HomeMy WebLinkAboutCT 99-10; Buerger; Tentative Map (CT) (19)Recorded at Request of
Chicago Title Company
Order No. 23071483-U52
When Recorded, Return to:
AVIARA POINTE, LLC
c/o Christopher Stearns
Attorney at Law
1901 First Avenue, Suite 112
San Diego, CA 92101-0300
DECLARATION OF
COVENANTS. CONDITIONS AND RESTRICTIONS
FOR
AVIARA POINTE
PLANNED RESIDENTIAL DEVELOPMENT
Aviara.ccr
TABLE OF CONTENTS
Article/Section Page
I DEFINITIONS 2
II DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND
CREATION OF PROPERTY RIGHTS 4
.... — 2.01 Description of Project . ; . / . . V . . . . . . . . 4
2.02 Conveyance of Common Area to Association 4
2.03 Easements; Dedication.of Common Area .5
2.04 Easements to Accompany Conveyance of Lot 5
2.05 Delegation of Use 5
2.06 Owners' Rights and Easements for Utilities 6
2.07 Encroachment Easements 6
2.08 Maintenance Easement 7
2.09 Open Space/Non-Building Areas 7
2.10 Drainage Easements 7
- 2.11 Other Easements- .-.-..-. -. . . •-. .- . . .- . . .- 7
2.12 Rights of Entry and Use 7
2.13 Partition of Common Area 7
2.14 Party Walls 8
A. General Rules of LawTo Apply 8
B. Sharing of Repair and Maintenance 8
C. Destruction by Fire or Other Casualty 8
D. Right to Contribution Runs with Land 8
E. .. Arbitration 8
2.15 Zero Lot Line Walls and Easements 9
A. Easements 9
... , . B. -...Arbitration . .• 9
III ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS 9
3.01 Association to Own and Manage Common Areas 9
3.02 Membership 9
3.03 Transfer of Membership 9
3.04 Membership Classes and Voting Rights 10
Class A 10
Class B 10
IV MAINTENANCE AND ASSESSMENTS 11
4.01 Creation of the Lien and Personal Obligation of
Assessments 11
4.02 Purpose of Assessments 11
4.03 Types of Assessment 11
A. Annual Assessments 11
B. Special Assessments 12
4.04 Limitations on Annual and Special Assessments ... 12
4.05 Notice for Any Action Authorized Under
Section 4.04 13
4.06 Division of Assessments 13
(i)
4.07 Date of Commencement of Annual Assessment;
Due Dates 14
4.08 Effect on Nonpayment of Assessments 14
4.09 Transfer of Lot By Sale or Foreclosure 14
4.10 Priorities; Notice Requirements;
Enforcement; Remedies 15
4.11 Unallocated Taxes 16
4.12 Initial Capitalization of the Association 16
V DUTIES AND POWERS OF THE ASSOCIATION 17
5.01 Duties 17
A. Maintenance 17
B. Insurance . . .... ..'.'. 17
C. Discharge of Liens 19
D. Assessments 19
E. Payment of Expenses 19
F. Enforcement 19
.5.02 Powers. . 1 .. ... 19
A. Utility Service 19
B. Easements 19
C. Manager 19
D. Adoption of Rules .- 19
E. Access 19
F. Assessments, Liens, and Fines ........ 20
G. Enforcement 20
H. Acquisition and Disposition of-Property ... 20
I. Loans 20
J. Dedication 20
K. Contracts 20
• ' " L. Delegation 21
M. Use of Recreational Facilities 21
N. Water and Garbage Service 21
O. Appointment of Trustee 21
P. Other Powers 21
5.03 Commencement of Association's Duties and Powers . . 22
VI ARCHITECTURAL AND OPEN SPACE CONTROL 22
6.01 Approval of Plans 22
6.02 Architectural Control and Open Space Committees . . 22
6.03 Landscaping 23
6.04 Governmental Approval 23
VII USE RESTRICTIONS 23
7.01 Use of Lot 23
7.02 Nuisances 23
7.03 Vehicle Restrictions 24
7.04 Parking 24
7.05 Commercial Activity 24
7.06 Storage in Common Area 25
7.07 Signs 25
(ii)
Page
7.08 Animals 25
7.09 Garbage and Refuse Disposal 25
7.10 Radio and Television Antennas; Lighting Fixtures . 25
7.11 Basketball Standards . .-. 26
- 7.12 Drapes ............ 26
7.13 Clothes Lines 26
7.14 Power Equipment and Car Maintenance 26
7.15 Liability of Owners for Damage to Common Area ... 26
7.16 Leasing of Lots 27
VIII GENERAL PROVISION' . . . : ' . . ' '. . 27
8.01 Enforcement .................... 27
8.02 Invalidity of Any Provisions 28
8.03 Term 29
8.04 Amendments . 29
8.05 Rights of First Lenders 30
A. Copies of Project Documents . . 30
-• - • B.' • Audited Statement" . ... .".".". . . . . . . 30
C. Notice of Action 30
D. Material Amendments 30
E. Consent to Action ^ 31
F. Right of First Refusal 32
G. Contracts 32
H. Reserves 32
I. Priority of Liens . 32
J. Distribution of Insurance or Condemnation
Proceeds 33
K. Payment of Taxes or Insurance by Lenders ... 33
, • v/ L...-VA Approval . .- 33
M. • Termination of Professional Management .... 33
N. Restoration or Repair 33
0. Project Termination 33
P. Reallocation of Interests 34
8.06 Owner's Right and Obligations to Maintain
and Repair 34
8.07 Damage or Destruction 34
8.08 Condemnation . 36
8.09 Limitation of Restrictions on Declarant 36
8.10 Termination of Any Responsibility of Declarant . . 37
8.11 Owner's Compliance 37
8.12 Notices 38
8.13 Special Provisions Relating to Enforcement
of Declarant's Obligation to Complete
Common Area Improvements 38
8.14 Fair Housing 39
8.15 Documents Provided to Prospective Purchaser .... 39
8.16 ALTERNATIVE DISPUTE RESOLUTION (Enforcement of
Governing Documents 39
A. Summary of Civil Code Section 1354 39
B. Text of Civil Code Section 1366.3 40
(iii)
Page
8.17 ARBITRATION OF DISPUTES (Action For Damages Against
Declarant For Defect in Design or Construction of the
Project) 41
8.18 Special Provisions Required by City of Carlsbad . . 41
EXHIBIT "A" LEGAL DESCRIPTION
EXHIBIT "B" PARTIAL BUDGET
(iv)
COVENANTS. CONDITIONS AND RESTRICTIONS
FOR
AVIARA POINTS
PLANNED RESIDENTIAL DEVELOPMENT
THIS DECLARATION, made on the date hereinafter set forth, and
made by the person(s) and/or entity or entities hereinafter
identified as the "Declarant", is made with reference to the
following facts and circumstances.
RECITALS
A. The Declarant is the owner of that certain real property
located in the City of Carlsbad, (hereinafter the "City"), County
of San Diego, State of California, more particularly described as
set forth in Exhibit "A" to this Declaration, which is attached
hereto and incorporated herein by reference and made part hereof as
though set forth in full, which property, together with all
improvements and structures now or hereafter constructed thereon
and all appurtenances thereto, is hereinafter defined and referred
to as the "Project".
B. The Declarant has improved or intends to improve said
property by constructing thereon a planned residential development.
C. The Declarant hereby establishes by this Declaration a
plan for the development, improvement, protection and maintenance
of the Project in a single phase as a planned residential
development under the provisions of the Common Interest Development
Act of the State of California (Civil Code, Section 1350, et seq.).
The development of the Project will be consistent with any overall
development plans submitted by Declarant to, and approved by, the
City.
D. The Declarant intends by this document to impose upon the
Project mutually beneficial restrictions under a general plan of
improvement for the benefit of all lots within the Project and the
owners thereof.
E. The owner of a lot within the Project shall receive fee
title to his lot together with an appurtenant membership in the
Association, a California nonprofit mutual benefit corporation,
which shall own, operate and maintain the common area and which
shall enforce the provisions of this Declaration.
F. NOTICE: THIS DECLARATION CONTAINS PROVISIONS FOR BINDING
ARBITRATION OF DISPUTES IN CERTAIN SITUATIONS. SEE PAGES 8-9 AND
39-42 FOR DETAILS.
NOW, THEREFORE, the Declarant hereby declares that the
Project, and every part thereof, shall be held, sold, leased,
mortgaged, encumbered, rented, used, occupied, improved and
conveyed subject to the following declarations, limitations,
easements, restrictions, covenants and conditions, which are
imposed as equitable servitudes pursuant to a general plan for the
development of the Project for the purpose of enhancing and
protecting the attractiveness, value and desirability of the
Project and every part thereof, and which shall run with the land
and be binding on the Declarant and its successors and assigns, and
on all parties having or acquiring any right, title or interest in
or to the Project or any part thereof, their heirs, successors and
assigns, and shall inure to the benefit of each owner thereof.
ARTICLE I
DEFINITIONS
1.01 "Articles" and "Articles of Incorporation" shall mean and
refer to the Articles of Incorporation of the Association, as may
be amended from time to time.
1.02 "Assessment" shall mean that portion of the cost of
maintaining, improving, repairing and managing the Common Area
which is to be paid by each lot owner as determined by the
Association.
1.03 "Association" shall mean and refer to the AVIARA POINTE
OWNERS ASSOCIATION, a California nonprofit mutual benefit
corporation, the members of which shall be the owners of lots in
the Project.
1.04 "Board" and "Board of Directors" shall mean and refer to
the governing body of the Association.
1.05 "Bylaws" shall mean and refer to the Bylaws of the
Association, as may be amended from time to time.
1.06 "Common Area" shall mean and refer to the portions of the
Project, and all improvements thereon, owned by the Association for
the common use and enjoyment of the owners, including initially,
upon recordation of the Map and conveyance by deed to the
Association, the certain lot(s) identified by number or letter on
Exhibit "A" to the Declaration as being Common Area Lots contained
in the Project.
1.07 "Common expenses" means and includes the actual and
estimated expenses of operating the Common Area, and any reasonable
reserve for such purposes as found and determined by the Board, and
all sums designated common expenses by or pursuant to the Project
Documents.
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1.08 "Declarant" shall mean and refer to the person(s) and/or
entity or entities identified in Exhibit "A", to the Declaration as
the record holder(s) of title to the real property identified and
legally described in said Exhibit as being within and a part of the
Project, and shall also mean and refer to any and all successors
and assigns of such persons and/or entities.
1.09 "Declaration" shall mean and refer to this Declaration of
Covenants, Conditions and Restrictions, as may be amended or
supplemented from time to time.
1.10 "Director" shall mean and refer to a person who is a
member of the Board .of Directors (the. governing body) of the
Association.
1.11 "Eligible holder mortgages" shall mean mortgages held by
"eligible mortgage holders".
1.12 "Eligible mortgage holder" shall mean a first lender who
has requested notice of certain matters from the Association in
accordance with the Project Documents. - . - •*.-
1.13 "Eligible insurer or guarantor" shall mean an insurer or
governmental guarantor of a first mortgage who has requested notice
of certain matters from the Association in accordance with the
Project Documents.
1.14 "First lender" shall mean any bank, savings and loan
association, insurance company, or other financial institution
holding, insuring or-guaranteeing a recorded first mortgage on any
lot.
1 1". 15' "First "mortgage" shall'mean and refer to a mortgage or
deed'of trust: which is recorded, which has first priority over all
other mortgages and deeds of trust, and which was made in good
faith and for value.
1.16 "Lot" shall mean and refer to those separate fee
interests of land within the Project, together with any
improvements thereon, which are identified by number on Exhibit "A"
to the Declaration as being Residential Lots contained within the
Project.
1.17 "Map" shall mean and refer to the final subdivision map
approved by the City of Carlsbad California in connection with the
Project which is recorded in the County in which the Project is
located.
1.18 "Member" shall mean and refer to a person entitled to
membership in the Association as set forth in the Project
Documents; provided, that whenever "member" or "membership" is used
for the purpose of determining quorums, percentages, or minimum or
maximum numbers for voting, all persons who are members because of
their joint ownership of a particular lot shall be counted as one
(1).
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1.19 "Mortgage" shall include a deed of trust as well as a
mortgage. - - - -
1.20 "Mortgagee" shall include a beneficiary or a holder of a
deed of trust as well as a mortgagee.
.1.21 "Mortgagor" shall include the trustor of a deed of trust
as well as a mortgagor.
1.22 "Owner" and "owners" shall mean and refer to the record
holder, whether one (1) or more persons or entities, of a fee
simple title to any lot which is a part of the Project, including
contract sellers, but excluding those persons or entities having an
interest merely as security for the performance of an obligation;
provided, that whenever "owner" or "owners" is used.for the purpose
of determining quorums, percentages, or minimum or maximum numbers
for voting, all persons who are owners because of their joint
ownership of a particular lot shall be counted as one (1).
1.23 "Person" means a natural person, a corporation, a
partnership,- a trustee/- or other legal- entity. - - -
1.24 "Project" shall mean and refer • to the real property
contained in Exhibit "A", and all improvements erected or to be
erected thereon, and all appurtenances thereto, and all property,
real, personal or mixed, intended for use in connection therewith.
1.25 "Project Documents" shall mean and refer to the
Declaration, together with the other basic documents used to create
and govern the Project, including the Map, the Articles, and the
Bylaws, and any unrecorded rules and regulations adopted by the
Board.or the Association, as.all.of these documents may be amended
from time to time.
1.26 "Number and Gender". The singular and plural number and
masculine, feminine and neuter gender, respectively, shall each
include the other where the context requires.
ARTICLE II
DESCRIPTION OF PROJECT. DIVISION OF PROPERTY. AND
CREATION OF PROPERTY RIGHTS
2.01 Description of Project; The Project is a planned
residential developmental which consists of the property described
in Exhibit "A", attached hereto and incorporated herein by
reference, and all improvements thereon and appurtenances thereto,
and is subject to the terms of this Declaration upon recordation
hereof.
2.02 Conveyance of Common Area to Association: On or before
conveyance of title to the first lot, Declarant shall deed the
Common Area to the Association to be held for the benefit of the
members of the Association.
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2.03 Easements; Dedication of Common Area; Each of the lots
shown on Exhibit "A" shall have appurtenant to it (as the dominant
tenement) an easement over the Common Area(s) (as the servient
tenement), now or hereafter owned by the Association/ for ingress
and egress, and for use, occupancy and enjoyment, and where
applicable, for the construction, maintenance and operation of
utilities.- All' of 'the easements are subject to the following
provisions:
A. The right of the Association to discipline members,
and to suspend the voting rights of a member and his right to use
of any recreational facilities, for any period during which any
assessment against his lot remains unpaid, and for any infraction
of the rules contained in the Declaration, Bylaws, Articles or
written rules and regulations, in accordance with the provisions of
the Project Documents;
B. The right of the Association to dedicate, transfer
or mortgage all or any part of the common area to any public
agency, .authority, or utility for such purposes and subject to,such
conditions as may be agreed to by the members, provided, that in
the case of the borrowing of money and the mortgaging of its
property as security therefor, the rights of.such mortgagee shall
be subordinate to the rights of the members of the Association. . No
such dedication, transfer or mortgage shall be effective unless as
an instrument signed or approved three-fourths (3/4) of each class
of members agreeing to such dedication, transfer or mortgage has
been recorded;
C. The right of the Association to grant easements
under, in, upon,.across, over, above or through any portion of the
common" area" for"'purposes"';" including," by way of example and not by
way of limitation, access, utilities, and parking, which are
beneficial to the development of the properties in accordance with
the general plan established by this Declaration;
D. Easements for work necessary to complete development
and construction of the Project.
The foregoing easements are granted and reserved subject to
the condition that their use and enjoyment shall not unreasonably
interfere with the use, occupancy or enjoyment of all or any part
of the lot servient to them or to which they are appurtenant.
2.04 Easements to Accompany Conveyance of Lot; Easement that
benefit or burden any lot shall be appurtenant to that lot and
shall automatically accompany the conveyance of the lot, even
though the description in the instrument of conveyance may refer
only to the fee title to the lot.
2.05 Delegation of Use; Any owner may delegate, in accordance
with the Bylaws, his right of enjoyment to the common area and
facilities to the members of his family, his tenants, or contract
purchasers, who reside on the property. Nonresident members, their
families, guests and relatives, are not permitted to use the
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recreational facilities during periods when their lot is leased to
and/or occupied by others (nonfamily members).
2.06 Owners/ Rights and Easements for Utilities; The rights
and duties of the owners of lots within the project with respect to
sanitary sewer, drainage, water, electric, gas, television
receiving, telephone equipment, cables and lines (hereinafter
referred to, collectively, as "utility facilities") shall be as
follows:
A. Whenever utility facilities are installed within the
project, which utility facilities or any portion thereof lie in or
upon a lot or lots owned by other than the owner of a lot served by
said utility facilities, the owners of any lots served by said
utility facilities shall have the right of.reasonable access for
themselves or for utility. companies or the City or County to
repair, to replace and generally maintain said utility facilities
as and when the same may be necessary, due to failure or inability
of the Board to take timely action to make such repairs or perform
such maintenance. . .......... -.
B. Whenever utility facilities are installed within the
project which utility facilities serve more.than one (1) lot, the
owner of each lot served by the- utility facilities shall be
entitled to the full use and enjoyment of such portions of the
utility facilities as service his lot.
C. In the event of a dispute between .owners with
respect to the repair or rebuilding of the.utility'facilities, or
with respect to the sharing of the cost thereof, then, upon written
.request of one (1) of such owners addressed to the other Owner(s),
the" matter"shall be"submitted to binding arbitration within sixty
(60) "days pursuant to the rules of the American Arbitration
Association, and the decision of the Arbitrator(s) shall be final
and conclusive on the parties, and judgment may be entered thereon
in any court having jurisdiction.
2.07 Encroachment Easements; Each lot (as the dominant
tenement) shall have an easement over adjoining lots and common
area (as the servient tenements) for the purpose of accommodating
any encroachment due to foundations, exterior walls, windows, roof
overhang and fences or walls which are built in accordance with the
original design, plans and specifications of Declarant, or due to
engineering errors, errors or adjustments in original construction,
settlement or shifting of the building, or similar causes. There
shall be valid easements for the maintenance of said encroachments
as long as they shall exist, and the rights and obligations of
owners shall not be altered in any way by said encroachment,
settlement or shifting, provided, however, that in no event shall
a valid easement for encroachment be created in favor of an owner
or owners if said encroachment occurred due to the intentional
conduct of said owner or owners other than adjustments by Declarant
in the original construction. In the event a structure is
partially or totally destroyed, and then repaired or rebuilt, the
owners of each adjoining lot agree that minor encroachments over
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adjoining lots and common area shall be permitted and that there
shall be valid easements for the maintenance of said encroachments
so long as they shall exist.
2.08 Maintenance Easement; An easement over each lot {as the
servient tenement) is reserved by Declarant in favor of each other
lot (as the dominant tenement), and is hereby granted to the
Association, for the purpose of allowing the Association's agents
to enter the lot to perform such maintenance, if any, as the
Association elects or is required to do in accordance with the
provisions of sections 5.01.A and 8.18 of this Declaration.
2.09 Open Space/Non-Building Areas; Any .portions of the
common area Lot(s) in the project that are.designated "Open Space
Easement Area" or "Not a Building Site" on the Map are for
preserving open 'space for the benefit of . all .members of the
Association and no building shall be constructed within these
areas.
2.10 Drainage Easements: Reciprocal appurtenant easements
between each lot and the .common area.and between adjoining lots are
hereby created for the flow of surface water.
2.11 Other Easements: The common area and each lot are
subject to all easements, dedications, and rights of way granted or
reserved in, on, over and under the property as shown on the Map.
2.12 Rights of Entry and Use; The lots and common area shall
be subject to .the following rights of entry and use:
A. The right of the Association agents to enter any lot
to .cure any. violation of this Declaration or the Bylaws, provided
that "thV owner'has received notice and a hearing as required by the
Bylaws (except in the case of an emergency) and the owner has
failed to cure the violation or take steps necessary to cure the
violation within thirty (30) days after the finding of a violation
by the Association;
B. The access rights of the Association to maintain,
repair or replace improvements or property located in the common
area as described in section 5.02E;
C. The easements described in this Article II;
D. The right of the Association's agent to enter any
lot to perform maintenance as described in section 8.06;
E. The rights of the Declarant during the construction
period as described in section 8.09.
2.13 Partition of Common Area; There shall be no subdivision
or partition of the common area, nor shall any owner seek any
partition or subdivision thereof, except as hereinbelow provided.
- 7 -
Notwithstanding any provisions to the contrary contained in
this Declaration and in order to provide for a means of terminating
the project if this should become necessary or desirable, on
occurrence of any of the conditions allowing an owner of a lot to
maintain an action for partition (as such conditions are presently
set forth in California Civil Code Section 1359 or as such
conditions in the future.may be set forth in any amendment thereto
or comparable provisions of law), two-thirds (2/3) of the owners of
lots shall have the right to petition the Superior'Court having
jurisdiction to alter or vacate the recorded Subdivision Map of the
property under California Government Code Sections 66499.21 et
seq., or any comparable provisions of law, and to vest title to the
property in owners . as . tenants in common and. order • an . equitable
partition of the property in accordance with .the laws of the State
of California.
Nothing herein shall be construed to prohibit partition of a
joint tenancy or cotenancy in any lot.
2.14 Party Walls:
A. General Rules of Law To Apply: Any wall or fence
that is built as part of the original construction, of.the Project,
is located on the boundary line with an adjacent lot, and either is
used in common with the residence on the adjacent lot or abuts
against a similar wall or fence on the adjacent lot between two (2)
lots shall constitute a party wall, and, to the -extent not
inconsistent with the provisions of this Article, .the.general rules
of law regarding party walls and liability for property damage due
to negligence or willful acts or omissions shall apply thereto.
-:_ _•_ •-. , B..,. Sharing, of Repair and Maintenance; The cost of
reasonable'repair"and maintenance of a party wall shall be shared
by the owners who make use of the wall in proportion to such use.
C. Destruction by Fire or Other Casualty; If a party
wall is destroyed or damaged by fire or other casualty, any owner
who has used the wall may restore it, and if the other owners
thereafter make use of the wall, they shall contribute to the cost
of restoration thereof in proportion to such use; provided,
however, that the owner or owners whose negligent act or omission
proximately caused the damage or destruction, shall bear the full
cost of restoration that is not covered by insurance.
D. Right to Contribution Runs with Land; The right of
any owner to contribution from any other owner under this Article
shall be appurtenant to the land and shall pass to such owner's
successors in title.
E. ARBITRATION; IN THE EVENT OF ANY DISPUTE ARISING
CONCERNING A PARTY WALL, OR UNDER THE PROVISIONS OF THIS SECTION,
UPON WRITTEN REQUEST OF ONE OWNER ADDRESSED TO THE OTHER OWNER(S),
THE MATTER SHALL BE SUBMITTED TO BINDING ARBITRATION WITHIN SIXTY
(60) DAYS PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION
- 8 -
ASSOCIATION, OR ANY SUCCESSOR THERETO, AND JUDGMENT MAY BE ENTERED
THEREON IN ANY COURT HAVING JURISDICTION.
2.15 Zero Lot Line Walls and Easements;
A. Easements; In any and all cases where' a structural
wall of a residence that was built as part of the original
construction is located on the boundary line between adjacent lots,
the owner of the residence shall have a nonexclusive easement over
the adjacent lot for access to and maintenance of the wall, the
reconstruction of the wall in the event of the partial or total
destruction of the same, drainage associated with the wall or the
residence of which the wall is a part, and an easement to
accommodate the foundation and/or roof or eave encroachment as per
the original design, plans and specifications which were the basis
for the original construction of the residence or residences on the
lot or lots. The owner of a lot having a structural wall situated
in the boundary line between his lot and the adjoining lot shall
not attach anything to the outside of the wall which shall protrude
across the boundary line into the adjoining lot, and the owner of
the adjoining lot upon which such a wall is situated shall not
attach anything to the outside of the wall without (in each case)
the consent and permission of the owner of the adjoining lot upon
which the residence of which the wall is a part is situated.
B. ARBITRATION; IN THE EVENT OF ANY DISPUTE ARISING
CONCERNING THE PROVISIONS OF THIS SECTION, UPON WRITTEN REQUEST OF
ONE OWNER ADDRESSED TO THE OTHER OWNER(S), THE MATTER SHALL BE
SUBMITTED TO BINDING ARBITRATION WITHIN SIXTY (60) DAYS PURSUANT TO
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, OR ANY SUCCESSOR
THERETO, AND JUDGMENT MAY BE ENTERED THEREON IN ANY COURT HAVING
JURISDICTION.
ARTICLE III
ASSOCIATION. ADMINISTRATION. MEMBERSHIP AND
VOTING RIGHTS
3.01 Association to Own and Manage Common Areas: The
Association shall own and manage the common area in accordance with
the provisions of this Declaration, the Articles and the Bylaws of
the Association.
3.02 Membership: The owner of a lot shall automatically, upon
becoming the owner of same, be a member of the Association, and
shall remain a member thereof until such time as his ownership
ceases for any reason. Membership shall be appurtenant to and may
not be separated from ownership of a lot. Membership shall be held
in accordance with the Articles and Bylaws of the Association.
3.03 Transfer of Membership; Membership in the Association
shall not be transferred, encumbered, pledged or alienated in any
way, except upon the sale or encumbrance of the lot to which it is
appurtenant, and then only to the purchaser, in the case of a sale,
or mortgagee, in the case of an encumbrance of such lot. On any
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transfer of title to an owner's lot, including a transfer on the
death of"an owner, membership passes automatically with title to
the transferee.
A mortgagee does not have membership rights until it obtains
title to the lot through foreclosure or deed in lieu thereof. Any
attempt to make a prohibited transfer is void. No member may
resign his membership. On notice of transfer, the Association
shall record the transfer on its books.
3.04 Membership Classes and Voting Rights: The Association
shall have two (2) classes of voting membership:
Class A. Class A members shall be all owners with the
exception of the Declarant and shall be entitled to one (1) vote
for each lot owned. When more than one (1) person holds an
interest in any lot, all such persons shall be members. The vote
for such lot shall be exercised as they among themselves determine,
but in no event shall more than one (l) vote be cast with respect
to any lot.
Class B. The Class B members shall be the Declarant and shall
be entitled to vote as follows: Voting shall be the same as for
Class A membership, except that the Class B members may triple
their votes for each lot owned. The Class B membership :shall cease
and be converted -to Class A membership on the happening of either
of the following events, whichever occurs earlier:
(a) On the second anniversary date of .the first
conveyance of a Lot " in the original issuance of the final
subdivision report for the Project; or
(b) when the total votes outstanding in the Class A
membership equal the total votes (tripled as stated above)
outstanding in the Class B membership.
Any action by the Association which must have the approval of
the members before being undertaken shall require the vote or
written assent of a majority of each class of membership during the
time that there are two (2) outstanding classes of membership.
Where the vote or written assent of each class of membership is
required, any requirement that the vote of Declarant be excluded is
not applicable, except as provided in sections 8.12 or 8.13 hereof.
After the conversion of Class B membership to Class A membership,
any provisions herein requiring the approval of members other than
Declarant, except as'provided in the sections 3.12 or 8.13, shall
mean the vote or written assent of a majority of the total voting
power of the Association (including Declarant's vote) and the vote
or written assent of a majority of the total voting power of
members other than the Declarant. Voting rights attributable to
lots shall not vest until assessments have been levied against
those lots by the Association. Owners of all lots shall have the
same voting rights. A "majority vote" means a majority of votes in
the project as a whole.
- 10 -
ARTICLE IV
MAINTENANCE AND ASSESSMENTS
4.01 Creation of the Lien and Personal Obligation of
Assessments: The Declarant, for each lot owned within the project,
hereby covenants, and each owner of any lot by acceptance of a deed
therefor, whether or not it shall be so expressed in -such deed,
hereby covenants and agrees: (1) to pay to the Association annual
assessments or charges and special assessments for purposes
permitted herein, such assessments to be established and collected
as hereinafter provided; and (2) to allow the .Association to
enforce an assessment lien established hereunder by nonjudicial
proceeding under a power of sale or by any other means.authorized
by law. The annual and special assessments, .together .with
interest, late charges, collection costs and reasonable attorneys'
fees, shall be a charge on the land and shall be a continuing lien
upon the property against which each such assessment is made, the
lien to become effective upon recordation of a notice of delinquent
assessment. Each such assessment, together with interest, late
charges, collection costs, and reasonable attorneys' fees, 'shall
also be the personal joint and several obligation of the .person who
was the owner of such property at the time when the assessment fell
due. The personal obligation for delinquent,assessments shall not
pass to his successors in title unless expressly assumed by them.
No owner of a lot may exempt himself from liability for his
contribution towards the common expenses by waiver of the use or
enjoyment of any of the common areas or by the.abandonment of his
lot.
4.02 Purpose of Assessments: The assessments levied by the
Association shall be used exclusively to promote the economic
interests, recreation, .health, safety, and welfare of all the
residents in the project and to enable the Association to perform
its obligations hereunder. The Association shall not impose or
collect an assessment, penalty or fee that exceeds the amount
necessary to defray the costs for which it is levied.
4.03 Types of Assessment:
A. Annual Assessments: The Board shall establish and
levy annual assessments in an amount that the Board estimates will
be sufficient to raise the funds needed to perform the duties of
the Association during each fiscal year. Failure by the Board to
set assessments for any given year shall not be deemed a waiver of
the assessments for that year, but rather the prior year's
assessments shall continue.
The annual assessment shall include a portion for
reserves in such amounts as the Board in its discretion considers
appropriate to meet the costs of the future repair, replacement or
additions to the major improvements and fixtures that the
Association is obligated to maintain and repair. Reserve funds
shall be deposited in a separate account. Reserve funds may not be
expended for any purpose other than repairing, replacing or adding
- 11 -
to the major improvements or fixtures that the Association is
obligated to maintain, without the consent of Owners holding a
majority of the voting power, either at a duly held meeting or by
written ballot.
B. Special Assessments; The Board, at any time, may
levy a special assessment in order to raise funds for unexpected
-operating or other costs, insufficient operating or reserve funds,
to cover the cost of any construction, reconstruction, repair or
replacement of any capital improvement upon the Common Area, or for
such other purposes as the Board in its discretion considers
appropriate. Special assessments shall be allocated among the Lots
in the same manner as regular assessments. - -
4.04 Limitations on Annual and Special Assessments: .
A. The Board may not impose an annual assessment that
is more than twenty percent (20%) greater than the annual
assessment for the Association's preceding fiscal year or impose
special assessments which in the aggregate exceed five percent (5%)
of the budgeted gross expenses-of the-Association for.that fiscal
year without the approval of owners, constituting a quorum, casting
a majority of the votes at a meeting or election of the Association
conducted in accordance with Chapter 5 (commencing with section
7510) of Part 3 of Division 2 of Title 1 of the Corporations Code
and section 7613 of the Corporations Code. For the purposes of
this paragraph, quorum means more than fifty percent (50%) of the
Owners of the Association. This paragraph does not limit
assessment increases necessary for emergency situations. For
purposes of this paragraph, an emergency situation is any one of
the following: (1) an extraordinary expense required by an order
of_a court, (2). an^extraordinary expense.necessary to repair or
.maintain the ..Project .or any.part of it for which the Association is
responsible, where a threat to personal safety on the property is
discovered, (3) an extraordinary expense necessary to repair or
maintain the Project, or any part of it for which the Association
is responsible, that could not have been reasonably foreseen by the
Board in preparing and distributing- the proforma operating budget
under Civil Code Section 1365; provided that, prior to the
imposition or collection of an assessment under this Subparagraph
3, the Board shall pass a resolution containing written findings as
to the necessity of the extraordinary expense involved and why the
expense was not or could not have been reasonably foreseen in the
budgeting process, and the resolution shall be distributed to the
Members with the notice of assessment. The Association shall
provide notice by first-class mail to the Owners of the lots of any
increase in the annual or special assessments of the Association,
not less than thirty (30) nor more than sixty (60) days prior to
the increased assessment becoming due. Increases in annual
assessments for any fiscal year, as authorized hereinabove, shall
not be imposed unless the Board has complied with subdivision (a)
of Civil Code Section 1365 with respect to that fiscal year, or has
obtained the approval of Owners, constituting a quorum, casting a
majority of the votes at a meeting or election of the Association
conducted in accordance with Chapter 5 (commencing with Section
- 12 -
7510) of Part 3 of Division 2 of Title 1 of the Corporations Code
and Section 7613 of the Corporations Code. For the purposes of
this paragraph, "quorum" means more than fifty (50%) percent of the
Owners of the Association.
B. The annual assessment may not be decreased, either
by the Board or by the Members, by more than ten percent (10%)
without the approval of a majority of the voting power of the
.Association residing in members other than the Declarant.
C. Until the first (1st) day of January of the year
immediately following the issuance of the public report for the
Project, the maximum annual assessment shall be sufficient to cover
the maintenance, utility, insurance, and other reasonable and
necessary operating expenses for the common good of the Project
during this period of time, and shall be in accordance with and
shall not exceed the amount set forth in the budget submitted to
the Department of Real Estate (a copy of which, in pertinent part,
is attached hereto for reference and is labeled as Exhibit "B" to
this Declaration).
•*i-'
D. If at any time during the course of any year the
Board shall deem the amount of the annual assessment to be
inadequate or excessive, the Board shall have the power, at a
regular or special meeting, to revise the assessment for the
balance of the assessment year, effective on the first day of the
month next following the date of the revision, subject to the
limitations on the maximum and minimum amount of assessments herein
provided.
4.05 Notice for Any Action Authorized Under Section 4.04 : Any
action authorized under Section 4.04, which requires a vote of the
membership, shall be taken at a meeting called for that purpose,
written notice of which shall be sent to all members not less than
ten (10) nor more than ninety (90) days in advance of the meeting,
specifying the place, day and hour of the meeting and, in the case
of a special meeting, the nature of the business to be undertaken.
The action may also be taken without a meeting pursuant to the
provisions of California Corporations Code section 7513 .
4.06 Division of Assessments: Annual assessments shall be
charged to and divided among the Lot Owners equally (pro rata
according to the total number of Lots in the Project) / provided
that, if the original budget of the Association which is first duly
approved by the Department of Real Estate (a partial copy of which,
in pertinent part, is attached hereto for reference as Exhibit "B"
and incorporated herein by reference) provides for variable
assessments, then, notwithstanding the equal division set forth
hereinabove, the annual assessments shall be charged to and divided
among the Lot Owners according to the same formula or schedule
under which said budget was calculated so that the assessments
against the various Lot Owners bear a relationship which is
equitably proportionate to the value of common services furnished
to the respective Lots. Special assessments shall be levied on the
same basis as annual assessments, except where the special
- 13 -
assessment against a Member is a remedy utilized by the Board to
reimburse the Association for costs incurred in bringing the Member
and his Lot into compliance with the provisions of the Project
Documents.
4.07 Date of Commencement of Annual Assessment; Due Dates;
The annual assessments provided for herein shall commence as to all
lots on the first day of the month following the first conveyance
of a lot to the owner under the authority of a public report. The
first annual assessment shall be adjusted according to the number
of months remaining in the calendar year.
Subject to the provisions of section 4.04 hereof, the Board of
Directors shall fix the amount of the annual.assessment against
each lot and send written notice thereof to every .owner at least
thirty (30) days but not more than sixty (60) days in advance of
each annual assessment period. The due date shall be established
by the Board of Directors. The Association shall, upon demand, and
for a reasonable charge, furnish a certificate signed by an officer
of the Association setting forth whether the assessments on a
-specified lot .have- been paid. - Such- a certificate shall- be
conclusive evidence of such payment.
4.08 Effect on Nonpayment of Assessments; Any assessment not
paid within fifteen (15) days after the due date shall be
delinquent, shall bear interest at the rate of twelve percent (12%)
per annum commencing thirty (30) days after the due date until
paid, and shall incur a late payment penalty in an amount to be set
by the Board from time to time, not to exceed the maximum permitted
by applicable law or in the amount of Ten Dollars ($10.00) or ten
percent (10%) of the delinquent assessment, whichever is greater.
.". 4.09 Transfer of Lot By Sale or Foreclosure: Sale or transfer
'of any lot shall not affect the assessment lien. However, the sale
of any lot,pursuant to power of sale or judicial foreclosure of a
first mortgage shall extinguish the lien of such assessments
(including attorney's fees, late charges, or interest levied in
connection therewith) as to payments which became due prior to such
sale or transfer, if the mortgage was recorded before the
assessment was due. No sale or transfer shall relieve such lot
from liability for any assessments thereafter becoming due or from
the lien thereof.
Where the mortgagee of a first mortgage of record or other
purchaser of a lot obtains title to the same as a result of a power
of sale or judicial foreclosure of any such first mortgage, such
acquirer of title, his successor and assigns, shall not be liable
for the share of the common expenses or assessment by the
Association chargeable to such lot which became due prior to the
acquisition of .title to such lot by such acquirer, if the mortgage
was recorded before the assessment was due. No amendment of the
preceding sentence may be made without the consent of owners of
lots to which at least sixty-seven percent (67%) of the votes in
the Association are allocated, and the consent of the eligible
mortgage holders holding first mortgages on lots comprising
- 14 -
fifty-one percent (51%) of the lots subject to first mortgages.
Such unpaid share of common expenses or assessments shall be deemed
to be common expenses collectible from owners of all of the lots
including such acquirer, his successors or assigns.
4.10 Priorities; Notice Requirements; Enforcement; Remedies;
If an assessment is delinquent, the Association may record a notice
of delinquent assessment and establish a lien against the lot of
the delinquent owner prior and superior to all other liens except
(1) all taxes, bonds, assessments, and other levies which, by law,
would be superior thereto, and (2) the lien or charge of any first
mortgage of record (meaning any recorded mortgage or.deed of trust
with first priority over other mortgages or deeds of trust) made in
good faith and for value.
The notice of delinquent assessment shall state the amount of
the assessment, collection costs, attorney's fees, late charges and
interest, a legal description of the separate interest against
which the assessment and other sums are levied, the name of the
record owner, and the name and address of the trustee authorized by
.the Association to enforce .the lien by sale.. The notice shall be
signed by any officer of the Association or by any management agent
retained by the Association, and shall be mailed in the manner;set
forth in Civil Code Section 2924b to all record Owners of the
separate interest against which ther assessment and other sums are
levied no later than ten (10) calendar days after 'recordation.
Before the Association may place a lien upon the separate interest
of an Owner to collect a debt which is past due under this Article,
the Association shall notify the Owner in writing by certified mail
of the fee and penalty procedures of the Association, provide an
itemized statement of the charges owed by the Owner, including
items on the statement which indicate the principal owed, any late
"jcttargesfand^th"e'metho^"ofrc"a:lculation, any attorney's fees, and the
collection practices used by the Association, including the right
of the Association to the reasonable costs of collection. Any
payments toward such a debt shall first be applied to the principal
owed, and only after the principal owed is paid in full shall such
payments be applied to interest or collection expenses. Upon
payment of the sums specified in the notice of delinquent
assessment, the Association shall cause to be recorded a further
notice stating the satisfaction and release of the lien thereof.
After the expiration of thirty (30) days following the
recording of an assessment lien, it may be enforced in any manner
permitted by law, including sale by the court, sale by the trustee
designated in the notice of delinquent assessment, or sale by a
trustee substituted pursuant to Civil Code section 2934 (a). Any
sale shall be conducted in accordance with the provisions of
sections 2924, 2924b, 2924c, 2924f, 2924g, and 2924h of the
California Civil Code, or any successor statutes thereto,
applicable to the exercise of powers of sale in mortgages and deed
of trust, or in any other manner permitted by law.
The Association, acting on behalf of the owners, shall have
the power to bid for the lot at foreclosure sale, and to acquire
- 15 -
and hold, lease, mortgage, and convey same. Where the purchase of
a foreclosure lot will result in a five (5%) percent or greater
increase in assessments, the purchase shall require the vote or
written consent of a majority of the total voting power of the
Association, including a majority of members other than Declarant.
During the period a lot is owned by the Association, following
foreclosure: (1) No right to vote shall be exercised on behalf of
the lot; (2) no assessment shall be assessed or levied on the lot;
and (3) each other lot shall be charged, in addition to its usual
assessment, its share of the assessment that would have been
charged to such lot had it not been acquired by the Association as
a result of foreclosure. After acquiring title to the lot at
foreclosure sale following .notice .and publication, .the Association
may execute, acknowledge, and record a deed conveying title to the
lot, which deed shall be binding upon the owners, successors, and
all other parties.
Fines and penalties for violation of non-monetary restrictions .
are not "assessments", and are not enforceable by assessment lien.
Nothing herein shall preclude the Association from bringing an -
action directly against the Owner for breaching the personal
obligation to pay assessments.
Suit to recover a money judgment for unpaid common expenses
and attorney's fees shall be maintainable .without .foreclosing or
waiving the lien securing the same. The Board may temporarily
suspend the voting rights and rights to use recreational .facilities
of a member who is in default in .payment, of .any.-assessment, .'after
notice and hearing, as provided in.the Project Documents.
4.11 Unallocated Taxes: In the event that any taxes are
assessed "against".the common, area,..or the personal property of the. .
Association, rather than being assessed to the lots, said taxes
shall be included in the assessments made under the provisions of
Section 4.01 and, if necessary, a special assessment may be levied
against the lots in an amount equal to said taxes, to be paid in
two (2) installments, thirty (30) days prior to the due date of
each tax installment.
4.12 Initial Capitalization of the Association; Upon
acquisition of record title to a lot from Declarant, each Owner
shall contribute to the capital of the Association an amount equal
to one-sixth (1/6) the amount of the then annual assessment for the
lot as determined by the Board. This amount shall be deposited by
the buyer into the purchase and sale escrow and disbursed therefrom
to the Association. Within six (6) months after the close of the
first escrow, Declarant shall deposit into an escrow an amount
equal to one-sixth (l/6th) of the then annual assessment for any
and all lots which are not yet sold and on which assessments have
commenced. Escrow shall remit these funds to the Association.
Upon close of escrow of any lot for which this capital contribution
was prepaid by Declarant, escrow shall remit to Declarant the
capitalization fee collected from the buyer.
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ARTICLE V
DUTIES AND POWERS OF THE ASSOCIATION
5.01 Duties: In addition to the duties enumerated in its
Articles of Incorporation and Bylaws, or elsewhere provided for in
this Declaration, and without limiting the generality thereof, the
Association shall'perform the following duties:
A. Maintenance; The Association shall maintain and
repair the common area, all improvements, and landscaping thereon,
and all property owned by the Association, ..including, without
limitation, any recreational facilities, any private streets, any
irrigation systems, and any utility, sewer or drainage systems not
maintained by a public entity, utility company, or. improvement
district.
If the Association incurs any maintenance or repair costs
because of the willful or negligent act or omission of any owner or
the owner's agents, occupants, or invitees, and such cost was not
covered by insurance maintained by the Association, .the Association
shalL charge the responsible owner, who immediately shall.pay the
charge to the Association together with interest thereon at the
rate of twelve (12%) percent per annum (but not in excess of the
maximum interest rate authorized by-law) from the date the cost was
incurred by the Association until the date the charge is .paid by
the owner. If the owner disputes the charge, the owner, shall be
entitled to a notice and a hearing as provided in. the Project
Documents before the charge may be collected.
B. Insurance: The Association shall obtain and
maintain.the following insurance:
" " " ~''~~ (i)"*7 A.casualty policy insuring all improvements and
fixtures owned by the Association, unless the Board in its sole
discretion determines that such insurance is not necessary;
(2) A comprehensive general liability policy
insuring the Association against any liability incident to the
ownership or use of the common area or any other Association owned
or maintained real or personal property, with minimum limits of at
least Two Million Dollars ($2,000,000.00) if the Project consists
of 100 or fewer separate interests (Lots) , and Three Million
Dollars ($3,000,000.00) if the Project consists of more than 100
separate interests (Lots).
(3) Workers compensation insurance to the extent
required by law;
(4) Fidelity bonds or insurance covering officers,
directors, and employees that have access to any Association funds;
(5) Flood insurance on common area improvements if
the project is located in an area designated by an appropriate
governmental agency as a special flood hazard area;
(6) Officers and directors liability insurance; and
(7) Such other insurance as the Board in its
discretion considers necessary or advisable.
The amount, term, and coverage of any policy required
hereunder (including the type of endorsements, the amount of the
"deductible, the named insured, the loss payees, standard-"mortgage
clauses, and notices of changes or cancellations) shall satisfy the
minimum requirements imposed for this type of project by the
Federal National Mortgage Association (FNMA) and.the.Federal Home
Loan Mortgage Corporation (FHLMC), or any successors thereto. If
FNMA or FHLMC does, not impose requirements on any. policy, required
hereunder, the term, amount and coverage of such policy shall be no
less than that which is customary for similar policies on similar
projects in the area.
Each owner appoints . the Association or any insurance
trustee designated by the Association to act on behalf of the
owners in connection with all insurance matters arising, from any
insurance policy.maintained by the-Association, including, without
limitation, representing the owners in any proceeding, negotiation,
settlement, or agreement.
Any insurance maintained by the Association shall contain
"waiver of subrogation" as to the Association and .its officers,
directors, and members, the owners and occupants of the lots
(including Declarant) and mortgagees, and, if .obtainable, a
cross-liability or severability of interest.endorsement insuring
each insured against liability to each other insured. The
Association shall periodically (and not less than once every three
[3] years) .review all insurance policies maintained by the
'Association' to "determine the adequacy of the coverage and to adjust
the policies accordingly.
Each owner shall obtain and maintain, at the owner's sole
expense, fire and casualty coverage as may be required by any
mortgagee of the owner's lot and in no event less than the amount
and type of fire and casualty insurance required to be obtained and
maintained as determined by the Board. All such individually
carried insurance shall contain a waiver of subrogation by the
carrier as to the other owners, the Association, declarant, and the
mortgagees of such lot.
The Association, and its directors and officers, shall
have no liability to any owner or mortgagee if, after a good faith
effort, it is unable to obtain the liability insurance required
hereunder, because the insurance is no longer available or, if
available, 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. In such event, the Board immediately
shall notify each member and any mortgagee entitled to notice that
the liability insurance will not be obtained or renewed.
- 18 -
C. Discharge of Liens; The Association shall discharge
by payment, if necessary, any lien against the common area and
charge the cost thereof to the member or members responsible for
the existence of the lien after notice and hearing as provided in
the Bylaws.
D. Assessments; The Association shall fix, levy,
collect, and enforce assessments as set forth in'Article IV hereof.
E. Payment of Expenses: The Association shall.pay all
expenses and obligations incurred by the Association in .the conduct
of its business including, without limitation, all licenses, taxes
or governmental charges levied or imposed against the-property of
the Association.
F. Enforcement; The Association shall enforce this
Declaration.
5.02 Powers: In addition to the powers enumerated in its
Articles of Incorporation and Bylaws, or elsewhere provided for
herein, ..and. without .limiting the generality .thereof,, the
Association shall have the following powers:
A. Utility Service; The Association shall have the
authority (but not the obligation)- to obtain, for the benefit of
all the owners, all water, gas, and electric service and refuse
collection.
B. . Easements: The Association shall have.authority (by
majority, vote) to grant easements in addition to those shown on the
Subdivision Map, if necessary, for utility and sewer facilities
over the common area to serve the common areas and lots.
' C."' MahaaerV The Association 'may employ a manager or
other persons and contract with independent contractors or managing
agents to perform all or any part of the duties and responsibili-
ties of the Association, except for the responsibility to levy
fines, impose discipline, hold hearings, file suit, record or
foreclosure liens, or make capital expenditures, provided that any
contract with a firm or person appointed as a manager or managing
agent shall not exceed a one year term, shall provide for the right
of the Association to terminate the same at the first annual
meeting of the members of the Association, and to terminate the
same without cause or payment of a termination fee on ninety (90)
days' written notice, or for cause on thirty (30) days' written
notice.
D. Adoption of Rules; The Association or the Board may
adopt reasonable rules not inconsistent with this Declaration
relating to the use of the common area and all facilities thereon,
and the conduct of the owners and their tenants and guests with
respect to the property and other owners.
E. Access; The Board or its agents may enter any lot
or common area as necessary in connection with any maintenance or
- 19 -
emergency repairs for which the Association is responsible. Such
entry shall be made with as little inconvenience to the owners as
practicable, and any damage caused thereby shall be repaired by the
Association at the expense of the common fund. Except in case of
emergency, twenty-four (24) hour advance notice shall be given to
the owner or occupant.
F. Assessments. Liens, and Fines; The Association
shall have the power to levy and collect assessments in accordance
with the provisions of Article IV hereof. .The Association may
impose fines or take disciplinary action against any owner for
failure to pay assessments or for violation of any provision of the
Project Documents. Penalties may include, but are not limited to,
fines, "temporary suspension of voting rights, rights . to use of
recreational facilities, or other appropriate discipline, provided
the member is given notice and a hearing as provided in :the Bylaws
before the imposition of any fine or disciplinary action.
G. Enforcement: The Association shall have the
authority to enforce this declaration.
H. Acquisition and Disposition of Property: The
Association shall have the power to acquire (by gift,.purchase, or
otherwise), own, hold, improve, build upon, operate, maintain,
convey, sell, lease, transfer, or_ otherwise dispose of real or
personal property in connection with the affairs of the
Association. Any transfer of property.shall be by document signed
or approved by two-thirds (2/3) of the members other than
Declarant, or where the two (2) class voting .structure is.still in
effect, two-thirds (2/3) of the voting .power of each class of
members.
..-...-.,,.•. -•-- -...- i-.— •*-• Loans; - - The Association shall have the power to
"borrow" money: vand""only with "the assent (by vote or written consent)
of three-fourths (3/4) of the members other than Declarant, or
where the two (2) class voting structure is still in effect,
three-fourths (3/4) of the voting power of each class of members,
to mortgage, pledge, deed in trust, or hypothecate any or all of
its real or personal property as security for money borrowed or
debts incurred.
J. Dedication; The Association shall have the power to
dedicate, sell, or transfer all or any part of the common area to
any public agency, authority, or utility for such purposes and
subject to such conditions as may be agreed to by the members. No
such dedication shall be effective unless an instrument has been
signed or approved by three-fourths (3/4) of the members other than
Declarant, or where the two (2) class voting structure is still in
effect, three-fourths (3/4) of the voting power of each class of
members, agreeing to such dedication, sale, or transfer.
K. Contracts; The Association shall have the power to
contract for goods and/or services for the common areas,
facilities, and interest or for the Association, subject to
- 20 -
limitations of the Bylaws, or elsewhere set forth in the project
documents.
L. Delegation; The Association, the Board, and the
officers of the Association shall have the power to delegate their
authority and powers to committees, officers, or employees of the
Association, or to a manager employed by the Association, provided
that the Board shall not delegate its responsibility:
(1) To make expenditures for capital additions or
improvements chargeable against the reserve funds;
(2) To conduct.hearings concerning compliance by an
owner or his tenant, lessee, guest, or invitee with the
Declaration, Bylaws, or rules and regulations promulgated by the
Board;
(3) To make a decision to levy monetary fines,
impose special assessments against individual lots, temporarily
suspend an owner's rights as a member of the Association or
otherwise impose discipline;. ... . . .. . ,-_.-.
(4) To make a decision to levy annual or special
assessments; or
(5) To make a decision to bring suit, record a
claim of lien or institute foreclosure proceedings. for default in
payment of assessments.
M. . Use of Recreational Facilities: The Association
shall have the power to limit the number of an owner's tenants or
guests who may use the recreational facilities, provided that all
'limitations' apply "equally "to all " owners, unless imposed for
disciplinary reasons, after notice and hearing.
N. Water and Garbage Service: The Association shall
have the authority to acquire and pay for water service and trash
and garbage service for all homes situated on the property in the
event that these services are not directly provided and billed to
each separate residence lot by the appropriate city and/or county
departments, in which case all funds collected from lot owners for
water service or trash and garbage service shall be segregated from
all other funds and shall be used for no purpose other than
providing water service, and trash and garbage service.
O. Appointment of Trustee: The Association, or the
Board acting on behalf of the Association, has the power to appoint
or designate a trustee to enforce assessment liens by sale as
provided in section 4.10 and as provided in Civil Code Section
1367(b).
P. Other Powers: In addition to the powers contained
herein, the Association may exercise the powers granted to a
nonprofit mutual benefit corporation under California Corporations
Code Section 7140.
- 21 -
5.03 Commencement of Association's Duties and Powers; From
and after the date of incorporation of the Association, the
Association shall assume all duties and powers, described herein,
upon close of escrow on sale of the first lot.
ARTICLE VI
ARCHITECTURAL AND OPEN SPACE CONTROL
6.01 Approval of Plans; No building, fence, wall, pool, spa,
obstruction, outside or exterior wiring, balcony, screen, patio,
patio cover, tent, awning, carport, carport cover, trellis,
improvement or structure of any kind shall be commenced, installed,,
erected, painted, or maintained upon the property, nor shall any
alteration or improvement of any kind be made thereto, or to the
exterior of any residence, until the same has been approved in
writing by the Board, or by an Architectural Control Committee
appointed by the Board. Plans and specifications showing the
nature, kind, shape, color, size, materials, and location of such
improvements, alterations, etc., shall be submitted to the Board or
the Architectural Control Committee for approval .as.to.quality of
workmanship and design and harmony of external design with existing
structures, and as to location in relation to surrounding
structures, topography, and finish grade elevation. No fence or
wall shall be erected, placed or aitered on any lot nearer to any
street than the minimum building set back line. .No.permission or
approval shall be required to repaint in accordance with
Declarant's original color scheme previously approved by the
Committee or the Board, or to rebuild in accordance with plans and
specifications previously approved by the Committee or by the
Board. Nothing contained herein shall be construed to limit the
right of an.owner to remodel the interior of his residence, or to
•paint'"the" interior" of """his" residence any"color desired.
6.02 Architectural Control and Open Space Committees; The
Architectural Control Committee and the Open Space Committee shall
each consist of three (3) members. Declarant may appoint all of
the original members of the Committees and all replacements until
the first anniversary of the issuance of the original final public
report for the project. The Declarant reserves to itself the power
to appoint a majority of the members of the Committees until ninety
(90%) percent of all the lots in the project have been sold or
until the fifth anniversary of the issuance of the final public
report for the project whichever first occurs. After one (1) year
from the date of the issuance of the original public report for the
project, the Board need not have the power to appoint one (1)
member to each Committee until ninety (90%) percent of all the lots
in the overall development have been sold or until the fifth
anniversary date of the issuance of the final public report for the
project, whichever first occurs. Thereafter, the Board shall have
the power to appoint all of each Committee. Members appointed to
the Committees by the Board need not be from the membership of the
Association. Members appointed to the Committees by the Declarant
need not be members of the Association. A majority of each
Committee may designate a representative to act for it. In the
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event of death or resignation of any member of either Committee,
the successor shall be appointed by the person, entity, or group
which appointed such member until Declarant no longer has the right
to appoint any members to that Committee, and thereafter the Board
shall appoint such a successor. Neither the members of the
Committee nor its designated representative shall be entitled to
any compensation for services performed pursuant hereto. In the
event the Architectural Control Committee fails to approve and
disapprove plans and specifications within thirty (30) days after
the same have been submitted to it, approval will, not .be required
and the related covenants shall be deemed to have been fully
complied with.
6.03 Landscaping; No landscaping of patios .or yards or
portions of lots visible from the street or from any common area
shall be undertaken by any owner until plans and specifications
showing the nature, kind, shape, and location of the materials
shall have been submitted to and approved in writing by the
Architectural Control Committee, or the Board. All landscaping
shall be adequately watered and well maintained at all times. The
Board,, and.its Open Space Committee, shall be responsible for the
maintenance of the landscaping on any Common Area Lots.
6.04 Governmental Approval; Before commencement of any
alteration or improvements approved by the Architectural Control
committee, the owner shall comply with appropriate governmental
laws and regulations. Approval by the Committee does not satisfy
the appropriate approvals that may be required by any governmental
entity with appropriate jurisdiction.
ARTICLE VII
SE RESTRICTIONS ' - ~ '
In addition to all of the covenants contained herein, the use
of the property and each lot is subject to the following:
7.01 Use of Lot; No lot shall be occupied and used except for
residential purposes by the owners, their tenants, and social
guests, except that Declarant, its successors or assigns, may use
the property for a model homesite or sites, and display and sales
office during construction until the last lot is sold by Declarant,
or, where Declarant elects to retain one (1) or more lots as an
investment, until three (3) years from the date of closing of the
first sale in the project, whichever occurs first. No tent, shack,
trailer, basement, garage, outbuilding, or structure of a temporary
character shall be used on any lot at any time as a residence,
either temporarily or permanently.
7.02 Nuisances; No noxious, illegal, or seriously offensive
activities shall be carried on upon any lot, or any part of the
property, nor shall anything be done thereon which may be or may
become a serious annoyance or a nuisance to or which may in any way
interfere with the quiet enjoyment of each of the owners of his
respective lot.
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7.03 Vehicle Restrictions; No trailer, camper, mobile home,
commercial vehicle, truck (other than standard size pickup truck or
standard size van), boat, inoperable automobile, or similar
equipment shall be permitted to remain upon any area within the
property, other than temporarily or unless placed or maintained
within an enclosed garage or carport. Commercial vehicles shall
not include sedans or standard size vans or pickup trucks which are
used both for business and personal use, "provided that any signs or
markings of a commercial nature on such vehicles .shall be
unobstructive and inoffensive as determined by the Board. No noisy
or smoky vehicles shall be operated on the property. No unlicensed
motor vehicles shall be operated on the property. Twenty-four (24)
hours after notice has been personally delivered-.to the vehicle-
owner by an agent of the Association or placed on the windshield of
a vehicle, or seventy-two (72) hours after notice has been mailed
to the address of the registered owner of a vehicle parked, stored,
or maintained on the premises, in violation of the provisions of
this . Declaration, the vehicle owner shall be deemed to have
consented to the removal of said vehicle from the project, and the
Association or its agent or employees shall have the authority to
tow away and store any such vehicle, . whether said vehicle shall
belong to a lot owner, or his tenant, a member of his family, or
his guest or invitee. Charges for such towing and storage shall be
paid by the lot owner responsible for the presence of such vehicle.
7.04 Parking; Any and all unassigned street/guest parking
spaces shall remain permanently available for visitor parking.
Garage or carport space may not be converted into any use (such as
recreational room or for storage) • that would prevent its use as a
-parking space for the number of vehicles that the garage or carport
was designed to contain. ' Owners are to use their garages or
carp_orts_for. parking r.of_ their vehicles ...so... that any common area
parkTng"~wiii be available for guest parking. The Association may
establish rules and regulations from time to time for the parking
of vehicles in any unassigned parking spaces in the common areas.
Use by owners of any unallocated parking spaces must be established
by the Association, and such use must be set forth in written
notice from the Association. This permission will create only a
license to use such parking spaces, revocable at any time by the
Association with five (5) days' written notice. Parking in the
common area shall be regulated by the Board.
7.05 Commercial Activity; No business, professional, or
commercial activity of any kind shall be conducted on any lot,
except, that any owner or tenant actually residing on the lot may
use part of his dwelling as an office, with a desk, business
telephone, and with the lot as a business address, provided that,
considering the residential nature of the project rather than the
nature of any given business, such use does not involve an
unreasonable number of clients, customers or other persons coming
to the lot for business purposes, nor an unreasonable amount of
business deliveries to the lot, and further provided that such use
does not interfere with any other owner's or tenant's quiet
enjoyment of his lot or otherwise violate any covenant or
restriction of this Declaration regarding nuisances.
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7.06 Storage in Common Area; Nothing shall be stored in the
common area without the prior consent of the Board.
7.07 Signs; No signs shall be displayed to the public view on
any lot or on any portion of the property except such signs as are
approved by the Board or committee appointed by the Board. "For
Sale" or "For Rent" signs shall be allowed, provided .they do not
exceed five (5) square feet in size. Only one (1) such sign shall
be permitted on any lot. The sign shall not be. attached to the
outside of the house or fence. It may be displayed in the window,
or staked in the yard.
. 7.08 Animals; No animals of any kind shall be raised, bred, or
kept on any lot or in the common area except two (2) usual and
ordinary household pets such as a dog or cat, provided they are not
kept, bred, or maintained for any commercial purposes, and are kept
under control at all times. Notwithstanding the foregoing, no
animals may be kept on the property which result in an annoyance or
are obnoxious to other owners. No animals shall be allowed in the
common area except as may be permitted by rules of the Board. No
owner shall allow his or. her .animals, to enter the .-common-. area
except on a leash, or otherwise under the owner's control. .After
making a reasonable attempt to notify the owner, the Association or
any owner may cause any unattended animal found within the common
area to be removed by the Association (or any owner) to a pound or
animal shelter under the jurisdiction of the County of where the
project is located, by calling the appropriate authorities,
whereupon the owner may, upon payment of all expenses connected
.therewith, .repossess, the animal. Owners .shall be. fully responsible
-for any damages caused by their animals, and shall promptly clean
up any mess left by their pets in the common area.
"'''"'" 7.09' Garbage "arid "Re fuse Disposal; All rubbish", trash and'
garbage "shall be regularly removed from lots, and shall not be
allowed to accumulate thereon. Trash, garbage and other waste
shall not be kept except in sanitary containers. All equipment
for the storage or disposal of such materials shall be kept in a
clean and sanitary condition, and shall be screened from view of
neighboring lots, common areas and streets.
7.10 Radio and Television Antennas; Lighting Fixtures;
(a) No alteration to or modification of any central
radio and/or television antenna system or cable television system
installed and/or maintained by the Declarant, the Association, or
a cable television company shall be permitted, and no Owner shall
be permitted to construct and/or use and operate his own external
radio and/or television antenna or satellite dish or related
equipment, without the advance written consent of the Board.
Applications for approval shall be processed in the same manner as
for an architectural modification to the Project, and the issuance
of a decision shall not be willfully delayed.
(b) The Board shall have the power to impose reasonable
restrictions on the installation and use of a video or television
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antenna, including a satellite dish, that has a diameter or
diagonal measurement of thirty-six (36) inches or less, as long as
such restrictions do not significantly increase the cost of the
antenna system or significantly decrease its performance. Such
restrictions may include provisions for the maintenance, repair, or
replacement of roofs or other building components that are
affected, and requirements for installers to indemnify or reimburse
the Association, or its Members for any loss or damage caused by the
installation, maintenance or use of such antenna.
(c) All fees for the use of any cable or satellite
television system shall be borne by the respective lot owners, and
not by the Association.
(d) All light fixtures shall be designed and adjusted to
reflect light downward, and all such fixtures other than street
lights shall be adjusted to reflect light away from any road or
street or adjoining premises.
7.11 Basketball Standards; No basketball standard or fixed
sports apparatus shall be attached to the exterior.surface of any
residence or garage or carport or affixed 'to any portion of the
common area.
7.12 Drapes: No portion of any drapes, blinds or curtains
which are installed on the interior of any residence which may be
seen from outside such residence shall be of a color, texture or
material which, in the reasonable opinion of. .the Board or
Architectural Control Committee, is.inharmonious with the exterior
appearance _of all residences. . .. . .
7.13 Clothes Lines; No exterior clothes lines shall be
-erected'or~mainta:ined and there shall be no" outside launderirig'or
drying of clothes'." 'No draping of towels, carpets, or laundry over
railings shall be allowed.
7.14 Power Equipment and Car Maintenance: No power equipment,
hobby shops, or car maintenance or boat maintenance (other than
emergency work) shall be permitted on the property except with
prior written approval of the Board. Approval shall not be
unreasonably withheld and in deciding whether to grant approval the
Board shall consider the effects of noise, air pollution, dirt or
grease, fire hazard, interference with radio or television
reception, and similar objections.
7.15 Liability of Owners for Damage to Common Area: The owner
of each lot shall be liable to the Association for all damage to
the common area improvements (including landscaping) caused by such
owner or the owner's agents, occupants, invitees, or pets, except
for that portion of damage covered by insurance carried by the
Association. The responsible owner shall be charged with the cost
of repairing such damage (including interest thereon) as described
in section 5.01A.
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7.16 Leasing of Lots; No owner shall be permitted to lease
his lot for any period of less than thirty (30) days, except a
pre-closing rental to a purchaser of such lot. Any lease agreement
shall be required to provide that the term of the lease shall be
subject in all respects to the provisions of the Declaration,
Articles and Bylaws and to all house rules and regulations adopted
by the Board and that any failure of the lessee to comply with the
terms of such documents shall be a default under the lease. A'"
leases shall be required to be in writing. Other than the
foregoing, there is no restriction in the right of any owner to
lease his lot. All owners leasing or renting their lots shall
promptly notify the Secretary of the Association in writing of the
names of all tenants and members of tenant's family occupying such
lot and of the address and telephone number where such owner can be
reached. . .
ARTICLE VIII
GENERAL PROVISION
- - - 8-.01 Enforcement: - • - - - ............
(a) The Association, or any owner, shall have the .right
but not the obligation to enforce, by a proceeding at law or in
equity (subject to the provisions df Section 8.16 hereof, whenever
.applicable), all restrictions, conditions, covenants, reservations,
liens, and charges now or hereafter imposed by the provisions of
this Declaration, the Articles and Bylaws and in such action shall
be entitled to recover reasonable attorneys' fees as are ordered by
Court. Failure by the Association or by any owner to enforce any
covenant or restrictions herein contained shall in no event be
.deemed._a__waiver.-.of.;_the. right, to..do .so... thereafter.. No judicial..
/proceedings- shallv.be-.commenced.by the Board against an Owner for
any nonmonetary breach of this Declaration and/or the Project
Documents unless and until there has been a hearing with respect to
such breach in accordance with this Declaration and the other
Project Documents. It is hereby agreed that damages at law for
such nonmonetary breach are inadequate. The remedies provided for
in the project documents for breach of the covenants contained
therein shall be cumulative, and none of such remedies shall be
exclusive.
(b) The Association shall have no power to cause a
forfeiture or abridgement of an Owner's rights to the full use and
enjoyment of his individually-owned Lot on account of a failure by
such Owner to comply with the provisions of the Project Documents
or any duly-enacted rules of operation for any Common Areas and
facilities except where the loss or forfeiture is the result of the
judgment of a court or a decision arising out of arbitration or on
account of a foreclosure or sale under a power of sale for failure
of such Owner to pay assessments levied by the Association.
(c) A monetary penalty imposed by the Association as a
disciplinary measure for failure of a Member to comply with the
Project Documents, or as a means of reimbursing the Association for
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costs incurred by the Association in the repair of damage to the
Common Area and facilities for which the Member was allegedly
responsible, or in bringing the Member and his Lot into compliance
with the Project Documents shall not be characterized nor treated
as an assessment which may become a lien against the Member's Lot
enforceable by a sale of the Lot in accordance with the provisions
of Sections 2924, 2924(b) and 2924(c) of the California Civil Code;
provided that this provision shall not apply to charges imposed
against an Owner consisting of reasonable interest on delinquent
assessments and/or charges to reimburse the Association for
attorney's fees and/or costs reasonably incurred in its efforts to
collect delinquent assessments, as more particularly set forth in
this Declaration.
(d) If the Association adopts or has adopted a policy of
imposing any monetary penalty, including any fee, on any
Association Member for a violation of the Project Documents or
rules of the Association, including any monetary penalty relating
to the activities of a guest or invitee of a Member, the Board of
Directors shall adopt and distribute to each Member, by personal
delivery or first-class mail, a schedule of the monetary penalties
that may be assessed for those violations, which shall be in
accordance with authorization for Member discipline contained in
the Project Documents. The Board of Directors shall not be
required to distribute any additional schedules of monetary
penalties unless there are changes from the schedule that was
previously adopted and distributed to the Members.
(e) If any Owner, or other occupant of the Lot owned by
him, shall fail to observe any of the provisions of this
Declaration, the other Project Documents, or any of the rules or
regulations adopted by the Board, the Board shall give written
notice of such fact to the Owner. When the Board is to meet to
consider or impose discipline upon a Member, the Board shall notify
the Member in writing, by either personal delivery or first-class
mail, at least ten (10) days prior to the meeting. The
notification shall contain, at a minimum, the date, time, and place
of the meeting, the nature of the alleged violation for which a
Member may be disciplined, and a statement that the Member has a
right to attend and may address the Board at the meeting. The
Board shall meet in executive session if requested by the Member
being disciplined. At such meeting, the Board shall accept such
evidence and take such testimony as is required by Corporations
Code Section 7341, and any additional evidence and testimony as may
be reasonable under the circumstances, reach a decision with
respect thereto, and if the Board concludes that the alleged
violation did in fact occur, the Board may impose monetary
penalties, temporarily suspend voting and Common Area privileges
for a period not to exceed thirty (30) days, or take any other
disciplinary action permitted by the Project Documents. If the
Board imposes discipline on a Member, the Board shall provide the
Member a written notification of the disciplinary action, by either
personal delivery or first-class mail, within fifteen (15) days
following the action. A disciplinary action shall not be effective
against a Member unless the Board fulfills the requirements of this
Section. The notice and hearing provided for by this Paragraph
shall not be a prerequisite to enforcement by the Board of an
Owner's obligation to pay annual and special assessments, only for
disciplinary/compliance assessments.
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8.02 Invalidity of Any Provisions; Should any provision or
portion hereof be declared invalid or in conflict with any law of
the jurisdiction where this project is situated, the validity of
all other provisions and portions hereof shall remain unaffected
and in full force and effect.
8.03 Term; The covenants and restrictions of this Declaration
shall run with the property, and shall inure to the benefit of and
shall be enforceable by the Association or the owner of any
property subject to this Declaration, their respective legal
representatives, heirs, successors and assigns, for a term of
thirty (30) years from the date this Declaration is recorded, after
which time they shall be automatically extended for successive
periods of ten (10) years, unless an instrument in writing, signed
by a majority of the then owners of the lots, has been recorded
within the year preceding the beginning of each successive period
of ten (10) years, agreeing to change said covenants and
restrictions in whole or in part, or to terminate the same.
8.04 Amendments; Prior to close of escrow on the sale of the
first lot, Declarant may amend this Declaration with the consent of
the Department of Real Estate of the State of California. After
the sale of the first lot, this Declaration may be amended only by
the affirmative vote (in person or by proxy) or written consent of
members representing a majority of the total voting power of the
Association, and a majority of the affirmative votes or written
consent of members other than the Declarant, or where the two (2)
class voting structure is still in effect, a majority of each class
of membership. However, the percentage of voting power necessary
to amend a specific clause shall not be less than the prescribed
percentage of affirmative votes required for action to be taken
under that clause. After the Declarant has completed its
construction and marketing activities with respect to the Project,
or a particular phase thereof, the Board of Directors of the
Association may adopt an amendment, in accordance with the
provisions of Civil Code Section 1355.5, deleting from this
Declaration any provision which is unequivocally designed and
intended to facilitate access by the Declarant over and across the
Common Area of the Project, or a particular phase thereof, for the
completion of such activities. Any amendment must be certified in
a writing executed and acknowledged by the President and recorded
in the Recorder's Office of the County where the project is
located. No amendment shall adversely affect the rights of the
holder of any mortgage of record prior to the recordation of such
amendment. The Association or any Owner may petition the Superior
Court for an order reducing the voting percentages required to
amend this Declaration, pursuant to Civil Code Section 1356. In
the event that any loan on any Lot in the Project has been
submitted to and accepted by the Department of Veterans Affairs
(VA) or the Federal Housing Administration (FHA) or the Department
of Housing And Urban Development (HUD), any amendment to this
Declaration shall require the prior written approval of this agency
as long as the two-class voting structure is still in effect for
the Association, in which case a draft of any amendment should be
submitted to this agency for approval prior to its approval by the
membership of the Association.
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8.05 Rights of First Lenders; No breach of any of the
covenants, conditions and restrictions herein contained, nor the
enforcement of any lien provisions herein, shall render invalid the
lien of any first mortgage (meaning a mortgage with first priority
over any other mortgage) on any lot made in good faith and for
value, but all of said covenants, conditions and restrictions shall
be binding upon, and effective against any owner whose title is
derived through foreclosure or trustee's sale", or ^otherwise.
Notwithstanding any provision in this Declaration to the contrary,
first lenders shall have the following rights:
A. Copies of Project Documents; The Association shall
make available to lot owners and first lendersr and to. holders,
insurers or guarantors of any first mortgage, .current copies of the
Declaration, Bylaws, Articles or other rules concerning the project
and the books, records and financial statements of the Association.
"Available" means available for inspection, upon request, during
normal business hours or under other reasonable circumstances. The
Board may impose a fee for providing the foregoing, which may not
exceed the reasonable cost to prepare and reproduce the -requested
documents. --• . . -- . - - .- - - -
B. Audited Statement: Any holder/ insurer or guarantor
of a first mortgage shall be entitled, upon written request, to an
audited financial statement for the immediately preceding fiscal
year, free of charge to the party so requesting. Such statement
shall be furnished within a reasonable time following such request.
- •• -—- -C. -• -Notice- of- Action; -- Upon -written request to the
Association,-identifying the name - and- address of the .eligible
mortgage holder or eligible insurer or guarantor, and the lot
. number..., or _address,.. _^ such .eligible, mortgage holder or eligible_
.insurer or guarantor.will be entitled to timely written notice of:
(1) any condemnation loss or any casualty loss which affects a
material portion of the Project or any lot on which there is a
first mortgage held, insured, or guaranteed by such eligible
mortgage holder or eligible insurer or guarantor, as applicable;
(2) any default in performance of obligations under the project
documents or delinquency in the payment of assessments or charges
owed by an owner of a lot subject to a first mortgage held, insured
or guaranteed by such eligible mortgage holder or eligible insurer
or guarantor, which remains uncured for a period of sixty (60)
days; (3) any lapse, cancellation or material modification of any
insurance policy or fidelity bond maintained by the Association;
(4) any proposed action which would require the consent of a
specified percentage of eligible mortgage holders as specified in
section 8.5D. The Association shall discharge its obligation to
notify eligible holders or eligible insurers or guarantors by
sending written notices required herein to such parties, at the
address given on the current request for notice, in the manner
prescribed by section 8.13.
D. Material Amendments; Except as provided by statute
or by other provision of the Project Documents, in case of
substantial destruction or condemnation of the Project, and further
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excepting any reallocation of interests in the Common Area(s) which
might occur pursuant to any plan of expansion or phased development
contained in the original Project Documents, the consent of Owners
of lots to which at least sixty-seven percent (67%) of the votes in
the Association are allocated and the approval of eligible mortgage
holders holding mortgages on lots which have at least fifty-one
percent (51%) of the votes of the lots subject to eligible holder
mortgages, shall be required to add or .amend .any material
provisions of the Project Documents which establish, provide for,
govern, or regulate any of the following: (i) voting;
(ii) assessments, assessment liens or the priority of such liens;
(iii) reserves for maintenance, repair and replacement of the
Common Area(s) ; (iv) insurance or fidelity bonds;, (v). .rights to use
of Common Area(s) and Exclusive Use . Common Areas;
(vi) responsibility for maintenance and repair .of ..the Project;
(vii) expansion or contraction of the Project or the addition,
annexation, or withdrawal of property to or from the Project
(except as provided in the original Project Documents);
(viii) redefinition of boundaries of any lot; (ix) reallocation of
the interests in the Common Areas and Exclusive Use Common Area(s) ;
,(x) convertibility of lots into Common Area(s).or of Common Area(s)
into lots; (xi) leasing of lots; (xii) .imposition of any right of
first refusal or similar restriction on the right of a.lot Owner to
sell, transfer, or otherwise convey his or her lot; (xiii) any
provisions which are for the express benefit of mortgage holders,
eligible mortgage holders, or eligible insurers or guarantors of
first mortgages on lots; and (xiv). restoration or repair of.the
Project (after a hazard damage or partial condemnation), in a manner
other, .than specified .herein.. ...An addition .or amendment to such
-documents shall not be considered material-if it is for the purpose
of correcting technical errors or for clarification only. An
eligible mortgage holder who. receives a .written request to approve.
"Jaddit'ioris '"or ^amendments'.'."and "whp does, not deliver or post to the
requesting party a negative response within thirty (30) days shall
be deemed to have approved such request, provided the notice was
delivered by certified or registered mail with a return receipt
requested.
E. Consent to Action; Unless the holder (s) of at least
two-thirds (2/3) of the first mortgages (based upon one (1) vote
for each mortgage or deed of trust owned), or two-thirds (2/3) of
the owners (other than Declarant) of the individual lots in the
project have given their prior written approval, the Association
and/or the owners shall not be entitled to:
(a) By act or omission, seek to abandon or
terminate the project, or abandon, partition, subdivide, encumber,
sell or transfer the common area or property owned directly or
indirectly by the Association (the granting of easements for public
utilities or for other public purposes consistent with the intended
use of such property shall not be deemed a transfer within the
meaning of this clause), except for abandonment or termination
provided by law in the case of substantial destruction by fire or
other casualty or in the case of a taking by condemnation or
eminent domain; or
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(b) Change the method of determining the
obligations, assessments or dues or other charges which may be
levied against as owner; or
(c) By act or omission, change, waiver or abandon
any scheme of regulation, or enforcement thereof, pertaining to the
architectural design or the exterior appearance of lots, the
exterior maintenance of lots, the maintenance of the common area
walks or fences and driveways, or the upkeep of .landscaping in the
common area; or
(d) Fail to maintain fire and extended coverage on
insurable Association common area improvements . on a current
replacement cost basis in an amount not less than one hundred
percent (100%) of the insurable value (based on.current replacement
costs); or
(e) Use Hazard insurance proceeds for losses to any
Association common property for other than the repair, replacement
or reconstruction of such common area property.
F. Right of First Refusal; The Declaration contains no
provisions creating a "right of first refusal," but should-any such
rights be created in the future, such rights shall.not impair the
rights of any first lender to: (1-) foreclose or take title to a
lot pursuant to the remedies provided in the mortgage, or (2)
accept a deed (or assignment) in lieu of foreclosure in the event
of a default by a mortgagor, or (3) sell or lease a lot acquired by
the mortgagee. .__.
G. Contracts: Any agreement for professional
management of the project, or lease or any other contract providing
for' services'pf;' the'Jdeveloper;" sponsor," or builder, may not exceed"
one':' "(1)'"year".x"' Any" agreement/ contract, or lease, including a
management contract entered into prior to passage of control of the
Board of Directors of the Association to lot purchasers, must
provide for termination by either party for cause on thirty (30)
days' written notice, or without cause and without payment of a
termination fee or penalty on ninety (90) days' or less written
notice.
H. Reserves; Association dues or charges shall include
an adequate reserve fund for maintenance, repairs, and replacement
of those improvements which the Association is obligated to
maintain that must be replaced on a periodic basis, and the
assessments therefor shall be payable in regular installments
rather than by special assessments.
I. Priority of Liens; Any first lender who obtains
title to a lot pursuant to the remedies provided in the mortgage or
foreclosure of the mortgage will not be liable for such lot's
unpaid assessments and fees, late charges, fines or interest levied
in connection therewith which accrue prior to the acquisition of
title to such lot by the mortgagee, if the mortgage was recorded
before the assessment was due (except for claims for a pro rata
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share of such assessments or charges to all project lots including
the mortgaged lot).
J. Distribution of Insurance or Condemnation Proceeds;
No owner, or any other party shall have priority over any rights of
first lenders pursuant to their mortgages in the case of a
distribution to lot owners of insurance proceeds or condemnation
awards for losses to or taking of common area property or
individual lots.
K. Payment of Taxes or Insurance by Lenders; First
lenders may, jointly or singly, pay taxes or other charges which
are in default and which may or have become a charge against the
common area property, and may pay overdue premiums on hazard
insurance policies, or secure new hazard insurance coverage on the
lapse of a policy for such common area property, and first lenders
making such payments shall be owed immediate reimbursement therefor
from the Board, provided that said lender(s) have given notice to
the Association prior to the making of such payment (s) and the
Association has failed to pay the same.
L. FHA/HUD/VA Approval; In the event that any loan on
any Lot in the Project has been submitted to and accepted by the
FHA or HUD or the VA, the following actions will require the prior
approval of this agency as long as there is a Class B membership:
Annexation of additional properties, mergers and consolidations,
dedication or mortgaging of the Common Area, Special Assessments,
and amendments of this Declaration.
M. Termination of Professional Management: When
professional management has been previously required by the
Project's documents or by any eligible mortgage holder, insurer or
guarantor, whether such entity became an eligible mortgage holder,
insurer or guarantor at that time or later, any decision to
establish self-management by the Association shall require the
prior consent of Owners of lots to which at least sixty-seven
percent (67%) of the votes in the Association are allocated and the
approval of eligible mortgage holders holding mortgages on lots
which have at least fifty-one percent (51%) of the votes of lots
subject to eligible holder mortgages.
N. Restoration or Repair; Any restoration or repair of
the Project, after a partial condemnation or damage due to an
insurable hazard, shall be performed substantially in accordance
with the Declaration and the original plans and specifications,
unless other action is approved by eligible mortgage holders
holding mortgages on lots which have at least fifty-one percent
(51%) of the votes of lots subject to eligible holder mortgages.
0. Project Termination; Any action to terminate the
legal status of the Project after substantial destruction or a
substantial taking in condemnation of the Project property requires
the approval of eligible mortgage holders holding mortgages on lots
which have at least fifty-one percent (51%) of the votes of lots
subject to eligible holder mortgages, and the consent of Owners of
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lots to which at least sixty-seven percent (67%) of the votes in
the Association are allocated.
P. Reallocation of Interests; No reallocation of
interests in the Common Area(s) resulting from a partial
condemnation or partial destruction of the Project may be effected
without the prior approval of eligible.mortgage holders holding
mortgages on all'remaining lots, whether existing in .whole or in
part, and which have at least fifty-one percent .(51%) of .the votes
of such remaining lots subject to eligible holder mortgages.
8.06 Owner's Riaht and Obligations to Maintain and Repair:
Except for.those portions of the-project which the'Association is
required to maintain and repair, each lot owner.shall, at his sole
cost and expense, maintain and repair his lot and all improvements
thereon, and all landscaping thereon, keeping 'the same in good
condition.
In the event an owner of any lot shall fail to. maintain his
lot and the improvements thereon as required herein, the
Association'.s agents may, after-notice and a. hearing, as-provided in
the Bylaws, enter the lot and.,perform the necessary maintenance.
The cost of such maintenance shall immediately, be paid to . the
Association by the owner of such lot, together with interest at the
rate of fifteen percent (15%) per' annum (but not to exceed the
maximum interest rate authorized by law) from the date the cost was
incurred by the Association until the date the cost is paid by the
owner.
8.07 Damage or -Destruction: If an improvement on any lot-
other than a common area lot is damaged or destroyed by fire or
.pther_ casualty., „.the.Downer...of such. lot. shall, repair or reconstruct.
-the.rimprpvement-in- .accordance with-, the original as-built plans-and
specification, modified as may be required by applicable building
codes and regulations in force at the time of such repair or
reconstruction or as authorized by the Architectural Control
Committee. The repair or reconstruction shall commence no later
than ninety (90) days after the date of such damage or destruction,
and shall be completed no later than one hundred eighty (180) days
after such date, subject to delays that are beyond the control of
the owner. Notwithstanding the foregoing, the owner immediately
shall take such steps as may be reasonably required to secure any
hazardous conditions resulting from the damage or destruction.
If any common area improvement is damaged or destroyed by fire
or casualty, the improvement shall be repaired or reconstructed
substantially in accordance with the original as-built plans and
specifications, modified as may be required by applicable building
codes and regulations in force at the time of such repair or
reconstruction and subject to such alterations or upgrades as may
be approved by the Architectural Control Committee, unless either
of the following occurs: (1) The cost of repair or reconstruction
is more than fifty percent (50V) of the current replacement costs
of all common area project improvements, available insurance
proceeds are not sufficient to pay for at least eighty-five percent
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(85%) of the cost of such repairs or reconstruction, and
three-fourths (3/4) of the total voting power of the Association
residing members and their first lenders vote against such repair
and reconstruction; or (2) available insurance proceeds are not
sufficient to substantially repair or reconstruct the improvement
within a reasonable time as determined by the Board, a special
assessment levied to supplement the insurance fails to receive the
requisite approval (if such approval is required) as provided in
section 4.4 and the Board, without the requirement of approval by
the owners, is unable to supplement the insurance by .borrowing on
behalf of the Association sufficient monies to enable the
improvements to be substantially repaired or-reconstructed within
a reasonable time. . . .
If the common area improvement is to be repaired or
reconstructed and the cost for repair or reconstruction is in
excess of twenty-five percent (25%) of the current replacement cost
of all common area improvements, the Board shall designate a
construction consultant, a general contractor, and an architect for
the repair or reconstruction. All insurance proceeds, Association
..monies . allocated for .the repair .or ..reconstruction,, and- any
borrowings by the Association for the repair or reconstruction
shall be deposited with a commercial -lending .institution
experienced in the disbursement of construction loan funds (the
"depository") as selected by the Beard. Funds shall be disbursed
in accordance with the normal construction loan practices of the
depository that require as a minimum that the . construction
consultant, general contractor and architect certify within ten
.. (10)...days prior .to any. disbursement, substantially, the following:
A. That all of the work completed as of the date of
such request for disbursement has been done in compliance with the
"appr'oved"plans^and specifications;... .'._"." " .".!".."
B. That such disbursement request represents monies
which either have been paid by or on behalf of the construction
consultant, the general contractor or the architect and/or are
justly due to contractors, subcontractors, materialmen, engineers,
or other persons (whose name and address shall be stated) who have
rendered or furnished certain services or materials for the work
and giving a brief description of such services and materials and
the principle subdivisions or categories thereof and the respective
amounts paid or due to each of said persons in respect thereof and
stating the progress of the work up to the date of said
certificate;
C. That the sum then requested to be disbursed plus all
sums previously disbursed does not exceed the cost of the work
insofar as actually accomplished up to the date of such
certificate;
D. That no part of the cost of the services and
materials described in the foregoing paragraph A has been or is
being made the basis for the disbursement of any funds in any
previous or then pending application; and
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E. That the amount held by the depository, after
payment of the amount requested in the pending disbursement
request, will be sufficient to pay in full the costs necessary to
complete the repair or reconstruction.
If the cost of repair or reconstruction is less than twenty-
five percent (25%) of the current replacement cost of all common
area improvements, the Board shall disburse/the available .funds for
the repair and reconstruction under such procedures as the Board
deems appropriate under the circumstances.
If the common area improvement is not repaired or
reconstructed in accordance with the foregoing, .all available
insurance proceeds shall be disbursed among all owners and their
respective mortgagees in the same proportion that the owners are
assessed, subject to the rights of the owner's mortgagees.
8.08 Condemnation; If all or any part of a lot (except the
common area) is taken by eminent domain, the award shall be
disbursed to the owner of the lot subject to the rights of the
owner's mortgagees.. If the taking .renders the .lot uninhabitable,
the owner shall be divested of any further interest in the project,
including membership in the Association, and .the .-interests-, of the
remaining owners shall be adjusted accordingly. If.all or any part
of the common area is taken by eminent domain, the proceeds • of
condemnation shall be used to restore or replace the portion of the
common area affected'by condemnation, if restoration or replacement
is possible, and any remaining funds, after payment of .any and all
fees and expenses incurred by the Association -relating to such
_. condemnation, shall. be..distributed :.among.. the ..owners .in .the .same
proportion as such owners are assessed, subject to the rights of
mortgagees..If necessary, the remaining portion of the project
sJiall^be'~'Te^u^
'"-"pa~ft'i~cipate~ "in the"negotiations, "and shall propose"" the method of
division of the proceeds of condemnation, where lots are not valued
separately by the condemning authority or by the court. The
Association shall represent the lot owners in any condemnation
proceedings or in negotiations, settlement and agreements with the
condemning authority for acquisition of the common area, or part
thereof.
8.09 Limitation of Restrictions on Declarant; Declarant is
undertaking the work of construction of a planned unit development
subdivision and incidental improvements upon the property. The
completion of that work and the sale, rental, and other disposal of
lots is essential to the establishment and welfare of said property
as a residential community. In order that said work be completed
and said property be established as a fully occupied residential
community as rapidly as possible, nothing in this Declaration shall
be understood or construed to:
A. Prevent Declarant, its contractors, or
subcontractors from doing on the property or any lot, whatever is
reasonably necessary or advisable in connection with the completion
of said work; or
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B. Prevent Declarant or its representatives from
erecting, constructing and maintaining on the property (except upon
lots owned by others) , such structures as may be reasonable and
necessary for developing said property as a residential community
and disposing of the same by sale, lease or otherwise; or
C. Prevent Declarant from conducting on the property
(except upon lots owned by others) its business of completing said
work and of establishing a plan of residential- ownership and-of
disposing of said property in lots by sale, lease or otherwise;
D. Prevent Declarant from maintaining such .sign or
signs on the property, (except .upon lots owned by others) as may be
necessary for the sale, lease or disposition thereof.
E. Subject Declarant to the architectural control
provisions of this Declaration for construction of any residence or
other improvements on the property.
The foregoing rights of Declarant shall, terminate .upon sale
of Declarant's .entire interest .in the project>- or, three (3) years.-
after the date of recordation of the deed of the first lot to be
sold in the project, whichever occurs first.
So long as Declarant, its successors and assigns, owns one (1)
or more of the lots described herein, Declarant,, its successors and
assigns, shall be subject to the provisions of this ..Declaration.
Declarant shall make reasonable efforts to avoid.disturbing the use
and enjoyment of lots and the common area by. .their-owners, while
completing any.work necessary to said lots or common areas. •
8.10 Termination of Anv Responsibility of Declarant; In the
Teyeh'tf'Declara^ fights, -title and interest
"in and'" to "the "property to any partnership, individual or
individuals, corporation or corporations, then and in such event,
Declarant shall be relieved of the performance of any further duty
or obligations hereunder, and such partnership, individual or
individuals, corporation or corporations, shall be obligated to
perform all such duties and obligations of the Declarant.
8.11 Owner's Compliance; Each owner, tenant or occupant of a
lot shall comply with the provisions of this Declaration, and (to
the extent they are not in conflict with the Declaration) the
Articles and Bylaws, and the decisions and resolutions of the
Association or the Board, as lawfully amended from time to time.
Failure to comply with any such provision, decision, or resolution,
shall be grounds for an action (1) to recover sums due, (2) for
damages, (3) for injunctive relief, or (4) for costs and attorneys
fees, or (5) for any combination of the foregoing.
All agreements and determinations lawfully made by the
Association in accordance with the voting percentages established
in this Declaration or the Articles or Bylaws, shall be deemed to
be binding on all lot owners, their successors and assigns.
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8.12 Notices: Any notice permitted or required by the
Declaration, Articles or Bylaws may be delivered either personally
or by mail. If delivery is by mail, it shall be deemed to have
been delivered seventy-two (72) hours after a copy of the same has
been deposited in the United States mail, first class or
registered, postage prepaid, addressed to the person to be notified
at the current address given by such person to the Secretary of the
Board or addressed to,the residence of such .person if no address
has been given to the Secretary.
8.13 Special Provisions Relating to Enforcement of Declarants
Obligation to Complete Common Area Improvements: When the project
includes common area improvements which have not .been completed
prior to the close of escrow and the sale of the first lot and
where the Association is obligee under a bond or .other arrangement
(hereafter "bond") to secure performance of -thecommitment of
Declarant to complete said improvements, the Board shall consider
and. vote on the question of action by the Association to enforce
the obligations under the bond with respect to any improvement for
which a notice of completion has not been filed within sixty (60)
days after.the completion date specified-for .that improvement in -
the planned construction statement appended to the bond. .If the
Association has given an extension in writing for the completion of
any common area improvement, the Board shall- consider .and vote on
the aforesaid question if a notice of completion has not been filed
within thirty (30) days after the expiration of the.extension. A
special meeting of'members of the Association for the purpose of
voting to override a decision by the Board not to initiate action
to enforce.the obligations under the bond or. on the .failure of the
.Board-to~ consider-and vote-on the question shall be held not-less
than thirty-five (35) days nor more than forty-five (45) days after
receipt-by. the__Board of a petit ion for. such .a meeting signed by....
"m¥tffiers^r.epres,e."^ing!f iye'.percent.. (5%). or .mbfe of the total .voting......
power of the "Association. At such" special meeting a vote of a
majority of members of the Association other than the Declarant
shall be required to take action to enforce the obligations under
the bond and a vote of a majority of the voting power of the
Association, excluding Declarant, shall be deemed to be the
decision of the Association, and the Board shall thereafter
implement this decision by initiating and pursuing appropriate
action in the name of the Association. On satisfaction of
Declarant's obligation to complete the Common Area improvements,
the Association shall acknowledge in writing that it approves the
release of the bond and shall execute any other documents as may be
necessary to effect the release of the bond. The Association shall
not condition its approval of the release of the bond on the
satisfaction of any condition other than the completion of the
Common Area improvements as described on the planned construction
statement. Any dispute between Declarant and the Association
regarding the completion of the Common Areas shall be submitted to
binding arbitration under the commercial rules of the American
Arbitration Association and the prevailing party shall be entitled
to recover costs, including reasonable attorneys' fees.
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8.14 Fair Housing; No owner shall, either directly or
indirectly, forbid or restrict the conveyance, encumbrance,
leasing, or mortgaging, or occupancy of his lot to any person of a
specified race, sex, adulthood, marital status, color, religion,
ancestry, physical handicap, or national origin.
8.15 Documents Provided to Prospective Purchaser; The Owner
of a lot shall, as soon as practicable before the transfer of title
or execution of a real property sales contract thereof, provide the
following to the prospective purchaser:
(a) A copy of the Governing Documents of the Project.
(b) A copy of the most recent documents .distributed pursuant
to Civil Code Section 1365.
(c) A true statement in writing from an authorized
representative of the Association as to the amount of the
Association's current annual and special assessments and fees, as
well as any assessments levied upon the Owner's lot in the Project
which are-unpaid on the date of the statement; The-statement shall
also include true information on late charges, interest, and costs
of collection which, as of the date of the statement, are or may be
made a lien upon the Owner's lot in the Project pursuant to Civil
Code Section 1367.
(d) Any change in the Association's -current .annual and
special assessments and fees which have been approved by the
Association'.s.. Board of -Directors, but have not :.become due and
-payable-as- of--the-date-disclosure--is provided pursuant to this
Section.
;7^.3$^ypbnj.^^ shall, within ten- (10)
days of" th'e"maiiing"or delivery of the request, provide the owner
of a lot with a copy of the required items specified in paragraphs
(a), (b) , (c) and (d) above. The Association may charge a fee for
this service, which shall not exceed the Association's reasonable
cost to prepare and reproduce the requested items; otherwise, the
Association shall not impose or collect any assessment, penalty, or
fee in connection with a transfer of title or any other interest
except the Association's actual costs to change its records.
8.16 ALTERNATIVE DISPUTE RESOLUTION: (THIS SECTION OF THE
DECLARATION ONLY APPLIES TO DISPUTES THAT INVOLVE ENFORCEMENT OF
THE GOVERNING DOCUMENTS.)
A. Summary of Civil Code Section 1354. UNLESS THE
APPLICABLE TIME LIMITATION FOR COMMENCING THE ACTION WOULD RUN
WITHIN ONE HUNDRED TWENTY (120) DAYS, PRIOR TO THE FILING OF A
CIVIL ACTION BY EITHER THE ASSOCIATION OR AN OWNER SOLELY FOR
DECLARATORY RELIEF OR INJUNCTIVE RELIEF, OR FOR DECLARATORY RELIEF
OR INJUNCTIVE RELIEF IN CONJUNCTION WITH A CLAIM FOR MONETARY
DAMAGES, OTHER THAN ASSOCIATION ASSESSMENTS, NOT IN EXCESS OF FIVE
THOUSAND DOLLARS ($5,000.00), RELATED TO THE ENFORCEMENT OF THE
GOVERNING DOCUMENTS, THE PARTIES SHALL ENDEAVOR, AS PROVIDED IN
- 39 -
CIVIL CODE SECTION 1354, OR ANY SUCCESSOR STATUTE, TO SUBMIT THEIR
DISPUTE TO A FORM OF ALTERNATIVE DISPUTE RESOLUTION SUCH AS
MEDIATION OR ARBITRATION. THE FORM OF ALTERNATIVE DISPUTE
RESOLUTION CHOSEN MAY BE BINDING OR NONBINDING AT THE OPTION OF THE
PARTIES. ANY PARTY TO SUCH A DISPUTE MAY INITIATE THIS PROCESS BY
SERVING ON ANOTHER PARTY.TO THE DISPUTE A REQUEST FOR RESOLUTION,
WHICH SHALL INCLUDE: (1) A BRIEF DESCRIPTION OF .THE DISPUTE
BETWEEN THE PARTIES; (2)' A REQUEST FOR ALTERNATIVE DISPUTE
RESOLUTION; (3) A NOTICE THAT THE PARTY RECEIVING THE REQUEST FOR
RESOLUTION IS REQUIRED TO RESPOND THERETO WITHIN THIRTY (30) DAYS
OF RECEIPT OR IT WILL BE DEEMED REJECTED; AND (4) A COPY OF CIVIL
CODE SECTION 1354, OR ANY SUCCESSOR STATUTE. SERVICE OF THE
REQUEST FOR RESOLUTION SHALL BE IN THE .SAME MANNER .AS 'PRESCRIBED.
FOR SERVICE IN A SMALL CLAIMS ACTION AS PROVIDED IN.SECTION 116.340
OF THE CODE OF CIVIL PROCEDURE, OR ANY SUCCESSOR STATUTE. PARTIES
RECEIVING A REQUEST FOR RESOLUTION SHALL HAVE THIRTY (30) DAYS
FOLLOWING SERVICE OF THE REQUEST FOR RESOLUTION TO ACCEPT OR REJECT
ALTERNATIVE DISPUTE RESOLUTION AND, IF NOT ACCEPTED WITHIN THE 30-
DAY PERIOD BY A PARTY, SHALL BE DEEMED REJECTED BY THAT PARTY. IF
ALTERNATIVE DISPUTE RESOLUTION IS ACCEPTED BY THE PARTY UPON WHOM
THE REQUEST FOR RESOLUTION IS SERVED, . THE .ALTERNATIVE, ..DISPUTE
RESOLUTION SHALL BE COMPLETED WITHIN NINETY (90) DAYS .OF^RECEIPT OF
THE ACCEPTANCE BY THE PARTY INITIATING THE REQUEST FOR RESOLUTION,
UNLESS EXTENDED BY WRITTEN STIPULATION SIGNED BY'BOTH PARTIES. ..THE
COSTS OF THE ALTERNATIVE DISPUTE RESOLUTION SHALL BE BORNE :BY THE
PARTIES. MEMBERS OF THE ASSOCIATION SHALL ANNUALLY. BE PROVIDED A
SUMMARY OF THE PROVISIONS OF CIVIL CODE SECTION 1354, .TOGETHER WITH
A NOTICE STATING THE FOLLOWING: "FAILURE. BY. ANY MEMBER .OF THE
ASSOCIATION TO COMPLY WITH THE PRE-FILING REQUIREMENTS OF..SECTION.
'.13 54' OF. THE CIVIL CODE..MAY RESULT IN THE LOSS OF. YOUR "RIGHTS TO SUE
THE ASSOCIATION OR ANOTHER MEMBER OF THE ASSOCIATION REGARDING
ENFORCEMENT OF THE GOVERNING DOCUMENTS. " THE SUMMARY SHALL BE
' FORMA BUDGET REQUIRED BY CIVIL
ORVIN~~THE" "MANNER" SPECIFIED : IN"
SECTION 5016 OF THE CORPORATIONS CODE.
B. Text of Civil Code Section 1366.3.
(a) The exception for disputes related to Association
assessments in subdivision (b) of Civil Code Section 1354 shall not
apply if, in a dispute between the Owner of a separate interest and
the Association regarding the assessments imposed by the
Association, the Owner of the separate interest chooses to pay in
full to the Association all of the charges listed below in
paragraphs (1) to (4) , inclusive, and states by written notice that
the amount is paid under protest, and the written notice is mailed
by certified mail not more than 30 days from the recording of a
notice of delinquent assessment in accordance with Civil Code
Section 1367; and in those instances, the Association shall inform
the Owner that the Owner may resolve the dispute through
alternative dispute resolution as set forth in Section 1354, civil
action, and any other procedures to resolve the dispute that may be
available through the Association.
(1) The amount of the assessment in dispute.
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(2) Late charges.
(3) Interest.
(4) All fees and costs associated with the preparation
and filing of a notice of delinquent" assessment,
including all mailing costs, and including attorney's
fees not to exceed four hundred twenty-five dollars
($425) .
(b) The right of any Owner of a separate interest to utilize
alternative dispute resolution under this section may not be
exercised more than two times in any single calendar year, and not
more than three times within any five calendar years. Nothing
within this section shall preclude any Owner of a separate interest
and the Association, upon mutual agreement, from entering into
alternative dispute resolution for a number of times in excess of
the limits set forth in this section. The Owner of a separate
interest may request and be awarded through alternative dispute
resolution reasonable interest to be paid by the Association on the
total amount paid under paragraphs (1) to (4) , inclusive, of
subdivision (a) above, if it is determined through alternative
dispute resolution that the assessment levied by the Assssociation
was not correctly levied.
8.17 ARBITRATION OF DISPUTES; (ACTION FOR DAMAGES AGAINST
DECLARANT FOR DEFECT IN DESIGN OR CONSTRUCTION OF THE PROJECT):
ANY AND ALL CLAIMS AND DISPUTES BETWEEN AN OWNER OR THE ASSOCIATION
AND THE DECLARANT OR ANY OF ITS PARTNERS, AGENTS, EMPLOYEES OR
OTHER REPRESENTATIVES CONCERNING THE DESIGN, CONSTRUCTION OR
DEVELOPMENT OF THE PROJECT SHALL BE RESOLVED THROUGH BINDING
ARBITRATION PURSUANT TO THE ACTUAL COMMERCIAL ARBITRATION RULES OF
THE AMERICAN ARBITRATION ASSOCIATION OR THE ACTUAL STREAMLINED OR
COMPREHENSIVE RULES AND REGULATIONS OF JAMS/ENDISPUTE, SUBJECT TO
THE FOLLOWING MODIFICATIONS THEREOF:
(1) THE DECLARANT (SUBDIVIDER) SHALL ADVANCE THE FEES
NECESSARY TO INITIATE THE ARBITRATION, WITH THE COSTS AND FEES,
INCLUDING ONGOING COSTS AND FEES, TO BE PAID AS AGREED BY THE
PARTIES AND IF THEY CANNOT AGREE AS DETERMINED BY THE ARBITRATOR(S)
WITH THE COSTS AND FEES OF THE ARBITRATION TO ULTIMATELY BE BORNE
AS DETERMINED BY THE ARBITRATOR(S) ;
(2) ADMINISTRATION OF THE ARBITRATION SHALL BE BY A
NEUTRAL AND IMPARTIAL PERSON(S);
(3) A NEUTRAL AND IMPARTIAL INDIVIDUAL (S) SHALL BE
APPOINTED TO SERVE AS ARBITRATOR (S) , WITH THE ARBITRATOR (S) TO BE
APPOINTED WITHIN A SPECIFIED PERIOD OF TIME, WHICH IN NO EVENT
SHALL BE MORE THAN SIXTY DAYS FROM THE ADMINISTRATOR'S RECEIPT OF
A WRITTEN REQUEST FROM A PARTY TO ARBITRATE THE CLAIM OR DISPUTE.
IN SELECTING THE ARBITRATOR, THE PROVISIONS OF SECTION 1297.121 OF
THE CODE OF CIVIL PROCEDURE SHALL APPLY. AN ARBITRATOR MAY BE
CHALLENGED FOR ANY OF THE GROUNDS LISTED THEREIN OR IN SECTION
1297.124 OF THE CODE OF CIVIL PROCEDURE.
- 41 -
(4) THE VENUE OF THE ARBITRATION SHALL BE IN THE COUNTY
WHERE THE PROJECT IS LOCATED UNLESS THE PARTIES AGREE TO SOME OTHER
LOCATION.
(5) THE ARBITRATION SHALL BE COMMENCED IN A PROMPT AND
TIMELY MANNER IN ACCORDANCE WITH: (I) THE RULES OF THE
ARBITRATION, OR IF THE RULES DO NOT SPECIFY A DATE BY WHICH THE
ARBITRATION MUST COMMENCE, THEN (II) A DATE AS AGREED TO BY THE
PARTIES, AND IF THEY CANNOT AGREE, (III) A DATE DETERMINED BY THE
ARBITRATOR(S);
(6) THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH
RULES AND PROCEDURES WHICH ARE REASONABLE AND FAIR TO THE PARTIES.
(7) THE ARBITRATION SHALL BE CONCLUDED IN A PROMPT AND
TIMELY MANNER;
(8) THE ARBITRATORS SHALL BE AUTHORIZED TO PROVIDE ALL
RECOGNIZED REMEDIES AVAILABLE IN LAW OR EQUITY FOR ANY CAUSE OF
ACTION THAT IS THE BASIS OF THE ARBITRATION. THE PARTIES MAY
AUTHORIZE THE LIMITATION OR PROHIBITION OF PUNITIVE DAMAGES.
(9) AFTER AN AWARD OR DECISION HAS BEEN MADE, ANY PARTY
MAY PETITION THE APPROPRIATE COURT TO CONFIRM, CORRECT OR VACATE THE
AWARD OR DECISION, PURSUANT TO SECTION 1285 ET. SEQ. OF THE CODE OF
CIVIL PROCEDURE.
8.18 Special Provisions Required by City of Carlsbad:
A. General Enforcement by the City. The City shall
have the right, but not the obligation, to enforce
those Protective Covenants set forth in this
Declaration in favor of the City or in which the
City has an interest.
B. Notice and Amendment. A copy of any proposed
amendments to this Declaration shall be provided to
the City in advance. If the proposed amendment
affects the City, the City shall have the right to
disapprove it. A copy of the final^m^nlment shall
be transmitted to the City within thirty (30) days
for the official record.
C. Failure of Association to Maintain Common Area Lots
and Easements. In the event that the Association
fails to maintain the Common Area Lots and/or the
Association's Easements as provided in Article V,
Section 5.01, the City shall have the right, but not
the duty, to perform the necessary maintenance. If
the City elects to perform such maintenance, the
City shall give written notice to the Association,
with a copy thereof to the Owners in the Project,
setting forth with particularity the maintenance
which the City finds to be required and requesting
the same be carried out by the Association within a
- 42 -
period of thirty (30) days from the giving of such
notice. In the event that the Association fails to
carry out such maintenance of the Common Area Lots
and/or Association's Easements within the period
specified by the City's notice, the City shall be
entitled to cause such work to be completed and
shall be entitled to reimbursement with respect
thereto from the Owners as provided herein.
D. Special Assessments Levied by the City. In the
event the City has performed the necessary
maintenance to either Common Area Lots and/or
Association's Easements, the City shall submit a
written invoice to the Association for all costs
incurred by the City to perform such maintenance of
the Common Area Lots and or Association's Easements.
The City shall provide a copy of such invoice to
each Owner in the Project, together with a statement
that if the Association fails to pay such invoice in
full within the time specified, the City will pursue
collection against the Owners in the Project
pursuant to the provisions of this Section. Said
invoice shall be due and payable by the Association
within twenty (20) days of receipt by the
Association. If the Association shall fail to pay
such invoice in full within the period specified,
payment shall be deemed delinquent and shall be
subject to a late charge in an amount equal to six
percent (6%) of the amount of the invoice.
Thereafter the City may pursue collection from the
Association by means of any remedies available at
law or in equity. Without limiting the generality
of the foregoing, in addition to all other rights
and remedies available to the City, the City may
levy a special assessment against the Owners of each
Lot in the Project for an equal prorata share of the
invoice, plus the late charge. Such special
assessment shall constitute a charge on the land and
shall be a continuing lien upon each Lot against
which the special assessment is levied. Each Owner
in the Project hereby vests the City with the right
and power to levy such special assessment, to impose
a lien upon their respective Lot and to bring all
legal actions and/or to pursue lien foreclosure
procedures against any Owner and his/her respective
Lot for purposes of collecting such special
assessment in accordance with the procedures set
forth in Article VIII, Section 8.01 of this
Declaration.
E. Common Ownership Land or Improvements. Provisions
are herein established for: 1) maintenance of all
Common Areas, payment of taxes and all other
privileges and responsibilities of the common
- 43 -
ownership; 2) prohibiting the Homeowners'
Association from quitclaiming land in Association
easement to private property owners thus allowing
the homeowners to privatize a common area for
his/her own use.
F. Landscape Maintenance Responsibilities. The
Homeowners Association's and individual lot or unit
owner landscape maintenance responsibilities shall
be as set forth in Exhibits "F" through "I,"
inclusive, of the Landscape Maintenance Plan on file
at the City of Carlsbad Planning Department. The
common maintenance responsibility includes open
space (Lot 13) and all perimeter manufactured slopes
as shown on the Landscape Maintenance Plan, Exhibit
"G, " on file at the City of Carlsbad Planning
Department. Relinquishing maintenance
responsibility of Homeowners Association maintained
lots and/or slope to individual property owners
shall be prohibited. The following restriction
shall apply for Lots 7 through 10, inclusive. The
landscape design shall incorporate fire protective
landscaping for defensible space purposes at the
rear of Lots 7 through 10, inclusive, for fire
protection purposes in accordance with the final
Landscape Plan on file at the City of Carlsbad
Planning Department. Fire protective landscaping
shall exist in an easement dedicated to the
Homeowners Association, which shall extend from the
rear property line to a point no closer than twenty
(20) feet from proposed structures. Landscaping in
this defensible space zone shall consist of
ornamental ground cover plans which will not
contribute to fire spread. Landscaping shall be
irrigated and maintained free of hazard by the
Homeowners Association. No structures shall be
placed in the defensible space/Homeowners
Association maintenance easement, and no
encroachment of any kind shall be permitted on
Homeowners Association maintained slopes.
G. Balconies, trellis and decks. The individual lot or
unit owner allowances and prohibitions regarding
balconies, trellis and decks shall be as set forth
in Exhibit "G" of the Landscape Maintenance Plan on
file at the City of Carlsbad Planning Department.
Balconies, trellises, and decks proposed on Lots 7
through 10, inclusive, in the 20' rear yard
landscape setback between the main structure and top
of slope shall conform to the Class 1 Ignition
Resistant requirements of Sections 504 and 602 of
the Urban Wildland Interface Code.
H. Height Restrictions. No structure, fence, wall,
tree, shrub, sign, or other object over thirty (30)
- 44 -
inches above the street level may be placed or
permitted to encroach within the area(s) identified
on the Map as sight distance corridors.
I. Transportat ion Informat ion. The Homeowners
Association shall obtain and distribute to Owners
and tenants annual information from Caltrans and
North County Transit regarding the availability of
public transportation, ride-sharing, and
transportation pooling services in the area.
J. Cross-Lot Drainage. Each Owner of a Lot within the
Project covenants for himself, his heirs, successors
and assigns, that he will not restrict, impede,
divert or otherwise alter cross-lot drainage flows
as shown on the Map or as originally established by
Declarant in any manner that will result in damage
to the underlying and adjacent properties or result
in the creation of a public nuisance.
IN WITNESS WHEREOF, the Declarant has executed this
Declaration, as indicated by its acknowledgment hereinbelow.
AVIARA POINTE, LLC
a California Limited Liability Company
By:
RAJEEV BHATIA, Managing Member
- 45 -
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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Description of Attached Document %
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Legal Description of Real Property;
Lots 1 through 13, inclusive, of CARLSBAD TRACT NO. CT 99-10,
in the City of Carlsbad, County of San Diego, State of
California, according to Map thereof No. , filed in
the Office of the County Recorder of San Diego County on
Record Holder(s) of Title:
AVIARA POINTE, LLC, a California Limited Liability Company
Type of Lot;
Residential Lots: 1 through 12, inclusive
Common Area Lot(s): 13
EXHIBIT "A"
(Partial copy of initial/proposed BUDGET)
EXHIBIT "B"
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY
INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER
PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY
INSTRUMENT. (THIS NOTICE IS REQUIRED BY CALIFORNIA CIVIL
CODE SECTION 2953.3)
RANCHO BERNARDO COMMUNITY BANK, beneficiary under that certain Deed
of Trust recorded on May 15, 2002 as File/Document Number 2002-
0411940 of Official Records of San Diego County, California, hereby
agrees that the lien and charge of said Deed of Trust is and shall
be subordinate to the within Declaration of Covenants, Conditions
and Restrictions.
Dated: RANCHO BERNARDO COMMUNITY BANK
By:
By: