULATIONS 50
ARTICLE 12 DESTRUCTION OF IMPROVEMENTS AND CONDEMNATION 51
12.1 RESTORATION DEFINED 51
12.2 INSURED CASUALTY 51
12.3 RESTORATION PROCEEDS 51
12.4 REBUILDING CONTRACT 51
12.5 INSURANCE TRUSTEE 52
12.6 PRIVATE STREETS 52
12.7 DAMAGE TO RESIDENTIAL UNITS .52
12.8 CONDEMNATION OF ASSOCIATION PROPERTY 52
12.9 CONDEMNATION OF A RESIDENTIAL UNIT 52
ARTICLE 13 PARTITION AND SEVERABILITY OF INTERESTS 53
13.1 SUSPENSION 53
13.2 PARTITION 53
13.2.1 No Partition 53
13.3 DISTRIBUTION OF PROCEEDS 53
13.4 POWER OF ATTORNEY 54
13.5 PROHIBITION AGAINST SEVERANCE 54
13.6 CONVEYANCES 54
ARTICLE 14 RIGHTS OF MORTGAGEES 55
14.1 CONFLICT 55
14.2 LIABILITY FOR UNPAID ASSESSMENTS 55
14.3 PAYMENT OF TAXES AND INSURANCE 55
14.4 TERMINATION OF CONTRACTS AND AGREEMENTS 55
14.4.1 Contracts or Leases 55
14.4.2 Professional Management Contracts 55
14.5 NOTICE TO ELIGIBLE HOLDERS 56
14.6 RESERVE FUND 56
14.7 INSPECTION OF BOOKS AND RECORDS 56
14.8 FINANCIAL STATEMENTS 56
14.9 VOTING RIGHTS OF MORTGAGEES 57
14.10 ACTIONS REQUIRING ELIGIBLE HOLDER APPROVAL 57
14.11 VOTES FOR TERMINATION OF PROJECT 57
14.12 CONDEMNATION OR DESTRUCTION 58
(viii)
14.13 SELF-MANAGEMENT 58
14.14 MORTGAGEE PROTECTION 58
14.15 SUBORDINATION 58
14.16 DISTRIBUTION OF INSURANCE AND CONDEMNATION
PROCEEDS 58
14.17 VOTING RIGHTS ON DEFAULT 58
14.18 FORECLOSURE 59
14.19 NON-CURABLE BREACH 59
14.20 LOAN TO FACILITATE 59
14.21 APPEARANCE AT MEETINGS 59
14.22 RIGHT TO FURNISH INFORMATION 59
14.23 INAPPLICABILITY OF RIGHT OF FIRST REFUSAL TO
MORTGAGEE 59
ARTICLE 15 AMENDMENTS 60
15.1 AMENDMENT BEFORE THE CLOSE OF FIRST SALE 60
15.2 AMENDMENTS 60
15.3 CONFLICT WITH ARTICLE 14 OR OTHER PROVISIONS OF
THIS DECLARATION 62
15.4 BUSINESS AND PROFESSIONS CODE SECTION 11018 62
15.5 RELIANCE ON AMENDMENTS 62
ARTICLE 16 ANNEXATION OF ADDITIONAL PROPERTY 62
16.1 ANNEXATION 62
16.2 ANNEXATION WITHOUT APPROVAL 62
16.3 COVENANTS RUNNING WITH THE LAND 63
16.4 DECLARATION OF ANNEXATION 63
16.5 ASSOCIATION PROPERTY 63
16.6 RIGHTS AND OBLIGATIONS OF OWNERS 63
16.7 MERGERS OR CONSOLIDATIONS 64
16.8 DE-ANNEXATION 64
ARTICLE 17 ENFORCEMENT 64
17.1 DURATION 64
17.2 ENFORCEMENT AND NONWAIVER 64
17.2.1 Rights of Enforcement of Project Documents 64
17.2.2 Procedure for Enforcement 65
17.3 NOTICE OF ACTIONS AGAINST DECLARANT 65
17.4 DISPUTE NOTIFICATION AND RESOLUTION
PROCEDURE (DECLARANT DISPUTES); WAIVERS 66
17.4.1 Notice 66
17.4.2 Right to Inspect and Right to Corrective Action 66
17.4.3 Civil Code Sections 1368.4 and 1375 66
(ix)
17.4.4 Mediation 66
(a) Position Memoranda; Pre-Mediation Conference 67
(b) Conduct of Mediation 67
(c) Exclusion Agreement 67
(d) Parties Permitted at Sessions 68
(e) Expenses 68
17.4.5 Judicial Reference 68
(a) Place 68
(b) Referee 68
(c) Commencement and Timing of Proceeding 69
(d) Pre-hearing Conferences 69
(e) Discovery 69
(f) Limitation on Remedies/Prohibition on Award of
Punitive Damages 69
(g) Motions 69
(h) Rules of Law 69
(i) Record 69
(j) Statement of Decision 70
(k) Post-hearing Motions 70
(1) Appeals 70
(m) Expenses 70
17.4.6 AGREEMENT TO ALTERNATIVE DISPUTE
RESOLUTION; WAIVERS OF JURY TRIAL AND AWARD
OF PUNITIVE DAMAGES 70
17.4.7 Application of Award 70
17.4.8 Exceptions to Mediation and Reference; Statutes of Limitation . 70
17.5 GENERAL ENFORCEMENT BY CITY 71
ARTICLE 18 GENERAL PROVISIONS 71
18.1 HEADINGS 71
18.2 SEVERABILITY 71
18.3 CUMULATIVE REMEDIES 71
18.4 VIOLATIONS AS NUISANCE 71
18.5 NO RACIAL RESTRICTION 71
18.6 ACCESS TO BOOKS 71
18.7 LIBERAL CONSTRUCTION 71
18.8 NOTIFICATION OF SALE OF CONDOMINIUM 71
18.9 NUMBER, GENDER 72
18.10 EXHIBITS 72
18.11 BINDING EFFECT 72
18.12 EASEMENTS RESERVED AND GRANTED 72
(x)
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
THE CLIFFS AT CALAVERA HILLS
Tills DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF THE
CLIFFS AT CALAVERA HILLS ("Declaration") is made this day of ,
1998 by HERITAGE-CLIFFS, LLC, a California limited liability company ("Declarant") with
reference to the facts set forth in the Article hereof entitled "Recitals."
ARTICLE 1
RECITALS
1.1 PROPERTY OWNED BY DECLARANT. Declarant is the owner in fee simple of
that certain real property (the "Property") situated in the City of Carlsbad, County of San Diego,
State of California, more particularly described on Exhibit "A" attached hereto and incorporated
herein.
1.2 RIGHT TO ANNEX. Declarant may add all or any of the real property described in
Exhibit "B" attached hereto and incorporated herein ("Additional Property") and record additional
Condominium Plans with respect thereto, and the Additional Property so annexed will thereupon be
subject to this Declaration and become a part of the Property.
1.3 NATURE OF PROJECT. Declarant intends to establish a plan of condominium
ownership and to develop the Property, including any Additional Property which may hereafter be
annexed thereto, as a condominium project within the meaning of California Business and
Professions Code Section 11004.5(c) and California Civil Code Section 1351(f), to conform with
the provisions of the California Subdivided Lands Law (California Business and Professions Code
Section 11000, et seq.), and to subject the Property to certain limitations, restrictions, conditions and
covenants as hereinafter set forth, in accordance with the provisions of California Civil Code
Sections 1350 et seq. and any successor statutes. To that objective, Declarant desires and intends
to impose on the Property mutually beneficial restrictions, limitations, easements, assessments and
liens under a comprehensive plan of improvement and development for the benefit of all of the
Owners, the Condominiums, Common Area and Association Property and the future Owners of the
Condominiums, Common Area and Association Property.
1.4 DESCRIPTION OF PROJECT. Declarant intends to develop the Project in two
(2) phases. The first Phase is planned to consist of eighteen (18) Residential Units. If developed as
planned, the Project (as hereinafter defined) will ultimately contain thirty-five (35) Residential Units
but Declarant makes no guarantee that the Project (as hereinafter defined) will be constructed as
presently proposed. Owners of a Condominium in each Phase will receive title to a Residential Unit
plus an undivided fractional interest as tenant in common to the Common Area (as hereinafter
The Cliffs at Calavera Hills 9/8/98
defined) located within that Module. Each Owner of a Condominium will also receive an easement
for ingress, egress, and recreational use over portions of the Association Property situated within the
Owner's Phase and within each other Phase, effective upon annexation and conveyance of the first
Condominium in each such Phase. Each Condominium shall have appurtenant to it a membership
in The Cliffs at Calavera Hills Homeowners Association, a California nonprofit mutual benefit
corporation (the "Association").
DECLARATION
Declarant declares that the Property is, and shall be, held, conveyed, hypothecated,
encumbered, leased, rented, used and occupied subject to the following limitations, restrictions,
easements, covenants, conditions, liens and charges, all of which are declared and agreed to be in
furtherance of a plan of condominium ownership as described in California Civil Code Section 1350
et seq. and any successor statutes for the subdivision, improvement, protection, maintenance, and
sale of Condominiums within the Property, and all of which are declared and agreed to be for the
purpose of enhancing, maintaining and protecting the value and attractiveness of the Property. All
of the limitations, restrictions, easements, covenants, conditions, liens and charges shall run with the
land, shall be binding on and inure to the benefit of all parties having or acquiring any right, title or
interest in the Property, shall be enforceable equitable servitudes and shall be binding on and inure
to the benefit of the successors-in-interest of such parties. Declarant further declares that it is the
express intent that this Declaration satisfy the requirements of California Civil Code Section 1354
and any successor statutes.
ARTICLE 2
DEFINITIONS
Unless the context otherwise specifies or requires, the terms defined in this Article shall, for
all purposes of this Declaration, have the meanings herein specified.
2.1 ADDITIONAL CHARGES. The term "Additional Charges" shall mean costs, fees,
charges and expenditures, including without limitation, attorneys' fees, late charges, interest and
recording and filing fees actually incurred by the Association in collecting and enforcing payment
of assessments, fines and penalties.
2.2 ADDITIONAL PROPERTY. The term "Additional Property" shall mean all of the
real property described on Exhibit "B" attached hereto and incorporated herein.
2.3 ANNEXATION. The term "Annexation" shall mean the process by which the
additional real property described in Exhibit "B" attached hereto and any other real property may
be made subject to this Declaration as set forth in the Article 16 of this Declaration.
The Cliffs at Calavera Hills 2 9/8/98
2.4 ARCHITECTURAL COMMITTEE. The term "Architectural Committee" shall mean
the committee that may be appointed by the Board pursuant to the provisions of Section 9.5 of this
Declaration.
2.5 ARCHITECTURAL GI JTDF.T.TNF.S. The term "Architectural Guidelines" shall mean
the design criteria adopted by the Board pursuant to the provisions of Section 9.2 of this Declaration.
2.6 ARTICLES. The term "Articles" shall mean the Articles of Incorporation of the
Association, as they may from time to time be amended, which are or shall be filed in the Office of
the Secretary of State for the State of California.
2.7 ASSOCIATION. The term "Association" shall mean The Cliffs at Calavera Hills
Homeowners Association, a California nonprofit mutual benefit corporation, its successors and
assigns.
2.8 ASSOCIATION PROPERTY. The term "Association Property" shall mean all real
property, if any, owned, from time-to-time, in fee title by the Association. The Association Property
in the first Phase of the Project shall consist of the real property identified as Association Property
on Exhibit "A".
2.9 ASSOCIATION RULES. The term "Association Rules" shall mean the rules and
regulations adopted by the Board from time to time.
2.10 BOARD. The term "Board" shall mean the Board of Directors of the Association.
2.11 BRUSH MANAGEMENT AREAS. The term "Brush Management Areas" shall
mean certain areas within the Project designated by the City to be included in its brush management
program, as delineated on Exhibit "C" attached hereto and incorporated herein and in any
Declaration of Annexation, which areas shall be subject to certain restrictions and maintenance
obligations pursuant to Section 7.7 of this Declaration or, if within the Association Property, shall
thereafter be maintained by the Association pursuant to Section 8.4 of this Declaration.
2.12 BYLAWS. The term "Bylaws" shall mean the Bylaws of the Association, as they
may from time to time be amended, which are or shall be adopted by the Board.
2.13 CAPITAL IMPROVEMENT ASSESSMENTS. The term "Capital Improvement
Assessments" shall mean the assessments that are levied pursuant to the provisions of Section 6.6
of this Declaration.
2.14 CITY. The term "City" shall mean the City of Carlsbad, California.
2.15 COMMON AREA. The term "Common Area" shall mean that certain area
designated as "Common Area" on the Condominium Plan that is owned in undivided interests by
The Cliffs at Calavera Hills 3 9/8/98
the Owners of the Residential Units situated in the Module on which the Common Area is situated,
as defined in this Declaration and as described on the Condominium Plan.
2.16 CONDOMINIUM. The term "Condominium" shall mean an estate in real property
as defined in California Civil Code Section 1351(f) and any successor statutes, consisting of an
undivided interest as a tenant in common in all or any portion of the Common Area, together with
a separate fee interest in a Residential Unit and any other separate interests in the Property as are
described in this Declaration, the Condominium Plan or in the deed conveying the Condominium.
2.17 CONDOMINIUM PLAN. The term "Condominium Plan" shall mean (i) the
condominium plan recorded pursuant to California Civil Code Section 1351, and any amendments
to that plan, and (ii) any recorded condominium plan or plans, including any amendments thereto
affecting any Phases that have been annexed pursuant to the provisions of this Declaration.
2.18 COUNTY. The term "County" shall mean the County of San Diego, California.
2.19 DECLARANT. The term "Declarant" shall mean Heritage-Cliffs, LLC, a California
limited liability company, and its successors and assigns, if such successors and assigns acquire any
or all of Declarant's interest in the Property for the purpose of purchase or sale, and Declarant has
expressly transferred or assigned to such successors or assigns its rights and duties as Declarant to
a portion or all of the Project. For any successor or assignee of "Declarant" to be deemed a
Declarant under the terms of this Declaration, Declarant shall record in the County a certificate so
designating said successor or assignee as Declarant. A successor Declarant shall also be deemed to
include the beneficiary under any deed of trust securing an obligation from a then existing Declarant
encumbering all or any portion of the Property, which beneficiary has acquired any such property
by foreclosure, power of sale or deed in lieu of foreclosure or sale.
2.20 DECLARATION. The term "Declaration" shall mean this enabling Declaration of
Covenants, Conditions and Restrictions of The Cliffs at Calavera Hills, as this Declaration may from
time to time be amended, modified or supplemented.
2.21 DECLARATION OF ANNEXATION. The term "Declaration of Annexation" shall
mean any instrument recorded in the Office of the County Recorder that annexes all or a portion of
the Additional Property described in Exhibit "B".
2.22 ELIGIBLE HOLDER. The term "Eligible Holder" shall mean any First Mortgagee
who has given written notice to the Association specifying its name, address and the Residential Unit
number or address of the property covered by the Mortgage and requesting written notice of any or
all of the events specified hi this Declaration.
2.23 ENFORCEMENT ASSESSMENTS. The term "Enforcement Assessments" shall
mean the assessments that are levied pursuant to the provisions of Section 6.7 of this Declaration.
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2.24 FINAL SUBDIVISION MAP. The term "Final Subdivision Map" shall mean the
final subdivision map covering the Project.
2.25 FIRST MORTGAGE. The term "First Mortgage" shall mean a Mortgage that has
priority under the recording statutes of the State of California over all other Mortgages encumbering
a specific Condominium in the Project.
2.26 FIRST MORTGAGEE. The term "First Mortgagee" shall mean the Mortgagee of
a First Mortgage.
2.27 FRONT YARD MAINTENANCE AREA. The term "Front Yard Maintenance Area"
shall mean those portions of each Residential Unit delineated on the Condominium Plan over which
the Association has an easement for maintenance of the landscaping situated within that area.
2.28 IMPROVEMENTS. The term "Improvements" shall mean: (i) all buildings,
structures, and appurtenances thereto of every type and kind, including, but not limited to,
Residences and other buildings, walkways, trails, swimming pools and other recreational facilities,
garages, carports, sidewalks, walkways, fences, screening walls, block walls, retaining walls,
awnings, patio and balcony covers, stairs, decks, landscaping irrigation systems, the exterior surfaces
of any visible structure, paintings, antennae, poles, signs, solar or wind powered energy systems or
equipment and water softener, heater or air conditioning and heating fixtures or equipment; (ii) the
grading, excavation, filling or similar disturbance to the surface of the land; and (iii) any change or
alteration of any previously installed Improvement, including any change of exterior appearance,
color or texture.
2.29 INSTITUTIONAL MORTGAGEE. The term "Institutional Mortgagee" shall mean
a First Mortgagee that is (i) a bank, savings and loan association, insurance or mortgage company
or other entity or institution chartered under federal and/or state law; (ii) an insurer or governmental
guarantor of a First Mortgage; (iii) any Federal or State Agency; (iv) the State of California as the
vendor under an installment land sales contract covering a Condominium; or (v) any other institution
specified by the Board in a recorded instrument, who is the Mortgagee of a Mortgage.
2.30 INVITEE. The term "Invitee" shall mean any person whose presence within the
Project is approved by or is at the request of a particular Owner, including, but not limited to,
lessees, tenants and the family, guests, employees, licensees or invitees of Owners, tenants or
lessees.
2.31 MEMBER. The term "Member" shall mean every person or entity who holds a
membership in the Association. Membership shall be appurtenant to and may not be separated from
ownership of a Condominium.
2.32 MODULE. The term "Module" shall mean each module designated on the
Condominium Plan. Each Module is a three-dimensional portion of the parcels described on Exhibit
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"A" and any subsequent Declaration of Annexation and has been created pursuant to California
Government Code Section 66427 as shown on the Condominium Plan. The lower and upper
boundaries of each Module are set forth in the Condominium Plan. The lateral boundaries of each
Module are vertical planes that are also described and depicted in the Condominium Plan. The
Module includes all land and Improvements (whether now or hereafter located within its
boundaries). Each Module shall be conveyed to the Association, excepting therefrom the Residential
Units and Common Area situated within the Module. The Module shall be conveyed to the
Association subject to the easements in this Declaration and the grant deed conveying such Module
to the Association.
2.33 MORTGAGE. The term "Mortgage" shall mean any duly recorded mortgage or deed
of trust encumbering a Condominium in the Project.
2.34 MORTGAGEE. The term "Mortgagee" shall mean a mortgagee under a Mortgage
as well as a beneficiary under a deed of trust.
2.35 NOTICE AND HEARING. The term "Notice and Hearing" shall mean the procedure
that gives an Owner notice of an alleged violation of the Project Documents and the opportunity for
a hearing before the Board.
2.36 OPEN SPACE EASEMENT AREA. The term "Open Space Easement Area" shall
mean that certain area within the Project described as the Open Space Easement on the
Condominium Plan, which shall be maintained by the Association as provided herein.
2.37 OWNER. The term "Owner" shall mean the record owner, whether one or more
persons or entities, including Declarant, of any Condominium, excluding those having such interest
merely as security for the performance of an obligation. A contract purchaser under a recorded
installment land sales contract shall be included as an Owner, but those merely having an interest
as security for the performance of an obligation shall not be Owners.
2.38 OWNER MAINTENANCE AREA. The term "Owner Maintenance Area" shall mean
those portions of the Residential Units and Association Property over which easements are reserved
and granted to the Owners of adjacent Residential Units as more particularly described in the
Condominium Plan and this Declaration.
2.39 PHASE. The term "Phase" shall mean that portion of the Property which is the
subject of a separate Public Report issued by the California Department of Real Estate and which
has been made subject to this Declaration (i.e., by annexation with respect to Phases subsequent to
the first Phase).
2.40 PLANS AND SPECIFICATIONS. The term "Plans and Specifications" shall mean
the working drawings, schematic design documents, and architect and construction plans and
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specifications required to be submitted and approved in accordance with Article 9 of this
Declaration.
2.41 PRIVATE STORM DRAIN IMPROVEMENTS. The term "Private Storm Drain
Improvements" shall mean the private storm drain and sewer facilities located within the Project,
which shall be maintained by the Association as provided herein.
2.42 PRIVATE STREETS. The term "Private Streets" shall mean those streets, roads and
drives within the Project that are included within the Association Property, including, without
limitation, the pavement, sidewalks and street lights located on or adjacent to the pavement.
2.43 PROJECT. The term "Project" shall mean all of the real property described on
Exhibit "A" together with all Improvements situated thereon and any Additional Property that is
hereafter annexed pursuant to a Declaration of Annexation.
2.44 PROJECT DOCUMENTS. The term "Project Documents" shall mean collectively
this Declaration and the Articles, Bylaws, Architectural Guidelines and the Association Rules.
2.45 PROPERTY. The term "Property" shall mean all of the real property described in
Exhibit "A" of this Declaration, and such Additional Property as may hereafter be brought within
the jurisdiction of the Association, together with all Improvements situated thereon.
2.46 PUBLIC REPORT. The term "Public Report" shall mean the Final
Subdivision Public Report issued by the California Department of Real Estate for a Phase in the
Project.
2.47 PUBLIC STORM DRAIN IMPROVEMENTS. The term "Public Storm Drain
Improvements" shall mean the public storm drain facilities located between certain Residential Units
designated as the Public Storm Drain Improvements on the Condominium Plan, to be maintained
by the City as provided herein.
2.48 RECREATIONAL FACILITIES. The term "Recreational Facilities" shall mean the
basketball court and other facilities that are part of the Association Property.
2.49 REGULAR ASSESSMENTS. The term "Regular Assessments" shall mean the
assessments that are levied pursuant to the provisions of Section 6.4 of this Declaration.
2.50 RESIDENCE. The term "Residence" shall mean each residential dwelling situated
within a Residential Unit.
2.51 RESIDENTIAL UNITS. The term "Residential Units "shall mean the three-
dimensional envelope of airspace, earth and water below and above the existing ground elevation
delineated on the Condominium Plan. Each Residential Unit shall be a separate freehold estate not
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owned in common with the other Owners of Condominiums in the Project, as separately shown,
numbered and designated in the Condominium Plan. The lower and upper boundaries of each
Residential Unit are set forth in the Condominium Plan. The lateral boundaries of each Residential
Unit are vertical planes that are also described and depicted in the Condominium Plan. Residential
Units include the above-described area and all Improvements within such area, including, without
limitation, the Residence, yard, garage, and other structures, footings, foundations, utility lines,
entrance ways, outlets and landscaping wherever located within the Residential Unit, except utility
lines that are located within any easements for public utility or other purposes.
2.52 SHARED DRIVEWAY AREA. The term "Shared Driveway Area" shall mean those
portions of the driveways for certain Residential units designated as the shared driveway area on the
Condominium Plan covering such Residential Units.
2.53 SPECIAL ASSESSMENTS. The term "Special Assessments" shall mean the
assessments that are levied pursuant to the provisions of Section 6.5 of this Declaration.
2.54 STATE. The term "State" shall mean the State of California.
2.55 YARD USE AREA. The term "Yard Use Area" shall mean those portions of the
Residential Units over which easements are reserved and granted to the Owners of the adjacent
Residential Units as more particularly described in the Condominium Plan and this Declaration.
ARTICLE 3
OWNERSHIP AND EASEMENTS
3.1 OWNERSHIP OF CONDOMINIUM. Title to each Condominium in the Project
shall be conveyed in fee to an Owner. Ownership of each Condominium within the Project shall
include (a) a Residential Unit, (b) an undivided interest in the Common Area of the Module within
which the Residential Unit is situated as designated on the Condominium Plan, (c) a membership
in the Association, and (d) any exclusive or non-exclusive easement or easements appurtenant to
such Condominium over the Association Property or other Residential Units as described in this
Declaration, the Condominium Plan, and the deed to the Condominium.
3.2 NO SEPARATE CONVEYANCE. The undivided interest in the Common Area may
not be altered or changed as long as the prohibition against severability of interests in a
Condominium remains in effect as provided in this Declaration. The interest of each Owner in the
use and benefit of the Association Property shall be appurtenant to the Residential Unit owned by
the Owner. No Residential Unit shall be conveyed by the Owner separately from the interest in the
Common Area or the rights to use the Association Property. Any conveyance of any Residential
Unit shall automatically transfer the interest in the Common Area and the right to use the
Association Property without the necessity of express reference in the instrument of conveyance.
Anything in the Article hereof entitled "Amendments," to the contrary notwithstanding, this
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Article shall not be amended, modified or rescinded until Declarant has conveyed the last
Condominium within the Project, including any Phase which may be annexed to and made a part of
the Project pursuant to the Article hereof entitled "Annexation of Additional Property" without
(i) the prior written consent of Declarant and (ii) the recording of said written consent in the Office
of the County Recorder.
3.3 DELEGATION OF USE. Any Owner entitled to the right and easement of use and
enjoyment of the Association Property may delegate, in accordance with the Bylaws, such Owner's
right to use and enjoyment of the Association Property to his or her other tenants, contract purchasers
or subtenants who reside in such Owner's Residential Unit, subject to reasonable regulation by the
Board. An Owner who has made such a delegation of rights shall not be entitled to use or enjoyment
of the Recreational Facilities or equipment of the Association Property for so long as such delegation
remains in effect.
3.4 RIGHTS IN ASSOCIATION PROPERTY AND COMMON AREA.
3.4.1 Partition. Except as provided in this Declaration, there shall be no judicial
partition of the Common Area or any part thereof, for the term of the Project, nor shall Declarant,
any Owner or any other person acquiring any interest in any Condominium in the Project seek any
such judicial partition.
3.4.2 Declaration Subject to Easements. Notwithstanding anything herein
expressly or impliedly to the contrary, this Declaration shall be subject to all easements heretofore
or hereafter granted by Declarant for the installation and maintenance of utilities and drainage
facilities that are necessary for the Project.
3.4.3 Utilities. There are reserved and granted for the benefit of each Residential
Unit, as dominant tenement, over, under, across and through the Project (including the Association
Property and each other Residential Unit), as the servient tenement, and for the benefit of the
Association Property, as dominant tenement, over, under and across each Residential Unit, as
servient tenement, non-exclusive easements for utility services.
3.4.4 Encroachment & Support. There are reserved and granted for the benefit
of each Residential Unit, as dominant tenement, over, under and across each other Residential Unit
and Association Property, as servient tenements, and for the benefit of the Association Property, as
dominant tenement, over, under and across each Residential Unit, as servient tenement, non-
exclusive easements for encroachment, support, occupancy and use of such portions of Residential
Units and Association Property as are encroached upon, used and occupied by the dominant
tenement as a result of any original construction design, accretion, erosion, addition, deterioration,
decay, errors in original construction, movement, settlement, shifting or subsidence of any building,
structure, or other improvements or any portion thereof, or any other cause. In the event any portion
of the Project is partially or totally destroyed, the encroachment easement shall exist for any
replacement structure that is rebuilt pursuant to the original construction design. The easement for
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the maintenance of the encroaching improvement shall exist for as long as the encroachments exists;
provided, however, that no valid easement of encroachment shall be created due to the willful
misconduct of the Association or any Owner. Any easement of encroachment may, but need not be,
cured by repair and restoration of the structure.
3.4.5 Declarant's Non-Exclusive Easements. Subject to a concomitant obligation
to restore, Declarant and its agents, employees and independent contractors shall have the easements
described in the Article hereof entitled "Development Rights."
3.5 EASEMENTS. The ownership interests in the Association Property and Residential
Units described in this Article are subject to the easements granted and reserved in this Declaration.
Each of the easements reserved or granted herein shall be deemed to be established upon the
recordation of this Declaration and shall henceforth be deemed to be covenants running with the land
for the use and benefit of the Owners, the Residential Units, the Association, the Association
Property, and the Declarant superior to all other encumbrances applied against or in favor of any
portion of the Project. Individual grant deeds to Residential Units may, but shall not be required to,
set forth the easements specified in this Article.
3.5.1 Association Easement. The Association shall have an easement over the
Association Property in each Phase for performing its duties and exercising its powers described in
this Declaration. The Association's obligations to maintain the Association Property in any
Phase shall commence on the date Regular Assessments commence on Condominiums in that Phase.
Until commencement of Regular Assessments on Condominiums in any Phase, Association Property
in that Phase shall be maintained by Declarant.
3.5.2 Easements on Condominium Plan and Final Subdivision Map. The
Association Property and Residential Units are subject to the easements and rights-of-way shown
on the Condominium Plan and any Final Subdivision Map including, without limitation, the Front
Yard Maintenance Areas, Owner Maintenance Areas, Yard Use Areas, Shared Driveway Area
Easements, and easements for the maintenance and repair of the Public Storm Drain Improvements.
3.5.3 Easements for Association Property. Subject to the provisions of this
Declaration, every Member of the Association shall have, for himself or herself and such Owner's
Invitees, a nonexclusive easement of access, ingress, egress, use and enjoyment of, in, to and over
the Private Streets situated within the Association Property, and such easement shall be appurtenant
to and shall pass with title to every Condominium, subject to the following rights and restrictions:
(a) Suspend Rights of Members. The Board shall have the right, after
Notice and Hearing, to temporarily suspend an Owner's rights as a Member pursuant to the terms.
(b) Dedicate or Grant Easements. The Association shall have the right
to dedicate and/or grant easements over all or any portion of the Association Property.
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(c) Right of Access. Every Owner shall have the right to enjoy free and
unobstructed passage between every such Owner's Residential Unit, through the Association
Property to all publicly dedicated streets bordering the Project, subject to any restrictions imposed
by any city, county, or state.
(d) Control Parking. The Association shall have the right to assign,
license, or otherwise designate and control parking within the Association Property, and to
promulgate rules and regulations to control parking in a manner consistent with this Declaration.
(e) Entry by Association. The Association and the Association's agents
shall have the right to enter upon the Residential Unit (other than the interior of the Residence
situated thereon) only to the extent necessary after Notice and Hearing (except in the event of an
emergency in which case no prior notice need be given) to enforce the provisions of this Declaration
or (ii) upon any portion of the Project to repair and replace any fencing required to be repaired and
replaced by the Association pursuant to Article 8 of this Declaration. Nothing contained in this
Section shall give the Association the right to enter upon the interior of any Residence.
(f) Limit Guests. The Association shall have the right to limit, on a
reasonable basis, the number of guests and tenants of the Owners using the Recreational Facilities;
(g) Borrow Funds. The Association shall have the right to borrow
money to improve, repair or maintain the Association Property and to hypothecate any or all real or
personal property owned by the Association, including pledging as collateral the assessment liens
thereon, provided that the borrowing of any money or hypothecation of any real or personal property
in excess of five percent (5%) of the budgeted gross expenses of the Association shall require the
approval by written ballot of fifty-one percent (51%) of each class of Members.
(h) Adopt and Enforce Association Rules. The Association shall have
the right to adopt and enforce the Association Rules as provided in this Declaration.
3.5.4 Perform Association Functions. The Declarant and its duly authorized
agents and representatives and the Association and its duly authorized agents and representatives
shall have and hereby expressly reserves such easements as are necessary to perform the duties and
obligations of the Association as are set forth in this Declaration or in the Bylaws, Articles,
Association Rules or Architectural Guidelines. Subject to a concomitant obligation to restore,
Declarant and its agents, employees and independent contractors shall also have the easements
described in the Article hereof entitled "Development Rights."
3.5.5 Easement To Declarant For Additional Property. Declarant shall have and
hereby expressly reserves a non-exclusive easement over and across the Private Streets and other
portions of the Association Property and pathways to the Additional Property until all of the
Additional Property is annexed to the Project and the Residences are constructed thereon.
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3.5.6 City Easement. The City shall have the right to enter into any Association
Property for maintenance purposes, which right may be exercised upon the failure of the Association
to maintain the Association Property.
ARTICLE 4
THE ASSOCIATION
4.1 THE ORGANIZATION. The Association is a nonprofit mutual benefit corporation
formed under the Nonprofit Mutual Benefit Law of the State of California. On the close and
recording of the first Condominium sale to an Owner, the Association shall be charged with the
duties and invested with the powers set forth in the Articles, the Bylaws and this Declaration.
4.2 ASSOCIATION ACTION: BOARD OF DIRECTORS AND OFFICERS:
MEMBERS' APPROVAL. Except as to matters requiring the approval of Members as set forth in
this Declaration, the Articles, or the Bylaws, the affairs of the Association shall be conducted by the
Board and such officers as the Board may elect or appoint. Such election or appointment shall be
in accordance with this Declaration and the Bylaws. Except as otherwise provided in this
Declaration, the Articles and the Bylaws, all matters requiring the approval of Members shall be
deemed approved if Members holding sixty-six and two-thirds percent (66 2/3%) of the total voting
rights assent to them by written consent as provided in the Bylaws or if approved by sixty-six and
two-thirds percent (66 2/3%) of a quorum of Members at any regular or special meeting held in
accordance with the Bylaws or, in certain situations set forth in Section 4.5 of this Declaration, by
written ballot without a meeting pursuant to California Corporations Code Section 7513, of sixty-six
and two-thirds percent (66 2/3%) of the Members, other than Declarant, constituting a quorum
consisting of more than sixty-six and two-thirds percent (66 2/3%) of the voting power of the
Association residing in Members other than the Declarant.
4.3 POWERS OF ASSOCIATION. The Association shall have all the powers of a
nonprofit corporation organized under the Nonprofit Mutual Benefit Corporation Law of California
subject only to such limitations on the exercise of such powers as are set forth in the Articles, the
Bylaws and this Declaration. It shall have the power to do any lawful thing that may be authorized,
required, or permitted to be done by the Association under this Declaration, the Articles and the
Bylaws, and to do and perform any act that may be necessary or proper for or incidental to, the
exercise of any of the express powers of the Association, including, without limitation, the powers
set forth below.
4.3.1 Assessments. The Association shall have the power to establish, fix, and
levy assessments against the Owners and to enforce payment of such assessments, in accordance
with the provisions of this Declaration. However, the approval of the Members shall be required as
to the amounts of all Regular and Special Assessments, subject to the limitations set forth in
Section 6.8 of this Declaration.
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4.3.2 Right of Enforcement and Notice and Hearing.
(a) Enforcement Actions. The Association in its own name and on its
own behalf or on behalf of any Owner who consents can commence and maintain actions for
damages or to restrain and enjoin any actual or threatened breach of any provision of the Project
Documents or any resolutions of the Board, and to enforce by mandatory injunction, or otherwise,
all of these provisions. In addition, the Association can temporarily suspend the membership rights
and privileges or can assess monetary penalties against any Owner or other person entitled to
exercise such rights or privileges for any violation of the Project Documents or Board resolutions.
(b) Notice Requirements. Before a decision to impose such a suspension
or monetary penalties is reached by the Board, at least fifteen (15) days written notice of suspension
or imposition of monetary penalties and the reasons therefor must be given to the Owner of such
suspension or imposition of a penalty or any such longer period as may be required under California
Corporations Code Section 7341 and any successor statutes. Additionally, before the Board decides
to impose a suspension of privileges or impose a monetary penalty, the aggrieved Owner shall be
provided with an opportunity to be heard by the Board, orally or in writing, not less than five
(5) days before the date of the suspension of privileges or imposition of monetary penalty is to take
effect. For the purposes of this Section, notice shall be given by any method reasonably calculated
to provide actual notice. Notice may be hand delivered to the Owner or sent by first class registered
or certified mail, return receipt requested or overnight courier delivery and addressed to the Owner
at the last address of the Owner shown on the Association's records, or any other method deemed
reasonable by the Board for delivering notices.
(c) Monetary Penalties. Except as provided in Section 6.13 of this
Declaration, any monetary penalty imposed by the Association as a disciplinary measure for failure
of a an Owner to comply with the Project Documents or Board resolutions or as means of
reimbursing the Association for costs incurred by the Association in the repair of damaged
Association Property for which the Owner was allegedly responsible or to enforce the Project
Documents is not to be characterized or treated as an assessment that may become a lien against the
Owner's Condominium enforceable by a sale of the interest in accordance with the provisions of
Sections 2924,2924(b) and 2924(c) of the California Civil Code. Each suspended or fined Owner
or other person can appeal such action, including any claim alleging defective notice, within one
(1) year of the date of action taken by the Board, by filing written notice of such Owner's intention
to appeal with the Board. The action imposing the fine or suspension shall then become ineffective
until the fine or suspension is unanimously approved by all Board members at a regular or special
meeting of the Board at which all Board members are present. The Owner or other person to be
fined or suspended can appear, be represented by counsel and be heard at the meeting. Except as
provided in this Section, the Association does not have the power or authority to cause a forfeiture
or abridgment of an Owner's right to the full use and enjoyment of such Owner's Residential Unit
if the Owner does not comply with provisions of the Project Documents, except when the loss or
forfeiture is the result of a court judgment or arbitration decision or a foreclosure or sale under a
power of sale based on failure of the Owner to pay assessments levied by the Association. In the
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event legal counsel is retained or legal action is instituted by the Board pursuant to this
Section 4.3.2, any settlement prior to judgment or any judgment rendered in any such action shall
include costs of collection, court costs and reasonable attorneys' fees.
4.3.3 Delegation of Powers. Professional Management. The Association acting
by and through the Board can delegate its powers, duties, and responsibilities to committees, as
provided under Article 9, or employees, including a professional managing agent ("Manager"),
subject to the requirements of Section 14.4.2.
4.3.4 Association Rules. The Board shall have the power to adopt, amend and
repeal the Association Rules as it deems reasonable. The Association Rules shall govern the use of
the Association Property by all Owners and their Invitees. However, the Association Rules shall not
be inconsistent with or materially alter any provisions of the Project Documents. A copy of the
Association Rules as adopted, amended or repealed, shall be mailed or otherwise delivered to each
Owner. In case of any conflict between any of the Association Rules and any other provisions of
this Declaration, the Articles, or Bylaws, the conflicting Association Rule shall be deemed to be
superseded by the provisions of this Declaration, the Articles and the Bylaws.
4.3.5 Right of Entry and Enforcement. The Association shall have the right of
entry provided in Section 3.5.3(e) of this Declaration.
4.3.6 Easements and Rights of Way. The Association, acting by and through the
Board, may grant and convey to any third party easements and licenses for use and rights of way in,
on, over or under any Association Property conveyed or otherwise transferred to said Association
or under its jurisdiction in accordance with the provisions of this Declaration.
4.3.7 Dedication. The Association, acting by and through the Board, may
dedicate any of the Association Property to an appropriate public authority for public use as provided
for in this Declaration.
4.3.8 Capital Improvements. The Board may, on its own motion or acting on a
petition signed by a majority of the Owners, approve the construction, installation or acquisition of
a particular capital improvement to the Association Property.
4.3.9 Other Property. The Association, acting by and through the Board, may
acquire and hold, as trustee for the benefit of its Members, tangible and intangible personal property
and to dispose of the same by sale or otherwise, subject to the limitations set forth in Section 4.5.2.
4.3.10 Enter Into Maintenance Agreements. The Association shall have the power
to enter into maintenance or subsidy agreements with Declarant for the repair and maintenance of
the Association Property and for the undertaking by Declarant of any other maintenance
responsibilities of the Association pursuant to the provisions of this Declaration.
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4.3.11 Contract for Goods and Services. The Association shall have the power to
contract for goods and services for the benefit of the Association Property and the Project that are
necessary for the Association to perform its duties and obligations hereunder, subject to the
limitations set forth in Section 4.5 below.
4.4 DUTIES OF THE ASSOCIATION. In addition to the powers delegated to it by its
Articles and the Bylaws and without limiting their generality, the Association, acting by and through
the Board, has the obligation to perform each of the duties set forth below.
4.4.1 Taxes and Assessments. The Association shall pay all real and personal
property taxes and assessments and all other taxes levied against the Association Property, personal
property owned by the Association or against the Association, if any. Such taxes and assessments
may be contested or compromised by the Association if they are paid or a bond insuring payment
is posted before the sale or the disposition of any property to satisfy the payment of such taxes.
4.4.2 Water and Other Utilities. The Association shall acquire, provide and pay
for water, sewer, electrical, telephone, gas and other necessary utility services for the Association
Property, to the extent necessary.
4.4.3 Utilities Suppliers. The Association shall permit utility suppliers to use
portions of the Association Property reasonably necessary to the ongoing development and operation
of the Project.
4.4.4 Maintenance of Project. The Association shall landscape, maintain and
replace and repair the Association Property, Brush Management Areas, and any other portions of the
Project described in Article 8 pursuant to the provisions of this Declaration. The Association's
obligations to perform such maintenance in any Phase shall commence on the date Regular
Assessments commence on Condominiums in such Phase. Until commencement of Regular
.Assessments on Condominiums in any Phase, Association Property in such Phase shall be
maintained by Declarant.
4.4.5 Insurance. The Association shall obtain, from reputable insurance
companies and maintain the insurance described in the Article hereof entitled "Insurance."
4.4.6 Notice Prior to Litigation. The Board shall use its good faith efforts to
notify all Owners of any litigation filed for or on behalf of the Association pursuant to the provisions
of Section 17.4 of this Declaration.
4.4.7 Use of Proceeds to Repair. In the event the Association receives on its own
behalf or for the benefit of the Owners any proceeds as a result of any claims brought by the
Association relating to repair or maintenance obligations of the Association, then the Association
shall apply such proceeds first for the purpose of making the repairs or replacing reserve funds
previously utilized by the Association to cause such repairs and then to the costs of such litigation.
The Cliffs at Calavera Hills 15 9/8/98
4.5 LIMITATIONS ON AUTHORITY OF BOARD. The Board shall not take any of
the actions listed below except with the vote or approval by written ballot of (a) a majority of the
Members of each of Class A and Class B during the time the two-class voting structure set forth in
Section 5.2 of this Declaration is in effect; or (b) except with the vote at a meeting of the
Association or by written ballot without a meeting pursuant to Corporations Code Section 7513 of
at least fifty-one percent (51%) of the Members of the Association including at least fifty-one
percent (51%) of Association Members other than Declarant after conversion to a single Class A
voting membership.
4.5.1 Limit on Capital Improvements. The Board shall not, without obtaining the
consent of the Members as set forth above, incur aggregate expenditures for capital improvements
to the Association Property in any fiscal year in excess of five percent (5%) of the budgeted gross
expenses of the Association for that fiscal year.
4.5.2 Limit on Sales of Association Property. The Board shall not, without
obtaining the consent of the Members as set forth above, sell during any fiscal year property of the
Association having an aggregate fair market value greater than five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year.
4.5.3 Limit on Compensation. The Board shall not, without obtaining the consent
of the Members as set forth above, pay compensation to members of the Board for services
performed in the conduct of the Association's business. However, the Board may cause a member
of the Board to be reimbursed for expenses incurred in carrying on the business of the Association.
4.5.4 Limit on Third Person Contracts. The Board shall not, without obtaining
the consent of the Members as set forth above, enter into a contract with a third person wherein the
third person will furnish goods or services for the Association Property or the Association for a term
longer than one year with the following exceptions:
(a) A management contract;
(b) A contract with a public utility company if the rates charged for the
materials or services are regulated by the Public Utilities Commission provided, however, that the
term of the contract shall not exceed the shortest term for which the supplier will contract at the
regulated rate;
(c) A prepaid casualty and/or liability insurance policy not to exceed
three (3) years duration provided that the policy permits for short-rate cancellation by the insured;
(d) An agreement for cable television services and equipment or satellite
television services or equipment of not to exceed (5) five years duration provided that the supplier
The Cliffs at Calavera Hills 16 9/8/98
is not an entity in which the Declarant has a direct or indirect ownership interest often percent (10%)
or more; and
(e) A contract for a term not to exceed three (3) years that is terminable
by the Association after no longer than one year without cause, penalty or other obligations upon
ninety (90) days written notice of termination to the other party.
4.6 PERSONAL LIABILITY. No member of the Board, or of any committee of the
Association, or any officer of the Association, or any manager, or Declarant, or any agent of
Declarant, shall be personally liable to any Owner, or to any other party, including the Association,
for any error or omission of the Association, the Board, its authorized agents or employees or the
Architectural Committee, if such person or entity has, on the basis of such information as may be
possessed by him or her, acted in good faith without wilful or intentional misconduct. In addition
to the foregoing, as more particularly specified in California Civil Code Section 1365.7 and any
successor statutes, any person who suffers bodily injury, including, but not limited to, emotional
distress or wrongful death as a result of the tortious act or omission of a director who resides in the
Project either as a tenant or as an Owner of no more than two (2) Residential Units, and who, at the
time of the act or omission, was a "volunteer" as defined in California Civil Code Section 1365.7,
and any successor statutes, shall not recover damages from such Board member, if such Board
member committed the act or omission within the scope of his or her Association duties, while
acting in good faith and without acting in a willful, wanton or grossly negligent manner, provided
that all of the requirements of California Civil Code Section 1365.7 and any successor statutes have
been satisfied.
ARTICLE 5
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
5.1 MEMBERSHIP.
5.1.1 Qualifications. Each Owner of a Residential Unit that is subject to
assessment, including Declarant, shall be a Member of the Association. Ownership of a Residential
Unit or interest in it shall be the sole qualification for membership in the Association. Each Owner
shall remain a Member of the Association until his or her ownership or ownership interest in all
Residential Units in the Project ceases, at which time his or her membership in the Association shall
automatically cease. Persons or entities who hold an interest in a Residential Unit merely as security
for performance of an obligation are not to be regarded as Members.
5.1.2 Members' Rights and Duties. Each Member shall have the rights, duties,
and obligations set forth in this Declaration, the Articles, the Bylaws and the Association Rules, as
the same may from time to time be amended.
The Cliffs at Calavera Hills 17 9/8/98
5.1.3 Transfer of Membership. The Association membership of each person or
entity who owns, or owns an interest in, one or more Residential Units shall be appurtenant to each
such Residential Unit, and shall not be assigned, transferred, pledged, hypothecated, conveyed or
alienated in any way except on a transfer of title to each such Residential Unit or interest in it and
then only to the transferee. Any attempt to make a prohibited transfer shall be void. Any transfer
of title to a Residential Unit or interest in it shall operate automatically to transfer the appurtenant
membership right in the Association to the new Owner.
5.2 NUMBER OF VOTES. The Association shall have two (2) classes of voting
membership:
5.2.1 Class A Members. Class A Members shall be all Owners, with the
exception of Declarant, and shall be entitled to one (1) vote for each Residential Unit owned. When
more than one (1) person holds an interest in any Residential Unit, all such persons shall be
Members. The vote for such Residential Unit shall be exercised as they among themselves
determine, but in no event shall more than one (1) vote be cast with respect to any Residential Unit.
5.2.2 Class B Members. Class B Member(s) shall be Declarant who shall be
entitled to three (3) votes for each Residential Unit owned. The Class B membership shall cease and
be converted to Class A membership on the happening of the earliest of the following to occur:
(a) On the second anniversary of the first close of escrow of a
Condominium in a Phase covered by the most recently issued Public Report for any Phase of the
Project; or
(b) The fourth anniversary of the first close of escrow of a Residential
Unit covered by the original Public Report for the first Phase of the Project.
As long as two (2) classes of Members in the Association exist, no action by the Association that
must have the prior approval of the Association Members shall be deemed approved by the Members
unless approved by the appropriate percentage of both classes of Members. Upon conversion to a
single Class A voting membership, any action by the Association that must have the prior approval
of the Members will require approval by at least sixty-six and two-thirds percent (66 2/3%) of the
Members of the Association, including at least sixty-six and two-thirds percent (66 2/3%) of
Members other than Declarant.
5.2.3 Joint Owner Votes. The voting rights for each Residential Unit may not be
cast on a fractional basis. If the joint Owners of a Residential Unit are unable to agree among
themselves as to how their voting rights shall be cast, they shall forfeit the vote on the matter in
question. If any Owner exercises the voting rights of a particular Residential Unit, it will be
conclusively presumed for all purposes that such Owner was acting with the authority and consent
of all other Owners of the same Residential Unit. If more than one (1) person or entity exercises the
The Cliffs at Calavera Hills 18 9/8/98
voting rights for a particular Residential Unit, their votes shall not be counted and shall be deemed
void.
5.2.4 Accrual of Voting Rights. No voting rights shall accrue to any Owner until
Regular Assessments have first commenced for such Owner's Residential Unit.
ARTICLE 6
ASSESSMENTS AND DUES
6.1 CREATION OF LIEN AND PERSONAL OBLIGATION FOR ASSESSMENTS.
Declarant, for each Condominium owned within the Property, hereby covenants, and each Owner
of a Condominium by acceptance of a deed therefor, whether or not it shall be so expressed in such
deed, is deemed to covenant and agrees to pay to the Association all assessments levied pursuant to
the provisions of this Declaration. All assessments levied hereunder, together with interest, costs
and reasonable attorneys' fees assessed hereunder, shall be a charge on the land and shall be a
continuing lien upon the Condominium against which each such assessment is made, the lien to be
effective upon recordation of a notice of delinquent assessments. Each such assessment, together
with interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the person
who was the Owner of such Condominium at the time when the assessment fell due and shall bind
his or her heirs, devisees, personal representatives and assigns. Unlike the lien for non-delinquent
assessments, the personal obligation for delinquent assessments shall not pass to successive Owners,
unless expressly assumed by such successive Owner. No such assumption of personal liability by
a successive Owner (including a contract purchaser under an installment land contract) shall relieve
any Owner against whose Condominium the lien was levied from personal liability for delinquent
assessments. If more than one person or entity was the Owner of a Condominium, the personal
obligation to pay such assessment or installment respecting such Condominium shall be both joint
and several.
6.2 FUNDS HELD IN TRUST. The assessments collected by the Association shall be
held by the Association for and on behalf of each Owner and shall be used solely for the operation,
care and maintenance of the Project as provided in this Declaration. Upon the sale or transfer of any
Condominium, the Owner's interest hi the funds shall be deemed automatically transferred to the
successor in interest of such Owner.
6.3 PURPOSE OF ASSESSMENTS. The assessments levied by the Association shall
be used exclusively to perform the obligations and duties of the Association under the Project
Documents. The Association shall not impose or collect any assessment, penalty or fee that exceeds
the amount necessary for the purpose or purposes for which it is levied.
The Cliffs at Calavera Hills 19 9/8/98
6.4 REGULAR ASSESSMENTS.
6.4.1 Payment of Regular Assessments. Regular Assessments for each fiscal year
shall be established when the Board approves the budget for that fiscal year, which budget shall be
prepared in accordance with the provisions of this Declaration. Regular Assessments shall be levied
on a fiscal year basis. Unless otherwise specified by the Board, Regular Assessments shall be due
and payable in monthly installments on the first day of each month during the term of this
Declaration.
6.4.2 Budgeting. Regardless of the number of Members or the amount of assets
of the Association, each year the Board shall prepare, approve and make available to each Member
a budget as described in the Article of the Bylaws entitled "Budget and Financial Statements."
Increases hi Regular Assessments shall be subject to the limitations set forth in Section 6.8 below.
For the first fiscal year, the budget upon which Regular Assessments shall be based shall be the
budget accepted by the Department of Real Estate of the State of California. Thereafter, the Board
shall annually prepare and approve the budget and distribute a copy thereof to each Member (or a
summary thereof as provided in the Article of the Bylaws referenced above), together with written
notice of the amount of the Regular Assessment to be levied against the Owner's Residential Unit,
not less than forty-five (45) days nor more than sixty (60) days prior to the beginning of the fiscal
year.
6.4.3 Restrictions for Tax Exemption. As long as the Association seeks to qualify
and be considered as an organization exempt from federal and state income taxes pursuant to Internal
Revenue Code Section 528 and California Revenue and Taxation Code Section 23701 and any
amendments thereto, then the Board shall prepare its annual budget and otherwise conduct the
business of the Association in such a manner consistent with federal and state requirements to
qualify for such status.
6.4.4 Assessments after Annexation.
(a) Reallocation of Assessments. After annexation of a Phase, the
assessment in the budget shall be reallocated among all Residential Units in the Project, including
those in the annexed Additional Property, in the same manner as described above.
(b) Revision of Budget. Declarant shall give notice to the Association
of the recordation of a Declaration of Annexation for the Phase and shall give the Association a copy
of the budget submitted to the Department of Real Estate in connection with the Public Report for
that Phase. Notice of the new Regular Assessment to be levied against each Residential Unit in the
Project shall be delivered to the Owners and Declarant within thirty (30) days after the close of
escrow for the first Residential Unit sold in the new Phase.
The Cliffs at Calavera Hills 20 9/8/98
6.4.5 Non-Waiver of Assessments. If, before the expiration of any fiscal year,
the Association fails to fix Regular Assessments for the next fiscal year, the Regular Assessment
established for the preceding year shall continue until a new Regular Assessment is fixed.
6.5 SPECIAL ASSESSMENTS.
6.5.1 Establishing Special Assessments. If the Board determines that the
estimated total amount of funds necessary to defray the common expenses of the Association for a
given fiscal year is or will become inadequate to meet expenses for any reason, including, but not
limited to, unanticipated delinquencies, costs of construction, unexpected repairs or replacements
of capital improvements on, damage and destruction or condemnation of, the Association Property,
the Board shall determine the approximate amount necessary to defray such expenses, and if the
amount is approved by a majority vote of the Board and does not exceed five percent (5%) of the
budgeted gross expenses of the Association, it shall become a Special Assessment; provided,
however, that such limitation shall not apply to Special Assessments levied by the Board to replenish
the Association's reserve account as provided in Section 9.3 of the Bylaws. Except for Special
Assessments levied pursuant to Section 9.3 of the Bylaws, any Special Assessment in excess of five
percent (5%) of the budgeted gross expenses of the Association shall be subject to the limitations
set forth in Section 6.8 below. The Board may, in its discretion, prorate such Special Assessment
over the remaining months of the fiscal year or levy the assessment immediately against each
Residential Unit. Unless exempt from federal or state income taxation, all proceeds from any
Special Assessment shall be segregated and deposited into a special account and shall be used solely
for the purpose or purposes for which it was levied or it shall be otherwise handled and used in a
manner authorized by law or regulations of the Internal Revenue Service or the California Franchise
Tax Board in order to avoid, if possible, its taxation as income of the Association.
6.6 CAPITAL IMPROVEMENT ASSESSMENT. In addition to any other assessments
provided for hereunder, the Association may levy a Capital Improvement Assessment for the
purpose of defraying, in whole or in part, the cost of any construction or replacement of a capital
improvement hi accordance with the provisions of Section 4.3.8. Capital Improvement Assessments
shall be due and payable by all Owners in such installments and during such period or periods as the
Board shall designate. Increases in Capital Improvement Assessments shall be subject to the
limitations set forth in Section 6.8 below.
6.7 ENFORCEMENT ASSESSMENTS. The Association may levy an Enforcement
Assessment against any Owner who causes damage to the Association Property or for bringing an
Owner or his or her Residential Unit into compliance with the provisions of the Project Documents
and/or any other charge designated an Enforcement Assessment in the Project Documents, together
with attorneys' fees, interest and other charges related thereto as provided in this Declaration. In the
event the Association undertakes to provide materials or services that benefit individual Owners,
then such Owners in accepting such materials or services agree that the costs thereof shall be an
Enforcement Assessment. The Board shall have the authority to adopt a reasonable schedule of
Enforcement Assessments for any violation of the Project Documents. If, after Notice and Hearing
The Cliffs at Calavera Hills 21 9/8/98
as required by this Declaration and that satisfies Section 7341 of the California Corporations Code,
the Owner fails to cure or continues such violation, the Association may impose an additional fine
each time the violation is repeated, and may assess such Owner and enforce the Enforcement
Assessment as herein provided for nonpayment of an assessment. A hearing committee may be
established by the Board to administer the foregoing. Notwithstanding any other provision in this
Declaration to the contrary, except as provided in Section 6.13 of this Declaration, Enforcement
Assessments are assessments but they may not become a lien against the Owner's Residential Unit
that is enforceable by a power of sale under California Civil Code Sections 2924, 2924b and 2924c
and any successor statutes. This restriction on enforcement is not applicable to late payment
penalties for delinquent assessments or charges imposed to reimburse the Association for loss of
interest or for collection costs, including reasonable attorneys' fees, for delinquent assessments. The
Board may not increase the Regular Assessments for any fiscal year unless it has complied with
California Civil Code Section 1365.5 and any successor statutes.
6.8 CHANGES TO ASSESSMENTS.
6.8.1 Limitation on Assessments. From and after January 1 of the year
immediately following the conveyance of the first Residential Unit to an Owner, other than
Declarant, the maximum annual Regular Assessment may not, except in the case of an Emergency
(as hereinafter defined), be increased by an amount greater than twenty percent (20%) of the Regular
Assessments for the preceding fiscal year, and Special Assessments and Capital Improvement
Assessments shall not be imposed that in the aggregate exceed five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year, without the consent of fifty-one percent (51%)
of the Owners, constituting a quorum and casting a majority of the votes at a meeting or election of
the Association conducted in accordance with the provisions of California Corporations Code
Section 7613 and any successor statutes. The Board may not increase the Regular Assessments for
any fiscal year unless it has complied with California Civil Code Section 1365.5 and any successor
statutes. For the purpose of this Section, a quorum shall mean more than fifty percent (50%) of the
Owners of the Association and an Emergency shall mean any one of the following:
(a) an extraordinary expense required by an order of a court;
(b) an extraordinary expense necessary to repair or maintain the
Association Property or any part of the Project which is the responsibility of the Association to
maintain where a threat to personal safety on the Project is discovered; or
(c) an extraordinary expense necessary to repair or maintain the
Association Property or any part of the Project for which the Association is responsible that could
not have been reasonably foreseen by the Board in preparing and distributing the Budget required
under this Declaration and the Bylaws; provided, however, that prior to the imposition or collection
of a Regular Assessment under this Section, the Board shall pass a resolution containing written
findings as to the necessity of the extraordinary expense that is involved and why the expense was
not or could not have been reasonably foreseen in the budgeting process, and the resolution shall be
The Cliffs at Calavera Hills 22 9/8/98
distributed to the Members with the notice of Regular Assessment. For the purpose of calculating
whether an increase to Regular Assessments exceeds twenty percent (20%), the term "Regular
Assessments" shall be deemed to include the amount assessed against each Residential Unit by the
Association as a Regular Assessment plus any amount paid by the Declarant as a subsidy pursuant
to any subsidy agreements, to the extent such subsidy payments offset any amount that would
otherwise be paid by Owners as Regular Assessments.
6.8.2 Automatic Assessment Increases. Notwithstanding any other provisions of
this Section 6.8, upon Declarant's annexation of any portion of the Property pursuant to the
Declaration, the Regular Assessment shall be automatically increased by the additional amount, if
any, necessary to maintain the Association Property and to perform the Association's obligations
hereunder in accordance with the standards prescribed by the then current California Department of
Real Estate ("ORE") Operating Cost Manual, or if the Operating Cost Manual is no longer
maintained by the DRE, pursuant to standards prescribed by comparable maintenance cost guidelines
prepared in accordance with prudent property management practices. However, such increase shall
occur only if (i) the annexation of such Additional Property is permitted by the DRE, and (ii) the
amount of such increase does not result in the levy of a Regular Assessment that is greater than the
maximum potential Regular Assessment disclosed in all Public Reports for the Property previously
issued by the DRE.
6.8.3 Notice to Owners. The Association shall provide notice by first class mail
to the Owners of any increase in the Regular Assessments or Special Assessments of the
Association, not less than thirty (30) days and not more than sixty (60) days prior to the increased
assessment becoming due and payable.
6.9 UNIFORM RATE OF ASSESSMENT. Regular and Special Assessments and
Capital Improvements Assessments shall be fixed at a uniform rate for all Residential Units and may
be collected on a monthly basis and shall be determined by dividing the amount of the assessment
by the total number of Residential Units then within the Project and subject to assessment.
Enforcement Assessments shall be levied directly to the individual Residential Units.
6.10 DATE OF COMMENCEMENT OF REGULAR ASSESSMENTS: DUE DATES.
The Regular Assessments provided for herein shall commence as to all Residential Units subject to
this Declaration on the first day of the month following the conveyance of the first Condominium
to an Owner under authority of a Public Report. As to any Additional Property that is thereafter
annexed into the Project pursuant to a Declaration of Annexation, the Regular Assessments shall
commence as to all of the Condominiums within such Phase upon the first day of the first month
following the closing of the sale of the first Condorrunium in such Phase or such earlier date as may
be selected by Declarant for the commencement of assessments in such Phase.
6.11 NOTICE AND ASSESSMENT INSTALLMENT DUE DATES. A single ten (10)
day prior written notice of each Special Assessment and Capital Improvement Assessment shall be
given to each Owner. The due dates for the payment of installments normally shall be the first day
The Cliffs at Calavera Hills 23 9/8/98
of each month unless some other due date is established by the Board. Each installment of Regular
Assessments, Special Assessments and Capital Improvement Assessments shall become delinquent
if not paid within thirty (30) days after its due date. There shall accrue with each delinquent
installment a late charge, interest charge to be set by the Board and reasonable costs of collection,
including attorneys' fees, which shall not, in any event, exceed the maximum rates permitted under
California Civil Code Section 1366 and any successor statutes.
6.12 ESTOPPEL CERTIFICATE. The Board on not less than ten (10) days prior written
request shall execute, acknowledge and deliver to the party making such request a statement in
writing stating whether or not to the knowledge of the Association, a particular Owner is in default
as to such Owner's Residential Unit under the provisions of this Declaration and further stating the
dates to which installments of assessments, regular or special, have been paid as to such Residential
Unit. Any such statement may be relied on by any prospective purchaser or Mortgagee of the
Residential Unit, but reliance on such statement may not extend to any default not involving the
payment of assessments of which the signer had no actual knowledge.
6.13 COLLECTION OF ASSESSMENTS. LIENS.
6.13.1 Right to Enforce. The right to collect and enforce assessments is vested in
the Board acting for and on behalf of the Association. The Board or its authorized representative
can enforce the obligations of the Owners to pay assessments provided for in this Declaration by
commencement and maintenance of a suit at law or in equity, or the Board may foreclose by judicial
proceedings or through the exercise of the power of sale pursuant to Section 6.13.3 enforce the lien
rights created. Suit to recover a money judgment for unpaid assessments together with all other
Additional Charges described hi Section 6.14 shall be maintainable without foreclosing or waiving
the lien rights. Notwithstanding anything else to the contrary herein, except for monetary penalties
imposed by the Association to reimburse the Association for costs incurred by the Association in the
repair of damage to the Association Property and facilities for which the Owner or the Owner's
Invitees were responsible, which may become a lien on the Owner's Residential Unit, a monetary
penalty imposed by the Association as a disciplinary measure for failure of a Owner to comply with
the Project Documents, or in bringing the Owner and his or her Residential Unit into compliance
with the governing instruments of the Association may not be characterized nor treated as an
assessment that may become a lien against the Owner's Residential Unit enforceable by a sale of the
interest hereunder. The limitation in the preceding sentence, however, does not apply to any
Additional Charges.
6.13.2 Creation of Lien. If there is a delinquency in the payment of any
assessment, or installment on a Residential Unit, any amounts that are delinquent, together with the
late charge described hi California Civil Code Section 1366 and any successor statutes, interest at
the rate permitted in such Section, and all costs that are incurred by the Board or its authorized
representative hi the collection of the amounts, including reasonable attorneys' fees, shall be a lien
against such Residential Unit upon the recordation in the Office of the County Recorder of a notice
of delinquent assessment ("Notice of Delinquent Assessment") as provided in California Civil Code
The Cliffs at Calavera Hills 24 9/8/98
Section 1367 and any successor statutes. After its recordation, the Notice of Delinquent Assessment
shall be mailed to all Owners of record as provided in California Civil Code Section 1367 and any
successor statutes. The Notice of Delinquent Assessment may not be recorded unless and until the
Board or its authorized representative has sent to the delinquent Owner or Owners, not less than
fifteen (15) days before the recordation of the Notice of Delinquent Assessment, a written notice of
default and a demand for payment by certified mail, which notice shall contain all of the information
specified in California Civil Code Section 1367 and any successor statutes, and unless such
delinquency has not been cured within said fifteen (15) day period.
6.13.3 Notice of Default: Foreclosure. The Board or its authorized representative
can record a notice of default and can cause the Residential Unit with respect to which a notice of
default has been recorded to be sold in the same manner as a sale is conducted under California Civil
Code Sections 2924,2924b and 2924c and any successor statutes, or through judicial foreclosure and
as provided in California Civil Code Section 1367 and any successor statutes. However, as a
condition precedent to the holding of any such sale under Section 2924c appropriate publication shall
be made. In connection with any sale under Section 2924c the Board is authorized to appoint its
attorney, any officer or director, or any title insurance company authorized to do business in
California as trustee for purposes of conducting the sale. If a delinquency is cured before sale, or
before completing a judicial foreclosure, the Board or its authorized representative, shall cause to
be recorded in the office of the County Recorder a certificate setting forth the satisfaction of such
claim and release of such lien upon payment of actual expenses incurred, including reasonable
attorneys' fees by any delinquent Owner. Any payments made on delinquent assessments shall be
applied in accordance with California Civil Code Section 1367 and any successor statutes. On
becoming delinquent in the payment of any assessments, or installments each delinquent Owner shall
be deemed to have absolutely assigned all rent, issues and profits of his Residential Unit to the
Association and shall further be deemed to have consented to the appointment of a receiver (which
appointment may, at the election of the Association, be enforced by the Association through specific
performance). The Association, acting on behalf of the Owners, shall have the power to bid upon
the Residential Unit at foreclosure sale and to acquire, hold, lease, mortgage and convey the
Residential Unit and vote as an Owner of the Residential Unit.
6.13.4 Payments Under Protest. Notwithstanding any other provisions set forth
in this Section 6.13, the Owners shall have the right to make certain payments under protest and be
entitled to alternative dispute resolution as provided in California Civil Code Sections 1354 and
1366.3 and any successor statutes, as provided in Section 17.3 of this Declaration.
6.14 ADDITIONAL CHARGES. In addition to any other amounts due or any other relief
or remedy obtained against an Owner who is delinquent in the payment of any assessments, each
Owner agrees to pay Additional Charges incurred or levied by the Board including such additional
costs, fees, charges and expenditures as the Association may incur or levy in the process of
collecting from that Owner monies due and delinquent. Additional Charges shall include, but not
be limited to, the following:
The Cliffs at Calavera Hills 25 9/8/98
6.14.1 Attorneys' Fees. Reasonable attorneys' fees and costs incurred in the event
an attorney(s) is employed to collect any assessment or sum due, whether by suit or otherwise;
6.14.2 Late Charges. A late charge in an amount to be fixed by the Board in
accordance with California Civil Code Section 1366 and any successor statutes, to compensate the
Association for additional collection costs incurred in the event any assessment or other sum is not
paid when due or within any "grace" period established by law;
6.14.3 Costs of Suit. Costs of suit and court costs incurred as are allowed by the
court;
6.14.4 Interest. Interest to the extent permitted by law; and
6.14.5 Other. Any such other additional costs that the Association may incur in
the process of collecting delinquent assessments or sums.
6.15 WAIVER OF EXEMPTIONS. Each Owner, to the extent permitted by law, waives,
to the extent of any liens created pursuant to this Article, the benefit of any homestead or exemption
laws of California in effect at the time any assessment or installment becomes delinquent or any lien
is imposed.
6.16 SUBORDINATION OF LIEN TO FIRST MORTGAGES. The lien of assessment
herein shall be subordinate to the lien of any First Mortgage now or hereafter placed upon any
Residential Unit subject to assessment, and the sale or transfer of any Residential Unit pursuant to
judicial or nonjudicial foreclosure (excluding a transfer by a deed in lieu of foreclosure) of a First
Mortgage shall extinguish the lien of such assessments as to payments that became due prior to such
sale or transfer. No sale or transfer shall relieve such Residential Unit from any assessments
thereafter becoming due or from the lien of any subsequent assessment. Where the Mortgagee of
a First Mortgage or other purchaser of a Residential Unit obtains title to the same as a result of
foreclosure (excluding a transfer by a deed in lieu of foreclosure), such acquirer of title, his or her
successors and assigns, shall not be liable for the share of the common expenses or assessments by
the Association chargeable to such Residential Unit that became due prior to the acquisition of title
to such Residential Unit by such acquirer, except for a share of such charges or assessments resulting
from a reallocation of such charges or assessments which are made against all Residential Units.
6.17 NO OFFSETS. All assessments shall be payable in the amounts specified by the
particular assessment and no offsets against such amount shall be permitted for any reasons,
including, without limitation, a claim that the Association is not properly exercising its duties of
maintenance, operation or enforcement.
6.18 PERSONAL LIABILITY OF OWNER. No Owner may exempt himself or herself
from personal liability for assessments, nor any part thereof, levied by the Association, nor release
the Residential Unit owned by him or her from the liens and charges hereof by waiver of the use and
The Cliffs at Calavera Hills 26 9/8/98
enjoyment of the Association Property and facilities thereof, or by abandonment of such Owner's
Residential Unit.
6.19 TRANSFER OF PROPERTY. After transfer or sale of property within the Proj ect,
the selling Owner or Owners shall not be liable for any assessment levied on such Owner or Owner's
Residential Unit after the date of such transfer of ownership if written notice of such transfer is
delivered to the Association. The selling Owner shall still be responsible for all assessments and
charges levied on his or her property prior to any such transfer.
6.20 FAILURE TO FIX ASSESSMENTS. The omission by the Board to fix the
assessments hereunder before the expiration of any year, for that or the next year, shall not be
deemed either a waiver or modification in any respect of the provisions of this Declaration or a
release of the Owner from the obligation to pay the assessments or any installment thereof for that
or any subsequent year, but the assessment fixed for the preceding year shall continue until a new
assessment is fixed.
6.21 PROPERTY EXEMPT FROM ASSESSMENTS. The Association Property shall
be exempt from the assessments, charges and liens created herein.
6.22 INITIAL CAPITAL CONTRIBUTIONS. Upon acquisition of record title to a
Condominium from Declarant, such Owner shall contribute to the capital of the Association an
amount equal to one-sixth (1/6) the amount of the then annual Regular Assessment for the
Condominium in that Phase as determined by the Board. This amount shall be deposited by the
Owner into the purchase and sale escrow for his or her Condominium and disbursed therefrom to
the Association.
6.23 ASSESSMENTS LEVIED BY CITY. The City requires that in the event the City
performs maintenance of the Association Property as provided in Section 8.4.2 below, the City shall
be entitled to reimbursement for the actual costs incurred by the City in performing such
maintenance. The City shall submit a written invoice to the Association for all costs incurred by the
City to perform such maintenance of the Association Property. The City shall provide a copy of
such invoice to each Owner, together with a statement that if the Association fails to pay such
invoice in full within the time specified, the City will pursue collection against the Owners pursuant
to the provisions of this Section. The invoice shall be due and payable by the Association within
twenty (20) days of receipt by the Association. If the Association fails to pay the invoice in full
within twenty days of receipt, 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 ("City Assessment") against the Owners of each
Residential Unit for an equal pro rata share of the invoice, plus the late charge. The City Assessment
shall constitute a charge on the Property and shall be a continuing lien upon each Residential Unit
against which the City Assessment is levied. Each Owner hereby vests the City with the right and
The Cliffs at Calavera Hills 27 9/8/98
power to levy the City Assessment, to impose a lien upon their respective Residential Unit and to
bring all legal action, and to pursue lien foreclosure procedures against any Owner and his or her
respective Residential Unit for purposes of collecting the City Assessment in accordance with the
procedures set forth in Article 6 of this Declaration.
ARTICLE 7
USE RESTRICTIONS
7.1 RESIDENTIAL USE. Residential Units shall be used for residential purposes only;
provided, however, any Residential Unit may be used incidentally for the purpose of operating a
home based small business if, and only if, (a) the business is operated solely within the Residential
Unit, (b) the business is limited to arts and crafts, the rendition of professional services or other
similar activities, (c) the business is operated by the Owner of the Residential Unit whose principal
residence is the Residential Unit, by a tenant whose principal residence is the Residential Unit or
by a member of such Owner's or tenant's family whose principal residence is the Residential Unit,
(d) the operation of the business is permitted by, and is at all times in compliance with, all applicable
laws, and (e) the operation of the business does not result in (i) the violation of any of the other
provisions of this Declaration, (ii) any unreasonable increase in the flow of traffic within the
Property, or (iii) any odor, noise, or vibration outside of the Residential Unit, or (iv) parking
problems within the Project. No other use shall be allowed except as specifically permitted by local
ordinance; provided, however, Declarant may use any of the Residential Units owned by Declarant
as model homes and sales offices for the Project during that period of time commencing when the
Condominiums are first sold or offered for sale to the public and ending when (x) all the
Condominiums in all Phases of the Project are sold and conveyed by Declarant to separate owners
thereof, or (y) seven (7) years after the first close of escrow of a Condominium in the first Phase of
the Project, whichever shall first occur.
7.2 COMMERCIAL USE. Except as otherwise provided in this Declaration, including
without limitation Section 7.1 above, no part of the Project shall be used or caused, allowed, or
authorized to be used in any way, directly or indirectly, for any business, commercial,
manufacturing, mercantile, storing, vending, or other such non-residential purpose.
7.3 RENTAL OF CONDOMINIUMS. An Owner shall be entitled to rent the Owner's
entire Condominium (but not a portion thereof) subject to the restrictions contained in this
Declaration. Any lease agreement shall be in writing, shall provide that the lease is subject to this
Declaration, the Bylaws, Articles and the Association Rules and shall provide that any failure to
comply with any provision of this Declaration, the Bylaws, Articles or Association Rules shall be
a default under the terms of the rental or lease agreement. A copy of this Declaration shall be made
available to each tenant by the leasing Owner. The Owner shall, at all times, be responsible for his
or her tenant's compliance with all of the provisions of this Declaration and the other Project
Documents, including, without limitation, the Association Rules. A tenant shall have no obligation
to the Association to pay assessments imposed by the Association nor shall any tenant have any
The Cliffs at Calavera Hills 28 9/8/98
voting rights in the Association. No Owner may lease a Condominium situated thereon for hotel,
motel or transient purposes or any other purpose inconsistent with the provisions of this Declaration.
Any lease that is either for a period of fewer than thirty (30) days or pursuant to which the Owner
provides any services normally associated with a hotel shall be deemed to be for transient or hotel
purposes.
7.4 ANIMALS. Only domestic animals that are kept as household pets and are not kept,
bred or raised for commercial purposes are permitted to be maintained within the Project. Each
person bringing or keeping a pet within the Project shall be absolutely liable to other Owners and
their Invitees for any damage to persons or property caused by any pet brought upon or kept upon
the Project by such person or by members of his or her family, his or her guests or Invitees. Each
Owner shall clean up after his or her animals which have deposited droppings or otherwise used any
portion of the Project or public street abutting to or visible from the Project. Animals belonging to
Owners or Invitees of any Owner must be kept within an enclosure or, when outside of a Residential
Unit, on a leash held by a person capable of controlling the animal. The Association shall have the
right to promulgate Rules and Regulations relating to animals, and the right to restrict, under such
rules and regulations, any animals determined by the Board to constitute a nuisance.
7.5 INSIDE AND OUTSIDE INSTALLATIONS. No exterior addition, change or
alteration to the exterior of any Residence or any other portion of a Residential Unit or any other
Improvements, other than as may be constructed by Declarant as part of the initial construction of
the Project, shall be commenced or installed without the prior written approvals required under
Article 9 of this Declaration. Nothing in this section shall be deemed to prohibit the installation or
use of a solar energy system. The approval of the installation of such a system shall be governed by
Article 9 of this Declaration. In addition to the foregoing, all Improvements installed or constructed
by an Owner must be completed in accordance with applicable law, including, but not limited to, the
laws, regulations and ordinances of the City and County.
7.6 USE OF ASSOCIATION PROPERTY. Except as otherwise provided herein, the
Association Property shall be improved and used only for the following purposes: (a) affording
vehicular passage and pedestrian movement within the Property, including access to the Residential
Units; (b) beautification of the Association Property and providing privacy to the residents of the
Property through landscaping and such other means as the Board shall deem appropriate;
(c) providing facilities for recreational use, and (d) parking of automotive passenger vehicles in areas
provided therefor as may be designated and approved by the Board by such persons, upon such terms
and conditions and subject to the Association Rules as may from time to time be determined by the
Board.
7.7 BRUSH MANAGEMENT AREAS. Certain Residential Units within the Project
designated on Exhibit "C" are included within the Brush Management Areas, for which the City
has established certain guidelines and regulations with respect to the use and maintenance thereof
by the Owners. Each Owner whose Residential Unit is within a Brush Management Area shall be
The Cliffs at Calavera Hills 29 9/8/98
required to comply with the requirements set forth in Exhibit "C" and such guidelines or
regulations as may be adopted by the City from time to time.
7.8 ANTENNAE AND SATELLITE DISHES. No television or radio poles, antennae,
satellite dishes, or technological evolutions of the foregoing, or other external fixtures, other than
those originally installed by Declarant or approved in accordance with Article 9 of this Declaration,
shall be constructed, erected or maintained on or within the Project; provided, however, that the
foregoing restriction shall not be construed to limit the installation or use of video or television
antennas within the Project, including a satellite dish (collectively, "Antenna"), except as otherwise
prohibited or restricted by law, that is of a size and type consistent with the provisions of California
Civil Code Section 1376 and any successor statutes, so long as the following requirements are
satisfied: (a) the Owner has submitted an application and notice as provided in Article 9 of this
Declaration prior to the installation of the Antenna; and (b) the Owner has obtained approval for the
installation of the Antenna in accordance with Article 9 of this Declaration. The application for
approval of an Antenna shall be processed by the Board in the same manner as any other
architectural modification within the Project, subject to the requirements of California Civil Code
Section 1376. Notwithstanding the foregoing, the Board shall not impose or enforce any restrictions
on Antennas that are inconsistent with the provisions of 47 U.S.C. Section 207 or the regulations
promulgated thereunder, and any successor statutes or regulations. No wiring insulation, air-
conditioning, or other machinery or equipment other than that originally installed by Declarant or
approved in accordance with Article 9 of this Declaration shall be constructed, erected or maintained
on or within the Association Property, including any structures on it.
7.9 FENCES. ETC. No fences, awnings, ornamental screens, screen doors, sunshades
or walls of any nature shall be erected or maintained on or around any portion of any structure or
elsewhere within the Project except those that are installed in accordance with the original
construction of the Project or as are authorized and approved by the Board.
7.10 PARKING RESTRICTIONS. The Board shall have the right to promulgate rules and
regulations, to regulate and restrict parking within the Project, including restrictions on parking
within the driveways of the Residential Units. Each Owner shall comply with and shall be
responsible to ensure that Owner's Invitees comply with the restrictions of this Declaration and any
such rules and regulations. The first two vehicles owned by each Owner shall be parked within the
garage. An Owner's Invitees shall park only in areas designated by the Board for parking purposes.
Each Owner shall ensure that the Owner's Invitees do not park vehicles greater than sixteen feet in
length hi (a) any driveway designed for compact parking or (b) in any parking spaces designed for
compact parking.
7.11 GARAGES. The garages shall be used for parking automobiles only and shall not
be converted for living, recreational or any other use that would preclude use for parking. Within
the garage, an area constituting twenty feet by twenty feet shall remain clear of storage material and
be available for parking automobiles. Doors to garages shall be kept closed except during the
The Cliffs at Calavera Hills 30 9/8/98
removal or entry of vehicles into and out of the garages. As used herein, the term "garages" shall
refer to the garages that are part of the Residential Units as shown on the Condominium Plan.
7.12 PAINTING. No Owner shall paint the exterior of the Owner's Residence or any other
exterior improvements within a Residential Unit without the prior approval of the Board, except that
no consent shall be required if an Owner repaints the exterior with the same color.
7.13 BASKETBALL STANDARDS. No basketball standards or fixed sports apparatus
shall be attached to any Residence.
7.14 OIL DRILLING. No oil drilling, oil operations, oil refining, quarrying, or mining
operations of any kind shall be permitted on or in the Project, and no oil wells, tanks, tunnels or
mineral excavations or shafts shall be permitted on the surface of the Project or within five hundred
(500) feet below the surface of the Project. No derrick or other structure designed for use in boring
for water, oil or natural gas shall be erected, maintained or permitted within the Project.
7.15 MINERAL EXPLORATION. No Property within the Project shall be used in any
manner to explore for or to remove any water, oil or other hydrocarbons, minerals of any kind,
gravel, earth or any earth substance or other mineral of any kind. No well for the production of, or
from which there is produced, water, oil or gas shall be operated within the Project, nor shall any
machinery, appliance or structure be placed, operated or maintained thereon for use in connection
with any trading, manufacturing or repairing business. No slant drilling shall be permitted.
7.16 OFFENSIVE CONDUCT. NUISANCES. No noxious or offensive activities,
including without limitation, repair of automobiles or other motorized vehicles, shall be conducted
within the Project. Nothing shall be done on or within the Project that may be or may become an
annoyance or nuisance to the residents of the Project, or that in any way may interfere with the quiet
enjoyment of occupants of Residential Units.
7.17 SIGNS. Unless otherwise specifically allowed by law, no signs or other advertising
device whatsoever, including without limitation, commercial, political and similar signs, shall be
erected or maintained within the Project except (a) such signs as may be required by legal
proceedings; (b) residential identification signs, subject to the approval of the Board as to suitability;
(c) job identification signs during the time of construction of any portion of the Project by Declarant;
(d) signs used by Declarant for the purpose of developing, improving and selling Condominiums;
and (e) not more than one "for sale" or "for rent" sign per Residential Unit of reasonable dimensions,
pursuant to the Association Rules or as may be approved by the Board, except that no signs shall be
permitted to be posted on any garage doors.
7.18 RESTRICTED USE OF RECREATION VEHICLES. ETC. No boat, truck, trailer,
camper, motor home, recreational vehicle or tent shall be used as a living area while located within
the Project. However, trailers or temporary structures for use incidental to the initial construction
The Cliffs at Calavera Hills 31 9/8/98
of the Project or the initial sales of Condominiums may be maintained by Declarant within the
Project, but shall be promptly removed on completion of all construction and sales.
7.19 TRAILERS. BOATS AND MOTOR VEHICLES AND REPAIR OF VEHICLES.
No boat, golf cart, mobile home, recreational vehicle, commercial vehicle, recreational motor home,
trailer of any kind, truck camper larger than a one (1) ton pick-up truck or that has a mounted camper
shell which protrudes from the truck from either side or from beyond the rear gate or above the cab
ceiling shall be kept, placed, maintained, or parked in any portion of the Project except inside a
garage; provided, however, that the provisions of this Section shall not apply to (a) emergency
vehicle repairs, (b) commercial deliveries, (c) temporary construction shelters or facilities maintained
during, and used exclusively in connection with, the construction of any work or improvement
approved by the Board or work by Declarant relating to the construction or sale of Residences, or
(d) the loading and unloading of such vehicles and the temporary parking of such vehicles for
purposes of loading and unloading so long as such vehicles are not parked on a regular basis and are
not parked for a period of time exceeding eighteen (18) hours at any one (1) time. No dismantled
or wrecked vehicles or equipment shall be kept, placed, maintained or parked within the Project and
no vehicle shall be repaired within the Project.
7.20 OUTSIDE DRYING AND LAUNDERING. No exterior clothesline shall be erected
or maintained within the Project and there shall be no exterior drying or laundering of clothes outside
of the Residence.
7.21 COMPLIANCE WITH LAWS. ETC. Nothing shall be done or kept in any
Residential Unit or in the Association Property that might increase the rate of, or cause the
cancellation of, insurance for the Project, or any portion of the Project. No Owner shall permit
anything to be done or kept in his or her Residence that violates any law, ordinance, statute, rule or
regulation of any local, county, state or federal body, including any laws, ordinances or statutes
pertaining to the use or storage of any hazardous, contaminated or toxic materials.
7.22 LANDSCAPING. Each Owner shall landscape the exterior of the Residential Unit
(other than the Front Yard Maintenance Area, which shall be installed by Declarant and is the
obligation of the Association to maintain) within six (6) months of the conveyance of the Residence
to the Owner. No alterations shall be made to the landscaping within any Front Yard Maintenance
Area except by the Association or by an Owner if authorized in writing by the Board. Landscaping
within those Residential Units included within the Brush Management Area shall comply with the
requirements set forth in Exhibit "C" and such guidelines or regulations as may be adopted by the
City from time to time. No trees, shrubs, or flammable structures shall be located within the rear
yards of Lots 3-11, 14 and 15.
7.23 WINDOW COVERINGS. Temporary window coverings ("Temporary Window
Coverings") in a design and color that does not conflict with the surrounding Improvements (and
excluding aluminum foil, newspapers, or any other contrasting material) shall be permitted for a
maximum period of sixty (60) days from the date that a Condominium is conveyed to an Owner by
The Cliffs at Calavera Hills 32 9/8/98
Declarant. Except as specifically provided above, no Temporary Window Coverings shall be used
to cover any door or window of any Residence. All window coverings (including Temporary
Window Coverings) shall be of a neutral color harmonious with and not in conflict with the color
scheme of the exterior wall surface of the Residence.
7.24 YARD USE AREA EASEMENTS.
7.24.1 Non-Exclusive Easement. Certain Owners shall have the right to use
portions of other Residential Units as part of their yard. There is hereby reserved and granted over
each Residential Unit containing a Yard Use Area as shown on the Condominium Plan in favor of
the present and future Owners of the adjacent Residential Unit ("Benefitted Owner") an easement
for use and enjoyment of the Yard Use Area as part of the Benefitted Owner's yard. The Benefited
Owner shall maintain the Yard Use Area and shall repair, at the Benefitted Owner's sole cost and
expense, any damage caused by the Benefited Owner as a result of such use and enjoyment. The
Benefitted Owner shall not construct, install, repair, replace or remove any Improvements within the
Yard Use Area that are attached or affixed to the Residence of the Owner of the Residential Unit
containing the Yard Use Area ("Burdened Owner"). The Benefitted Owner and Benefitted Owner's
Invitees shall not cause any balls or other equipment to be placed or bounced against the Residence
of the Burdened Owner. Any landscaping or other Improvements that are installed within the Yard
Use Area shall be of a type and shall be so located and installed that they do not damage the
Residence or any other Improvements of the Burdened Owner or unreasonably interfere with the
right of access of the Burdened Owner herein reserved. No concrete or any other Improvements that
may impair the structural integrity of the Residence of the Burdened Owner shall be installed within
the Yard Use Area.
7.24.2 Burdened Owner's Access. The Burdened Owner shall have the right to
access on, over, under, along and across the Yard Use Area for the purpose of maintaining the
exterior of the Burdened Owner's Residence, repairing, repainting and replacing such Residence, and
maintaining any overhangs and eaves that may extend or encroach onto the Yard Use Area. The
right of access shall be exercised in a reasonable manner only. Except for emergency repairs, the
Burdened Owner shall give at least twenty-four (24) hours prior notice to the Benefitted Owner, shall
enter the Yard Use Area only at reasonable times, and, to the extent practicable, shall not interfere
with, restrict, disturb or hinder the full enjoyment by the Benefitted Owner of the Yard Use Area.
The Burdened Owner shall repair, at the Burdened Owner's sole cost and expense, any damage
caused by the Burdened Owner as a result of such entry. The Benefitted Owner shall exercise
reasonable care, including but not limited to the control of pets, in assisting the Burdened Owner and
the Burdened Owner's agents and employees, in entering onto the Yard Use Area for the purpose of
performing such maintenance. The Burdened Owner shall not construct, install, repair, replace or
remove any Improvements within the Yard Use Area.
The Cliffs at Calavera Hills 33 9/8/98
7.25 OWNER MAINTENANCE AREA EASEMENTS.
7.25.1 Non-Exclusive Easement. Certain Owners have easements over other
Residential Units and Association Property for maintenance of their Residences. There is hereby
reserved and granted over that certain Residential Unit and the Association Property containing an
Owner Maintenance Area as shown on the Condominium Plan in favor of the present and future
Owners of those Residences that are situated on the boundaries of such Residential Unit or
Association Property ("Benefitted Owner") an easement for access on, over, under, along, and across
the Owner Maintenance Area for the purpose of maintaining the exterior of the Benefitted Owner's
Residence and maintaining any overhangs and eaves that may extend or encroach onto the adjacent
Residential Unit or Association Property. The right of Access shall be exercised in a reasonable
manner only. Except for emergency repairs, the Benefitted Owner shall give at least twenty-four
(24) hours prior notice to the Association or the Owner of the Residential Unit over which the
easement has been reserved ("Burdened Owner"), shall enter the Owner Maintenance Area only at
reasonable times, and, to the extent practicable, shall not interfere with, restrict, disturb or hinder the
full enjoyment by the Burdened Owner of his or her Residential Unit or by the Association and other
Owners or residents of the Association Property. The Benefitted Owner shall repair, at the
Benefitted Owner's sole cost and expense, any damage caused by the Benefitted Owner as a result
of such entry. The Association and the Burdened Owner shall exercise reasonable care, including
but not limited to the control of pets, in assisting the Benefitted Owner and the Benefitted Owner's
agents and employees, in entering onto the Owner Maintenance Area for the purpose of performing
such maintenance.
7.25.2 Use of Owner Maintenance Area. The Burdened Owner and the Association
shall not construct, install, repair, replace or remove any Improvements within the Owner
Maintenance Area that are attached or affixed to the Residence of the Benefitted Owner. The
Burdened Owner and Owner's Invitees and the Association and the other Owners and residents of
the Project shall not cause any balls or other equipment to be placed or bounced against the
Residence of the Benefitted Owner. Any landscaping or other Improvements that are installed
within the Owner Maintenance Area shall be of a type and shall be so located and installed that they
do not damage the Residence or any other Improvements of the Benefitted Owner or unreasonably
interfere with the right of access herein reserved. No concrete or any other Improvements that may
impair the structural integrity of the Residence of the Benefitted Owner shall be installed within the
Owner Maintenance Area.
7.26 SHARED DRIVEWAY AREA EASEMENTS. Each Owner of a Residential Unit
with a Shared Driveway Area shall have a reciprocal easement over the Shared Driveway Area.
Each Owner shall maintain his or her portion of the Shared Driveway Area that is located on the
Owner's Residential Unit. Each Owner shall be prohibited from parking any vehicle in the Shared
Driveway Area and shall keep the Shared Driveway Area free from any obstructions that may
impede vehicular access over the Shared Driveway Area.
The Cliffs at Calavera Hills 34 9/8/98
7.27 EXTERIOR LIGHTING. Any exterior electrical, gas or other artificial lighting
installed on any Residential Unit shall be positioned, screened, or otherwise directed or situated and
of such controlled focus and intensity so as not to unreasonably disturb the residents of any other
Residential Unit(s). Further rules and regulations regarding exterior lighting may be promulgated
by the Board.
7.28 DRAINAGE. There shall be no interference with the established drainage pattern
over the Property, unless an adequate alternative provision is made for proper drainage with the prior
written approval of the Board. For the purpose hereof, "established" drainage in any Phase is defined
as the drainage that exists at the time of the first close of escrow for the sale of a Condominium in
such Phase, or that is shown on any plans approved by the Board, or any Public Storm Drain
Improvements. Subject to the rights of the City to maintain the Public Storm Drain Improvements
as provided in this Declaration, each Owner shall have the duty and obligation to maintain the
drainage situated within any Residential Unit free of debris and any other material that may impede
the flow of water, including, without limitation, removing any debris or other obstructions which
prevent drainage through the Public Storm Drain Improvements. If an Owner fails to maintain such
drainage and, as a result, imminent danger to person or property may result to the other Owners, then
the Association shall have the right of access onto the Residential Unit for the purpose of clearing
debris and other material so as to not impede the flow of water. This right of access shall be
exercised only for the purpose of preventing damage to persons and property and the entering party
shall use reasonable care so as to not cause any damage to the Residential Unit. The Owner shall
reimburse the Association for any costs and expenses incurred in clearing such debris pursuant to
Section 4.3.5 of this Declaration.
7.29 RESTRICTIONS ON THE REAR AND SIDE YARDS. Each Owner, bv acceptance
of a deed, acknowledges that the Public Storm Drain Improvements in the locations shown on the
Condominium Plan may be located in the rear or side yard portions of a Residential Unit. No trees,
shrubs or bushes whose roots may invade or penetrate the Public Storm Drain Improvements shall
be planted within the rear or side yard portions of a Residential Unit. No hardscaping (i.e., spas,
patios, etc.) that would prevent the City from having access to the Public Storm Drain Improvements
shall be constructed or placed over or adjacent to the Public Storm Drain Improvements.
Additionally, each Owner acknowledges that the City shall have the right to disrupt and excavate
portions of the Residential Unit to the extent necessary (and only to the extent necessary) to repair
or maintain the Public Storm Drain Improvements as provided under Section 8.8 of this Declaration.
7.30 INDEMNIFICATION. Each Owner shall be liable to the remaining Owners for any
damage to the Association Property or to any other Residential Unit that may be sustained by reason
of the negligence or wilful misconduct of that Owner or the Owner's Invitees, but only to the extent
that any such damage is not covered by insurance proceeds received by the Association. Each
Owner, by acceptance of his or her deed, agrees for such Owner and for the Owner's Invitees, to
indemnify each and every other Owner, and to hold each Owner harmless from, and to defend such
Owner against, any claim of any person for personal injury or property damage caused by the
negligence or wilful misconduct of such Owner, unless the injury or damage occurred by reason of
The Cliffs at Calavera Hills 35 9/8/98
the negligence or willful misconduct of any other Owner or the Association or is fully covered by
insurance carried by the Association. Upon demand by the Association, each Owner shall be
responsible for the payment of any deductible amount payable under the Association's insurance
policy as a result of any claims arising as a result of the negligence or willful misconduct of such
Owner or the Owner's Invitees.
7.31 SIGHT DISTANCE CORRIDORS. No structures, fences, walls, trees, shrubs,
bushes, signs or other objects over thirty 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 standards
and requirements, including without limitation, City Standard Public Street Design Criteria, Section
8.B.3. The underlying property owner shall maintain this condition.
ARTICLE 8
MAINTENANCE OBLIGATIONS
8.1 MAINTENANCE OF RESIDENTIAL UNITS. Each Owner acknowledges that
although the Owner owns fee title to a Condominium, the Owner is responsible for the care and
maintenance of his or her Residential Unit, including all structural and non-structural components,
and the Association shall have no obligation to maintain any portion of the Residential Unit, except
as specifically set forth in this Declaration. Subject to the provisions of the Project Documents, each
Owner shall maintain, repair and replace in a first class condition all portions of such Owner's
Residential Unit, including without limitation, the Residence and all portions thereof and any yard
and patio areas within the Residential Unit, the driveway and the driveways, pathways and other
hardscaping within the Front Yard Maintenance Area. Each Owner shall also maintain any and all
gas, plumbing, electrical, air conditioning, heating, telephone, any solar and other water heating
equipment, and cable television servicing his or her Residential Unit and irrigation systems and
drainage located within any Residential Unit, including any concrete terrace drain located within the
Residential Unit, except that the Owner shall not be responsible to maintain the landscaping or
irrigation within the Front Yard Maintenance Areas, which shall be maintained by the Association,
and the Public Storm Drain Improvements, which shall be maintained by the City. All
Improvements shall be maintained by each Owner in a manner as shall be deemed necessary in the
judgment of the Board to preserve the attractive appearance thereof and protect the overall value of
the Project. Any such maintenance, repair or replacement of any of the foregoing that is visible from
outside of a Residential Unit shall be consistent with the existing design, aesthetics and architecture
of the Project and shall be approved in accordance with Article 9 of this Declaration.
8.2 MAINTENANCE OF FENCES AND WALLS. There are various types of fencing
and walls situated within the Project, each of which shall be maintained, repaired and replaced in
accordance with the requirements set forth below.
8.2.1 Residential Unit Perimeter Fence. As used in this Declaration, the term
"Residential Unit Perimeter Fence" shall mean any fencing or wall bordering the boundaries of the
The Cliffs at Calavera Hills 36 9/8/98
Residential Unit that separates the Residential Unit from (i) Association Property, or (ii) any areas
bordering the Project. Owners of all other Residential Units shall maintain the interior of the
Residential Unit Perimeter Fence, and the Association shall maintain the exterior and repair and
replace all portions of the Residential Unit Perimeter Fence.
8.2.2 Side Yard Return Fencing. As used in this Declaration, the term "Side Yard
Return Fencing" shall mean the fencing or wall bordering the Front Yard Maintenance Area. Each
Owner shall maintain both sides of the Side Yard Return Fencing. Each Owner shall also repair and
replace, as may be necessary, such Side Yard Return Fencing with fencing approved by the Board.
The Association shall paint the side of the Side Yard Return Fencing that borders the Front Yard
Maintenance Areas.
8.2.3 Interior Fencing Between Two Residential Units. For any fencing that
separates two (2) Residential Units, each Owner shall maintain the interior of the fencing and the
Owners shall share, on an equitable basis, the cost of replacing such fencing. The Owner of each
affected portion of the property upon which a party wall or fencing is located shall have a reciprocal
non-exclusive easement to the property immediately adjacent to the party wall or fencing or wall for
the limited purpose of maintaining the party wall or fencing.
8.2.4 Fencing Between Residential Units and Association Property. If any interior
fencing separates a Residential Unit from Association Property, the Owner and the Association shall
each maintain the interior portion of the fencing facing the Owner's Residential Unit and the
Association Property respectively. The Association shall repair and replace all portions of the
interior fencing.
8.2.5 Fencing or Walls Within the Association Property. The Association shall
maintain, repair and replace all fencing and walls situated within any Association Property that do
not border a Residential Unit.
8.2.6 Retaining Walls. The Owner of each Residential Unit that contains a
retaining wall, as shown on the Condominium Plan, shall maintain, repair and replace such retaining
wall.
8.2.7 Liability for Damage. Notwithstanding any other provision of this Section,
an Owner who by his or her negligent or willful act causes a wall or fence within the Project to be
damaged shall bear the whole cost of repairing such damage.
8.3 FAILURE TO MAINTAIN. In the event an Owner fails to maintain the areas and
items as provided above or make repairs thereto in such manner as shall be deemed necessary in the
judgment of the Board to preserve the attractive appearance thereof and protect the value thereof,
the Board may, but shall not be required to, give written notice to such Owner, stating with
particularity the work of maintenance or repair that the Board finds to be required and requesting that
the work be carried out within a period of thirty (30) days from the giving of such notice. In the
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event the Owner fails to carry out such maintenance or repair within the period specified by the
notice, the Board shall cause such work to be completed and shall assess the cost thereof to such
Owner as an Enforcement Assessment in accordance with the procedures set forth in this
Declaration.
8.4 MAINTENANCE OBLIGATIONS OF ASSOCIATION.
8.4.1 Maintenance of Association Property. The Association shall maintain,
repair, replace and otherwise care for all Association Property, all concrete terrace drains located on
Association Property and the landscaping and irrigation within the Front Yard Maintenance Areas,
and shall perform all obligations required to be performed by the Association under this Declaration.
The Association shall provide for all necessary services and cause all acts to be done that may be
necessary or proper to assure the maintenance of such Association Property in a first class condition,
including, without limitation the repair and maintenance of the recreational facilities situated within
the Association Property and landscaping within the Association Property.
8.4.2 Failure of Association to Maintain Association Property. In the event that
the Association fails to maintain the Association Property as provided in Section 8.4.1 above, the
City will be entitled to give written notice to the Association; setting forth with particularity the
maintenance or repair that the City finds to be required and requesting the work be completed by the
Association within a period of thirty (30) days from the giving of such notice. In the event that the
Association fails to carry out such maintenance or repair within the period specified by the City's
notice, the City will be entitled to cause the work to be completed and will be entitled to
reimbursement with respect thereto from the Association and the Owners as provided in Section 6.23
above.
8.4.3 Maintenance of Brush Management Areas. The Association shall maintain
the Brush Management Areas situated within the Association Property in a good condition of
maintenance and repair in accordance with the requirements of the City, including such guidelines
or regulations as may be adopted by the City from time to time.
8.4.4 Front Yard Maintenance Area. The Association shall maintain the Front
Yard Maintenance Area in a good condition of maintenance and repair.
8.4.5 Open Space Easement Area. The Association shall maintain the Open Space
Easement Area in a good condition of maintenance and repair.
8.4.6 Private Easements and Streets. The Association shall maintain all private
easements, Private Streets, and Private Storm Drain Improvements in a good condition of
maintenance and repair.
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8.5 LIABILITY FOR DAMAGE. Notwithstanding any other provision of this Section,
an Owner who by his or her negligent or willful act causes damage to any portions of the Project
maintained by the Association or another Owner shall bear the whole cost of repairing such damage.
8.6 FUTURE CONSTRUCTION. Nothing in this Declaration shall limit the right of
Declarant to complete construction of Improvements to the Association Property and construction
of Residential Units owned by Declarant or to alter the Improvements and the Residential Units or
to construct additional Improvements as Declarant deems advisable before completion and sale of
the entire Project.
8.7 LANDSCAPING. IRRIGATION AND DRAINAGE MAINTENANCE AND
INSPECTIONS. The Association shall regularly inspect, maintain and repair the landscaping,
drainage and irrigation systems serving or within the Association Property and Front Yard
Maintenance Areas. The Association shall also inspect for any misaligned sprinklers or blocked
drainage systems that could cause water damage to the Project. The Association shall employ the
services of a professional landscape architect, maintenance contractor or other such professional
person to assist the Association in performing its duties hereunder. In the event the Declarant
provides any maintenance manuals to the Association, the Association shall comply with the
requirements of the maintenance manuals. The Board shall, from time to time, make appropriate
revisions to any maintenance manuals based on the Board's review thereof on at least an annual
basis. The inspections required to be conducted by the Board under this Section 8.9 shall take place
at least annually. The inspectors shall provide written reports of their inspections to the Association
and, if requested by the Declarant, to the Declarant promptly following completion thereof. The
written reports shall identify any items of maintenance or repair that either require current action by
the Association or need further review and analysis. Such written reports shall specifically include
a review of all irrigation and drainage systems in the Project. The Board shall report the contents
of such written reports to Declarant (if so requested by Declarant) and to the Members of the
Association at the next meeting of the Members following receipt of such written reports or as soon
thereafter as reasonably practicable and shall include such written reports in the minutes of the
Association. The Board shall promptly cause all matters identified as requiring attention to be
maintained, repaired, or otherwise pursued in accordance with prudent business practices and the
recommendations of the inspectors and shall keep a record of all such matters in the Board's minutes.
Any damage to any structure, landscaping or other improvements caused by the Association, or any
of its officers, agents, employees or independent contractors, while performing such maintenance,
repair or replacement work shall be repaired by the Association at its sole cost and expense.
8.8 MAINTENANCE OBLIGATIONS OF CITY. The City shall maintain, repair,
replace and otherwise care for the Public Storm Drain Improvement.
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ARTICLE 9
ARCHITECTURAL REVIEW
9.1 SCOPE. No Improvements of any kind whatsoever shall be commenced, erected,
placed or altered upon or around any Residential Unit until the location and the complete plans and
specifications showing the nature, kind, shape, height and materials, including the color ("Plans and
Specifications") have been submitted to and approved in writing as to harmony of external design
and location to surrounding structures and topography by the Board. In addition, the grade, level
or drainage characteristics of the Residential Unit or any portion thereof shall not be altered without
the prior written consent of the Board.
9.2 ARCHITECTURAL GUIDELINES. The Board or, if appointed, Architectural
Committee may, from time to time and in its sole discretion, adopt, amend and repeal, by unanimous
vote, rules and regulations to be known as "Architectural Guidelines." The Architectural Guidelines
shall interpret and implement the provisions hereof by setting forth the standards and procedures for
architectural review and guidelines for architectural design of Improvements, placement of
Improvements, color schemes, exterior finishes and materials and similar features that are
recommended for use in the Project; provided, however, that the Architectural Guidelines shall not
detract from or conflict with the standards required by this Declaration.
9.3 APPROVAL OF PLANS AND SPECIFICATIONS.
9.3.1 Preliminary Approval. Any Owner proposing to construct Improvements
or take other actions requiring the prior approval of the Board pursuant to this Declaration shall first
apply to the Board for preliminary approval by submission of Preliminary Plans and Specifications
in accordance with the Architectural Guidelines, if any. The purpose of the preliminary approval
procedure is to allow an Owner proposing to construct Improvements an opportunity to obtain
guidance concerning design considerations before expending substantial sums for plans and other
exhibits required to apply for final approval. Applications for preliminary approval shall be
considered and disposed of as set forth below.
(a) Time Periods for Review. Within thirty (30) days after proper
application for preliminary approval, the Board shall consider and act upon such request. The Board
shall grant such approval only if the proposed Improvements, to the extent their nature and
characteristics are shown by the application, would be entitled to a final approval on the basis of a
full and complete application. In the event the Board fails to approve or disapprove any such
preliminary Plans and Specifications within thirty (30) days after all documents and information
requested by the Board have been received by it, the Owner requesting said approval may submit
a written notice to the Board advising the same of its failure to act. If the Board fails to approve or
disapprove any such preliminary Plans and Specifications within fifteen (15) days after the receipt
of said notice from such Owner, the preliminary Plans and Specifications shall be deemed approved,
provided that the proposed Improvements conform to all conditions and restrictions contained in this
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Article and are in harmony with similar structures erected within the Project. In granting or denying
approval, the Board may give the applicant such directions concerning the form and substance of the
final application for approval as it may deem proper or desirable for the guidance of the applicant.
The giving of any preliminary approval shall not affect the right of the Board to deny approval of
any final Plans and Specifications that are not in substantial conformance with the approved
preliminary Plans and Specifications.
(b) Effectiveness of Approval. Any preliminary approval granted by
the Board as provided above shall be effective for a period of ninety (90) days from the date of the
issuance thereof. In no event shall any preliminary approval be deemed to be an approval
authorizing construction of the proposed Improvements.
9.3.2 Final Approval. During the ninety (90) day preliminary approval period
described above, any application for final approval that consists of proposed Improvements in
accordance with the provisions of the preliminary approval, and is otherwise acceptable under the
terms of this Declaration and the Architectural Guidelines, shall be approved by the Board as set
forth below.
o
(a) Time Periods For Review. Within thirty (30) days after proper
application for final approval, the Board shall consider and act upon such application. In the event
the Board fails to approve or disapprove any such final plans within thirty (30) days after all
documents and information requested by the Board have been received by it, the Owner requesting
approval may submit a written notice to the Board advising the same of its failure to act. If the
Board fails to approve or disapprove any such final plans within thirty (30) days after the receipt of
the written notice from the Owner, the final plans shall be deemed approved, provided that the
proposed Improvements conform to all conditions and restrictions contained in this Article and are
in harmony with similar structures erected within the Project.
9.3.3 Approval of Solar Energy Systems. Any Owner proposing to install or use
a solar energy system, as defined in Civil Code Section 801.5, shall be subject to the same review
and approval process as any owner proposing to construct any Improvements or other actions
requiring the approval of the Board pursuant to this Declaration. However, only reasonable
restrictions on the installation and use of a solar energy system shall be permitted. Reasonable
restrictions on a solar energy system are those restrictions that do not significantly increase the cost
of the system or significantly affect its sufficiency or specified performance, or which allow for an
alternative system of comparable costs, efficiency, and energy conservation benefits.
9.4 INSPECTION AND CORRECTION OF WORK. Inspection of work and correction
of defects therein shall proceed as follows:
9.4.1 Right of Inspection During Course of Construction. The Board or its duly
authorized representative may enter into any Residential Unit, from time to time, as provided below
during the course of construction or installation of any Improvements for the purpose of inspecting
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such construction and/or installation. If the Board determines that the construction or installation
is not being done in substantial compliance with the approved Plans and Specifications, it shall
notify the Owner of the Residential Unit of such noncompliance. The Board may not enter into a
Residential Unit without obtaining the prior permission of the Owner or occupant of such Residential
Unit; provided, however, that such approval shall not be unreasonably withheld and shall be given
for entry by the Board during the daylight hours within forty-eight (48) hours of the request for
entry.
9.4.2 Notice of Completion. Upon the completion of any construction or
reconstruction or the alteration or refinishing of any Improvements, or upon the completion of any
other work for which approved Plans and Specifications are required under this Article, the Owner
shall give written notice of completion thereof to the Board.
9.4.3 Inspection. Within thirty (30) days after receiving notice of completion, the
Board, or its duly authorized representative, shall have the right to enter into a Residential Unit, as
provided in Section 9.4.1 above, to inspect such Improvements to determine whether they were
constructed or installed to substantial compliance with the approved Plans and Specifications. If the
Board finds that such construction or installation was not done in substantial compliance with the
approved Plans and Specifications, it shall notify the Owner in writing of such non-compliance
within such thirty (30) day period, specifying particulars of non-compliance, and shall require the
Owner to remedy such non-compliance.
9.4.4 Non-Compliance. If, upon the expiration of thirty (30) days from the date
of such notification, the Owner has failed to remedy the non-compliance, the Board shall notify the
Owner in writing of such failure. After affording the Owner Notice and Hearing, the Board shall
determine whether there is a non-compliance, and if so, the nature thereof and the estimated cost of
correcting or removing the same. If a non-compliance exists, the Board shall require the Owner to
remedy or remove the same within a period of not more than thirty (30) days from the date of the
Board ruling. If the Owner does not comply with the Board ruling within such period or within any
extension of such period as the Board, in its discretion, may grant, the Board, at its option, may
either remove the non-complying Improvement or remedy the non-compliance and the Owner shall
reimburse the Association for all expenses incurred in connection therewith upon demand. If such
expenses are not promptly repaid by the Owner to the Association, the Board shall levy an
Enforcement Assessment against the Owner for reimbursement.
9.4.5 Failure to Notify. If for any reason the Board fails to notify the Owner of
any non-compliance within sixty (60) days after receipt of the notice of completion from the Owner,
the Improvement shall be deemed to be in accordance with the approved Plans and Specifications.
9.4.6 Government Regulations. In the event there is any conflict between the
requirements or actions of the Board and the mandatory regulations or ordinances of any
governmental entity relating to the Property, the government regulations or ordinances, to the extent
that the regulations or ordinances are more restrictive, shall control and the Board shall modify its
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requirements or actions to conform to the ordinances or government regulations or ordinances;
provided, however, that if the governmental regulations or ordinances are less restrictive, the
provisions of this Declaration shall nonetheless apply. The application by an Owner for review and
approval by the Board of any Plans and Specifications or other submittals by such Owner shall in
no way be deemed to be satisfaction of or compliance with any applicable law, governmental
regulation or ordinance, or public utility requirement (hereinafter collectively referred to as
"Additional Requirements"); provided, however, if the Additional Requirements are less restrictive
than the provisions of this Declaration, the provisions of this Declaration shall nonetheless apply.
9.5 APPOINTMENT OF ARCHITECTURAL COMMITTEE. The Board shall have the
right to delegate its review and approval rights to an Architectural Committee. If the Board so elects,
the Architectural Committee shall consist of three (3) members. One (1) alternate member may be
designated by the Board to act as a substitute on the Architectural Committee in the event of absence
or disability of any member. In the event the Board appoints an Architectural Committee, all rights
hereunder shall apply to the Architectural Committee and all references to the Board shall be deemed
to refer to the Architectural Committee.
9.6 DILIGENCE IN CONSTRUCTION. Upon approval by the Board of any Plans and
Specifications, the Owner shall promptly commence construction and diligently pursue the same to
completion.
9.7 FEE FOR REVIEW. The Board shall have the right to establish a fee for the review
and approval of Plans and Specifications that must be submitted to the Board pursuant to the
provisions of this Article. The Board shall have the right to hire any engineer or other consultant
the opinion of which the Board deems necessary in connection with its review of any plans
submitted by any Owner the Owner shall be liable for payment of the engineer's or consultant's fee.
9.8 APPLICABILITY TO ARCHITECTURAL COMMITTEE. In the event the Board
appoints an Architectural Committee, all rights hereunder shall apply to the Architectural
Committee.
9.9 COMPENSATION. The members of any Architectural Committee approved by the
Board shall receive no compensation for services rendered, other than reimbursement by the
Association for expenses incurred by them in the performance of their duties hereunder, unless the
Association retains a professional architect, engineer or designer as a member of the Architectural
Committee for the purpose of providing professional services, in which event reasonable
compensation for such member may be approved by the Board.
9.10 INTERPRETATION AND APPEAL. All questions of interpretation or construction
of any of the terms or conditions herein shall be resolved by the Board and its decision shall be final,
binding and conclusive on all of the parties affected. Notwithstanding the foregoing, in the event
an Architectural Committee is appointed and the Architectural Committee disapproves any Plans
and Specifications submitted by an Owner pursuant to this Article, the party or parties making such
The Cliffs at Calavera Hills 43 9/8/98
submission may appeal in writing to the Board. The Board must receive the written request not more
than thirty (30) days following the final decision of the Architectural Committee. Within thirty (30)
days following receipt of the written request for appeal, the Board shall render its written decision.
The failure of the Board to render a decision within the thirty (30) day period shall be deemed a
decision against the appellant.
9.11 WAIVER. The approval by the Board of any Plans and Specifications for any work
done or proposed or for any other matter requiring the approval of the Board under this Declaration
shall not be deemed to constitute a waiver of any right to withhold approval of any similar Plans and
Specifications subsequently submitted for approval.
9.12 ESTOPPEL CERTIFICATE. Within thirty (30) days after written demand is
delivered to the Board by any Owner, and upon payment to the Association of a reasonable fee (as
fixed from time to time by the Association), the Board shall record an estoppel certificate, executed
by a majority of its members, certifying (with respect to any Residential Unit of the Owner) that as
of the date thereof, either: (a) all Improvements made and other work completed by the Owner
comply with this Declaration, or (b) such Improvements or work do not so comply, in which event
the certificate shall also identify the non-complying Improvements or work and set forth with
particularity the basis of such non-compliance. Any purchaser from the Owner or from anyone
deriving any interest in said Residential Unit through the Owner shall be entitled to rely on the
certificate with respect to the matters therein set forth, such matters being conclusive as between the
Association, Declarant and all Owners and such persons deriving any interest through them.
9.13 LIABILITY. Neither the Board or, if appointed, any Architectural Committee nor
any member thereof shall be liable to the Association or to any Owner for any damage, loss or
prejudice suffered or claimed on account of (a) the approval or disapproval of any Plans and
Specifications, whether or not defective; (b) the construction or performance of any work, whether
or not pursuant to approved Plans and Specifications; or (c) the execution and filing of an estoppel
certificate pursuant to Section 9.12, whether or not the facts therein are correct, provided, however,
that the member has acted in good faith on the basis of such information as may be possessed by him
or her. Without in any way limiting the generality of the foregoing, the Board or, if appointed, the
Architectural Committee, or any member thereof, may, but is not required to, consult with or hear
the views of the Association or any Owner with respect to any Plans Specifications or any other
proposal submitted to the Board or, if appointed, the Architectural Committee.
9.14 NON-APPLICABILITY TO DECLARANT. The provisions of this Article shall not
apply to any Improvements installed by the Declarant and the Board shall not have any rights of
review or approval with respect thereto.
9.15 AMENDMENTS. Notwithstanding the Article hereof entitled "Amendments," no
amendment, verification or rescission of this Article may be made, nor shall Declarant, or any
successor thereof, be prohibited from completing the construction of the Project prior to the
conveyance by Declarant, or its successor, of the last Residential Unit in the Project without the
The Cliffs at Calavera Hills 44 9/8/98
(i) written consent of Declarant, and the (ii) recording of such consent in the Office of the County
Recorder. Such written consent shall not be required after the conveyance by Declarant (or its
successors) of all the Residential Units.
9.16 VARIANCES. The Board 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 Improvements or other similar restrictions, when circumstances such
as topography, natural obstructions, aesthetic or environmental considerations may require. Such
variances may be evidenced in writing, be signed by at least two (2) members of the Board, and shall
become effective upon recordation in the Office of the County Recorder. 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 shall not operate to waive any of the terms and provisions of this
Declaration for any purpose except as to the particular Residential Unit and particular provision
hereof covered by the variance, nor shall it affect in any way the Owner's obligation to comply with
all governmental laws and regulations affecting its use of the Residential Unit, including, but not
limited to, zoning ordinances and lot setback lines or requirements imposed by the City or any other
governmental authority.
ARTICLE 10
DEVELOPMENT RIGHTS
10.1 LIMITATIONS OF RESTRICTIONS. Declarant is undertaking the work of
developing Residential Units and other Improvements within the Project. The completion of the
development work and the marketing and sale, rental and other disposition of the Residential Units
is essential to the establishment and welfare of the Property and the Additional Property as a first
class condominium community. In order that the work may be completed, nothing in this
Declaration shall be interpreted to deny Declarant the rights set forth in this Article.
10.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION. Until the fifth
(5th) anniversary of the original issuance of a Public Report for the most recent Phase, Declarant,
its contractors and subcontractors shall have the rights set forth below.
10.2.1 Access. Declarant, its contractors and subcontractors shall have the right
to obtain reasonable access over and across the Association Property of the Project or do within any
Residential Unit owned by it whatever is reasonably necessary or advisable in connection with the
completion of the Project and the marketing and maintenance thereof.
10.2.2 Construct Improvements. Declarant, its contractors and subcontractors shall
have the right to erect, construct and maintain on the Association Property of the Project or within
any Residential Unit owned by it such Improvements, including, but not limited to, sales offices and
signs, as may be reasonably necessary for the conduct of its business to complete the work, establish
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the Project as a residential community and dispose of the Project in parcels by sale, lease or
otherwise, as determined by Declarant in its sole discretion.
10.2.3 Grant Easements. Declarant, its contractors and subcontractors shall have
the right to establish and/or grant over and across said Association Property such easements and
rights of way on, over, under or across all or any part thereof to or for the benefit of the State of
California, the City, the County or any other political subdivision or public organization, or any
public utility entity or cable television provider, for the purpose of constructing, erecting, operating
and maintaining Improvements thereon, therein or thereunder at that time or at any time in the future,
including: (i) roads, streets, walks, driveways, parkways, trails and park areas; (ii) poles, wires and
conduits for transmission of electricity, providing telephone service and cable television service to
the Project and for the necessary attachments in connection therewith; and (iii) public and private
sewers, sewage disposal systems storm water drains, land drains and pipes, water systems, sprinkling
systems, water, heating and gas lines or pipes and any and all equipment in connection therewith.
The Association Property shall be subject to any dedication stated in the Subdivision Map for the
Project of an easement for public use for installation, maintenance and operation of facilities for
public utilities over all of the Association Property. The public utilities easement shall inure and run
to all franchised utility companies, the City, the County and the State, and shall include the right of
ingress and egress over the Association Property by vehicles of the utility companies, the City, the
County or the State to properly install, maintain, repair, replace and otherwise service such utility
facilities. The grant of the public utility easement shall not be interpreted to imply any obligation
or responsibility of any utility company, the City, the County or the State for maintenance or
operation of any of the Association Property or the facilities located thereon or the repair,
replacement or reconstruction thereof except for those Improvements owned by the utility companies
or the City, the County, or the State and except as occasioned by the negligent or intentional acts or
omissions of the utility companies, the City, the County or the State. The City and County
furthermore are granted an easement across the Association Property and any Private Streets for
ingress and egress for use by emergency vehicles of the City and County.
10.3 SIZE AND APPEARANCE OF PROJECT. Declarant shall not be prevented from
increasing or decreasing the number of Residential Units that may be annexed to the Project or from
changing the exterior appearance of Association Property, structures, landscaping or any other matter
directly or indirectly connected with the Project in any manner deemed desirable by Declarant, if
Declarant obtains governmental consents required by law.
10.4 MARKETING RIGHTS.
10.4.1 General Rights. Subject to the limitations of this Declaration, Declarant
shall have the right to: (i) maintain model homes, sales offices, storage areas and related facilities
in any unsold Residential Units or Association Property within the Project as are necessary or
reasonable, in the opinion of Declarant, for the sale or disposition of the Residential Units; (ii) post
flags, banners and signs; (iii) make reasonable use of the Association Property and facilities for the
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sale of Residential Units; and (iv) conduct its business of disposing of Residential Units by sale,
lease or otherwise.
10.4.2 Agreement for Extended Use. If following the fifth (5th) anniversary of the
original issuance of a Public Report for the most recent Phase, Declarant requires exclusive use of
any portion of the Association Property in that Phase for marketing purposes, Declarant may use the
Association Property only if an agreement is entered into between Declarant and the Association.
The agreement must specifically provide for a limited duration for such use and must provide for a
specific reasonable rate of compensation to the Association by Declarant. Compensation shall be
commensurate with the nature, extent and duration of the use proposed by Declarant. In no event,
however, shall Declarant be denied the rights to use the Association Property and any Residential
Units owned by Declarant as an Owner.
10.5 TITLE RIGHTS. This Declaration shall not be construed to constitute a limitation
on Declarant's title rights to the Additional Property prior to its Annexation, nor shall it impose any
obligation on Declarant or any other person or entity to improve, develop or annex any portion of
the Additional Property. The rights of Declarant under this Declaration may be assigned to any
successor(s) by an express assignment in a recorded instrument, including without limitation, a deed,
option or lease. This Declaration shall not be construed to limit the right of Declarant at any time
prior to such an assignment to establish additional licenses, reservations and rights-of-way to itself,
to utility companies, to the City, to the County, to the State, or to others as may be reasonably
necessary to the proper development and disposal of property owned by Declarant.
10.6 AMENDMENT. The provisions of this Article may not be amended without the
consent of Declarant until all of the Additional Property has been annexed to the Project and all of
the Residential Units in the Project owned by Declarant have been conveyed.
ARTICLE 11
INSURANCE
11.1 LIABILITY INSURANCE. The Association shall obtain and maintain
comprehensive public liability insurance insuring the Association, the Board, the Architectural
Committee, any manager, the Declarant, and the Owners and occupants of Residences and their
Invitees against any liability incident to the ownership or use of the Association Property and the
performance by the Association of its duties under this Declaration. Such policy shall include, if
obtainable, a cross-liability or severability of interest endorsement insuring each insured against
liability to each other insured. The limits of such insurance shall not be less than Two Million
Dollars ($2,000,000) if there are one hundred (100) or fewer Members of the Association and not
less than Three Million Dollars ($3,000,000) if there are more than one hundred (100) Members of
the Association. The insurance shall cover all claims for death, personal injury and property damage
arising out of a single occurrence. The insurance shall include coverage against water damage
The Cliffs at Calavera Hills 47 9/8/98
liability, property of others, any other liability or risk customarily covered with respect to projects
similar in construction, location, and use.
11.2 FIRE AND EXTENDED COVERAGE INSURANCE. The Association shall keep
(i) any Improvements within the Association Property to be maintained by the Association insured
against loss by fire and the risks covered by a "Standard All-Risk of Loss or Perils" insurance policy
under an extended coverage casualty policy in the amount of the maximum insurable replacement
value thereof and (ii) all personalty owned by the Association insured with coverage in the maximum
insurable fair market value of such personalty as determined annually by an insurance carrier
selected by the Association. Insurance proceeds for Improvements in the Association Property and
personalty owned by the Association shall be payable to the Association. In the event of any loss,
damage or destruction to the Association Property, the Association shall cause the same to be
replaced, repaired or rebuilt in accordance with the provisions of this Declaration.
11.2.1 Description of Policy Coverages. The policy shall cover the following real
and personal property:
(a) Association Property. All Improvements within the Association
Property, including buildings and any additions or extensions thereto, fences, monuments, lighting
fixtures, exterior signs, personal property owned or maintained by the Association, and recreational
facilities, but excluding land, foundations, excavations, and other items typically excluded from
property insurance coverage; and
(b) Landscaping. Lawn, trees, shrubs and plants located in the
Association Property.
11.2.2 Covered Cause of Loss. The policy shall provide coverage against losses
caused by fire and all other hazards normally covered by a "special form" policy or its equivalent.
11.2.3 Primary. The policy shall be primary and noncontributing with any other
insurance policy covering the same loss.
11.2.4 Endorsements. The policy shall contain the following endorsements or their
equivalents: agreed amount, boiler and machinery (to the extent applicable) inflation guard,
ordinance or law, and replacement costs, and such other endorsements as the Board in its discretion
shall elect.
11.2.5 Waiver of Subrogation. Except as provided in Section 7.30 of this
Declaration, all rights of subrogation between the Association and the Owners and their Invitees and
First Mortgagees are waived. The insurance policies obtained by the Association shall include a
waiver of all subrogation rights of the Association's insurer against any Owner and their Invitees
and First Mortgagees; provided, however, that any failure to obtain such a waiver from the insurer
shall not defeat or impair the foregoing waiver between the Association and the Owners and their
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Invitees and First Mortgagees set forth herein. Insurance proceeds for Improvements in the
Association Property and personalty owned by the Association shall be payable to the Association.
11.3 INDIVIDUAL INSURANCE. Each Owner shall maintain: (a) property insurance
against losses to the Residential Unit covering the full replacement cost of his or her Residential Unit
and to any upgrades, fixtures and Improvements located within the Residential Unit, and (b) liability
insurance against any liability resulting from any injury or damage occurring within the Residential
Unit. Although each Owner is purchasing a Condominium, each Owner owns the structural
elements included in the Residential Unit, including walls, roofs and foundations and is responsible
for maintaining his or her own insurance on all such elements. The Association's insurance policies
will not provide coverage against any of the foregoing or any other loss associated with the
Residential Units, and the Association shall not have any obligation to monitor insurance carried by
Owners. Except as provided in Section 7.30 of this Declaration, all rights of subrogation between
the Owners and the Association are waived. Any insurance maintained by an Owner must contain
a waiver of subrogation rights by the insurer as to the Association; provided, however, that an
Owner's inability to obtain such a waiver shall not defeat or impair the waiver of subrogation as
between such parties contained herein.
11.4 FIDELITY BOND. The Association shall maintain a fidelity bond in an amount
equal to at least the estimated maximum of funds, including reserves, in the custody of the
Association or a management agent at any given time during the term of the fidelity bond; provided,
however, that the bond shall not be less than a sum equal to three (3) months aggregate of the
Regular Assessments on all Residential Units plus reserve funds naming the Association as obligee
and insuring against loss by reason of the acts of the Board, officers and employees of the
Association, and any management agent and its employees, whether or not such persons are
compensated for their services.
11.5 WORKER'S COMPENSATION INSURANCE. The Association shall maintain
worker's compensation insurance to the extent necessary to comply with all applicable laws of the
State of California or the regulations of any governmental body or authority having jurisdiction over
the Project.
11.6 OTHER INSURANCE. The Association shall maintain other types of insurance as
the Board determines to be necessary to fully protect the interests of the Owners.
11.7 COPIES OF POLICIES. Copies of all such insurance policies of the Association (or
certificates thereof showing the premiums thereon to have been paid) shall be retained by the
Association and open for inspection by Owners at any reasonable time. All such insurance policies
shall (i) provide that they shall not be cancelable or substantially modified by the insurer without
first giving at least ten (10) days' prior notice in writing to the Association, and (ii) contain a waiver
of subrogation by the insurer(s) against the Association and First Mortgagees, Board and Owners.
In addition to the foregoing, the Association shall provide such information regarding the insurance
of the Association as may be required by applicable law or under the Bylaws.
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11.8 REVIEW OF INSURANCE. The Board shall review the adequacy of all insurance
at least once every year. The review shall include a replacement cost appraisal of all insurable
Improvements on Association Property without respect to depreciation. The Board shall adjust and
modify the policies to provide coverage and protection that is customarily carried by and reasonably
available to prudent owners of similar property in the area in which the Project is situated.
11.9 BOARD'S AUTHORITY TO REVISE INSURANCE COVERAGE. Subject to the
provisions of Section 11.12 and the requirements regarding insurance set forth in the Bylaws, the
Board shall have the power and right to deviate from the insurance requirements contained in this
Article 11 in any manner that the Board, in its reasonable business discretion, considers to be in the
best interests of the Association. If the Board elects to materially reduce the coverage from the
coverage required in this Article 11, the Board shall make all reasonable efforts to notify the
Members of the reduction in coverage and the reasons therefor at least thirty (30) days prior to the
effective date of the reduction. The Association and its directors and officers shall have no liability
to any Owner or Mortgagee if, after a good faith effort, the Association is unable to obtain any
insurance required hereunder because the insurance is no longer available or, if available, the
insurance can be obtained only at a cost that the Board, in its sole discretion, determines is
unreasonable under the circumstances or the Members fail to approve any assessment increase
needed to fund the insurance premiums.
11.10 ADJUSTMENT OF LOSSES. The Board is appointed attorney-in-fact by each
Owner to negotiate and agree on the value and extent of any loss under any policy carried by the
Association pursuant to Sections 11.1 and 11.2. The Board is granted full right and authority to
compromise and settle any claim or enforce any claim by legal action or otherwise and to execute
releases in favor of any insurer.
11.11 DISTRIBUTION TO MORTGAGEES. Any Mortgagee has the option to apply
insurance proceeds payable directly to an Owner on account of a Condominium as provided in this
Declaration in reduction of the obligation secured by the Mortgage of such Mortgagee.
11.12 COMPLIANCE WITH FEDERAL REGULATIONS. Notwithstanding any other
provisions contained herein, the Association shall continuously maintain in effect such casualty,
flood and liability insurance and a fidelity bond meeting the insurance and fidelity bond
requirements for condominium projects established by the Federal National Mortgage Association
("FNMA"), the Government National Mortgage Association ("GNMA"), and the Federal Home
Loan Mortgage Corporation ("FHLMC"), so long as any of the above is a Mortgagee or an Owner
of a Residential Unit, except to the extent such coverage is not available or has been waived in
writing by the FNMA, GNMA, and FHLMC as applicable. If the FNMA and FHLMC requirements
conflict, the more stringent requirements shall be met.
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ARTICLE 12
DESTRUCTION OF IMPROVEMENTS AND CONDEMNATION
12.1 RESTORATION DEFINED. As used in this Article 12, the term "Restore or
Restoration" shall mean repairing, rebuilding or reconstructing damaged Improvements to
substantially the same condition and appearance in which they existed immediately prior to fire or
other casualty damage.
12.2 INSURED CASUALTY. If any Improvement required to be maintained by the
Association is damaged or destroyed from a risk covered by the insurance required to be maintained
by the Association (including the Front Yard Maintenance Areas and Brush Maintenance Areas),
then the Association shall, to the extent permitted under existing laws, Restore the Improvement, to
the same condition it was in immediately prior to the damage or destruction The Association shall
proceed with the filing and adjustment of all claims arising under the existing insurance policies.
The insurance proceeds shall be paid to and held by the Association or an insurance trustee selected
under the provisions of Section 12.5.
12.3 RESTORATION PROCEEDS. The costs of Restoration of the damaged
Improvement shall be paid first from any insurance proceeds paid to the Association under existing
insurance policies. If the insurance proceeds exceed the costs of Restoration, the excess proceeds
shall be paid into reserves and held for the benefit of the Association. If the insurance proceeds are
insufficient to Restore the damaged Improvement, the Board shall then add to the insurance proceeds
all reserve account funds designated for the repair or replacement of the damaged Improvement. If
the total funds then available are sufficient to Restore the damaged Improvement, the Improvement
shall be Restored. If the aggregate amount of insurance proceeds and such reserve account funds
are insufficient to pay the total costs of Restoration, the Improvement shall be Restored and the
Board shall impose a Reconstruction Assessment for the cost of repairing and reconstructing
Improvements to the extent insurance proceeds are unavailable, such assessment to be levied as
described above (but without the consent or approval of Members, despite any contrary provisions
in this Declaration).
12.4 REBUILDING CONTRACT. The Board or its authorized representative shall obtain
bids from at least two (2) licensed and reputable contractors and shall accept the Restoration work
from whomever the Board determines to be in the best interests of the Members. The Board shall
have the authority to enter into a written contract with the contractor for such Restoration, and the
insurance proceeds shall be disbursed to the contractor according to the terms of the contract. The
Board shall take all steps necessary to assure the commencement and completion of authorized
Restoration at the earliest possible date. The construction shall be commenced no later than one
hundred eighty (180) days after the event requiring reconstruction and shall thereafter be diligently
prosecuted to completion. The construction shall return the damaged Improvements to substantially
the same condition and appearance in which it existed prior to the damage or destruction.
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12.5 INSURANCE TRUSTEE. All property insurance proceeds payable to the
Association under the policy described in Section 11.2, subject to the rights of Mortgagees under
Article 14, may be paid to a trustee as designated by the Board to be held and expended for the
benefit of the Owners and Mortgagees, as their respective interests shall appear. The trustee shall
be a commercial bank or other financial institution with trust powers in the country in which the
Project is located that agrees in writing to accept such trust. If Restoration is authorized, the
Association will have the duty to contract for such work as provided for in this Declaration.
12.6 PRIVATE STREETS. The Board shall have the duty to Restore all Private Streets
within the Project. In the event the proceeds of insurance are not sufficient to cause such
Restoration, the Board shall levy a Reconstruction Assessment to provide the necessary funds for
such Restoration.
12.7 DAMAGE TO RESIDENTIAL UNITS. Restoration of any damage to or destruction
of the Residential Units shall be made by and at the individual expense of the Owner of the
Residence so damaged or destroyed. In the event of damage to or destruction of the Residential Unit
that also causes damage to the Front Yard Maintenance Area of the Residential Unit, each Owner
shall Restore the damaged Front Yard Maintenance Area. In the event an Owner decides not to
rebuild the Residence, Owners shall landscape and maintain the Residential Unit in an attractive and
well-kept condition. All Restoration shall be completed as promptly as practical and hi a lawful and
workmanlike manner, in accordance with plans approved by the Board as provided herein.
12.8 CONDEMNATION OF ASSOCIATION PROPERTY. If at any time all or any
portion of any Association Property, or any interest therein, is taken for any public or quasi-public
use, under any statute, by right of eminent domain or by private purchase in lieu of eminent domain,
the entire award in condemnation shall be paid to the Association and shall be used for Restoring
the balance of the Association Property. To the extent the Association is not permitted by the
governmental agency to rebuild, then such award shall be apportioned among the Owners by court
judgment or by agreement between the condemning authority and each of the affected Owners, the
Association and their respective Mortgagees to such area as their interests may appear according to
the fair market values of each Residential Unit at the time of destruction, as determined by
independent appraisal. The appraisal shall be made by a qualified real estate appraiser with an MAI
certificate or the equivalent, which appraiser shall be selected by the Board. Any such award to the
Association shall be deposited into the maintenance and operation account of the Association. The
Association shall represent the interests of all Owners in any proceeding relating to such
condemnation.
12.9 CONDEMNATION OF A RESIDENTIAL UNIT. In the event of any
taking of a Residential Unit, the Owner (and such Owner's Mortgagees as their interests may appear)
of the Residential Unit shall be entitled to receive the award for such taking and after acceptance
thereof the Owner and the Owner's Mortgagee shall be divested of all further interest in the
Residential Unit and membership in the Association if the Owner vacates the Owner's Residential
Unit as a result of such taking. In such event the Owner shall grant his or her remaining interest in
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the Common Area appurtenant to the Residential Unit so taken, if any, to the other Owners owning
a fractional interest in the same Common Area, such grant to be in proportion to the fractional
interest in the Common Area then owned by each Owner.
ARTICLE 13
PARTITION AND SEVERABILITY OF INTERESTS
13.1 SUSPENSION. The right of partition is suspended pursuant to California Civil Code
Section 1359 as to the Project. Nothing in this Declaration shall prevent partition or division of
interest between joint or common owners of any Condominium.
13.2 PARTITION. Notwithstanding the foregoing, judicial partition shall be permitted
as set forth below:
13.2.1 No Partition. There shall be no termination of the Project and the Common
Area of the Project shall remain undivided with no judicial partition thereof except:
(a) With the approval, after substantial destruction or condemnation of
the Project occurs, of at least sixty-six and two-thirds percent (66 2/3%) of the total voting power
of the Association and approval by Eligible Holders who represent at least fifty-one percent (51%)
of the Condominiums that are subject to Mortgages held by Eligible Holders; or
(b) With the approval, for reasons other than substantial destruction or
condemnation of the Project, of at least sixty-six and two-thirds percent (66 2/3%) of the total voting
power of the Association and approval by Eligible Holders who represent at least sixty-six and two-
thirds percent (66 2/3%) of the Condominiums that are subject to Mortgages held by Eligible
Holders; or
(c) As allowed by California law, including Civil Code Section 1359,
as the same may be amended from time to time.
An Eligible Holder who receives a written request to give such approvals who does not
deliver or mail the requesting party a negative response within thirty (30) days shall be deemed to
have given such approval provided the written request was delivered by certified mail or registered
mail with "return receipt" requested.
Nothing in this Section shall be deemed to prohibit partition of a cotenancy in a
Condominium.
13.3 DISTRIBUTION OF PROCEEDS. Proceeds or property resulting from a partition
shall be distributed to and among the respective Owners and their Mortgagees as specified or
apportioned in the judgment of partition, or if not so specified, as their interests appear in proportion
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to the fair market value of the Residential Units at the date of the sale as determined by an
independent appraisal conducted by a member of the American Institute of Real Estate Appraisers
with the designation of a Member Appraisal Institute (M.A.I.) or if such institute no longer exists,
an appraiser of comparable experience.
13.4 POWER OF ATTORNEY. Each of the Owners irrevocably appoints the Association
as attorney-in-fact and irrevocably grants to the Association full power in the name and stead of the
Owner to sell the entire Project, and to execute deeds and conveyances to it, in one or more
transactions, for the benefit of all Owners when partition of the Project may be had under California
Civil Code Section 1359 and any successor statutes. The power of attorney shall:
13.4.1 Be binding on all Owners, whether they assume the obligations under this
Declaration or not;
13.4.2 Be exercisable by a majority of the Board acting on behalf of the
Association, subject to obtaining the prior approval by vote or written consent of seventy-five
percent (75%) of the Owners and seventy-five percent (75%) of all Institutional Mortgagees; and
13.4.3 Be exercisable only after recordation with the County Recorder of a
certificate executed by those who have power to exercise the power of attorney that the power of
attorney is properly exercisable under the authority of this Declaration.
This certificate shall be conclusive evidence of proper exercise in favor of any person relying on it
in good faith; provided, however, that said power of attorney shall not apply to the Administrator
of Veterans Affairs, an officer of the United States of America.
13.5 PROHIBITION AGAINST SEVERANCE. An Owner shall not be entitled to sever
the Owner's Residential Unit from his or her membership in the Association, and shall not be entitled
to sever the Owner's Residential Unit and his or her membership from the Owner's undivided interest
in the Association Property for any purpose. None of the component interests in a Condominium
can be severally sold, conveyed, encumbered, hypothecated or otherwise dealt with, and any
violation or attempted violation of this provision shall be void. Similarly, no Owner can sever any
exclusive easement appurtenant to such Owner's Residential Unit over the Association Property from
such Owner's Condominium, and any attempt to do so shall be void. It is intended hereby to restrict
severability pursuant to California Civil Code Section 1358 and any successor statutes.
Notwithstanding the foregoing, the suspension of such right of severability contained herein shall
not extend beyond the period set forth in Section 13.1 in which the right to partition the Project is
suspended thereunder.
13.6 CONVEYANCES. After the initial sales of the Condominiums, any conveyance of
a Condominium by an Owner shall be presumed to convey the entire Condominium. However,
nothing contained in this Section shall preclude the Owner of any Condominium from creating an
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estate for life or years, cotenancy or joint tenancy in the ownership of the Condominium with any
other person or persons.
ARTICLE 14
RIGHTS OF MORTGAGEES
14.1 CONFLICT. Notwithstanding any contrary provision contained elsewhere in the
Project Documents, the provisions of this Article shall control with respect to the rights and
obligations of Mortgagees as specified herein.
14.2 LIABILITY FOR UNPAID ASSESSMENTS. Any Institutional Mortgagee who
obtains title to a Condominium pursuant to the remedies provided in the First Mortgage (except upon
a voluntary conveyance to the Institutional Mortgagee) or by foreclosure of the First Mortgage shall
take the property free of any claims for unpaid assessments or charges against the Condominium that
accrue prior to the acquisition of title to the Condominium by the Institutional Mortgagee.
14.3 PAYMENT OF TAXES AND INSURANCE. All taxes, assessments and charges
that may become a lien prior to the lien of any First Mortgagee shall be levied only to the individual
Condominium and not the Project as a whole. Institutional Mortgagees may, jointly or singly, pay
taxes or other charges that are in default and that may or have become a charge against any
Association Property or Improvements situated thereon and may pay overdue premiums on hazard
insurance policies or secure new hazard insurance coverage on the lapse of a policy for such
Association Property. Institutional Mortgagees making such payments shall be owed immediate
reimbursement for such expenditures from the Association and, on demand, the Association shall
execute an agreement in favor of all Institutional Mortgagees reflecting entitlement to
reimbursement.
14.4 TERMINATION OF CONTRACTS AND AGREEMENTS.
14.4.1 Contracts or Leases. Any contract or lease, including any contract providing
for the services of Declarant, entered into by the Association while Declarant controls the
Association shall not exceed three (3) years and shall provide that the Association has the right to
terminate the contract or lease without cause upon thirty (30) days prior written notice and without
penalty or the payment of a termination fee at any time after the transfer of control of the Association
from Declarant upon not more than ninety (90) days notice to the other party. For purposes of this
Section, the term "control" shall mean the right of Declarant to exercise unilateral control over the
Association, the Board, the Project or the Owners in any manner other than by Declarant's exercise
of Votes allocated to Declarant on the same basis as Votes are allocated to other Owners.
14.4.2 Professional Management Contracts. Any agreement for professional
management of the Project or any agreement providing for services of the Declarant shall be for a
term not to exceed one (1) year without the consent of fifty-one percent (51%) of each class of
The Cliffs at Calavera Hills 55 9/8/98
Members; provided, however, that in no event shall such an agreement exceed a term of three
(3) years. Any such agreement shall provide that the agreement may be terminated by either party
without cause and without payment of a termination fee upon not more than ninety (90) days written
notice.
14.5 NOTICE TO ELIGIBLE HOLDERS. An Eligible Holder is entitled to timely written
notice of the following events:
14.5.1 Any condemnation loss or casualty loss that affects either a material portion
of the Project or the Residential Unit on which the Eligible Holder holds a First Mortgage;
14.5.2 Any delinquency in the payment of assessments or charges owed by the
Owner of a Residential Unit that is subject to a First Mortgage held by the Eligible Holder if the
delinquency is not cured within sixty (60) days after its due date;
14.5.3 Any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association;
14.5.4 Any proposal to take any action specified in this Article or in the
Article hereof entitled "Destruction of Improvements and Condemnation;
14.5.5 Any default by the Owner-Mortgagor of a Residential Unit that is the
subject of a First Mortgage held by the Eligible Holder in the performance of his or her obligations
under this Declaration or the Bylaws that is not cured within sixty (60) days; or
14.5.6 Any proposed action that requires the consent of a specified percentage of
the Eligible Holders.
14.6 RESERVE FUND. The Association shall maintain as a reserve fund a reserve
account fund sufficient to pay for maintenance, repair and periodic replacement of Association
Property Improvements that the Association is obligated to maintain. This reserve fund shall be
funded by Regular Assessments of Owners that are payable in installments rather than by Special
Assessment; provided, however, that this provision shall not be deemed to limit the power of the
Association to levy any other type of assessment or charge authorized by this Declaration.
14.7 INSPECTION OF BOOKS AND RECORDS. Upon request, any Owner or First
Mortgagee shall be entitled to inspect the books, records and financial statements of the Association,
the Project Documents and any amendments thereto during normal business hours or under other
reasonable circumstances.
14.8 FINANCIAL STATEMENTS. The Association, at its expense, shall prepare an
audited financial statement for the immediately preceding fiscal year and furnish the same within
one hundred twenty (120) days after written request from any Institutional Mortgagee.
The Cliffs at Calavera Hills 56 9/8/98
14.9 VOTING RIGHTS OF MORTGAGEES. For purpose of this Section a Mortgagee
shall be entitled to one (1) vote for each First Mortgage owned.
14.10 ACTIONS REQUIRING ELIGIBLE HOLDER APPROVAL. Unless at least sixty-
six and two-thirds percent (66 2/3%) of the Eligible Holders and sixty-six and two-thirds percent
(66 2/3%) of the Owners other than Declarant have given their prior written approval, the
Association shall not be entitled to:
(a) By act or omission, seek to abandon or terminate the Project;
(b) By act or omission abandon, partition, subdivide, encumber, sell or
transfer any property or Improvements owned by the Association for the benefit of the
Condominiums and the Owners. (The granting of easements for public utilities or for other public
purposes consistent with the intended use of the Project by the Association and Owners shall not be
deemed a transfer within the meaning of this Section);
(c) By act or omission change, waive or abandon any scheme of
regulations, or enforcement thereof, pertaining to architectural design or exterior appearance of
Residential Units, the exterior maintenance of Residential Units, or the upkeep of lawns, plantings
or other landscaping in the Project;
(d) By act or omission change the method of determining the
obligations, assessments, dues or other charges that may be levied against an Owner;
(e) Partition or subdivide a Condominium;
(f) Fail to maintain fire and extended coverage insurance on insurable
portions of the Association Property on a current replacement cost basis in an amount not less than
one hundred percent (100%) of the insurable value based on current replacement cost; and
(g) Use hazard insurance proceeds for losses to any property or
Improvements owned by the Association other than for the repair, replacement or reconstruction of
such property and Improvements.
14.11 VOTES FOR TERMINATION OF PROJECT. Any election to terminate the legal
status of the Project as a condominium project shall require:
14.11.1 The approval of at least fifty-one percent (51 %)of the Eligible Holders and
sixty-six and two-thirds percent (66 2/3%) of the total voting power of the Association if the election
to terminate the legal status is a result of substantial destruction or a substantial taking in
condemnation of the property within the Project; or
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14.11.2 The approval of sixty-six and two-thirds percent (66 2/3%) of the total
voting power of the Association and sixty-six and two-thirds percent (66 2/3%) of the Eligible
Holders, if Section 14.11.1 is not applicable.
14.12 CONDEMNATION OR DESTRUCTION. In the event a portion of the Project is
either condemned or destroyed or damaged by a hazard that is insured against, Restoration or repair
shall be performed substantially in accordance with the provisions of the Declaration and the original
plans and specifications for the Project unless fifty-one percent (51%) of the Eligible Holders
approve the taking of other action by the Association.
14.13 SELF-MANAGEMENT. The vote or approval by ballot written of sixty-six and two-
thirds percent (66 2/3%) of the total voting power of the Association and fifty-one percent (51%) of
the Eligible Holders shall be required to assume self-management of the Project if professional
management of the Project has been required by an Eligible Holder at any time.
14.14 MORTGAGEE PROTECTION. A breach of any of the conditions contained in this
Declaration shall not defeat nor render invalid the lien of any First Mortgage made in good faith and
for value as to any Condominium in the Project; provided, however, that the conditions contained
in this Declaration shall be binding upon and effective against any Owner of a Condominium if the
Condominium is acquired by foreclosure, trustee's sale or otherwise.
14.15 SUBORDINATION. The lien of the assessments, including interest, costs (including
attorneys' fees), and late charges subject to the limitations of California Civil Code Section 1367 and
any successor statutes, provided for herein shall be subordinate to the lien of any First Mortgage with
respect to any Residential Unit. Sale or transfer of any Residential Unit shall not affect the
assessment lien.
14.16 DISTRIBUTION OF INSURANCE AND CONDEMNATION PROCEEDS. No
Owner, or any other party, shall have priority over any right of Institutional Mortgagees of
Condominiums pursuant to their Mortgages in case of a distribution to Owners of insurance proceeds
or condemnation awards for losses to or a taking of Condominiums or Association Property. Any
provision to the contrary in this Declaration or in the Bylaws or other documents relating to the
Project is to such extent void. All applicable fire and all physical loss or extended coverage
insurance policies shall contain loss payable clauses acceptable to the affected Institutional
Mortgagees naming the Mortgagees, as their interests may appear.
14.17 VOTING RIGHTS ON DEFAULT. In case of default by any Owner in any payment
due under the terms of any Institutional Mortgage encumbering such Owner's Condominium, or the
promissory note secured by the Mortgage, the Mortgagee or his representative, on giving written
notice to such defaulting Owner or Owners, and placing of record a notice of default, is hereby
granted a proxy and can exercise the voting rights of such defaulting Owner attributable to such
Residential Unit at any regular or special meeting of the Members held during such time as such
default may continue.
The Cliffs at Calavera Hills 58 9/8/98
14.18 FORECLOSURE. If any Condominium is encumbered by a First Mortgage made
in good faith and for value, the foreclosure of any lien created by any provision set forth in this
Declaration for assessments or installments of assessments shall not affect or impair the lien of the
Mortgage. On foreclosure of the Mortgage, the lien for assessments or installments that has accrued
up to the time of foreclosure shall be subordinate to the lien of the First Mortgage, with the
foreclosure-purchaser taking title to the Condominium free of the lien for assessments or
installments that has accrued up to the time of the foreclosure sale. On taking title to the
Condominium the foreclosure-purchaser shall only be obligated to pay assessments or other charges
levied or assessed by the Association after the foreclosure-purchaser acquired title to the
Condominium. The subsequently accrued assessments or other charges may include previously
unpaid assessments provided all Owners, including the foreclosure-purchaser, and the Owner's
successors and assigns are required to pay their proportionate share as provided in this Section.
14.19 NON-CURABLE BREACH. Any Mortgagee who acquires title to a Condominium
by foreclosure or by deed in lieu of foreclosure or assignment in lieu of foreclosure shall not be
obligated to cure any breach of this Declaration that is non-curable or that is not practical or feasible
to cure.
14.20 LOAN TO FACILITATE. Any Mortgage given to secure a loan to facilitate the
resale of a Condominium after acquisition by foreclosure or by a deed in lieu of foreclosure or by
an assignment in lieu of foreclosure shall be deemed to be a loan made in good faith and for value
and entitled to all of the rights and protections of this Article.
14.21 APPEARANCE AT MEETINGS. Because of its financial interest in the Project, any
Mortgagee may appear (but cannot vote except as may be provided for herein) at meetings of the
Members and the Board to draw attention to violations of this Declaration that have not been
corrected or made the subject of remedial proceedings or assessments.
14.22 RIGHT TO FURNISH INFORMATION. Any Mortgagee can furnish information
to the Board concerning the status of any Mortgage.
14.23 INAPPLICABILITY OF RIGHT OF FIRST REFUSAL TO MORTGAGEE. No
right of first refusal or similar restriction on the right of an Owner to sell, transfer or otherwise
convey the Owner's Condominium shall be granted to the Association without the written consent
of any Mortgagee of the Condominium. Any right of first refusal or option to purchase a
Condominium that may be granted to the Association (or other person, firm or entity) shall not apply
to any conveyance or transfer of title to such Condominium, whether voluntary or involuntary, to
a Mortgagee that acquires title to or ownership of the Condominium pursuant to the remedies
provided in its Mortgage or by reason of foreclosure of the Mortgage or deed or assignment in lieu
of foreclosure.
The Cliffs at Calavera Hills 59 9/8/98
ARTICLE 15
AMENDMENTS
15.1 AMENDMENT BEFORE THE CLOSE OF FIRST SALE. Before the close of the
first sale of a Residential Unit to a purchaser other than Declarant, this Declaration and any
amendments to it may be amended in any respect or revoked by the execution by Declarant and any
Mortgagee of record of an instrument amending or revoking the Declaration. The amending or
revoking instrument shall make appropriate reference to this Declaration and its amendments and
shall be acknowledged and recorded in the office of the County Recorder.
15.2 AMENDMENTS. Except as may otherwise be stated in this Declaration, after the
close of the first sale of a Residential Unit in the Project to an Owner other than Declarant and during
the period of time prior to conversion of the Class B membership in the Association to Class A
membership, this Declaration may be amended at any time and from time to time provided that the
vote or approval by written ballot of at least sixty-six and two-thirds percent (66 2/3%) of the voting
power of each class of Members of the Association has been obtained. After conversion of the
Class B membership in the Association to Class A membership, the Declaration may be amended
at any time and from time to time, provided that the vote or approval by written ballot of at least
(a) sixty-six and two-thirds percent (66 2/3%) of the total voting power of the Association and (b) at
least sixty-six and two-thirds percent (66 2/3%) of the voting power of the Members of the
Association, other than Declarant, has been obtained. The amendment shall become effective upon
the recording of a Certificate of Amendment signed and acknowledged by the President or Vice
President of the Association and the Secretary or Assistant Secretary of the Association certifying
that such votes or approval by written ballot have been obtained. For the purposes of recording the
Certificate of Amendment, the President or Vice-President and Secretary or Assistant Secretary of
the Association are hereby granted an irrevocable power of attorney to act for and on behalf of each
and every Owner in certifying and executing and recording the Certificate of Amendment with the
Office of the County Recorder. In addition to the foregoing, in the case of any Material Amendment,
as defined below, the vote of fifty-one percent (51%) of the Eligible Holders (based on one vote for
each Mortgage owned) and sixty-six and two-thirds percent (66 2/3%) of the voting power of each
class of Members (or sixty-six and two-thirds percent (66 2/3%) of the Owners) shall be required.
"Material Amendment" shall mean, for the purposes of this Section 15.2, any amendments to
provisions of this Declaration governing any of the following subjects:
15.2.1 The fundamental purpose for which the Project was created (such as a
change from residential use to a different use);
15.2.2 Assessments, collection of assessments, assessment liens and subordination
thereof;
15.2.3 The reserve for repair and replacement of the Association Property;
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15.2.4 Property maintenance obligations;
15.2.5 Casualty and liability insurance or fidelity bond requirements;
15.2.6 Reconstruction in the event of damage or destruction;
15.2.7 Rights to use the Association Property;
15.2.8 Reallocation of any interests in the Common Area;
15.2.9 Voting;
15.2.10 Any provision that, by its terms, is specifically for the benefit of Eligible
Holders, or specifically confers rights on Eligible Holders;
15.2.11 Expansion or contraction of the Project or the addition, annexation or
withdrawal of property to or from the Project (other than the addition or deletion of the Additional
Property described in Exhibit "B"), the redefinition of Residential Unit boundaries or the
conversion of a Residential Unit(s) into Association Property; and
15.2.12 Imposition of any restriction on any Owner's right to sell, lease or convey
his or her Residential Unit.
Anything herein stated to the contrary notwithstanding, no amendment to or revocation of the
provisions contained in Sections 15.2.1,15.2.4,15.2.6,15.28,15.2.9,15.2.10,15.2.11 and 15.2.12
may be made to this Declaration without the prior written consent of sixty-six and two-thirds percent
(66 2/3%) or more of the Eligible Holders (based upon (1) vote for each such Eligible Holder). Any
Eligible Holder who receives a written request to consent to additions or amendments requiring
consent under this provision who does not deliver or post to the requesting party a negative response
within thirty (30) days after receipt of a notice delivered by certified or registered mail, return receipt
requested shall be deemed to have consented to the request. If any provision of this Declaration
requires a greater or lesser percentage of the voting rights of any class of Members in order to take
affirmative or negative action under the provision, the same percentage of such class or classes of
Members shall be required to amend or revoke the provision. If the consent or approval of any
governmental authority, Mortgagee or other person, firm, agency or entity is required under this
Declaration with respect to any amendment or revocation of any provision of this Declaration, the
amendment or revocation shall not become effective unless such consent or approval is obtained.
In addition, no amendment to or revocation of the provisions of Sections 3.5.6,6.23,8.4.2, and 8.4.3
shall be made without the prior written consent of the City. Any amendment or revocation
subsequent to the close of such first sale shall be evidenced by an instrument certified by the
Secretary or other duly authorized officer of the Association and shall make appropriate reference
to this Declaration and its amendments and shall be acknowledged and recorded in the office of the
County Recorder.
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15.3 CONFLICT WITH ARTICLE 14 OR OTHER PROVISIONS OF THIS
DECLARATION. To the extent any provisions of this Article conflict with the provisions of
Article 14 or any other provision of this Declaration, except those contained in Section 15.2, the
provisions of Article 14 or the other provisions shall control.
15.4 BUSINESS AND PROFESSIONS CODE SECTION 11018.7. All amendments or
revocations of this Declaration shall comply with the provisions of California Business and
Professions Code Section 11018.7 and any successor statutes, to the extent that Section applies.
15.5 RELIANCE ON AMENDMENTS. Any amendments made in accordance with the
terms of this Declaration shall be presumed valid by anyone relying on them in good faith.
ARTICLE 16
ANNEXATION OF ADDITIONAL PROPERTY
16.1 ANNEXATION. Any of the Additional Property described in Exhibit "B" may be
annexed to and become subject to this Declaration by any of the methods set forth hereinafter in this
Article. Declarant intends to sequentially develop the Additional Property on a phased basis.
However, Declarant may elect not to develop all or any part of the Additional Property, to annex the
Additional Property to this Declaration in increments of any size whatsoever, to develop more than
one such increment at any given time and in any given order or to develop the Additional Property
as a separate project. Although Declarant shall have the ability to annex the Additional Property as
provided in this Article, Declarant shall not be obligated to annex all or any portion of the Additional
Property, and such property shall not become subject to this Declaration unless and until a
Declaration of Annexation covering it has been recorded.
16.2 ANNEXATION WITHOUT APPROVAL. All or any part of the Additional Property
may be annexed to and become subject to this Declaration and subject to the jurisdiction of the
Association without the approval, assent or vote of the Association or its Members, provided that:
16.2.1 The proposed Annexation will not result in a substantial and material
overburdening of the common interests of the then existing Owners;
16.2.2 The proposed Annexation will not cause a substantial increase in
assessments against existing Owners that was not disclosed in the Public Reports under which pre-
existing Owners purchased their interests;
16.2.3 For each Residential Unit in the Project to be annexed for which a rental
program has been in effect by the Owner for a period of at least one (1) year as of the date of closing
of the escrow for the first sale of a Residential Unit in the annexed Phase, the Owner shall pay to the
Association, before or concurrently with the first close of escrow for the sale of a Residential Unit
within the Phase of Additional Property, an amount for each month or portion thereof during which
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the Residential Unit was occupied under the rental program that shall be established by the Board
for reserves for replacement or deferred maintenance of Association Property Improvements
necessitated by or arising out of the use and occupancy of the Residential Units under the rental
program.
16.2.4 Each Declaration of Annexation effecting the Annexation contemplated
under this Section must be executed by Declarant.
For purposes of this Section, the issuance of a Public Report by the DRE shall conclusively be
deemed to be satisfaction of the criteria set forth above.
16.3 COVENANTS RUNNING WITH THE LAND. Declarant may transfer all or any
portion of the Property or the Additional Property to a builder under a grant deed wherein Declarant
reserves the right to annex such property and subject it to this Declaration. The restriction on the
Additional Property described in Exhibit "B" wherein it may be made subject to this Declaration
upon the recordation of a Declaration of Annexation is hereby declared to be an equitable servitude
upon the Additional Property in favor of the subject Property and any other real property owned by
Declarant in the vicinity of the Project and shall run with the land and be binding on and inure to the
benefit of all parties having or acquiring any right, title or interest, in such real property.
16.4 DECLARATION OF ANNEXATION. The Annexation authorized under the
foregoing Sections shall be made by filing of record by or with the consent of Declarant a
Declaration of Annexation, or similar instrument, with respect to the Additional Property that shall
extend the plan of this Declaration to such property. The Declaration of Annexation contemplated
above may contain such complementary additions and modifications of the covenants, conditions
and restrictions contained in this Declaration as may be necessary to reflect the different character,
if any, of the Additional Property and as are not inconsistent with the plan of this Declaration. In
no event, however, shall any such Declaration of Annexation or any merger or consolidation revoke,
modify or add to the covenants established by this Declaration, discriminate between some Owners
of such Additional Property and other Owners of any Residential Units within the Project except as
provided herein, change the general common plan created by this Declaration, or affect the
provisions hereof or thereof as covenants running with the land or equitable servitudes. The express
desired intention of Declarant is to establish a cohesive plan of such covenants and servitudes to be
uniformly applicable to the Project, including those portions added thereto by annexation.
16.5 ASSOCIATION PROPERTY. Any portion of the property being annexed that is
intended or required to be Association Property shall be conveyed to the Association prior to the
close of the first sale of any Residential Unit in the annexed property to an Owner, other than the-
Declarant.
16.6 RIGHTS AND OBLIGATIONS OF OWNERS. After the required annexation
procedures are fulfilled, all Owners in the Project shall be entitled to the use of any Association
Property in such Additional Property, subject to the provisions of this Declaration, and Owners of
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such Additional Property shall thereupon be subject to this Declaration. After each annexation, the
Assessments shall be assessed in accordance with the provisions set forth in Section 6.4.4. above
with the Additional Property being assessed for a proportionate share of total common expenses on
the same basis as the other property in the Project.
16.7 MERGERS OR CONSOLIDATIONS. Upon a merger or consolidation of the
Association with another association, the Association's properties, rights and obligations may, by
operation of law, be transferred to the surviving or consolidated association, or, alternatively, the
properties, right 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 the covenants, conditions and restrictions
established by this Declaration within the Project, together with the covenants and restrictions
established upon any other property as one plan.
16.8 DE-ANNEXATION. Declarant may delete all or any portion of the Property and the
Additional Property from the coverage of this Declaration and rescind any Declaration of
Annexation, provided Declarant is the sole Owner of all of the real property described in the
Declaration of Annexation to be rescinded. Such deletion shall be effective upon the recordation of
a "Notice of Deletion of Territory," signed by Declarant, in the same manner as the Declaration of
Annexation to be rescinded was recorded.
ARTICLE 17
ENFORCEMENT
17.1 DURATION. The provisions of this Declaration, including the covenants, conditions
and restrictions contained herein) shall continue to be effective for a period of sixty (60) years from
the date of recordation. Thereafter, this Declaration shall be automatically extended for successive
periods often (10) years until a majority vote of the Owners of all of the Residential Units in the
Project shall determine that they shall terminate.
17.2 ENFORCEMENT AND NONWAIVER.
17.2.1 Rights of Enforcement of Project Documents. The Association or any
Owner shall have a right of action against any Owner, and any Owner shall have a right of action
against the Association, to enforce by proceedings at law or in equity all covenants, conditions, and
restrictions, now or hereafter imposed by the provisions of the Project Documents or any amendment
thereto, including the right to prevent the violation of such covenants, conditions, and restrictions
and the right to recover damages or other dues for such violation except that Owners shall not have
any right of enforcement concerning Assessment liens. The Association shall have the exclusive
right to the enforcement of provisions relating to architectural control and the Association Rules,
unless the Association refuses or is unable to effectuate such enforcement, in which case any Owner
who otherwise has standing shall have the right to undertake such enforcement. Failure of the
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Association, Declarant or any Owner to enforce any covenants or restrictions herein contained shall
in no event be deemed a waiver of the right to do so thereafter.
17.2.2 Procedure for Enforcement. Notwithstanding anything to the contrary set
forth in Section 17.2.1 in enforcing any action under the Project Documents, unless the applicable
time limitation for commencing an action would run within one hundred twenty (120) days prior to
the filing of a civil action by either the Association or a Member solely for declaratory relief or
injunctive relief in connection with a claim for monetary damages, other than assessments of the
Association not in excess of Five Thousand Dollars ($5,000.00) related to the enforcement of the
Project Documents, the parties shall endeavor as provided in California Civil Code Section 1354 and
any successor statutes, to submit their dispute to a form of alternative dispute resolution such as
mediation or arbitration. The Board shall annually provide to the Members a summary of the
provisions of California Civil Code Section 1354 and any successor statutes, which shall include the
language required and shall be delivered in the manner provided in Civil Code Section 1365. The
exception for disputes related to Association assessments referred to above shall not apply to
disputes between a Member and the Association regarding assessments imposed by the Association
if the Member chooses to pay in full the Association all of the assessments specified in California
Civil Code Section 1366.3 and any successor statutes, states by written notice that the amount is paid
under protest, and delivers such written notice in accordance with the provisions of California Civil
Code Section 1366.3 and any successor statutes. Upon the delivery of such notice, the Association
shall inform the Member that the Member may resolve the dispute through alternative dispute
resolution as set forth in California Civil Code Section 1354 and any other procedures to resolve the
dispute that may be available through the Association. As provided in Civil Code Section 1366.3,
the right of any Owner to utilize alternative dispute resolution under such Section may not be
exercised more than two (2) times in any single calendar year and not more than three (3) times
within any five (5) calendar years.
17.3 NOTICE OF ACTIONS AGAINST DECLARANT. The Association shall comply
with the provisions of California Civil Code Section 1368.4 and any successor statutes, by providing
written notice to each Member whose name then appears on the records of the Association, not later
than thirty (30) days prior to the filing of any civil action by the Association against the Declarant
or other developer of the Project for either alleged damage to the Association Property or other
property within the Project that the Association is obligated to maintain or repair, or alleged damage
to any other portion of the Project that arises out of, or is integrally related to, such damage to the
Association Property or other property within the Project that the Association is obligated to
maintain or repair. Such notice shall specify all of the matters set forth in such section.
Notwithstanding the foregoing, if the Association has reason to believe, after a diligent and good
faith inquiry, that the applicable statute of limitations will expire before the Association files such-
a civil action, the Association may give the notice, described above, within thirty (30) days after the
filing of the action. However, the Association shall undertake reasonably prudent steps to ascertain
whether a tolling agreement can be executed with Declarant and the other parties to the civil action.
The Cliffs at Calavera Hills 65 9/8/98
17.4 DISPUTE NOTIFICATION AND RESOLUTION PROCEDURE (DECLARANT
DISPUTES'): WAIVERS. Notwithstanding any provision of this Declaration to the contrary, any
action or claim by, between or among the Declarant, as the builder of the Project, or any director,
officer, partner, member, employee or agent of the Declarant, or any contractor, subcontractor,
design professional, engineer or supplier who provided labor, services or materials to the Project and
who is bound or has agreed to be bound to the following dispute notification and resolution
procedure (collectively, the "Declarant Parties") and either the Association or any Owner, relating
to or arising out of the Project, this Declaration or other governing documents for the Association,
any other agreements between the Declarant Parties and an Owner or the Association, (except for
agreements which expressly provide for another form of dispute resolution) the sale of the Property,
the use or condition of the Property or the design or construction of or any condition on or affecting
the Project, including, but not limited to, construction defects, surveys, soils conditions, grading,
specifications, installation of improvements or disputes that allege fraud, misrepresentation, or
breach of implied or express warranties as to the condition of the Property or Project where the
amount in controversy is greater than $25,000 or in which non-monetary relief is sought that cannot
be granted by a Municipal Court in the State of California as of January 1, 1998 (collectively,
"Dispute(s)"), shall be subject to the provisions set forth below.
17.4.1 Notice. Any person with a Dispute claim shall notify the Declarant in
writing of the claim, which writing shall describe the nature of the claim and any proposed remedy
(the "Claim Notice").
17.4.2 Right to Inspect and Right to Corrective Action. Within a reasonable period
after receipt of the Claim Notice, which period shall not exceed sixty (60) days, the Declarant and
the claimant shall meet at a mutually acceptable place within or near the Project to discuss the
Dispute. At such meeting or at such other mutually agreeable time, the Declarant and the Declarant's
representatives shall have full access to the property that is subject to the claim and shall have the
right to conduct inspections, testing and/or destructive or invasive testing of the same in a manner
deemed appropriate by Declarant, which rights shall continue until such time as the Dispute is
resolved as provided in this Section 17.4. The parties to the Dispute shall negotiate in good faith
in an attempt to resolve the claim. If the Declarant elects to take any corrective action, the Declarant
and the Declarant's representatives and agents shall be provided full access to the Project to take and
complete corrective action.
17.4.3 Civil Code Sections 1368.4 and 1375. Nothing contained herein shall be
deemed a waiver or limitation of the provisions of California Civil Code Section 1368.4. If the
claim is subject to the provisions of Civil Code Section 1375 as it may be amended from time to
time, compliance with the procedures of Civil Code Sections 1375 (b), (d) and (e) shall satisfy the
requirements of Sections 17.4.1 and 17.4.2.
17.4.4 Mediation. If the parties to the Dispute cannot resolve the claim pursuant
to the procedures described in Section 17.4.2 above (including, if applicable, Civil Code
Section 1375 procedures), the matter shall be submitted to mediation pursuant to the mediation
The Cliffs at Calavera Hills 66 9/8/98
procedures adopted by the American Arbitration Association (except as such procedures are
modified by the provisions of this Section 17.4) or any successor thereto or to any other entity
offering mediation services that is acceptable to the such parties. No person shall serve as a mediator
in any Dispute in which the person has any financial or personal interest in the result of the
mediation, except by the written consent of all parties to the Dispute participating in the mediation.
Prior to accepting any appointment, the prospective mediator shall disclose any circumstances likely
to create a presumption of bias or to prevent a prompt commencement of the mediation process.
Except as provided in Section 17.4.8 below, the Association and each Owner covenants that each
shall not commence any litigation against the Declarant Parties without complying with the
procedures described in this Section 17.4.
(a) Position Memoranda: Pre-Mediation Conference. Within ten (10)
days of the selection of the mediator, each party shall submit a brief memorandum setting forth its
position with regard to the issues that need to be resolved. The mediator shall have the right to
schedule a pre-mediation conference and all parties to the Dispute participating in the mediation
shall attend unless otherwise agreed. The mediation shall be commenced within ten (10) days
following the submittal of the memoranda and shall be concluded within fifteen (15) days from the
commencement of the mediation unless the parties to the Dispute participating in the mediation
mutually agree to extend the mediation period. The mediation shall be held in the county in which
the Project is located or such other place as is mutually acceptable to the parties to the Dispute
participating in the mediation.
(b) Conduct of Mediation. The mediator has discretion to conduct the
mediation in the manner in which the mediator believes is most appropriate for reaching a settlement
of the Dispute. The mediator is authorized to conduct joint and separate meetings with the parties
to the Dispute participating in the mediation and to make oral and written recommendations for
settlement. Whenever necessary, the mediator may also obtain expert advice concerning technical
aspects of the Dispute, provided the parties to the Dispute participating in the mediation agree and
assume the expenses of obtaining such advice. The mediator does not have the authority to impose
a settlement on the parties to the Dispute participating in the mediation.
(c) Exclusion Agreement. Prior to the commencement of the mediation
session, the mediator and all parties to the Dispute participating in the mediation shall execute an
agreement pursuant to California Evidence Code Section 1115 el seq. and any successor statutes in
order to exclude the use of any testimony or evidence produced at the mediation in any subsequent
dispute resolution forum, including, but not limited to, court proceedings, reference proceedings or
arbitration hearings. Pursuant to California Evidence Code Section 1115 gl seq. the agreement shall
specifically state that evidence of anything said or of any admission made in the course of the
mediation is not admissible evidence, and disclosure of any such evidence shall not be compelled
in any civil action in which, pursuant to law, testimony can be compelled to be given. Unless the
document provides otherwise, no document prepared for the purpose of, or in the course of, or
pursuant to, the mediation, or copy thereof, is admissible in evidence; and disclosure of any such
The Cliffs at Calavera Hills 67 9/8/98
document shall not be compelled in any civil action in which, pursuant to law, testimony can be
compelled to be given.
(d) Parties Permitted at Sessions. Persons other than the parties to the
Dispute participating in the mediation, their representatives and the mediator may attend mediation
sessions only with the permission of the parties to the Dispute participating in the mediation and the
consent of the mediator. Confidential information disclosed to a mediator by the parties to the
Dispute participating in the mediation or by witnesses in the course of the mediation while serving
in such capacity shall be confidential. There shall be no stenographic record of the mediation
process.
(e) Expenses. The expenses of witnesses for either side shall be paid
by the party producing such witnesses. All other expenses of the mediation, including, but not
limited to, the fees and costs charged by the mediator and the expenses of any witnesses or the cost
of any proof or expert advice produced at the direct request of the mediator, shall be borne equally
by the parties to the Dispute participating in the mediation unless they agree otherwise. Each party
to the mediation shall bear their own attorneys' fees and costs in connection with such mediation.
17.4.5 Judicial Reference. Should mediation pursuant to Section 17.4.4 above not
be successful in resolving any Dispute, such Dispute shall be resolved by general judicial reference
pursuant to Code of Civil Procedure Sections 638 and 641 through 645.1, and as modified or as
otherwise provided in this Section 17.4.5. The parties to the Dispute 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 if (a) all parties
against whom Declarant would have necessary or permissive cross-claims or counterclaims will not
or cannot be joined in the judicial reference proceeding, including, but not limited to, the Declarant
Parties or (b) any insurer of a Declarant Party that would be liable to provide insurance coverage to
a Declarant Party for any claim arising out of the Dispute is entitled to consent to the judicial
reference procedure as a condition of providing such coverage and refuses to do so. Subject to the
limitations set forth in this Section 17.4.5, 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 referee shall
be the only trier of fact or law in the reference proceeding and shall have no authority to further refer
any issues of fact or law to any other party, without the mutual consent of all parties to the judicial
reference proceeding.
(a) glace. The proceeding shall be heard in the county in which the
Project is located.
(b) Referee. The referee shall be an attorney or retired judge with
experience in relevant real estate matters. The referee shall not have any relationship to the parties
to the Dispute or interest in the Project. The parties to the Dispute participating in the judicial
reference shall meet to select the referee within ten (10) days after service of the initial complaint
on all defendants named therein. Any dispute regarding the selection of the referee shall be promptly
The Cliffs at Calavera Hills 68 9/8/98
resolved by the judge to whom the matter is assigned, or if there is none, to the presiding judge of
the Superior Court of the County in which the Project is located, who shall select the referee.
(c) Commencement and Timing of Proceeding. The referee shall
promptly commence the proceeding at the earliest convenient date in light of all of the facts and
circumstances and shall conduct the proceeding without undue delay.
(d) Pre-hearing Conferences. The referee may require one or more pre-
hearing conferences.
(e) Discovery. The parties to the judicial reference proceeding shall be
entitled only to limited discovery, consisting of the exchange between such parties of only the
following matters: (i) witness lists; (ii) expert witness designations; (iii) expert witness reports;
(iv) exhibits; (v) reports of testing or inspections of the property subject to the Dispute, including
but not limited to, destructive or invasive testing; and (vi) trial briefs. Such parties shall also be
entitled to conduct further tests and inspections as provided in Section 17.4.2 above. Any other
discovery provided for in the California Code of Civil Procedure shall be permitted by the referee
upon a showing of good cause or based on the mutual agreement of the parties to the judicial
reference proceeding. The referee shall oversee discovery and may enforce all discovery orders in
the same manner as any trial court judge.
(f) Limitation on Remedies/Prohibition on Award of Punitive Damages.
The referee shall not have the power to award punitive damages. In addition, as further provided
below, the right to punitive damages is waived. The referee shall have the power to grant all other
legal and equitable remedies and award compensatory damages in the judicial reference proceeding.
(g) Motions. The referee shall have the power to hear and dispose of
motions, including motions relating to provisional remedies, demurrers, motions to dismiss, motions
for judgment on the pleadings and summary adjudication motions, in the same manner as a trial
court judge, except the referee shall also have the power to adjudicate summarily issues of fact or
law including the availability of remedies, whether or not the issue adjudicated could dispose of an
entire cause of action or defense. Notwithstanding the foregoing, if prior to the selection of the
referee as provided herein, any provisional remedies are sought by the parties to the Dispute, such
relief may be sought in the Superior Court of the County in which the Project is located.
(h) Rules of Law. The referee shall apply the laws of the State of
California except as expressly provided herein including the rules of evidence, unless expressly
waived by all parties to the judicial reference proceeding.
(i) Record. A stenographic record of the hearing shall be made,
provided that the record shall remain confidential except as may be necessary for post-hearing
motions and any appeals.
The Cliffs at Calavera Hills 69 9/8/98
0) Statement of Decision. The referee's statement of decision shall
contain findings of fact and conclusions of law to the extent required by law if the case were tried
to a judge. The decision of the referee shall stand as the decision of the court, and upon filing of the
statement of decision with the clerk of the court, judgment may be entered thereon in the same
manner as if the Dispute had been tried by the court.
(k) Post-hearing Motions. The referee shall have the authority to rule
on all post-hearing motions in the same manner as a trial judge.
(1) Appeals. The decision of the referee shall be subject to appeal in
the same manner as if the Dispute had been tried by the court.
(m) Expenses. The fees and costs of any judicial reference proceeding
hereunder shall be equally shared by the parties to the judicial reference proceeding. Each party to
the judicial reference proceeding shall bear its own attorneys' fees and costs in connection with such
proceeding.
17.4.6 AGREEMENT TO ALTERNATIVE DISPUTE RESOLUTION:
WAIVERS OF JURY TRIAL AND AWARD OF PUNITIVE DAMAGES. DECLARANT AND
BY ACCEPTING A DEED FOR THE ASSOCIATION PROPERTY OR A RESIDENTIAL UNIT,
AS THE CASE MAY BE, THE ASSOCIATION AND EACH OWNER AGREE TO HAVE ANY
DISPUTE RESOLVED ACCORDING TO THE PROVISIONS OF THIS SECTION 17.4 AND
WAIVE THEIR RESPECTIVE RIGHTS TO PURSUE ANY DISPUTE IN ANY MANNER
OTHER THAN AS PROVIDED IN THIS SECTION 17.4. SUCH PARTIES ACKNOWLEDGE
THAT BY AGREEING TO RESOLVE ALL DISPUTES AS PROVIDED IN THIS
SECTION 17.4, THEY ARE GIVING UP THEIR RESPECTIVE RIGHTS TO HAVE SUCH
DISPUTES TRIED BEFORE A JURY AND WAIVE THEIR RESPECTIVE RIGHTS TO AN
AWARD OF PUNITIVE DAMAGES RELATING TO SUCH DISPUTES, THEREBY GIVING
UP ANY RIGHTS SUCH PARTIES MAY POSSESS TO SUCH REMEDIES. THIS
SECTION 17.4 SHALL NOT BE AMENDED WITHOUT DECLARANT'S PRIOR WRITTEN
CONSENT.
17.4.7 Application of Award. Any proceeds arising from any Dispute by
settlement, award or otherwise shall be applied in accordance with Section 4.4.7 of this Declaration.
17.4.8 Exceptions to Mediation and Reference: Statutes of Limitation. The
procedures set forth in this Section 17.4 shall apply only to Disputes and shall not apply to any
action taken by the Association against Declarant or any Owner for delinquent assessments, which
shall be covered by Article 6, or in any action involving any bond covered by the provisions of
Article 11 of the Bylaws. Furthermore, nothing in this Section 17.4 shall be considered to toll, stay,
reduce or extend any applicable statutes of limitation; provided, however, that the Association or any
Owner shall be entitled to commence a legal action that in the good faith determination of the Board
or Owner is necessary to preserve the Association's or Owner's rights under any applicable statute
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of limitations, provided that the Association or Owner shall take no Further steps in prosecuting the
action until it has complied with the procedures described in Sections 17.4.4 and 17.4.5.
17.5 GENERAL ENFORCEMENT BY CITY. The City shall have the right, but not the
obligation, to enforce the provisions set forth in this Declaration in favor of the City or in which the
City has an interest.
ARTICLE 18
GENERAL PROVISIONS
18.1 HEADINGS. The headings used in this Declaration are for convenience only and are
not to be used to interpret the meaning of any of the provisions of this Declaration.
18.2 SEVERABILITY. The provisions of this Declaration shall be deemed independent
and severable, and the invalidity or partial invalidity or unenforceability of any provision or
provisions of it shall not invalidate any other provisions.
18.3 CUMULATIVE REMEDIES. Each remedy provided for in this Declaration shall
be cumulative and not exclusive. Failure to exercise any remedy provided for in this Declaration
shall not, under any circumstances, be construed as a waiver.
18.4 VIOLATIONS AS NUISANCE. Every act or omission in violation of the provisions
of this Declaration shall constitute a nuisance and, in addition to all other remedies herein set forth,
may be abated or enjoined by any Owner, any member of the Board, the manager, or the
Association.
18.5 NO RACIAL RESTRICTION. No Owner shall execute or cause to be recorded any
instrument that imposes a restriction upon the sale, leasing or occupancy of his Residential Unit on
the basis of race, sex, color or creed.
18.6 ACCESS TO BOOKS. Declarant may, at any reasonable time and upon reasonable
notice to the Board or manager at its own expense, cause an audit or inspection to be made of the
books and financial records of the Association.
18.7 LIBERAL CONSTRUCTION. The provisions of this Declaration shall be liberally
construed to effectuate its purpose. Failure to enforce any provision hereof shall not constitute a
waiver of the right to enforce said provision thereafter.
18.8 NOTIFICATION OF SALE OF CONDOMINIUM. Concurrently with the
consummation of the sale of any Condominium under circumstances whereby the transferee
becomes an Owner thereof, or within five (5) business days thereafter, the transferee shall notify the
Board in writing of such sale. Such notification shall set forth the name of the transferee and his or
The Cliffs at Calavera Hills 71 9/8/98
her Mortgagee and transferor, the common address of the Condominium purchased by the transferee,
the transferee's and the Mortgagee's mailing address, and the date of sale. Prior to the receipt of such
notification, any and all communications required or permitted to be given by the Association, the
board or the manager shall be deemed to be duly made and given to the transferee if duly and timely
made and given to said transferee's transferor. Mailing addresses may be changed at any time upon
written notification to the Board. Notices shall be deemed received forty-eight (48) hours after
mailing if mailed to the transferee, or to his or her transferor if the Board has received no notice of
transfer as above provided, by certified mail return receipt requested, at the mailing address above
specified. Notices shall also be deemed received twenty-four (24) hours after being sent by
overnight courier or upon delivery if delivered personally to any occupant of a Residence over the
age of twelve (12) years.
18.9 NUMBER. GENDER. The singular shall include the plural and the plural the
singular unless the context requires the contrary, and the masculine, feminine and neuter shall each
include the masculine, feminine or neuter, as the context requires.
18.10 EXHIBITS. All exhibits referred to in this Declaration are attached to this
Declaration and incorporated by reference.
18.11 BINDING EFFECT. This Declaration shall inure to the benefit of and be binding on
the successors and assigns of the Declarant, and the heirs, personal representatives, grantees, tenants,
successors and assigns of the Owners.
18.12 EASEMENTS RESERVED AND GRANTED. Any easements referred to in this
Declaration shall be deemed reserved or granted, or both reserved and granted, by reference to this
Declaration in the first deed by Declarant to any Condominium.
IN WITNESS WHEREOF, Declarant has executed this instrument as of the date first above
written.
DECLARANT:
HERITAGE-CLIFFS, LLC, a California
limited liability company
By:.
Paul Garrett, Managing Member
C:\DMS\MMA\1243539.07
The Cliffs at Calavera Hills 72 9/8/98
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On before me, , personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, 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.
Signature (SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On before me, , personally appeared
, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, 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.
Signature (SEAL)
SUBORDINATION AGREEMENT
The undersigned, as holder of the beneficial interest in that certain Deed of Trust dated
and recorded in the Office of the County Recorder of San Diego County on
as File/Page No. 1998- , which Deed of Trust encumbers all or a portion of
the real property covered by the Declaration of Covenants, Conditions and Restrictions of The Cliffs
at Calavera Hills Homeowners Association, does hereby intentionally and unconditionally
subordinate the lien of said Deed of Trust to the Declaration of Covenants, Conditions and
Restrictions of Homeowners Association recorded concurrently herewith and to which this
Subordination Agreement is attached.
Dated:
By:.
By:_
Name:.
Title:
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On before me, , personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name(s) are/is subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity, 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.
Signature [SEAL]
EXHIBITS
Exhibit "A" Legal Description of the Property
Exhibit "B" Legal Description of Additional Property
Exhibit "C" Brush Management Program
EXHIBIT "A"
Legal Description of the Property
EXHIBIT "A"
EXHIBIT "B"
Legal Description of Additional Property
EXHIBIT "B"
r
OPEN SPACE:
O
300'
HUNSAKER
^ASSOCIATES
* A N DISCO INC
«W Htwnekere ft. Suite ZOO
San Diego, GJ SJ121
BRUSH MANAGEMENT AREAS
EXHIBIT "C"
SURVW1NG R:\OO51\005lZOt2.DWG PREPARED 12/29/98
EXHIBIT "C"
Brush Management Program
EXHIBIT "C"