HomeMy WebLinkAboutCT 04-14A; TRAILS END; CHART OF CONDITIONS;CHART OF CITY CONDITIONS
Carlsbad Tract 04.14(A)
Planning Commission Resolution No. 6035
Condition No. Brief Description CUR Section(s)
Enforcement by City § 15.1.2
Notice to City re Amendments § 14.2.3
City Rights if Association Fails to Maintain § 3.2
City's Right to Levy Special Assessment § 6.8
Landscape Maintenance Responsibilities Article Ill
Balconies, Trellises and Decks N/A
36' Sight Distance Corridors § 9.24
51 Stormwater Management Plan §§ 9.27 & 9.28
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Donna Drive / City Conditions Chart (vi)
RECORDING REQUESTED BY:
WHEN RECORDED, MAIL TO:
LINER LLP
1100 Glendon Avenue, 14th Floor
Los Angeles, CA 90024 (KS)
(Space Above For Recorder's Use)
DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS
FOR
DONNA DRIVE
THIS DECLARATION CONTAINS A BINDING ARBITRATION PROVISION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. ARBITRATION
INCLUDES A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY. YOU MUST
READ THE ARBITRATION PROVISION CAREFULLY AND SHOULD CONSULT
LEGAL COUNSEL WITH ANY QUESTIONS.
Donna Drive CC&Rs (v2)
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TABLE OF CONTENTS
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ARTICLEI DEFINITIONS ............................................................................................................7
1.1. Annexable Territory.................................................................................................7
1.2. Architectural Committee or Committee...................................................................7
1.3. Articles.....................................................................................................................7
1.4. Assessment, Annual.................................................................................................7
1.5. Assessment, Capital Improvement...........................................................................7
1.6. Assessment, Reconstruction ....................................................................................7
1.7. Assessment, Special ................................................................................................. 7
I.S. Association...............................................................................................................8
1.9. Association Maintained Walls/Fences .................................. ................................... 8
1.10. Association Maintenance Areas...............................................................................8
1.11. Association Property ................................................................................................ 8
1.12. Beneficiary...............................................................................................................8
1.13. Board or Board of Directors ....................................................................................8
1.14. BRE..........................................................................................................................9
1.15. Budget......................................................................................................................9
1.16. Bylaws......................................................................................................................9
1.17. Close of Escrow.......................................................................................................9
1.18. Common Expenses...................................................................................................9
1.19. Common Interest Development...............................................................................9
1.20. Declarant..................................................................................................................9
1.21. Declaration...............................................................................................................9
1.22. Deed of Trust ........................................................................................................... 9
1.23. Duet Dwellings ......................................................................................................10
1.24. Dwelling.................................................................................................................10
1.25. Family....................................................................................................................10
1.26. FHA........................................................................................................................10
1.27. FHLMC..................................................................................................................10
1.28. Fiscal Year ............................................................................................................. 10
1.29. FNMA....................................................................................................................10
1.30. GNMA ...................................................................................................................10
1.31. Improvements ........................................................................................................10
1.32. Land.......................................................................................................................10
1.33. Limited Warranty...................................................................................................10
1.34. Lot..........................................................................................................................11
1.35. Maintenance Funds................................................................................................11
1.36. Maintenance Manual..............................................................................................11
1.37. Maintenance Pathway............................................................................................11
1.38. Manager .................. ......... ... .... ....... ...... ...... ...... ....... ............................... ....... ..... ....11
1.39. Member, Membership............................................................................................11
1.40. Mortgage................................................................................................................11
1.41. Mortgagee, Mortgagor ........................................................................................... 11
Donna Drive CC&Rs (v2) 1
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I 1.42. Notice and Hearing .11
1.43. Notice of Addition.................................................................................................11
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1.44.
1.45.
Owner ................. ....................................................................................................
Person.....................................................................................................................12
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1.46. Phase 1 ...................................................................................................................12
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1.47.
1.48.
Phase of Development...........................................................................................12
Project ..................................................................................................................... 12
1.49. Property..................................................................................................................12
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1.50.
1.51.
Record, File, Recordation......................................................................................12
Restrictions .............................................................................................................12
1.52. Rules and Regulations............................................................................................12
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1.53.
1.54.
Shared Foundation ...................................................................................... ............ 12
Shared Improvements ............................................................................................12
1.55. Shared Roof Improvements ...................................................................................12
I 1.57.
1.56. Shared Wall Improvements....................................................................................12
VA..........................................................................................................................13
1.58. Walkway Easement Area.......................................................................................13
I ARTICLE II
2.1.
ASSOCIATION ................................... ..................................................................13
Organization of Association ..................................................................................13
2.2. Duties and Powers..................................................................................................13
I 2.3.
2.4.
Membership ...........................................................................................................15
Transfer..................................................................................................................15
2.5. Classes of Membership..........................................................................................16
I 2.6. Voting Rights .........................................................................................................
ARTICLE HI MAINTENANCE OBLIGATIONS .......................................................................17
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3.1. Repair and Maintenance by the Association..........................................................17
I 3.2. City's Rights if Association Fails to Maintain.......................................................19
3.3. Use of Agent .......................................................................................................... 19
3.4. Repair and Maintenance by Owners......................................................................19
I 3.5. Party Walls.............................................................................................................25
ARTICLE IV RIGHTS IN ASSOCIATION PROPERTY ......... . .................................................. 25
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4.1.
4.2.
Association Easement; Jurisdiction of Association...............................................25
Partition..................................................................................................................26
4.3. Members' Easements in Association Property......................................................26
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4.4.
4.5.
Extent of Members' Easements.............................................................................26
Delegation of Use ..................................................................................................27
4.6. Waiver of Use........................................................................................................27
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4.7. Damage by Member...............................................................................................28
ARTICLE V ARCHITECTURAL REVIEW COMMITTEE ....................................................... 28
5.1. Members of Committee .........................................................................................28
5.2. Review of Plans and Specifications ....................................................................... 28 I 5.3. Condition of Approval ............................................................................................ 30
5.4. Commencement of Construction ........................................................................... 30
I 5.5. Meetings of the Committee .................................................................................... 30
5.6. No Waiver of Future Approvals ............................................................................31
Donna Drive CC&Rs (v2) ii
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5.7. Compensation of Members .31
5.8. Correction of Defects.............................................................................................31
5.9. Scope of Review ..................................................................................................... 32
5.10. Variances................................................................................................................32
5.11. Appeals .................................................................................................................. 33
ARTICLE VI ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS...................33
6.1. Personal Obligation of Assessments......................................................................33
6.2. Maintenance Funds of Association........................................................................33
6.3. Purpose of Assessments.........................................................................................33
6.4. Transfers from Reserve Fund ................................................................................. 34
6.5. Limitations on Annual and Special Assessment Increases....................................34
6.6. Annual Assessments/Commencement and Collection...........................................36
6.7. Capital Improvement Assessments........................................................................37
6.8. Special Assessments Levied by City.....................................................................38
6.9. Delinquency...........................................................................................................38
6.10. Creation and Release of Lien.................................................................................39
6.11. Enforcement of Liens.............................................................................................40
6.12. Subordination of Assessment Lien to First Mortgages..........................................41
ARTICLE VII PROJECT EASEMENTS AND RIGHTS OF ENTRY........................................42
7.1. Access; Parking ........... . .......................................................................................... 42
7.2. Maintenance and Repair........................................................................................42
7.3. Utility Easements...................................................................................................42
7.4. Association Maintenance Areas Easements...........................................................42
7.5. Support and Encroachments ..................................................................................43
7.6. Association Property in Other Phases of Development.........................................43
7.7. Declarant's Rights .................................................................................................. 43
7.8. Cable Television....................................................................................................44
7.9. Rights of Entry.......................................................................................................44
7.10. Access Easements for Annexable Territory...........................................................45
7.11. Easements for Duet Dwellings...............................................................................45
7.12. Cross-Lot Access Easements ................................................................................. 46
7.13. City Easement ........................................................................................................ 46
ARTICLE VIII DECLARANT'S RIGHTS AND RESERVATIONS..........................................47
8.1. Development Rights...............................................................................................47
8.2. Marketing Rights ...................................................................................................47
8.3. Architectural Review Exemption...........................................................................47
8.4. Right to Form Cost Centers...................................................................................47
8.5. Use of Association Property..................................................................................47
8.6. Rights to Grant Easements for Utilities and Cable Television..............................48
8.7. Actions Requiring Declarant Consent ...................................................................48
8.8. Attorney-in-Fact.....................................................................................
................ 48
8.9. Right to Notice ....................................................... ............................................49 ....
8.10. Rights of Access, Inspection, Notice and Attendance........................................... 49
8.11. Power of Attorney .................................................................................................. 50
8.12. Right to Assign ......................................................................................................50
Donna Drive CC&Rs (v2) iii
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ARTICLE IX DWELLING AND USE RESTRICTIONS .50
9.1. Single Family Dwellings........................................................................................50
9.2.
9.3.
Parking and Vehicular Restrictions .......................................................................51
Nuisances ................................................................................................................ 52
9.4. Signs.......................................................................................................................53
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9.5.
9.6.
Antenna .............................. ............ ..... .......... .... ...... ... .............. .......... ....................53
Inside and Outside Installations.............................................................................54
9.7. Animal Regulations ...............................................................................................54
I 9.9.
9.8. Business or Commercial Activity..........................................................................55
Rubbish Removal...................................................................................................56
9.10. Further Subdivision................................................................................................56
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.9.11.
9.12.
Drainage.................................................................................................................56
Water Supply System.............................................................................................56
9.13. View Obstructions .................................................................................................57
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9.14.
9.15.
Damage and Destruction to Dwellings..................................................................57
Window Coverings ................................................................................................57
9.16. Association Property Facilities..............................................................................58
I 9.18.
9.17. Association Maintained Walls/Fences...................................................................58
Temporary Buildings.............................................................................................58
9.19. Drilling...................................................................................................................58
I 9.21.
9.20. Solar Energy Systems............................................................................................58
Rights of Handicapped...........................................................................................58
9.22. Firearms and Fireworks .........................................................................................59
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9.23.
9.24.
Hazardous, Toxic, Flammable, Corrosive or Explosive Materials........................59
Sight Distance Corridors........................................................................................59
9.25. Post-Tensioned Slabs.............................................................................................59
I 9.27.
9.26. Shared Wall Systems .............................................................................................60
Reduction of Surface Pollutants.............................................................................60
9.28. Water Quality Protection ....................................................................................... 60
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ARTICLE X INSURANCE ...........................................................................................................
10.1. Duty to Obtain Insurance; Types...........................................................................61
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10.2. Waiver of Claim Against Association...................................................................62
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10.3.
10.4.
Right and Duty of Owners to Insure......................................................................62
Notice of Expiration Requirements .......................................................................62
10.5. Insurance Premiums...............................................................................................62
I 10.6.
10.7.
Trustee for Policies ................................................................................................63
Actions as Trustee..................................................................................................63
10.8. Annual Insurance Review......................................................................................63
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10.9.
10.10.
Notification to Members........................................................................................63
Required Waiver ..................................................................................................... 64
ARTICLE XI DAMAGE TO ASSOCIATION PROPERTY .......................................................64
I ARTICLE XII EMINENT DOMAIN............................................................................................65
ARTICLE XIII RIGHTS OF MORTGAGEES ............................................................................. 65
I 13.1. Mortgagee Protection.............................................................................................65
13.2. First Mortgage; First Mortgagee............................................................................66
Donna Drive CC&Rs ('2) iv
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I 13.3. First Mortgagee Votes .66
13.4. Notice to Mortgagees.............................................................................................66
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13.5.
13.6.
Right of First Refusal.............................................................................................66
Liability for Assessments.......................................................................................66
13.7. Mortgagee Approval of Certain Actions................................................................66
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13.8.
13.9.
Inspection of Books and Records ..........................................................................67
Payment of Taxes by Mortgagees..........................................................................68
13.10. FHA, FNMA, FHLMC, GNMA and VA Approval..............................................68
I ARTICLE XIV DURATION AND AMENDMENT....................................................................68
14.1. Duration.................................................................................................................68
14.2. Amendment............................................................................................................68 ' 14.3. Protection of Declarant..........................................................................................71
ARTICLE XV ENFORCEMENT.................................................................................................72
15.1. Enforcement...........................................................................................................72
1 15.2. Legal Proceedings; Arbitration; Actions Arising From Restrictions.....................72
15.3. Procedures for Post-Closing Disputes ...................................................................73
15.4. Order of Procedures ............ ............ ..... .................... .... .. ... .. ... ...... ..... ........... ......... .73
I 15.5. Alternative Dispute Resolution..............................................................................73
15.6. Violation of Restrictions........................................................................................79
15.7. Enforcement of Certain Bonded Obligations.........................................................79
ARTICLE XVI GENERAL PROVISIONS ..................................................................................80
16.1. Severability............................................................................................................80
I 16.2.
16.3.
Interpretation..........................................................................................................80
Mergers or Consolidations.....................................................................................80
16.4. Use of Association Property..................................................................................80
I 16.5.
16.6.
No Public Right or Dedication...............................................................................81
No Representations or Warranties.........................................................................81
16.7. Nonliability and Indemnification...........................................................................81
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16.8.
16.9.
Notices ...................................................................................................................82
Priorities and Inconsistencies.................................................................................82
16.10. Constructive Notice and Acceptance.....................................................................82
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16.11.
16.12.
Declarant Delivery of Documents .........................................................................82
Additional Provisions.............................................................................................84
ARTICLE XVII ANNEXATION OF ADDITIONAL PROPERTY ............................................84
I 17.1. Additions by Declarant .................................................................................. ........ 84
17.2. Other Additions......................................................................................................84
17.3. Rights and Obligations-Added Territory ........................................... .. .. ................84
I 17.4. Notice of Addition of Territory .............................................................................. 85
17.5. Completion Requirements ......................................................................................85
17.6. Deannexation; Amendment ...................................................................................85
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Donna Drive CC&Rs (v2) V
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I DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
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FOR
DONNA DRIVE
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
I RESERVATION OF EASEMENTS is made by DONNA DRIVE, LLC, a Delaware limited liability
company ("Declarant").
I PREAMBLE:
A. Declarant is the owner of certain real property located in the City of Carlsbad,
I ("City"), County of San Diego ("County"), State of California, described as follows:
Lots through , inclusive, of CARLSBAD TRACT NO. 04-14(A), in
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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, ("Phase 1").
I B. It is the desire and intention of Declarant, for the efficient preservation of the values
and amenities of the Property (as hereinafter defined), to create a planned development pursuant to
I the Davis-Stirling Common Interest Development Act and to impose mutually beneficial restrictions
under a general plan of improvement for the benefit of all the Lots. To such end, Declarant deems it
desirable to create a corporation under the Nonprofit Mutual Benefit Corporation Law of the State of
l California which will be delegated and assigned the powers of owning and maintaining the
Association Property (as hereinafter defined), administering and enforcing the covenants and
restrictions established by this Declaration, and collecting and disbursing the assessments and
I charges hereinafter created.
Declarant hereby declares that all of the Property is to be held, conveyed,
I hypothecated, encumbered, leased, rented, used, occupied and improved subject to the following
limitations, restrictions, reservations, rights, easements, conditions and covenants, all of which are
declared and agreed to be in furtherance of a plan for the protection, maintenance, improvement and
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conveyance of the Property for the purpose of enhancing the value, desirability and attractiveness of
the Property. All provisions of this Declaration, including without limitation the easements, uses,
obligations, covenants, conditions and restrictions hereof, are hereby imposed as equitable servitudes
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upon the Property. All of the limitations, restrictions, reservations, rights, easements, conditions and
covenants herein shall run with and burden the Property and shall be binding on and for the benefit
of all of the Property and all Persons having or acquiring any right, title or interest inthe Property, or
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any part thereof, and their successive owners and assigns.
Declarant, its successors, assigns and grantees, covenant and agree that the
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Membership in the Association, any easements conveyed therewith and the fee title to each
respective Lot conveyed therewith shall not be separated or separately conveyed, and each such
Membership and easement shall be deemed to be conveyed or encumbered with its respective Lot
even though the description in the instrument of conveyance or encumbrance may refer only to the
Donna Drive CC&Rs (v2) 6
Lot. Any conveyance by an Owner of a Lot, or any portion thereof, shall be presumed to convey the
entire Lot, together with a Membership in the Association.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided, the following words and phrases when used in this
Declaration shall have the following specified meanings.
I 1.1. Annexable Territory. Annexable Territory shall mean the real property described in
Exhibit "A" attached hereto and incorporated herein by this reference, all or any portion of which
may from time to time be made subject to this Declaration pursuant to Article XVI hereof.
I 1.2. Architectural Committee or Committee. Architectural Committee or Committee shall
mean the Architectural Review Committee created pursuant to Article IV hereof.
1 1.3. Articles. Articles shall mean the Articles of Incorporation of the Association, filed or
to be filed in the Office of the Secretary of State of the State of California, as such Articles may be
I amended from time to time.
1.4. Assessment, Annual. Annual Assessment shall mean a charge against each Owner
and his or her Lot, representing a portion of the Common Expenses which are to be paid by each
I Owner to the Asspciation in the manner and proportions provided herein.
1.5. Assessment, Capital Improvement. Capital Improvement Assessment shall mean a
I charge which the Board may from time to time levy against each Owner and his or her Lot,
representing a portion of the cost to the Association for installation or construction of any capital
improvements on any of the Association Property. Such charge shall be levied among all of the Lots
I in the Project in the same proportions as are Annual Assessments.
1.6. Assessment, Reconstruction. Reconstruction Assessment shall mean a charge which
I the Board may from time to time levy against each Owner and his or her Lot, representing a portion
of the cost to the Association for reconstruction of any capital improvements on any of the
Association Property. Reconstruction Assessments shall be levied among the Owners and their Lots
I in the same proportions as Annual Assessments.
1.7. Assessment, Special. Special Assessment shall mean (i) a charge which the Board
I may from time to time levy against each Owner, and his or her Lot in order to raise funds for
unexpected operating or other costs, insufficient operating or reserve funds, or other purposes as the
Board in its discretion considers appropriate; or (ii) a charge against a particular Owner directly
I attributable to, or reimbursable by, the Owner, equal to the cost incurred by the Association for
corrective action performed pursuant to the provisions of this Declaration, or a reasonable fine or
penalty assessed by the Board, plus interest and other charges on such Special Assessments as
I provided for in this Declaration. Special Assessments shall not include any late payment penalties,
interest charges or costs (including attorneys' fees) incurred by the Association in the collection of
Annual, Capital Improvement and Reconstruction Assessments.
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I Donna Drive CC&Rs (v2) 7
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1 1.8. Association. Association shall mean Donna Drive Homeowners Association, a
California nonprofit corporation (formed pursuant to the Nonprofit Mutual Benefit Corporation Law
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of the State of California), its successors and assigns.
1.9. Association Maintained Walls/Fences. Association Maintained Walls/Fences shall
mean and refer to the Walls/Fences within an Owner's Lot which are shown on Exhibit "C" attached
I hereto and any additional Walls/Fences identified in any Notice of Addition Recorded pursuant to
this Declaration. The depiction and location of the Association Maintained Walls/Fences is an
approximation. The as-built location of the Association Maintained Walls/Fences as constructed
I shall be determinative. The Association Maintained Walls/Fences in Phase 1 shall only include the
Association Maintained Walls/Fences shown on Exhibit "C." Declarant hereby expressly reserves
for the benefit of and grants to the Association a nonexclusive easement for access, ingress and
I egress over the Property to the extent necessary to perform the maintenance, repair and replacement
of the Association Maintained Walls/Fences in accordance with this Declaration.
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I .10. Association Maintenance Areas. Association Maintenance Areas shall mean certain
areas which are located within an Owner's Lot, within public right of ways or within other real
property not owned by the Association in fee title, which contain landscaping, hardscape, fencing,
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street improvements, and/or other improvements, as more particularly shown on Exhibit "B"
attached hereto, and any other areas so designated and identified in any Notice of Addition Recorded
pursuant hereto. Declarant hereby expressly reserves for the benefit of and grants to the Association
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a nonexclusive easement for access, ingress and egress over the Property to the extent necessary to
perform the maintenance, repair and replacement of the Association Maintenance Areas in
accordance with this Declaration. The Association Maintenance Areas will be annexed into the
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Project in Phases. The approximate locations of the Association Maintenance Areas are depicted on
Exhibit "B" and/or in any Notice of Addition which annexes additional properties into the Project;
provided, however, that the precise locations of such Association Maintenance Areas shall be
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determined by the as-built dimensions of the Improvements depicted on Exhibit "B" or in any Notice
of Addition, which shall constitute the boundary of the Association Maintenance Areas.
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1.1 1. Association Property. Association Property shall mean all of the real property
(including Improvements thereon) owned in fee simple by the Association. The Association
Property located in Phase 1 shall include, without limitation, Lots ____ of CARLSBAD TRACT
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NO. 04-14(A), 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,
The Association Property within any subsequent Phase shall consist of the real
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property (if any) designated as such in a Notice of Addition Recorded pursuant to Article XVI of this
Declaration. Declarant hereby expressly reserves for the benefit of and hereby grants to the
Association a nonexclusive easement for access, ingress and egress over the Property (including the
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Lots) to the extent necessary to perform the maintenance, repair and replacement of the Association
Property in accordance with this Declaration.
1. 12. Beneficiary. Beneficiary shall mean a Mortgagee under a Mortgage or a Beneficiary
I under a Deed of Trust, as the case may be, and the assignees of such Mortgagee or Beneficiary.
1.13. Board or Board of Directors. Board of Directors or Board shall mean the Board of
I Directors of the Association.
Donna Drive CC&Rs (v2)
1 thereto. 1. 14.. BRE. BRE shall mean the California Bureau of Real Estate and any successors
1.15. Budget. Budget shall mean a written, itemized estimate of the income and Common
Expenses of the Association in performing its functions under this Declaration, which Budget shall
be prepared pursuant to the Bylaws.
1.16. Bylaws. Bylaws shall mean the Bylaws of the Association, as such Bylaws may be
amended from time to time.
1.17. Close of Escrow. Close of Escrow shall mean the date on which a deed is Recorded
conveying a Lot pursuant to a transaction requiring the issuance of a Final Subdivision Public Report
by the BRE.
1.18. Common Expenses. Common Expenses shall mean those expenses for which the
Association is responsible under this Declaration, including, but not limited to, the actual and
estimated costs of: maintenance, management, operation, repair and replacement of the Association
Property and the Association Maintenance Areas; unpaid Special Assessments, Reconstruction
Assessments and Capital Improvement Assessments; the costs of maintenance of the recreational
facilities or areas, if any, located in the Project; the costs of any and all utilities metered to more than
one Lot (if any) and other commonly metered charges for the Property; the cost of maintenance of
clustered mailboxes and address identification signs (if any); the cost of any inspection of the
Project; the costs of management and administration of the Association including, but not limited to,
compensation paid by the Association to managers, accountants, attorneys and employees (if any);
the costs of all gardening, utilities, security, trash pickup and other services benefitting the
Association Property and the Association Maintenance Areas; the costs of fire, casualty and liability
insurance, workers' compensation insurance, errors and omissions and director, officer and agent
liability insurance, and other insurance covering the Association Property, the Association
Maintenance Areas and the directors, officers and agents of the Association; the costs of bonding of
the members of the Board; taxes paid by the Association, including any blanket tax assessed against
the Property; amounts paid by the Association for discharge of any lien or encumbrance levied
against the Property, or portions thereof; and the costs of any other item or items incurred by the
Association, for any reason whatsoever in connection with the Property, for the common benefit of
the Owners.
1.19. Common Interest Development. Common Interest Development shall mean and refer
to the Project located on the Property.
1.20. Declarant. Declarant shall mean Donna Drive, LLC, a Delaware limited liability
company, its successors, and any Person to which it shall have assigned all or any of its rights
hereunder by an express written assignment.
1.21. Declaration. Declaration shall mean this Declaration of Covenants, Conditions and
Restrictions and Reservation of Easements, as it may be amended from time to time.
1.22. Deed of Trust. Deed of Trust shall mean a Mortgage or a Deed of Trust, as the case
I maybe.
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I 1.23. Duet Dwellings. Duet Dwellings shall mean two (2) Dwellings that are joined along
a common lot line by walls separated by a small air gap. Duet Dwelling means one of the two
I Dwellings so attached. Each Duet Dwelling is structurally independent but shares with the Dwelling
to which it is attached a Shared Foundation, Shared Roof Improvements and Shared Wall
Improvements.
I 1.24. Dwelling. Dwelling shall mean the structure or structures on a Lot which contain the
residential dwelling areas and any garage attached thereto, intended for use by a single Family.
I 1.25. Family. Family shall mean one (1) or more natural Persons each related to the other
by blood, marriage or adoption, or one (1) or more natural Persons not all so related, but who
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maintain a common household in a Dwelling.
1.26. FHA. FHA shall mean the Federal Housing Administration of the United States
Department of Housing and Urban Development and any department or agency of the United States
I government which succeeds to the FHA's functions of insuring notes secured by Mortgages on
residential real estate.
I 1.27. FHLMC. FHLMC shall mean the Federal Home Loan Mortgage Corporation (also
known as The Mortgage Corporation) created by Title II of the Emergency Home Finance Act of
1970, and any successors to such corporation.
I 1.28. Fiscal Year. Fiscal Year shall mean the fiscal accounting and reporting period of the
Association selected by the Board from time to time.
1.29. FNMA. FNMA shall mean the Federal National Mortgage Association, a
government-sponsored private corporation established pursuant to Title VIII of the Housing and
Urban Development Act of 1968, and any successors to such corporation.
1.30. GNMA. GNMA shall mean the Government National Mortgage Association
administered by the United States Department of Housing and Urban Development, and any
successor to such association.
1.31. Improvements. Improvements shall mean all structures and appurtenances thereto of
every type and kind, including, but not limited to, the following (if applicable) located within the
Project: Dwellings and other buildings, walkways, sprinkler pipes, carports, swimming pools, spas,
recreational facilities or areas, roads, driveways, parking areas, fences, screening walls, block walls,
retaining walls, awnings, stairs, decks, irrigation systems, drainage systems, landscaping, hedges,
windbreaks, the paint on surfaces of any structure, planted trees and shrubs, poles, signs, and water
softener fixtures or equipment.
1.32. Land. Land shall have the meaning set forth in California Civil Code Section 659.
1.33. Limited Warranty. Limited Warranty shall mean that certain express written
warranty which is provided by Declarant to Owners in the Project.
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I 1.34. Lot. Lot shall mean any residential lot or other parcel of land shown upon any
Recorded subdivision map, Recorded parcel map, or Recorded Lot Line Adjustment for any portion
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of the Property. Maintenance Funds.
1.35. Maintenance Funds. Maintenance Funds shall mean the accounts created for receipts
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and disbursements of the Association pursuant to Section 5.2 hereof.
1.36. Maintenance Manual. Maintenance Manual shall mean the maintenance guidelines set
forth in the homeowners manual binder which may be prepared by the Declarant or its authorized
I agents and provided to the Association and to Owners, specifying obligations for maintenance of the
Association Property by the Association and the Lots by the Owners, as updated and amended from
time to time. Each Owner who receives a Maintenance Manual is obligated to provide a copy of
I such Maintenance Manual to any successor purchaser of such Owner's Lot.
1.37. Maintenance Pathway. Maintenance Pathway means that portion of a Lot that is
I designated on Exhibit "E" or in a Notice of Addition as a Maintenance Pathway, over which
easements and rights are reserved and granted to the Owner the adjoining Lot for purposes of
maintaining the Dwelling within the adjoining Lot, as more particularly described in Section 7.12.1.
I 1.38. Manager. Manager shall mean the Person, employed by the Association, pursuant to
and limited by Section 2.10 hereof, and delegated the duties, power or functions of the Association
as limited by said Section.
1.39. Member, Membership. Member shall mean every Person holding a membership in the
I Association, pursuant to Section 2.3 hereof. Membership shall mean the property voting and other
rights and privileges of Members as provided herein, together with the correlative duties and
obligations contained in the Restrictions.
1.40. Mortgage. Mortgage shall mean any Recorded mortgage or deed of trust or other
conveyance of a Lot or other portion of the Property to secure the performance of an obligation,
which conveyance will be reconveyed upon the completion of such performance. The term "Deed of I Trust" or "Trust Deed" when used shall be synonymous with the term "Mortgage."
1.41. Mortgagee, Mortgagor. Mortgagee shall mean a Person to whom a Mortgage is made
and shall include the Beneficiary of a Deed of Trust; Mortgagor shall mean a Person who mortgages
his or her or its property to another (i.e., the maker of a Mortgage), and shall include the Trustor of a
Deed of Trust. The term "Trustor" shall be synonymous with the term "Mortgagor" and the term
"Beneficiary" shall be synonymous with the term "Mortgagee."
1.42. Notice and Hearing. Notice and Hearing shall mean written notice and a hearing
I before the Board, at which the Owner concerned shall have an opportunity to be heard in person, or
by counsel at the Owner's expense, in the manner further provided in Article XII of the Bylaws.
I 1.43. Notice of Addition. Notice of Addition shall mean an instrument Recorded pursuant
to Article XVI hereof to annex all or any portion of the Annexable Territory to the Property.
I 1.44. Owner. Owner shall mean the record owner(s), whether one (1) or more Persons or
entities, of a fee simple interest in a Lot, including Declarant, but excluding those having such
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interests merely as security for the performance of an obligation with respect to each Lot owned by
Declarant. The term "Owner" shall include the seller (but not the buyer) under an executory
contract of sale. The term "Owner" shall not include a Mortgagee prior to its acquisition of fee title
to the Lot encumbered by its Mortgage.
1.45. Person. Person shall mean a natural individual, a corporation, a partnership, a trust, or
any other entity with the legal right to hold title to real property.
1.46. Phase 1. Phase 1 shall mean all of the real property described in Paragraph A of the
I Preamble of this Declaration.
1.47. Phase of Development. Phase of Development or Phase shall mean (a) Phase 1 or (b)
I all the real property covered by a Notice of Addition Recorded pursuant to Article XVI hereof for
which a Final Subdivision Public Report has been issued by the BRE, unless otherwise defined in
such Notice of Addition.
I 1.48. Project. Project shall mean the Property and all Improvements located therein,
including, without limitation, the Association Property and the Lots. The Project is a "common
I interest development" and a "planned development" as defined in Sections 4100 and 4175,
respectively, of the California Civil Code.
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1.49. Property. Property shall mean (a) Phase 1, and (b) each other Phase of Development
described in a Notice of Addition.
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1.50. Record, File, Recordation. Record, File or Recordation shall mean, with respect to
any document, the recordation or filing of such document in the Office of the County Recorder of
the county in which the Property is located.
I 1.51. Restrictions. Restrictions shall mean this Declaration, the Articles, Bylaws and the
Rules and Regulations of the Association from time to time in effect.
I 1.52. Rules and Regulations. Rules and Regulations shall mean the rules and regulations
adopted by the Board pursuant to this Declaration or the Bylaws, as such Rules and Regulations may
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be amended from time to time.
1.53. Shared Foundation. Shared Foundation means the monolithically poured concrete
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slab that provides the foundation to two (2) or more Dwellings.
1.54. Shared Improvements. Shared Improvements means, collectively, the Shared
Foundation, Shared Roof Improvements and the Shared Wall Improvements of Duet Dwellings.
I 1.55. Shared Roof Improvements. Shared Roof Improvements means the roof sheeting,
underlayment and composite shingles of Duet Dwellings that are joined at, or cross over, the Duet
I Dwellings' common Lot line.
1.56. Shared Wall Improvements. Shared Wall Improvements means the building elements
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that are located in the air gap between the independent structural walls of each Duet Dwelling that
are joined at, or cross over, the common Lot line. Shared Wall Improvements may include siding and
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underlayment or other weather-resistant elements that enclose the air gap and firestop material
within the air gap.
1.57. VA. VA shall mean the Department of Veterans Affairs of the United States of
America and any department or agency of the United States government which succeeds to the VA's
function of issuing guaranties of notes secured by Mortgages on residential real estate.
1.58. Walkway Easement Area. Walkway Easement Area means that portion of Lot
of CARLSBAD TRACT NO. 04-14(A), 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, , that is designated on Exhibit "F" as "Walkway Easement Area
for Access by Owner of Lot ," over which easements and rights are reserved and granted to the
Owner Lot , as more particularly described in Section 7.12.2 below.
ARTICLE II
ASSOCIATION
2.1. Organization of Association. The Association is or shall be incorporated under the
name of Donna Drive Homeowners Association, as a corporation not for profit under the Nonprofit
Mutual Benefit Corporation Law of the State of California.
2.2. Duties and Powers.
2.2.1 General Duties and Powers. The duties and powers of the Association are
those set forth in the Declaration, the Articles and Bylaws, together with the general and implied
powers of a nonprofit mutual benefit corporation, generally to do any and all things that a
corporation organized under the laws of the State of California may lawfully do which are necessary
or proper, in operating for the peace, health, comfort, safety and general welfare of its Members,
subject only to the limitations upon the exercise of such powers as are expressly set forth in the
Articles, the Bylaws and in this Declaration. The Association shall further have the right to install or
construct capital Improvements on the Association Property and the Association Maintenance Areas.
The Association may at any time, and from time to time, reconstruct, replace or refinish any
Improvement or portion thereof upon the Association Property and the Association Maintenance
Areas in accordance with the original design, finish or standard of construction of such
Improvement, and may also replace damaged trees or other vegetation and plant trees, shrubs and
ground cover upon any portion of the Association Property and the Association Maintenance Areas.
The Association may employ personnel necessary for the effective operation and maintenance of the
Association Property and the Association Maintenance Areas, including, without limitation, the
employment of legal, management and accounting services. The Association shall be responsible for
exercising all rights and discharging all responsibilities applicable thereto under the terms of the
Declaration. The Association shall make available for inspection by any prospective purchaser of a
Lot, any Owner of a Lot, and the Beneficiaries, insurers and guarantors of the first Mortgage on any
Lot, current copies of the Declaration, the Articles, the Bylaws, the Rules and Regulations and all
other books, records, and financial statements of the Association. The Association shall, acting
through the Board, execute all necessary documents in order to effectuate the Limited Warranty.
The Association shall additionally have the power, but not the duty, to enter into contracts with
Owners or other persons to provide services or to maintain and repair Improvements within the
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Property and elsewhere which the Association is not otherwise required to provide or maintain
pursuant to this Declaration; provided, however, any such contract shall provide for the payment to
the Association for the costs of providing such services or maintenance.
2.2.2 Litigation. Subject to the provisions of this Declaration, the Association shall
have the power, but not the duty, to initiate, defend, settle or intervene in mediation, arbitration,
judicial or administrative proceedings on behalf of the Association in matters pertaining to (a) the
application or enforcement of this Declaration and (b) damage to the Association Property; provided,
however that no representative of Declarant on the Board shall vote on the initiation of any claim
under California Civil Code Section 895 et seq., such that Declarant shall have no control over the
Association's ability to decide whether to initiate a claim under such statutory provisions and in the
event of such a vote, the affirmative vote of a majority of the non-Declarant representatives on the
Board shall be binding so long as a quorum of the Board is present at any meeting where such vote is
taken. The Association and not the individual Members shall have the power to pursue any claims
or other actions using the non-adversarial proceedings for construction defects in the Association
Property set forth in Article XV of this Declaration. Any recovery by the Association with respect to
any damage to or defect in the Association Property shall be utilized solely for the purpose of paying
for the costs of obtaining the recovery and for correcting such damage or defect.
2.2.3 Maintenance Manuals. The Association shall maintain at the offices of the
Association a copy of any maintenance manual or guidelines provided by Declarant to the Owners
who acquired a Lot from Declarant, and shall make available to each such Owner upon request a
copy of such maintenance manual and guidelines for the Owner's Lot. The Association shall have
the right to charge the requesting Owner a fee for the copying of such maintenance manual or
guidelines. The Board may, from time to time, make appropriate revisions to any maintenance
manual or guidelines for the Association Property based on the Board's review thereof, to update
such manual and guidelines to provide for maintenance according to current industry practices so
long as such changes do not reduce the useful life or functionality items being maintained.
2.2.4 Members' Approval of Construction Defect Actions. In the event that any
I claim or other actions brought by the Association under California Civil Code Section 895 et seq.,
and any successor statutes or laws, involving allegations of construction defects relating to the
Association Property is not resolved pursuant to the dispute resolution procedures set forth in
I Section Error! Reference source not found. below, the Association shall not initiate an action or
arbitration under Section Error! Reference source not found. or otherwise without first obtaining
the consent of the Owners other than Declarant, constituting a quorum of more than sixty-seven
I percent (67%) of the Owners of the Association casting a majority of the votes at a meeting or
election of the Association conducted in accordance with the provisions of California Corporations
Code Sections 7510 et. seq. and 7613 and any successor statutes or laws.
I 2.2.5 Adoption of Rules and Regulations. The Board or the Members of the
Association, by majority vote, may adopt reasonable Rules and Regulations that are not inconsistent
I with this Declaration relating to the use of the Association Property and all its facilities, and the
conduct of Owners and their Families, tenants, guests and invitees with respect to the Project and
other Owners. Written copies of such Rules and Regulations and any schedule of fines and penalties
I adopted by the Board shall be furnished to Owners. All changes to the Rules will become effective
fifteen (15) days after they are either: (i) posted in a conspicuous place in the Association Property;
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or (ii) sent to the Owners via first-class mail or by any system or technology designed to record and
communicate messages. The Board shall adopt and amend Rules and Regulations in accordance
with the procedures and requirements set forth in Civil Code Sections 4340 - 4370 and any
I amendments thereto.
2.2.6 Contracts to Satisfy Lending Agency Requirements. The Board may enter
into such contracts or agreements on behalf of the Association as are required in order to satisfy the
guidelines of VA, FHA, FHLMC, FNMA or GNMA or any similar entity, so as to allow for the
purchase, guaranty or insurance, as the case maybe, by such entities of first Mortgages encumbering
Lots. Each Owner hereby agrees that it will benefit the Association and the membership of the
Association, as a class of potential Mortgage borrowers and potential sellers of their residential Lots,
if such agencies approve the Property as a qualifying subdivision under their respective policies,
rules and regulations, as adopted from time to time.
2.2.7 Unsegregated Real Property Taxes. To the extent not assessed to or paid by
I the Owners, the Association shall pay all real and personal property taxes and assessments levied.
upon any portion of the Property. In addition, if all of the Lots in a Phase of Development are taxed
under a blanket tax bill covering all of such Phase, each Owner shall pay his or her proportionate
I share of any installment due under the blanket tax bill to the Association at least ten (10) days prior
to the delinquency date; the Association shall transmit the taxes to the appropriate tax collection
agency on or before the delinquency date. Blanket taxes shall be allocated equally among the
I Owners and their Lots in such Phase, based upon the total number of Lots in such Phase. The
Association shall, at least forty-five (45) days prior to the delinquency date of any blanket tax
installment, deliver to each Owner in such Phase a copy of the tax bill, along with a written notice
I setting forth the Owner's obligation to pay his or her proportionate share of the tax installment and
the potential additional charges to the Owner for failure to comply. The Association shall pay the
taxes on behalf of any Owner who does not pay his or her proportionate share. The Association shall
I add to the Annual Assessment of a delinquent Owner the amount of any sum advanced, plus interest
at the rate often percent (10%) per annum, and any amount necessary to reimburse the Association
for any penalty or late charge actually assessed in connection with the blanket tax bill for a Phase of
I Development, which late charge results from the failure of the delinquent Owner to make timely
payment of his or her proportionate share of the taxes. Until the Close of Escrow for the sale of
ninety-percent (90%) of the Lots in the Project, the foregoing provisions relating to the collection of
I taxes in connection with a blanket tax bill on all or any portion of the Project may not be amended
without the express written consent of Declarant.
I 2.3. Membership. Every Owner, upon becoming the Owner of a Lot, shall automatically
become a Member of the Association, and shall remain a Member thereof until such time as his or
her ownership ceases for any reason, at which time his or her Membership in the Association shall
I automatically cease. Ownership of a Lot shall be the sole qualification for Membership in the
Association. All Memberships shall be appurtenant to the Lot conveyed, and with the exception of
Declarant, a Person shall be deemed an Owner of a Lot only upon Recordation of a deed conveying
I the Lot to such Person. Except as may otherwise be expressly provided herein, the rights, duties,
privileges and obligations of all Members of the Association shall be as provided in the Restrictions.
' 2.4. Transfer. The Membership held by an Owner shall not be transferred, pledged or
alienated in any way, except upon the sale or encumbrance of such Owner's Lot, and then only to the
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1 purchaser or Beneficiary of such Lot. A prohibited transfer is void, and will not be reflected upon
the books and records of the Association. A Class A Member who has sold his or her Lot to a
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contract purchaser under an agreement to purchase shall be entitled to delegate to the contract
purchaser his or her Membership rights in the Association. The delegation shall be in writing and
shall be delivered to the Board before the contract purchaser may vote. However, the contract seller
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shall remain liable for all charges and assessments attributable to his or her Lot until fee title to the
Lot sold is transferred, as further provided in Section 6.1 of this Declaration. If the Owner of any
Lot fails or refuses to transfer the Membership registered in his or her name to the purchaser of the
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Lot upon transfer of fee title thereto, then upon receipt of satisfactory evidence of such transfer the
Board of Directors shall have the right to record the transfer upon the books of the Association and
to allow the purchaser to vote at meetings of the Association. Until satisfactory evidence of such
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transfer has been presented to the Board, the purchaser shall not be entitled to vote at meetings of the
Association. The Association may levy a reasonable transfer fee against a new Owner and his or her
Lot (which fee shall be added to the Annual Assessment chargeable to such new Owner) to
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reimburse the Association for the administrative cost of transferring the membership to the new
Owner on the records of the Association provided such fee does not exceed the Association's actual
cost involved in changing its records of ownership.
I 2.5. Classes of Membership. The Association shall have two (2) classes of voting
Membership.
I 2.5.1 Class A. Class A Members shall originally be all Owners except the
Declarant, for so long as there exists a Class B Membership. Class A Members shall be entitled to
one (1) vote for each Lot owned by such Class A Member and subject to assessment. Declarant shall
I become a Class A Member with regard to Lots owned by Declarant upon conversion of Declarant's
Class B Membership as provided below. When more than one (1) Person owns any Lot, all of those
Persons shall be Members. The vote of such Lot shall be exercised as they among themselves
I determine in accordance with Section 2.6, but in no event shall more than one (I) Class A vote be
cast for any Lot.
I 2.5.2 Class B. The Class B Member shall be Declarant. The Class B Member shall
be entitled to three (3) votes for each Lot owned and subject to assessment, provided that the Class B
Membership shall cease and be converted to Class A Membership immediately upon the first to
I occur of the following events:
The second (2') anniversary of the first Close of Escrow in the Phase
I of Development for which a Final Subdivision Public Report was most recently issued; or
The fourth (4th) anniversary of the first Close of Escrow pursuant to
I the Final Subdivision Public Report for Phase 1.
2.6. Voting Rights.
1 2.6.1 Required Approvals. All voting rights shall be subject to the Restrictions.
Except as provided in Section 2.5.2 of this Declaration and Section 4.8 of the Bylaws, as long as
there exists a Class B Membership, any provision of this Declaration, the Articles or Bylaws which
I expressly requires the vote or written consent of a prescribed majority of the voting power of the
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I Members of the Association other than Declarant for action to be taken by the Association, is not
intended to preclude Declarant from casting votes attributable to Lots which Declarant owns, and
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shall require the approval of such prescribed majority of the voting power of each class of
Membership. Except as provided in Section 2.5.2 of this Declaration and Section 4.8 of the Bylaws,
when the Class B Membership has terminated, any provision of this Declaration, the Articles or
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Bylaws which expressly requires the vote or written consent of a prescribed majority of the voting
power of the Members of the Association other than Declarant for action to be taken by the
Association, is not intended to preclude Declarant from casting votes attributable to Lots which
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Declarant owns, and shall require the vote or written consent of Owners representing such prescribed
majority of both the total voting power of the Association and the voting power of the Association
residing in Owners other than Declarant.
2.6.2 Number of Votes: Co-owners. At any meeting of the Association, each
Owner (except as otherwise provided in Article II with respect to the voting power of Declarant),
shall be entitled to cast no more than one (1) vote for each Lot owned by such Owner. Where there
is more than one (1) record Owner of a Lot (collectively, "Co-owners" and each a "Co-owner"), all
of those Co-owners shall be Members and may attend any meeting of the Association, but only one
(1) of those Co-owners shall be entitled to exercise the single vote to which the Lot is entitled. Co-
owners owning the majority interests in a Lot shall from time to time designate in writing one (1) of
their number to vote. Fractional votes shall not be allowed, and the vote for each Lot shall be
exercised, if at all, as a unit. Where no voting Co-owner is designated or if the designation has been
revoked, the vote for the Lot shall be exercised as the Co-owners owning the majority interests in the
Lot mutually agree. Unless the Board receives a written objection in advance from a Co-owner, it
shall be conclusively presumed that the voting Co-owner is acting with the consent of his or her Co-
owners. No vote shall be cast for any Lot if the Co-owners present in person or by proxy owning the
majority interests in such Lot cannot agree to said vote or other action. The nonvoting Co-owner or
Co-owners shall be jointly and severally responsible for all of the obligations imposed upon the
jointly-owned Lot and shall be entitled to all other benefits of ownership. All agreements and
determinations lawfully made by the Association in accordance with the voting percentages
established herein, or in the Bylaws of the Association, shall be deemed to be binding on all Owners,
their successors and assigns.
ARTICLE III
MAINTENANCE
OBLIGATIONS
3.1. Repair and Maintenance by the Association.
3.1.1 Maintenance Standards. Except as provided in Section 3.4 below, the
Association shall paint, maintain, repair and replace the Association Property and the Association
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Maintenance Areas and all Improvements thereon, or shall contract for such maintenance, repair and
replacement to assure maintenance of the Association Property and the Association Maintenance
Areas and all Improvements thereon, in a clean, functional, sanitary and attractive condition
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reasonably consistent with the level of maintenance reflected in the most current Budget on file with
and approved by the BRE and the maintenance obligations and schedules set forth in this Declaration
and the Maintenance Manual; provided, however, except as expressly provided herein, in no event
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shall the Association be responsible for or obligated to perform those items of maintenance, repair or
replacement of the Lots, the maintenance of which is the responsibility of the Owner thereof as
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I provided in Section 3.4 below, nor shall the Association be responsible for or obligated to perform
those items of maintenance, repair or replacement of the Association Property and the Association
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Maintenance Areas (and Improvements thereon), the maintenance of which is the responsibility of a
governmental or quasi-governmental entity. Subject to the qualifications set forth above in this
Section 3.1.1, the Board shall determine, in its sole discretion, the level and frequency of
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maintenance of the Association Property and the Association Maintenance Areas.
3.1.2 Maintenance Items. Without limiting the generality of the foregoing, the
Association shall without limitation have the following maintenance rights and obligations
I pertaining to this Project:
(a) The Association shall be responsible for the maintenance, repair and
I payment of all centrally-metered utilities, water charges, and mechanical and electrical equipment
servicing the Association Property and the Association Maintenance Areas;
U (b) The Association shall be responsible for the repair and maintenance, in
a clean and well-maintained condition, of all sidewalks, private streets, driveways, parking areas and
other means of ingress and egress located in the Association Property, as well as any Improvements
I therein or thereon, including, without limitation, all signage, street lights, fire hydrants, pollution
control devices and reflective pavement markers;
I (c) [The Association shall be responsible for the maintenance of any
recreational facilities or recreation area on the Association Property;]
I (d) The Association shall be responsible for the maintenance of all
landscaping located on the Association Property and the Association Maintenance Areas (including,
without limitation, maintaining vegetation necessary to avoid erosion, controlling weed growth and
I providing for irrigation, within the limits of drought restrictions, if any, and providing, maintaining,
and repairing sprinklers and other landscape maintenance equipment and facilities as necessary) in a
fertilized, trimmed and otherwise attractive and first-class condition and in accordance with all
I applicable legal requirements;
The Association shall be responsible for the ongoing maintenance and
I upkeep of the Association Property and the Association Maintenance Areas;
The Association shall be responsible for the repair, maintenance, and
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replacement of all portions of the Association Maintained Walls/Fences, regardless of whether
located on the Association Property or within any Lot, except that the interior surface of those
portions of the Association Maintained Walls/Fences which abut the yard area of the individual Lots
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shall be maintained by the Lot Owners pursuant to Section 3.4 below. The Association is hereby
granted an easement across the Lots as necessary to discharge of its responsibility for maintenance of
the Association Maintained Walls/Fences;
The Association shall be responsible for maintenance of all fire lanes
in the Association Property, if any, in compliance with the applicable city or county Fire Code and
the Restrictions, and shall maintain all markers located on Association Property indicating the
location of fire hydrants on the Property and the red curbing and signage indicating the "no parking"
areas on the Property;
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I (h) The Association shall have the right, without obligation, to perform all
corrective janitorial, landscaping and repair work within any Lot if the Owner thereof is required to
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do such work pursuant to the Restrictions and fails to perform such work; and
(i) The shall maintain a comprehensive maintenance log which details all
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maintenance actions and compliance with the maintenance provisions set forth in this Declaration.
3.1.3 Charges to Owners. All such costs of maintenance, repairs and replacements
incurred by the Association for the Property shall be paid for as Common Expenses out of the
I Association Maintenance Funds as provided in this Declaration. It shall be the affirmative duty of
the Board of Directors to require strict compliance with all provisions of this Declaration and to
cause the Property to be inspected by the Architectural Committee for any violation thereof. The
cost of
any maintenance, repairs or replacements by the Association which is not the responsibility
of the Association or which arises out of, or is caused by, the act or inaction of an Owner or such
Owner's Family, tenants, guests, invitees or agents in violation of the Restrictions shall, after Notice
and Hearing, be levied by the Board as a Special Assessment against such Owner.
3.2. City's Rights if Association Fails to Maintain. In the event that the Association fails to
1 maintain the Association Property or Association Maintenance Areas as provided in Section 3.1,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
I to the Owners in the Project, setting forth with particularity the maintenance which the City finds to
be required and requesting the same be carried out by the Association within a period of thirty (30)
days from the giving of such notice. In the event that the Association fails to carry out such
I maintenance of the Association Property or Association Maintenance Area 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.
3.3. Use of Agent. The Board of Directors, on behalf of the Association, may contract
with a Manager for the performance of maintenance and repair and for conducting other activities on
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behalf of the Association, as may be determined by the Board. The maximum term of any such
contract ("Management Contract") shall be one (1) year, unless a longer term is (i) contained in a
management contract the terms of which have been reviewed by the FHA, VA or BRE, or (ii)
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approved by vote or written assent of a majority of the voting power of the Association residing in
members other than Declarant, in which case the maximum term of the Management Contract shall
be three (3) years. The maximum term of any contract providing for Declarant's services to the
I Association or the Project shall also be three (3) years. Each such contract for Declarant's services
and each Management Contract shall provide for its termination by either party thereto without cause
and without payment of a termination fee upon no more than ninety (90) days' written notice to the
I other party.
3.4. Renair and Maintenance by Owners.
3.4.1 General. Each Owner shall maintain, repair, replace, paint, paper, plaster, tile,
finish and restore or cause to be so maintained, repaired, replaced and restored, at his or her sole
expense, all portions of his or her Lot and all Improvements thereon, in a clean, sanitary and
attractive condition in accordance with the original construction design of the Improvements in the
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Project, the maintenance obligations and schedules set forth in the Maintenance Manual, and all
applicable governmental rules, restrictions and requirements, except for the portion of any
Association Maintained Walls/Fences or other Association Maintenance Areas which are located on
his or her Lot which are to be maintained by the Association pursuant to Section 3.1 above. Such
maintenance by each Owner shall include, without limitation, all portions of the interior, exterior and
structural integrity of his or her Dwelling, repair and replacement of the roof of the Dwelling,
replacement of all glass areas of an Owner's Dwelling, and the repair and replacement of the internal
and external telephone wiring, drainage, plumbing, cooling and heating systems and related
mechanical and electrical equipment, and other utility lines which serve that Owner's Dwelling. The
Owner shall be entitled to reasonable access over the Association Property for such purposes, subject
to reasonable limitations imposed by the Association. Each Owner is obligated to provide a copy of
the Maintenance Manual to any successor purchaser of such Owner's Lot.
3.4.2 Landscaping. Each Owner shall be responsible for installing all yard
landscaping (front, side, rear) for such Owner's Lot within one hundred twenty (120) days following
Close of Escrow on such Lot except for any yard landscaping already installed by Declarant. All
landscaping shall be subject to the approval of the Architectural Committee. Each Owner shall also
be responsible for maintaining, repairing and replacing all portions of the yard areas in his or her
Lot, (except for those portions, if any, which are Association Maintenance Areas and are to be
maintained by the Association), including without limitation, any surface or sub-surface drainage
system located therein, and any manufactured slopes located therein, in a neat and orderly condition.
Each Owner's maintenance obligations shall include performing all necessary landscaping and
gardening to properly maintain and periodically replace trees, plants, grass and other vegetation
located in the yard area for which such Owner is responsible, subject to the approval of the
Architectural Committee. However, no Owner shall install any landscaping or other Improvements
in the Association Maintenance Areas, and all landscaping in such Association Maintenance Areas
shall be selected, installed and maintained solely by the Association.
3.4.3 Fences and Walls. Each Owner shall be responsible for maintaining, repairing
and replacing all fences or walls (other than the Association Maintained Walls/Fences) defining the
exterior of his or her Lot (including all Exclusive Use Areas appurtenant to such Lot) subject to the
approval of the Architectural Committee, regardless of whether such fences or walls are located on
his or her Lot or abut the yard area of his or her Lot, provided that with respect to such fences or
walls (other than the Association Maintained Walls/Fences), each Owner shall share maintenance of
any party wall defining the exterior of his or her residential Lot in accordance with the provisions of
Article X\TII below. Upon any damage to or destruction of any fence or wall for which maintenance
responsibility is allocated to an Owner hereunder, the responsible Owner(s) shall promptly restore
same (using, so far as possible, materials identical to those used originally by Declarant) to its
original condition as constructed by Declarant. The Architectural Committee shall strictly enforce
the terms of this provision. Each Owner shall also be responsible for maintenance of the interior
surface of any Perimeter Walls/Fences which abuts the yard area of his or her Lot. Each Owner is
hereby granted an easement across the Association Property as necessary to discharge its
responsibility for maintenance of fences or walls in accordance with the above.
3.4.4 Utilities. Each Owner shall pay when due all charges for any utility service
which is separately metered to his or her Lot.
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3.4.5 Wood-Destroying Pests. Each Owner shall be responsible for adopting an
inspection and preventive program for the prevention and eradication of infestation by wood
destroying pests or other organisms in his or her Lot. All costs involved in maintaining the
inspection and preventive program as well as repairing and replacing the damaged Improvements in
an Owner's Lot when the need for such maintenance, repair or replacement is the result of wood
destroying pests or organisms shall be an expense of the Owner.
3.4.6 Owner's Failure to Maintain. If any Owner shall permit any Improvement,
the maintenance of which is the responsibility of such Owner, to fall into disrepair or to become
unsafe, unsightly or unattractive, or to otherwise violate this Declaration, or any applicable
governmental rules, restrictions, or requirements, the Board shall have the right to seek any remedies
at law or in equity which it may have. In addition, the Board shall have the right, but not the duty,
after Notice and Hearing as provided in the Bylaws, to enter upon such Owner's Lot to make such
repairs or to perform such maintenance and to charge the cost thereof to the Owner. Said cost shall
be a Special Assessment enforceable as set forth in this Declaration.
3.4.7 No Interference. No Owner shall interfere with the exercise by the
Association of its right to maintain the Association Property, the Association Maintenance Areas and
the Association Maintained Walls/Fences, or to perform any of its obligations pertaining to this
Project.
3.4.8 Maintenance. Repair and Reconstruction of Duet Dwellings.
Shared Improvements. Each Owner of a Duet Dwelling, by acceptance
of a deed to the Lot on which such Dwelling is located, acknowledges that portions of the Owner's
Dwelling includes a Shared Foundation, Shared Roof Improvements and Shared Wall
Improvements. To the extent not inconsistent with the provisions of this Section 3.4.8, the general
rules of law shall apply regarding joint structures and liability for damage due to negligence or
willful acts or omissions. To the extent of any inconsistency between the provisions of this Section
3.4.8 and any of the other provisions set forth in this Declaration, the provisions set forth in this
Section 3.4.8 shall control.
Maintenance.Responsibilities of Individual Owner. Each Owner of a
Duet Dwelling is solely responsible, at such Owner's sole cost and expense, to maintain,
repair and replace the following: (a) all portions of the Owner's Dwelling other than the
Shared Improvements; (b) any damage to the Shared Improvements caused by such Owner
or the Owner's Invitees; (c) any damage to the Shared Improvements which clearly affects
only one (1) Dwelling as determined by a licensed contractor, as may be appropriate for the
repair or replacement of the foundation, roof or joint walls ("Licensed Contractor"); and (d)
damage to any portion of any Improvements which were added by the Owner to the Shared
Improvements originally constructed (e.g., room or patio additions which increase the total
square footage of the foundation, roof or wall) ("Additions"). (Herein, the separate
obligations of the Owners described above are sometimes referred to collectively as the
"Individual Owner's Maintenance Obligations".) With respect to the Individual Owner's
Maintenance Obligations, the individual Owner of a Duet Dwelling shall not be required to
give the Owner of the adjoining Duet Dwelling notice of any routine maintenance but, prior
to commencing any repair which requires entry onto the roof of the other Owner's Dwelling
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or which may affect the use of the adjoining Duet Dwelling, such Owner shall provide
reasonable advance notice to the other Owner and shall coordinate its repair so as to
minimize disruptions to the occupants of the other Owner's Dwelling.
(ii) Shared Responsibilities. Except for the Individual Owner's
Maintenance Obligations, the cost of the repair, maintenance and replacement of the Shared
I Improvements shall be shared by the Owners who have use of such Shared Improvements in
accordance with the provisions set forth below. If an Owner determines that it is reasonably
necessary to perform repair, maintenance or replacement of a Shared Improvement
I ("Initiating Owner"), such Owner shall: (a) provide at least fifteen (15) days' prior written
notice to the other Owner of such intended maintenance, repair or replacement and the
estimated cost thereof as set forth in a bid for the work, and (b) provide the other Owner with
I an opportunity to obtain separate bids for the work to be completed. If the other Owner elects
to obtain separate bids, such Owner shall do so promptly but no later than forty-five (45)
days after delivery of notice of the intended maintenance or repair by the Initiating Owner.
I Unless the Owners of both Dwellings agree otherwise, the Licensed Contractor with the
lowest bid shall be used for the work and a Shared Improvement shall be repaired rather than
replaced when a repair is a feasible alternative as determined by a Licensed Contractor. In
I the event of an emergency situation, an Owner may effect the repair or maintenance (but not
a replacement) of a Shared Improvement without the notice and bid requirements set forth in
this Subsection. For purposes of this Subsection, an emergency situation is defined as a
I situation when a repair or maintenance is immediately necessary to protect either Residence
from immediate further damage or to prevent injury to any person.
I (iii) Roof Drainage Systems. Each Owner of a Duet Dwelling shall
at all times keep and maintain all roof drainage systems (if any) serving his or her Dwelling
or which drain water from the adjacent Duet Dwelling as originally constructed, including
I without limitation downspouts and rain gutters, in good condition and free from debris and
other materials that would impede the flow of water. If an Owner of a Duet Dwelling fails to
maintain such drainage and, as a result, damage to the adjacent Duet Dwelling may be
I imminent, then the Owner of the adjoining Duet Dwelling shall have the right to enter onto
the adjoining Lot and Dwelling for the purpose of clearing debris and other material so as to
not impede the flow of water. This right of entry shall be exercised only for the purpose of
I preventing damage to persons and property and the person entering shall use reasonable care
so as to not cause any damage to the adjoining Duet Dwelling. No Owner shall modify such
drainage in such a manner which increases the flow of water Onto the adjoining Duet
I Dwelling or the Lot on which the adjoining Duet Dwelling is located.
(c) Allocation of Costs. Except as specifically stated otherwise herein, the
I cost of maintenance, repair, replacement or reconstruction of a Shared Improvement shall be
allocated as set forth below:
1 (i) Individual Owner's Maintenance Obligations. Each individual
Owner shall bear its own cost of any Individual Owner Maintenance Obligation. Except for
Individual Owner Maintenance Obligations, all other work to the Shared Improvements shall
be allocated as set forth in Section 3.4.8(c)(ii) below.
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1 (ii) Shared Improvements. In the event a Shared Improvement
(excluding any Additions) requires maintenance, repair, replacement or reconstruction, the
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cost thereof shall be shared equally by both Owners of the Duet Dwellings.
Change to Exteriors of Dwellings.
I (i) Painting. Those portions of the exterior a Duet Dwelling which
are visible from a public street in the vicinity of the Property or another Lot in the Property
shall not be repainted to other than the original color unless all portions of the exterior of
I both Duet Dwellings are repainted at the same time and in the same color. If one Owner
determines that it is necessary to repaint the Duet Dwellings, such Owner shall notify the
Owner of the adjoining Duet Dwelling. An Owner shall be required to repaint if the exterior
I of the Owner's Duet Dwelling is in disrepair and painting is necessary to maintain his or her
Residence in good condition. Each Owner of a Duet Dwelling shall bear the costs of
repainting his or her respective Dwelling.
I (ii) Roof Replacement. No portion of the roof of a Duet Dwelling
shall be replaced with other than the original roof materials unless the entire Shared Roof
I Improvements are replaced at the same time and with the same materials. An Owner shall
not be required to replace the Shared Roof Improvements unless repairing the roof is not a
feasible alternative as determined by a Licensed Contractor. The costs of replacing the
I Shared Roof Improvements shall be allocated in accordance with Section 3.4.8(c)(ii) above.
Weatherproofing. An Owner who by his or her act impairs the
I weatherproofing of a Shared Improvement or causes a Shared Improvement that is not normally
exposed to the elements to be so exposed shall bear the whole cost of furnishing the necessary
protection against the elements.
I (f) Damage or Destruction.
Shared Improvements. If a Shared Improvement is destroyed
or damaged by fire or other casualty and one or both Dwellings are being reconstructed
pursuant to Section 3 .4.8(f)(ii) below, the Owners of both Duet Dwellings shall contribute to
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the costs to restore it in accordance with Section 3 .4.8(c)(ii) above. This provision does not
prevent an Owner from requiring a larger contribution from the other Owner pursuant to any
rule of law regarding liability for negligent or willful acts or omissions as noted in Section
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3.4.8(a).
Dwelling. In the event one or both of the Duet Dwellings are
damaged or destroyed, such Dwelling(s) shall be reconstructed, the Owner(s) of such
I Dwelling(s) shall cause the reconstruction to be performed diligently from the
commencement thereof, and the reconstruction shall be completed within a reasonable time.
In the event one of the Duet Dwellings is destroyed and reconstruction of such Dwelling
I does not commence within sixty (60) days ("Destroyed Dwelling"), the Owner of such
Destroyed Dwelling shall immediately undertake steps to: (1) abate any unsightly or
dangerous conditions on such Owner's Lot and (2) restore such Owner's Lot to a clean and
1 attractive condition. If the Owner of the Destroyed Dwelling fails to meet the conditions set
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I forth above, the Owner of the adjoining Duet Dwelling ("Adjoining Dwelling") may
undertake steps to restore those portions of the remaining Shared Improvements not restored
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by the Owner of the Destroyed Dwelling at the Adjoining Dwelling Owner's sole cost. In
such event, subject to the right of the Owner of the Destroyed Dwelling to rebuild at a later
date, the Owner of the Adjoining Dwelling shall modify the Adjoining Dwelling's roof to
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prevent water intrusion and maintain support and shall finish the exterior walls in a manner
that is consistent with the rest of the exterior of such Dwelling. However, in no event may
the Shared Foundation be saw cut or punctured, except directly on the common Lot
boundary and in a manner that does not affect the adjoining Duet Dwelling, and each Owner
I shall comply with the requirements of Section 9.25 of this Declaration.
(iii) If the Destroyed Dwelling is to be rebuilt at a later date, the
I Owner reconstructing the Destroyed Dwelling may reattach the roof on his or her Dwelling
to the roof and attached exterior walls of the Adjoining Dwelling, provided such Owner
makes all necessary modifications to the roof of the Adjoining Dwelling to prevent any
I damage to such Dwelling and the reconstruction is in accordance with all applicable laws.
Upon reattachment, the roof and/or exterior walls shall be deemed Shared Improvements.
Notwithstanding the foregoing, any Owner whose Duet Dwelling is affected by an event of
I damage or destruction shall be permitted to take such temporary measures as are appropriate
to protect such Dwelling from further damage or deterioration during the period of
reconstruction of such Owner's Dwelling or the attached Duet Dwelling. Any restoration or
I repair of any damage to portions of a Dwelling (other than the Shared Improvements
pursuant to Section 3.4.8(f) 10) shall be made by and at the individual expense of the Owner
of such Duet Dwelling. This provision does not prevent an Owner from requiring a
I contribution from the Owner of the other Duet Dwelling pursuant to any rule of law
regarding liability for failure to comply with this Declaration or for negligent or willful acts
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or omissions as provided in Section 3.4.8(a.
(g) Mechanic's Liens. No Owner of a Duet Dwelling shall permit to be
placed against the Lot on which the adjoining Duet Dwelling is constructed any mechanics',
I materialmen's, contractors' or subcontractors' liens arising out of the work of any maintenance,
repair, replacement, restoration of Shared Structures, or any other claim or demand. Each Owner of a
Duet Dwelling shall pay or cause to be paid all said liens, claims or demands before any action is
I brought to enforce the same against the Owner of the adjoining Lot. Each Owner of a Duet Dwelling
agrees to indemnify, protect, defend and hold the Owner of the attached Duet Dwelling and the other
Owner's Lot free and harmless from all liability for any and all such liens, claims and demands
I together with reasonable attorneys' fees and all reasonable costs and expenses incurred.
3.4.9 Repair and Reconstruction of Dwellings Oannather than Duet Dwellings. In
I the event of damage or destruction to a Dwelling other than a Duet Dwelling or other portion of a
Lot on which such Dwelling is located ("Damaged Improvement"), the Owner shall promptly after
the damage or destruction (a) commence to restore, repair, rebuild or reconstruct such Damaged
I Improvement and diligently pursue such reconstruction to completion, or (b) clear such Owner's Lot
and maintain the same clear of all debris, weeds, rubbish and other unsightly and unsafe materials. If
the Owner elects to rebuild, all repairs and restoration shall be completed in a good and workmanlike
manner, consistent with all governmental requirements and in substantial conformance with the
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I original design so that the Dwelling is architecturally and aesthetically compatible with surrounding
Improvements.
I 3.5. Party Walls.
3.5.1 General Rules of Law to Apply. Each wall or fence which is built as apart of
I the original construction of the Property by Declarant and which is placed on the dividing line
between residential Lots and which is not a Association Maintained Walls/Fences shall be treated in
the same manner as a party wall, and, to the extent not inconsistent with the provisions of this Article
I XVII, the general rules of law regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto. Minor discrepancies between the as-built
location of any such wall or fence and the legal boundary of any residential Lot shall not affect the ' Lot Owner's maintenance duties with respect to such wall or fence, and such wall or fence shall,
nevertheless, be treated as a party wall.
I 3.5.2 Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of such a common wall or fence between Lots shall be shared equally by the Owners of
the Lots adjacent to such common wall or fence. However, each Owner shall be solely responsible
I for repainting the side of any common wall or fence facing his or her Lot.
3.5.3 Destruction by Fire or Other Casualty. If such a common wall or fence to be
I maintained by individual Owners is destroyed or damaged by fire or other casualty, any Owner
whose Lot is affected thereby may restore it, and the Owner of the other Lot which is affected
thereby shall contribute equally to the cost of restoration thereof without prejudice, however, to the
I right of any such repairing Owner to call for a larger contribution from the other under any rule of
law regarding liability for negligent or willful acts or omissions.
I 3.5.4 Right to Contribution Runs With Land. The right of any Owner to
contribution from any other Owner under this Section 3.5 shall be appurtenant to the land and shall
pass to such Owner's successors in title.
1 3.5.5 Arbitration. If any dispute arises concerning a common wall or fence to be
maintained by an Owner or the application of the provisions of this Section 3.5, then such dispute
I shall be submitted to and determined by binding arbitration. Each party shall choose one arbitrator,
and such arbitrators shall choose one additional arbitrator. The decision shall be rendered by a
majority of all the arbitrators, in accordance with the American Arbitration Association Commercial
I Rules of Arbitration.
3.5.6 Not Applicable to Shared Wall Improvements. The provisions of this Section
3.5 do not apply to Shared Wall Improvements, which are to be maintained, repaired and replaced in
I accordance with the provisions of Section 3.4.8 above.
ARTICLE IV
I RIGHTS IN ASSOCIATION PROPERTY
4.1. Association Easement; Jurisdiction of Association. The Association shall have an
I easement over the Property for performing its duties and exercising its powers described in this
Declaration. The Association's obligations to maintain the Association Property and the Association
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Maintenance Areas in any Phase of Development shall commence on the date Annual Assessments
commence on Lots in such Phase. Until commencement of Annual Assessments on Lots in any
Phase, the Association Property and the Association Maintenance Areas in such Phase shall be
maintained by Declarant.
4.2. Partition. Except as provided in this Declaration, there shall be no judicial partition
of the Association Property, or any part thereof, for the term of the Project, nor shall Declarant, any
Owner or any other Person acquiring any interest in any Lot in the Project seek any such judicial
partition.
4.3. Members' Easements in Association Property. Subject to the provisions of this
Declaration and for the purposes set forth herein, every Member of the Association shall have, for
himself or herself, his or her Family, tenants, guests and invitees, a nonexclusive easement of access,
ingress, egress, use and enjoyment of, in and to the Association Property, and such easements shall
be appurtenant to and shall pass with title to every Lot in the Project.
4.4. Extent of Members' Easements. The rights and easements of use and enjoyment of
the Association Property created for the Members by this Declaration shall be subject to the
Restrictions, which include, without limitation, the following:
4.4.1 Right of Discipline. The Board shall have the right to suspend the rights and
easements of any Member, and the Persons deriving such rights and easements from any Member,
for use and enjoyment of any recreational facilities or Recreation Area located on the Association
Property, for any period during which the payment of any Annual, Special, Capital Improvement or
Reconstruction Assessment against the Member and his or her Lot remains delinquent, and, after
Notice and Hearing as provided in the Bylaws, to suspend such rights and easements for the period
set forth in the Bylaws for any violation of the Restrictions, it being understood that any suspension
of use and enjoyment of the recreational facilities or Recreation Area for either nonpayment of any
Assessment or breach of the Restrictions shall not constitute a waiver or discharge of the Member's
obligation to pay assessments as provided in this Declaration, nor shall it in any way impinge on any
Member's right of access to or use of such Member's Lot;
4.4.2 Right to Modify. The Association shall have the right to consent to or
otherwise cause the construction of additional Improvements on the Association Property and the
Association Maintenance Areas and to consent to or otherwise cause the alteration or removal of
any existing Improvements on the Association Property and the Association Maintenance Areas for
the benefit of the Members of the Association;
4.4.3 Right to Grant Easements and Other Rights. The Association, acting through
the Board, shall have the right to grant, consent to, or join in the grant or conveyance of easements,
licenses or rights-of-way in, on or over the Association Property and the Association Maintenance
Areas for purposes not inconsistent with the intended use of the Property as a residential planned
development, including, without limitation, the granting of exclusive easements to Owners over
portions of the Association Property to conform the boundaries of the Association Property to the as-
built location of Improvements installed or constructed by Declarant;
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1 4.4.4 Rights of Declarant. Declarant shall have the rights and reservations set forth
in this Declaration;
I 4.4.5 Right to Restrict Access. The Association, acting through the Board, shall
have the right to reasonably restrict access to roofs, maintenance and landscaped areas and similar
areas of the Property, and to restrict or prohibit access to any portion of the Association Property ' containing drainage system improvements; provided, however, the provisions of this Section 4.4.5
shall not be used or applied to restrict a Member's right of access to the roof of such Member's
I personal Dwelling for purposes of maintenance and repair thereof;
4.4.6 Right to Limit Guests. The Association shall have the right to reasonably
limit the number of guests and tenants of the Owners using the Association Property and the
1 Association Maintenance Areas, as provided in this Declaration;
4.4.7 Right to Adopt Rules and Regulations. The Association, acting through the
I Board, shall have the right to establish uniform Rules and Regulations for the use of the Association
Property and the Association Maintenance Areas, as provided in this Declaration;
I 4.4.8 Right to Borrow and Mortgage. The Association shall have the right in
accordance with the Articles, Bylaws and this Declaration, with a vote or written assent of sixty-
seven percent (67%) of the voting power of the Association, to borrow money for the purpose of
I improving, repairing, or adding to the Association Property, and in aid thereof, subject to the
provisions of Article XII of this Declaration, to mortgage, pledge, encumber by deed of trust, or
hypothecate any or all of its real or personal property as security for money borrowed or debts
I incurred, provided that the rights of such Mortgagee shall be subordinated to the rights of the
Owners;
I 4.4.9 Right to Transfer. The Association shall have the right, subject to the
provisions of Article XII of this Declaration, to dedicate, release, alienate, or transfer the Association
Property, or a portion thereof, to any public agency, authority, or utility for such purposes and ' subject to such conditions as may be agreed to by the Members; and
4.4. 10 Right to Grant Exclusive Use Easements. The Association shall have the
right, subject to the provisions of California Civil Code Section 4600 (or any successor or 1 replacement statute), to grant exclusive use of any portion of the Association Property to any Owner,
except as specified therein.
1 4.5. Delegation of Use. Any Member entitled to the right and easement of use and
enjoyment of the Association Property may delegate his or her right to use and enjoyment of the
Association Property to his or her tenants, contract purchasers or subtenants who reside in his or her I Lot, subject to reasonable regulation by the Board. A Member who has made such a delegation of
rights shall not be entitled to use and enjoyment of the recreational facilities or equipment of the
I Property, if any, for so long as such delegation remains in effect.
4.6. Waiver of Use. No Member may exempt himself or herself from personal liability for
Assessments duly levied by the Association, or effect the release of his or her Lot from the liens and
I charges thereof, by waiving use and enjoyment of the Association Property or by abandoning his or
her Lot.
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4.7. Damage by Member. Each Member shall be liable to the Association for any damage
to the Association Property or the Association Maintenance Areas not fully reimbursed to the
Association by insurance (including, without limitation, any deductible amounts under any insurance
policies against which the Association files a claim for such damage) if the damage is sustained
because of the negligence, willful misconduct or unauthorized or improper installation or
maintenance of any Improvement by the Member, his or her Family, guests, tenants or invitees, or
any other Persons deriving their right and easement of use and enjoyment of the Association
Property or the Association Maintenance Areas from the Member, or his or her respective Family,
guests, tenants or invitees, both minor and adult. However, the Association, acting through the
Board, reserves the right to determine whether any claim shall be made upon the insurance
maintained by the Association, and the Association further reserves the right, after Notice and
Hearing as provided in the Bylaws, to levy a Special Assessment equal to the increase, if any, in
insurance premiums directly attributable to the damage caused by the Member or the Person for
whom the Member may be liable as described above. In the case of joint ownership of a Lot, the
liability of the owners shall be joint and several, except to the extent that the Association shall have
previously contracted in writing with the joint owners to the contrary. After Notice and Hearing as
provided in the Bylaws, the cost of correcting the damage to the extent not reimbursed to the
Association by insurance shall be a Special Assessment against such Member's Lot, and may be
enforced as provided herein.
ARTICLE V
ARCHITECTURAL REVIEW COMMITTEE
5.1. Members of Committee. The Architectural Review Committee, sometimes referred to
in this Declaration as the "Architectural Committee" or the "Committee," shall consist of three (3)
members. The initial members of the Committee shall consist of representatives of Declarant.
Subject to the following provisions, Declarant shall have the right and power at all times to appoint
or remove a majority of the members of the Architectural Committee or to fill any vacancy of such
majority until either (i) Close of Escrow has occurred for the sale of ninety percent (90%) of all the
subdivision interests in the overall development, or (ii) five (5) years following the date of original
issuance of the Final Subdivision Public Report for Phase 1, whichever occurs earlier. Commencing
one (1) year from the issuance of the Final Subdivision Public Report for Phase 1, the Board shall
have the power to appoint and remove one (1) member of the Architectural Committee. Following
termination of Declarant's right to appoint all or a portion of the members of the Committee
pursuant to this Section 5.1, the Board shall have the power to appoint and remove all of the
members of the Architectural Committee. Committee members appointed by the Board shall be
from the Membership of the Association, but Committee members appointed by Declarant need not
be Members of the Association. Board members may also serve as Committee members.
5.2. Review of Plans and Specifications.
5.2.1 Committee's Duties. The Committee shall consider and act upon any and all
plans and specifications submitted for its approval under this Declaration and perform such other
duties as from time to time shall be assigned to it by the Board, including the inspection of
construction in progress to assure its conformance with plans approved by the Committee.
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1 5.2.2 Requirement for Review. No construction, alteration, removal, relocation,
repainting, demolition, addition, modification, decoration, redecoration or reconstruction of any
Improvement, including without limitation, landscaping and the alteration of any established
I drainage pattern, plan, or grade on any portion of the Property, shall be commenced or maintained,
until the plans and specifications therefor showing the nature, kind, shape, height, width, color,
materials and location of the same shall have been submitted to the Committee and approved in
I writing by the Committee; provided, however, that any Improvement may be repainted without
Committee approval, so long as the Improvement is repainted the identical color with which it was
last painted in compliance with all applicable Restrictions. Without limiting the generality of this
1 Article IV, the provisions of this Article IV apply to the construction, installation, alteration and
modification of solar energy equipment, subject to the provisions of California Civil Code Section
714.
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5.2.4 Approval Conditions. The Committee may condition its written approval of
proposals or plans and specifications for any Improvement (1) upon the Applicant's furnishing the
Association with security acceptable to the Association against any mechanic's lien or other
encumbrance which may be Recorded against the Property as a result of such work, (2) on such
changes therein as it deems appropriate, (3) upon the Applicant's agreement to grant appropriate
easements to the Association for the maintenance of the Improvements, (4) upon the Applicant's
agreement to install (at its sole cost) water, gas, electrical or other utility meters to measure any
increased consumption, (5) upon the Applicant's agreement to reimburse the Association for the cost
of maintenance, (6) upon the Applicant's agreement to complete the proposed work within a stated
period of time, or (7) upon all of the above, and may require submission of additional plans and
specifications addressing any areas of concern to the Committee or other information prior to
approving or disapproving material submitted.
5.2.5 Guidelines. The Committee may from time to time adopt, promulgate and
amend rules or guidelines which, among other matters, may set forth design and architectural
standards, procedures for the submission of plans for approval, requirements for a fee to accompany
each application for approval, and/or setting forth additional factors which it will take into
consideration in reviewing submissions. The Committee may provide that the amount of the fee
shall be uniform, or that it be determined in any other reasonable manner, such as by the reasonable
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5.2.3 Application for Review. The Owner submitting the plans ("Applicant") shall
obtain a written, dated receipt for the plans and specifications from an authorized agent of the
Committee and shall submit one (1) set of the plans and specifications by registered or certified mail,
postage prepaid, return receipt requested, addressed to the principal office of the Association, or such
other address as maybe established from time to time by the Board. Until changed by the Board, the
address for the submission of such plans and specifications shall be the principal office of the
Association. The Committee shall approve proposals or plans and specifications submitted for its
approval only in writing and only if it deems that the construction, alterations, or additions
contemplated thereby in the locations indicated will not be detrimental to the appearance of the
surrounding area of the Property as a whole, that the appearance of any structure affected thereby
will be in harmony with the surrounding structures, that the construction thereof will not detract
from the beauty, wholesomeness and attractiveness of the Association Property or the enjoyment
thereof by the Members, and that the upkeep and maintenance thereof will not become a burden on
the Association.
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cost of the construction, alterations or additions contemplated. The Committee may require such
detail in plans and specifications submitted for its review as it deems proper, including without
limitation, floor plans, site plans, drainage plans, elevation drawings and description or samples of
exterior material and colors. Until receipt by the Committee of any required plans and specifications,
the Committee may postpone review of any plan submitted for approval. To ensure uniformity
throughout the Project, the Association has the right to review and approve proposed design
guidelines and all changes to the design guidelines before they are effective.
52.6 Committee Decisions. Decisions of the Committee and the reasons for the
decisions shall be transmitted by the Committee to the Applicant in writing at the address set forth in
the application for approval, within sixty (60) days after receipt by the Committee of all materials
required by the Committee. No purported oral or verbal approval of the Committee shall be
permitted and any approval, to be binding upon the Committee and the Association, shall be in
writing. In no event will any application for approval or any proposal, plans, or specifications be
deemed approved based upon the passage or lapse of time; any approval must be by affirmative
written action of the Committee to be effective. Notwithstanding approval of any application,
proposal, plans, or specifications by the Committee, no Applicant shall undertake any construction
or other activity subject to the review of the Committee unless, as a separate and independent matter,
the Applicant has also met any review or permit requirements of the city or county in which the
Property is located prior to making any alterations or Improvements permitted hereunder and has
obtained all permits necessary to legally authorize such construction or other activity, and. has
provided proof of contractor's insurance for all work to the Association.
5.3. Condition of Approval. As a condition to approval of any requested architectural
I change, modification, addition, or alteration, an Owner, on behalf of himself or herself and his or her
successors-in-interest, shall be deemed to have agreed to assume all responsibilities for maintenance,
repair, replacement and insurance of such change, modification, addition, or alteration, unless
I otherwise agreed to in writing by the Board of Directors. It is the responsibility of every Owner of a
Lot to determine for himself or herself what architectural modifications have been made to his or her
Lot by any predecessor-in-interest. In the discretion of the Board or the Committee, an Owner may
I be required to confirm and acknowledge such condition of approval by written instrument in
recordable form acknowledged by such Owner on behalf of himself or herself and all successors-in-
interest.
I 5.4. Commencement of Construction. All architectural changes, modifications and
improvements approved by the Committee hereunder must be commenced within one (1) year from
I the date of approval. If not commenced within one (1) year from the date of such approval, then
such approval shall be deemed revoked by the Committee, unless the Committee gives a written
extension for commencing the work prior to the expiration of said one (1) year period. All work
I approved by the Committee hereunder shall be completed in its entirety within ninety (90) days from
the date of commencement, unless otherwise agreed in writing by the Committee. All approved
architectural changes, modifications and improvements must be completed in their entirety, and an
I Owner may not construct only a portion or part of an approved architectural change, modification, or
improvement.
I 5.5. Meetings of the Committee. The Committee shall meet from time to time as
necessary to perform its duties hereunder. The Conrniittee may from time to time by resolution
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unanimously adopted in writing designate a Committee Representative (who may, but need not, be
one of its members) to take any action or perform any duties for and on behalf of the Committee,
except the granting of variances pursuant to Section 4.10. In the absence of such designation, the
vote of a majority of the Committee confirmed by contemporaneous written record executed by one
or more members of the Committee or the written consent of a majority of the Committee taken
without a meeting, shall constitute an act of the Committee.
5.6. No Waiver of Future Approvals. The approval of the Committee of any proposals or
plans and specifications or drawings for any work done or proposed in connection with any matter
requiring the approval and consent of the Committee, shall not be deemed to constitute a waiver of
any right to withhold approval or consent to any similar proposals, plans and specifications,
drawings or matter subsequently or additionally submitted for approval or consent. Each Owner
acknowledges that the members of the Board of Directors and the Committee will change from time
to time and that interpretation, application, and enforcement of the architectural standards may vary
accordingly.
5.7. Compensation of Members. The members of the Committee shall receive no
compensation for services rendered, other than reimbursement for expenses incurred by them in the
performance of their duties hereunder.
5.8. Correction of Defects. Inspection of work and correction of defects therein shall
proceed as follows:
5.8.1 Inspection. The Committee or its duly authorized representative may at any
time inspect any Improvement for which approval of plans is required under this Article IV.
However, the Committee's right of inspection of Improvements for which plans have been submitted
and approved shall terminate one hundred twenty (120) days after the work of Improvement has
been completed and the respective Owner has given written notice of its completion to the
Committee. The notice of completion shall be delivered by registered or certified mail, postage
prepaid, return-receipt requested, addressed to the principal office of the Association, or such other
address as maybe established from time to time by the Board. The Committee's rights of inspection
shall not terminate pursuant to this paragraph if plans for the work of Improvement have not
previously been submitted to and approved by the Committee or if the notice of completion is not
properly given.
5.8.2 Non-Compliance. If, as a result of such inspection, the Committee finds that
the Improvement was done without obtaining approval of the plans therefor or was not done in
substantial compliance with the plans approved by the Committee, it shall notify the Owner in
writing of failure to comply with this Article IV, specifying the particulars of noncompliance. The
Committee shall have the authority to require the Owner to take such action as may be necessary to
remedy the noncompliance. If upon the expiration of sixty (60) days from the date of such
notification, the Owner has failed to remedy the noncompliance, the Committee shall notify the
Board in writing of such failure. Upon Notice and Hearing, as provided in the Bylaws, the Board
shall determine whether there is a noncompliance and, if so, the nature thereof and the estimated cost
of correcting or removing the same. If a noncompliance exists, the Owner shall remedy or remove
the same within a period of not more than forty-five (45) days from the date that notice of the Board
ruling is given to the Owner. If the Owner does not comply with the Board ruling within that period,
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the Board, at its option, may Record a Notice of Noncompliance and may peacefully remedy the
noncompliance, and the Owner shall reimburse the Association, upon demand, for all expenses
(including reasonable attorneys' fees) incurred in connection therewith. If such expenses are not
promptly repaid by the Owner to the Association, the Board shall levy a Special Assessment against
the Owner for reimbursement as provided in this Declaration. The right of the Association to ' remove a noncomplying Improvement or otherwise remedy the noncompliance shall be in addition
to all other rights and remedies which the Association may have at law, in equity or in this
Declaration.
5.8.3 Committee's Failure to Notify. If for any reason the Committee fails to notify
the Owner of any noncompliance with previously submitted and approved plans within one hundred
fifty (150) days after receipt-of written notice of completion from the Owner delivered in the manner
required above, then the Improvement shall be deemed to be in accordance with the approved plans.
5.9. Scope of Review. The Architectural Committee shall review and approve or
disapprove all plans submitted to it for any proposed Improvement, alteration or addition, on the
basis of aesthetic considerations, consistency with this Declaration, and the overall benefit or
detriment which would result to the immediate vicinity and the Property generally. The Committee ' shall take into consideration the aesthetic aspects of the architectural design, placement of buildings,
landscaping, color schemes, exterior finishes and materials and similar features. The Committee's
approval or disapproval shall be based solely on the considerations set forth in this Article IV, and
I the Committee shall not be responsible for reviewing, nor shall its approval of any plan or design be
deemed approval of, any plan or design from the standpoint of structural safety or conformance with
building or other codes. The Architectural Committee may consider the impact of views from other
I Lots, or Dwellings thereon, and reasonable privacy interests as factors in reviewing, approving, or
disapproving any proposed landscaping, construction, or other Improvements. However, there is no
guaranty of any protected views within the Property and no Lot, or Dwelling thereon, is guaranteed
I the existence or unobstructed continuation of any particular view. Each Owner acknowledges that
the Board of Directors and the Committee may adopt different architectural standards for different
parts of the Project. Neither the Declarant, the Association, the Board of Directors, the Committee, ' nor any member of any of the foregoing shall be held liable for any injury, damages, or loss arising
out of the manner, quality or effect of approved construction on or modification to any Lot
authorized pursuant to this Article IV. In the event legal action is brought against any such party as
I a result of such construction or modification, the Owner causing such construction or modification
shall indemnify and hold harmless the Declarant, the Association, the Board of Directors, the
Committee and all members thereof from all costs, expenses and damages (including but not limited
I to attorneys' fees) incurred in connection with such action, including, without limitation, any defense
thereof.
I 5.10. Variances. The Committee may authorize variances from compliance with any of the architectural provisions of this Declaration, including restrictions upon height, size, floor area or
placement of structures, or similar restrictions, when circumstances such as topography, natural
I obstructions, hardship, aesthetic or environmental considerations may require. Such variances must
be evidenced in writing, must be signed by at least a majority of the members of the Committee, and
shall become effective upon Recordation. After Declarant has lost the right to appoint a majority of
I the members of the Committee, the Board must approve any variance recommended by the
Committee before any such variance shall become effective. If such variances are granted, no
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1 violation of the covenants, conditions and restrictions contained in this Declaration shall be deemed
to have occurred with respect to the matter for which the variance was granted. The granting of such
U a variance shall not operate to waive any of the terms and provisions of this Declaration for any
purpose except as to the particular property and particular provision hereof covered by the variance,
nor shall it affect in any way the Owner's obligation to comply with all governmental laws and
I regulations affecting the use of his or her Dwelling.
5.11. Appeals, lithe Committee disapproves an application, the Applicant may appeal such
decision to the Board of Directors. The Board shall adopt policies and procedures for the appeal of
I Committee decisions for reconsideration by the Board, which appeal shall be heard at a Board
meeting which is open to the Members of the Association.
I ARTICLE VI
ASSOCIATION MAINTENANCE FUNDS AND ASSESSMENTS
I 6.1. Personal Obligation of Assessments. Declarant, for each Lot owned by it, hereby
covenants and agrees to pay, and each Owner, by acceptance of a deed to a Lot, whether or not it
shall be so expressed in any such deed, is deemed to covenant and agree to pay to the Association all
I Annual Assessments for Common Expenses and all applicable Special Assessments, Reconstruction
Assessments and Capital Improvement Assessments. The Association shall not levy or collect any
Annual Assessment, Capital Improvement Assessment, Special Assessment or Reconstruction
I Assessment that exceeds the amount necessary for the purpose for which it is levied. Except as
provided in this Section 6.1, all such assessments, together with interest, costs, and reasonable
attorneys' fees, shall be a separate, distinct and personal obligation of the Person who was the Owner
I of the Lot at the time when the assessment fell due. This personal obligation cannot be avoided by
abandonment of the Lot or by an offer to waive use of the Association Property. The personal
obligation for delinquent assessments shall not pass to any new Owner ("Purchaser") unless
I expressly assumed by the Purchaser.
6.2. Maintenance Funds of Association. The Board of Directors shall establish no fewer
I than two (2) separate accounts (the "Maintenance Funds"), into which shall be deposited all monies
paid to the Association, and from which disbursements shall be made, as provided herein, in the
performance of functions by the Association under this Declaration. The Maintenance Funds may be
I established as trust accounts at a banking or savings institution. The Maintenance Funds shall
include: (1) an operating fund for current Common Expenses of the Association ("Operating
Fund"), (2) a reserve fund for capital Improvements, replacements, painting and repairs of the
I Association Property (which cannot normally be expected to occur on an annual or more frequent
basis) ("Reserve Fund"), and (3) any other funds which the Board of Directors may establish to the
extent necessary under the provisions of this Declaration. Nothing contained herein shall limit,
I preclude or impair the establishment of additional Maintenance Funds by the Association, so long as
the amounts assessed to, deposited into, and disbursed from any such Fund are earmarked for
specified purposes authorized by this Declaration.
I 6.3. Purrose of Assessments. The assessments levied by the Board of Directors on behalf
of the Association shall be used exclusively to promote the recreation, health, safety and welfare of
the residents of the Lots, for the operation, replacement, improvement and maintenance of the
1 Property, including the Association Maintenance Areas, and to discharge any other obligations of the
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I Association under this Declaration. Annual Assessments shall be used to satisfy Common Expenses
of the Association, as provided herein and in the Bylaws. All amounts deposited into the
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Maintenance Funds must be used solely for the common benefit of all of the Owners for purposes
authorized by this Declaration. Disbursements from the Operating Fund shall be made by the Board
of Directors for such purposes as may be necessary for the discharge of its responsibilities herein for
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the common benefit of all of the Owners, other than those purposes for which disbursements from
the Reserve Fund are to be used. Except as provided in Section 6.4, disbursements from the Reserve
Fund shall not be made by the Board of Directors for any purpose other than the repair, restoration,
replacement or maintenance of, or litigation involving the repair, restoration, replacement or
I maintenance of, major components which the Association is obligated to repair, restore, replace, or
maintain and for which the Reserve Fund was established. Nothing in this Declaration shall be
construed in such a way as to permit the use of Association assessments or funds to abate any
1 annoyance or nuisance emanating from outside the boundaries of the Property.
6.4. Transfers from Reserve Fund. The Board may authorize the temporary transfer of
I money from the Reserve Fund to the Association's Operating Fund to meet short-term cash-flow
requirements or other expenses, provided that the Board has made a written finding, recorded in the
Board's minutes, explaining the reasons that the transfer is needed, and describing when and how the
I money will be repaid to the Reserve Fund. The transferred funds shall be restored to the Reserve
Fund within one (1) year of the date of the initial transfer, except that the Board may, upon making a
finding supported by documentation that a temporary delay would be in the best interests of the
I Association, temporarily delay the restoration until the time which the Board reasonably determines
to be necessary. The Board shall exercise prudent fiscal management in maintaining the integrity of
the Reserve Fund, and shall, if necessary, levy a Capital Improvement Assessment or a
I Reconstruction Assessment, as applicable, to recover the full amount of the expended funds within
the time limits required by this Section 6.4. Such assessment shall be subject to the limitation
imposed by California Civil Code Section 5650(b). The Board may, at its discretion, extend the date
I that payment of the Capital Improvement Assessment or Reconstruction Assessment is due. When
the decision is made to use the Reserve Fund or to temporarily transfer money from the Reserve
Fund to pay for litigation, the Board shall notify Members of that decision in the next available
I mailing to all members pursuant to Section 5016 of the California Corporations Code, and of the
availability of an accounting of those expenses. The Association shall make an accounting of
expenses related to the litigation on at least a quarterly basis. The accounting shall be made
I available for inspection by the Members at the Association's office.
6.5. Limitations on Annual and Special Assessment Increases. The Board shall levy
I Annual Assessments in accordance with the following provisions:
6.5.1 Maximum Authorized Annual Assessment for Initial Year of Onerations.
I Until the first day of the Fiscal Year immediately following the Fiscal Year in which Annual
Assessments commence, the Board shall not levy an Annual Assessment per Lot in an amount
greater than one hundred twenty percent (120%) of the amount of Annual Assessments disclosed for
I Phase 1 in the most current Budget filed with and reviewed by BRE at the time Annual Assessments
commence without the vote of Members casting a majority of votes at a meeting or election of the
Association at which a quorum of the Association is represented; provided, that, for purposes of this
Section 5.4(a), a quorum shall mean more than fifty percent (50%) of the Members of the
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Association. Notwithstanding the foregoing, this Section 6.5.1 does not limit Annual Assessment
increases necessary for addressing an "Emergency Situation" as defined in Section 6.5.5.
6.5.2 Maximum Authorized Annual Assessment for Subsequent Fiscal Years.
Starting with the first Fiscal Year immediately following the Fiscal Year in which Annual
Assessments commence and for each Fiscal Year thereafter, the Board shall not levy Annual
Assessments in any Fiscal Year in excess of one hundred twenty percent (120%) of the Annual
Assessments levied during the immediately preceding Fiscal Year without the vote of Members
casting a majority of votes at a meeting or election of the Association at which a quorum of the
Association is represented; provided that, for purposes of this Section 6.5.2, a quorum shall mean
more than fifty percent (50%) of the Members of the Association. In addition, the Board shall
provide notice by first-class mail to all Members of any increase in Annual Assessments from the
Annual Assessments levied during the immediately preceding Fiscal Year not less than thirty (30)
nor more than sixty (60) days prior to the date on which such increased assessment shall become
due. Notwithstanding the foregoing, this Section 6.5.2 does not limit Annual Assessment increases
necessary for addressing an "Emergency Situation" as defined in Section 6.5.5.
6.5.3 Supplemental Annual Assessments. If the Board, by majority vote,
determines
that the important and essential functions of the Association may be properly funded by
an Annual Assessment in an amount less than the maximum authorized Annual Assessment
described above, it may levy such lesser Annual Assessment. If the Board determines that the
U estimate of total Annual Assessment charges for the current year is or will become inadequate to
meet all projected expenses for the Property for any reason, it shall immediately determine the
approximate amount of the inadequacy. Subject to the limitations described in Sections 6.5.1 and
I 6.5.2 above, the Board shall have the authority to levy, at any time during the Fiscal Year by a
majority vote, a supplemental Annual Assessment reflecting a revision of the total Annual
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Assessment charges to be assessed against each Lot for the balance of that Fiscal Year.
6.5.4 Special Assessment. The Board shall not levy Special Assessments to defray
the cost of any action or undertaking on behalf of the Association that in the aggregate exceeds five
I percent (5%) of the budgeted gross expenses of the Association for that Fiscal Year without the vote
of Members casting a majority of votes at a meeting or election of the Association at which a
quorum of the Association is represented; provided that, for purposes of this Section 6.5.4, a quorum
I shall mean more than fifty percent (50%) of the Members of the Association. In addition, the Board
shall provide notice by first-class mail to all Members of any Special Assessment levied during the
Fiscal Year not less than thirty (30) nor more than sixty (60) days prior to the date on which such
I Special Assessment shall become due. Notwithstanding the foregoing, this Section 6.5.4 does not
limit assessment increases necessary for addressing an "Emergency Situation" as defined in Section
6.5.5.
I 6.5.5 Emergency Situations. For purposes of Sections 6.5.1, 6.5.2 and, an
"Emergency Situation" is any one of the following:
I (a) An extraordinary expense required by an order of a court;
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An extraordinary expense necessary to repair or maintain the Property
or any portion thereof for which the Association is responsible where a threat to personal safety on
the Property is discovered; and
An extraordinary expense necessary to repair or maintain the Property
or any portion thereof for which the Association is responsible that could not have been reasonably
foreseen by the Board when preparing the Budget. Prior to the imposition or collection of an
assessment pursuant to this subparagraph (c), 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. The resolution shall be
distributed to the Members with the Notice of Assessment.
I 6.6. Annual Assessments/Commencement and Collection. The Board of Directors shall
authorize and levy the amount of the Annual Assessment upon each Lot, as provided herein, by
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majority vote of the Board.
6.6.1 Commencement of Assessments. The initial Annual Assessment shall begin
on all Lots in a Phase of Development (including unsold Lots therein owned by Declarant) on the
l first day of the first calendar month following the first Close of Escrow for the sale of a Lot in such
Phase or an earlier date as may be selected by Declarant for commencement of Annual Assessments
in such Phase. Unless provided to the contrary in the Budget, all Annual Assessments shall be
I assessed equally against the Members and their Lots based upon the number of Lots owned by each
Member. Annual Assessments for fractions of any month involved shall be prorated. Declarant
shall pay its full pro rata share of the Annual Assessments on all unsold Lots for which Annual
I Assessments have commenced. The Board shall fix the amount of the Annual Assessment against
each Lot at least thirty (3 0) days in advance of each Annual Assessment period. From time to time
the Board may determine that all excess funds in the Operating Fund be retained by the Association
I and used to reduce the following year's Annual Assessments. Upon dissolution of the Association
incident to the abandonment or termination of the Property, any amounts remaining in any of the
Maintenance Funds shall be distributed to or for the benefit of the Members in the same proportions
I as such monies were collected from the Members.
6.6.2 Model Homes. Notwithstanding any other provisions of this Declaration,
I conveyance of a Lot which is being used by Declarant for model home, sales office, design center,
construction office or similar purposes (any of which uses are referred to in this Section 6.6.2 as
"Model Home") shall not commence the Annual Assessment against such Lot or other Lots within a
I Phase of Development until discontinuance of use of such Lot as a Model Home or conveyance of
any non-Model Home in such Phase of Development to a retail purchaser, whichever first occurs.
During the period of time commencing on the first day of the month after conveyance of a Lot being
I used by Declarant as a Model Home and ending on the date Annual Assessments commence against
such Lot, Declarant shall be solely responsible to maintain all portions of the Phase of Development
in which a Lot is being used as a Model Home.
I 6.6.1 Uncompleted Dwellings. Declarant and any other Owner of a Lot on which a
Dwelling has not been constructed shall be exempt from payment of that portion of the Annual
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Assessment which is for the purpose of defraying expenses and reserves directly attributable to the
existence and use of such Dwelling. Any such exemption from the payment of Annual Assessments
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shall be in effect only until the earlier to occur of (1) the Recordation of a notice of completion of the
building comprising such Dwelling, or (2) the occupation or use of such Dwelling.
1 6.6.2 Uncompleted Association Property or Association Maintenance Area. The
Board may exclude from Annual Assessments that portion which is for the purpose of defraying
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expenses and reserves directly attributable to the existence of a Association Property or Association
Maintenance Area Improvement that is not complete at the time the assessments commence. Any
such exemption from assessments attributable to an Association maintained facility shall be in effect
only until the earlier to occur of (1) the Recordation of a notice of completion of an Improvement on
the Association Property, or (2) the placement of such Improvement into use.
6.6.3 Installments: Arrnlication of Payment. Each Member shall pay to the
Association his or her Annual Assessment in installments at such frequency and in such amounts as
established by the Board. Each installment of the Annual Assessment may be paid by the Member
to the Association in one check or in separate checks as payments attributable to the deposits under
the Operating Fund and the Reserve Fund. If any installment of an Annual Assessment payment is
less than the amount assessed and the payment does not specify the Maintenance Fund or Funds into
which it should be deposited, the receipt by the Association from that Owner shall be credited in
order of priority first to the Operating Fund, until that portion of the Annual Assessment has been
satisfied, and second to the Reserve Fund.
I 6.6.4 Maintenance and Subsidy Agreements. Notwithstanding any other provisions
of this Declaration or the Bylaws regarding the term and termination of contracts with Declarant for
providing services to the Association, Declarant may enter into a written maintenance agreement ' with the Association under which Declarant shall pay all or any portion of the operating Common
Expenses and perform all or any portion of the Association's maintenance responsibilities in
exchange for a temporary suspension of Annual Assessments. Such maintenance agreement shall
I extend for a term and shall be on such conditions as are approved by the BRE, and may require
Owners to reimburse Declarant, through the Association, for a portion of the costs expended in
satisfaction of Common Expenses.
1 6.6.5 Payment of Reserves for Deferred Association Property Maintenance.
Concurrently with the first Close of Escrow for the sale of a Lot in any Phase, Declarant shall pay to
I the Association an appropriate amount (as determined by BRE) for reserves for replacement or
deferred maintenance of the Association Property in such Phase necessitated by or arising out of the
use and occupancy of the Lots in such Phase under a rental program conducted by Declarant if such
I rental program was in effect for at least one (1) year prior to such first Close of Escrow.
6.7. Canital Imurovement Assessments. Should the Board of Directors determine the need
I for a capital Improvement or other such addition to the Property, the cost of which in the aggregate
exceeds five percent (5%) of the Budgeted gross expenses of the Association for the then current
Fiscal Year, then the vote or written consent of Members casting a majority of votes at a meeting or
I election of the Association at which a quorum of the Association is represented shall be required to
approve and render effective a Capital Improvement Assessment levied by the Board of Directors to
cover the cost of such expenditure; provided that, for purposes of this Section 6.7, a quorum shall
I mean more than fifty percent (50%) of the Members of the Association. Capital Improvement
Assessments may be levied by the Board without the consent of the Members, if the aggregate of
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such expenditures in each Fiscal Year does not exceed five percent (5%) of the Budgeted gross
expenses of the Association for such Fiscal Year; provided, that the Board shall provide notice to
each Owner by first-class mail of the levying of such Capital Improvement Assessment not less than
thirty (30) nor more than sixty (60) days prior to the date on which such assessment shall become
due. Notwithstanding the foregoing, the Board may levy in any Fiscal Year, a Capital Improvement
Assessment applicable to that Fiscal Year which exceeds five percent (5%) of the Budgeted gross
expenses of the Association for such Fiscal Year if such increase is necessary to address an
Emergency Situation as defined in Section 6.5.5.
1 6.8. Special Assessments Levied by City. In the event the City has performed the
necessary maintenance to Association Property or Association Maintenance Area, the City shall
submit a written invoice to the Association for all costs incurred by the City to perform such
I maintenance of the Association Property or Association Maintenance Area. 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
I 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
I rights and remedies available to the City, the City may levy a special assessment against the Owners
of each Lot in the Project for an equal pro rata share of the invoice, plus the late charge. Such special
assessment shall constitute a charge on the land and shall be a continuing lien upon each Lot against
I 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 or her
I respective Lot for purposes of collecting such special assessment in accordance with the procedures
set forth in this Article V.
I 6.9. Delinquency. Any installment of an assessment provided for in this Declaration shall
become delinquent if not paid within fifteen (15) days of the due date as established by the Board of
Directors of the Association. With respect to any such delinquent assessment, the Board is hereby
I authorized to and, at its election, may require the Owner responsible for such delinquent assessment
to pay both of the following: (a) reasonable costs incurred in collecting the delinquent assessment,
including reasonable attorneys' fees and costs; and (b) a late charge in the maximum amount
I permitted by California Civil Code Section 5650(b)(2) (or any successor or replacement statute). In
addition to the foregoing, commencing thirty (30) days after the assessment becomes due and
continuing until paid, the Board is hereby authorized to and, at its election, may require the Owner
I responsible for the delinquent assessment to pay interest on all sums identified above (including the
delinquent assessment, reasonable costs of collection, attorneys' fees, and late charges) at the
maximum rate permitted by California Civil Code Section 5650(b)(3) (or any successor or
I replacement statute). The Association need not accept any tender of a partial payment of an
installment of an assessment and all costs and attorneys' fees attributable thereto, and any acceptance
of any such tender shall not be deemed to be a waiver of the Association's right to demand and
I receive full payment thereafter of all such amounts owed. Collection of delinquent assessments must
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be conducted in accordance with the provisions of California Civil Code Sections 5660, 5705, 5715
and 5720 (or any successor or replacement statutes).
6.10. Creation and Release of Lien.
6.10.1 Creation of Lien; Priority. All sums (other than Special Assessments imposed
I against a particular Owner as a penalty or disciplinary measure for such Owner's failure to comply
with the Restrictions) assessed in accordance with the provisions of this Declaration shall constitute
a lien on the respective Lot 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 or
seniority over all other Mortgages or Deeds of Trust) made in good faith and for value and Recorded
prior to the date on which the "Notice of Lien" (described in this Section) against the respective Lot
was Recorded. Notwithstanding anything herein which is or appears to be to the contrary, any
assessment lien provided for hereunder shall be prior and superior to any declaration of homestead
I Recorded after the Recordation of this Declaration.
6.10.2 Prior to Recordation of Notice of Lien. Prior to the Recordation of a Notice of
I Lien against a Lot, the Association must comply with the requirements of California Civil Code
Section 5660 (or any successor or replacement statute), including, without limitation, the following
requirements:
I At least thirty (30) days prior to recording a Notice of Lien, the
Association shall notify the Owner of such Lot in writing by certified
I mail of the following: (i) a general description of the collection and
lien enforcement procedures of the Association and the method of
calculation of the amount, (ii) a statement that the Owner has the
I right to inspect the Association records, pursuant to Section 5205 of
the California Civil Code, and the following statement in 14-point
boldface type, if printed, or in capital letters, if typed: "IMPORTANT
I NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN
FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
ASSESSMENTS, IT MAY BE SOLD WITHOUT COURT
I ACTION;" (iii) an itemized statement of the charges owed by such
Owner, including items which indicate the principal owed, the fees
and reasonable cost of collection, any late charges, any interests, and
I any reasonable attorneys' fees, (iv) a statement that the Owner shall
not be liable to pay the charges, interest, and costs of collection, if it
is determined the assessment was paid on time to the Association;
I (v) notify the Owner of the right to request a meeting with the Board
as provided by California Civil Code Section 5665; (vi) notify the
Owner of the Owner's right to dispute such charges by written ' request for a dispute resolution pursuant to a meet and confer
program as set forth in California Civil Code Sections 5900 - 5920;
(vii) notify the Owner of the Owner's right to request for alternative
I dispute resolution with a neutral third party pursuant to California
Civil Code Sections 5925 - 5965 before the Association may initiate
I Donna Drive CC&Rs (v2) 39
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I any foreclosure proceeding against the Owner's Lot, except that
binding arbitration shall not be available if the Association intends to
I initiate a judicial foreclosure.
A defaulting Owner may submit a written request to meet with the Board to discuss a payment plan
for the debt noticed and the Board shall meet with the Owner in executive session in accordance with
the requirements of California Civil Code § 5663 (or any successor or replacement statute). Any
payment toward the charges itemized shall be first applied to the principal owed, and only after the
principal owed is paid in full shall such payments be applied to interest, late charges or collection
I expenses. The decision to record a Notice of Lien shall be made by the Board in an open meeting
and shall not be delegated to any agent of the Association. The Board shall approve the decision by
a majority vote of the board members in an open meeting and record the vote in the minutes of that
I meeting.
6.10.3 Notice of Lien. The lien shall become effective upon Recordation by the
I Board or its authorized agent of a notice of delinquent assessment ("Notice of Lien") concerning
delinquent payment of any Annual, Capital Improvement or Reconstruction Assessment or
installment thereof, levied by the Association against any Lot Owner, as provided in § 5675 of the ' California Civil Code. The Notice of Lien shall state (i) the amount of the assessment or installment,
as the case may be, and other authorized charges and interest, including the cost of preparing and
Recording the Notice of Lien, (ii) the expenses of collection in connection with any delinquent
I installments, including without limitation reasonable attorneys' fees, (iii) a legal description of the
Lot against which the same has been assessed, (iv) the name and address of the Owner against which
the lien is imposed, and (v) if applicable, in order for the lien to be enforced by nonjudicial
I foreclosure, the name and address of the trustee authorized by the Association to enforce the lien by
nonjudicial foreclosure sale. The Notice of Lien shall be signed by the President, Vice President or
Secretary of the Association and shall be mailed no later than ten (10) calendar days after
I Recordation, in the manner set forth in § 2924b of the California Civil Code, to all record Owners of
the applicable Lot against which the Notice of Lien was recorded. The lien shall relate only to the
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individual Lot against which the assessment was levied and not to the Property as a whole.
6.10.4 Release. Within twenty-one (21) days of the payment to the Association of
the full amount claimed in the Notice of Lien, or other satisfaction thereof, the Board of Directors
I shall cause to be Recorded a notice of satisfaction and release of lien ("Notice of Release") stating
the satisfaction and release of the amount claimed. The Board of Directors may demand and receive
from the applicable Owner a reasonable charge for the preparation and Recordation of the Notice of
I Release before Recording it. Any purchaser or encumbrancer that has acted in good faith and
extended value may rely upon the Notice of Release as conclusive evidence of the full satisfaction of
the sums stated in the Notice of Lien.
I 6.11. Enforcement of Liens. Prior to enforcement of any lien, the Association shall offer the
Owner and, if so requested by such Owner, shall participate in dispute resolution pursuant to a "meet
I and confer" program as set forth in California Civil Code §§ 5900 - 5920 or alternative dispute
resolution with a neutral third party pursuant to California Civil Code § § 5925 - 5965. The decision
to pursue dispute resolution or a particular type of alternative dispute resolution shall be the choice
I of the Owner, except that binding arbitration shall not be available if the Association intends to
initiate a judicial foreclosure. After the expiration of thirty (30) days following Recordation of the
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I Notice of Lien, the Board of Directors may enforce any assessment lien provided for in Section 5.8,
hereinabove, which is in excess of One Thousand Eight Hundred Dollars ($1,800.00) (not including
I . any accelerated assessments, late charges, fees and costs of collection, attorney's fees, or interest), or
more than twelve (12) months delinquent, (i) by filing an action for judicial foreclosure or (ii) by
instituting a nonjudicial foreclosure by the trustee named in the Notice of Lien or by a trustee
I substituted pursuant to California Civil Code § 2934a, by recording a notice of default in the form
described in California Civil Code § 2924c(b)(1) to commence a nonjudicial foreclosure sale. A
nonjudicial foreclosure sale shall be conducted in accordance with requirements of California Civil
I Code §§ 2924, 2924b, 2924c, 2924f, 2924g, and 2924h applicable to the exercise of powers of sale
in mortgages and deeds of trust, or in any manner permitted by law. The decision to initiate
foreclosure of a lien for delinquent assessments that has been validly Recorded shall be made only
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by the Board and may not be delegated to an agent of the Association. The Board shall approve the
decision by a majority vote of the Board members in an executive session. The Board shall record
the vote in the minutes of the next meeting of the Board open to all Members. The Board shall
I maintain the confidentiality of the defaulting Owner(s) by identifying the matter in the minutes by
the Lot or Dwelling number, rather than the name of the Owner(s). A Board vote to approve
foreclosure of a lien shall take place at least thirty (30) days prior to any public sale. If the Board
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votes to foreclose upon the Lot, the Board shall provide notice by personal service in accordance
with the manner of service of summons in accordance with California Code of Civil Procedure
§ 415.10 to the defaulting Owner who occupies the Dwelling or to such Owner's legal
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representative. The Board shall provide written notice to a defaulting Owner who does not occupy
the Dwelling by first-class mail, postage prepaid, at the most current address shown on the books of
the Association. The Association, through its agents, shall have the power to bid on the Lot at
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foreclosure sale, and to acquire and hold, lease, mortgage and convey the same. Upon completion of
the foreclosure sale, an action may be brought by the Association or the purchaser at the sale in order
to secure occupancy of the defaulting Owner's Lot, and the defaulting Owner shall be required to
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pay the reasonable rental value for such Lot during any period of continued occupancy by the
defaulting Owner or any persons claiming under the defaulting Owner. Suit to recover a money
judgment for unpaid assessments shall be maintainable without foreclosing or waiving any lien
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securing the same, but this provision or any institution of suit to recover a money judgment shall not
constitute an affirmation of the adequacy of money damages. Any recovery resulting from a suit at
law or in equity initiated pursuant to this Section shall include reasonable attorneys' fees as fixed by
the court. Notwithstanding any provision in the law or in this Declaration to the contrary, a
I nonjudicial foreclosure by the Association to collect upon a debt for delinquent assessments shall be
subject to the right of redemption, as provided in California Civil Code § 5715(b), which right shall
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run for a period of ninety (90) days after the sale.
6.12. Subordination of Assessment Lien to First Mortgages. The lien of the Assessments,
including interest and costs of collection (including attorneys' fees), provided for herein shall be
I subordinate to the lien of any first Mortgage of record (meaning any Recorded Mortgage or Deed of
Trust) upon any Lot made in good faith and for value and Recorded prior to the date on which the
lien became effective. Sale or transfer of any Lot shall not affect the assessment lien. However, the
I sale or transfer of any Lot pursuant to judicial or nonjudicial foreclosure of a first Mortgage with
priority over the Assessment lien shall extinguish the lien of such assessments as to payments which
became due prior to such sale or transfer. No sale or transfer shall relieve such Lot from liens for
l any Assessments thereafter becoming due. When the Mortgagee of a first Mortgage of record with
priority over the Assessment lien or other purchaser of a Lot obtains title pursuant to a judicial or
I Donna Drive CC&Rs (v2) . 41
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I nonjudicial foreclosure of that first Mortgage, such acquirer of title, his or her successors and
assigns, shall not be liable for the share of the Common Expenses or assessments by the Association
I chargeable to such Lot which became due prior to the acquisition of title to such Lot by such
acquirer; provided, however, that all such unpaid share of Common Expenses or assessments shall
be deemed to be Common Expenses thereafter collectible from all of the Owners of Lots in the
I Project, including such acquirer of title, and his or her successors and assigns.
ARTICLE Yll ' PROJECT EASEMENTS AND RIGHTS OF ENTRY
7.1. Access: Parking. Declarant expressly reserves for the benefit of and grants to the
Association and the Owners reciprocal, nonexclusive easements for access, ingress and egress over
1 all of the Association Property, including any private streets or driveways currently existing in the
Association Property or subsequently added to it, which easements may be conveyed by Declarant to
Owners and to the Association for so long as Declarant owns any interest in the Property. Subject to
the provisions of the Restrictions governing use and enjoyment thereof including, without limitation,
the provisions for restriction of Owner access to the Association Property upon the terms and for the
reasons set forth in Section 4.4 above, the easements may be used by all Owners and their Family,
guests, tenants and invitees residing on or temporarily visiting the Property, for walkways, vehicular
access and such other purposes reasonably necessary for use and enjoyment of a Lot in the Project.
Subject to the provisions of the Restrictions, including, without limitation, Article VII and Section
9.2.4 below and such Rules and Regulations as may from time to time be adopted by the Board, any
parking spaces that may be located within the Association Property shall remain available for the
nonexclusive use of the Owners and their Family, guests, tenants and invitees residing on or
I temporarily visiting the Property.
7.2. Maintenance and Repair. Declarant expressly reserves for the benefit of and grants to
the Association, the Board of Directors, and all agents, officers and employees of the Association,
nonexclusive easements over the Property as necessary to maintain and repair the Association
Property and the Association Maintenance Areas, and to perform all other tasks in accordance with ' the provisions of this Declaration. Such easements over the Property shall be appurtenant to, binding
upon, and shall pass with the title to, every Lot conveyed.
I 7.3. Utility Easements. Declarant expressly reserves for the benefit of the Association the
right of Declarant and Association to grant additional easements andrights-of-way over the Property
to utility companies and public agencies, as necessary, for the proper development, disposal and
I operation of the Property. Such right of Declarant shall expire (i) with respect to any Phase of
Development, upon Close of Escrow for the sale of all Lots in such Phase by Declarant, or (ii) with
respect to all Phases, upon expiration of seven (7) years from the date of original issuance by the
I BRE of the Final Subdivision Public Report for Phase 1.
7.4. Association Maintenance Areas Easements. Declarant expressly reserves for the
I benefit of the Association, and hereby grants to the Association nonexclusive easements over the
Association Maintenance Areas depicted on Exhibit "B" attached hereto, as necessary or appropriate
to maintain landscaping, fencing, gates and other Improvements located within the Association
I Maintenance Areas, and to perform all other tasks required of the Association on those Association
Maintenance Areas in accordance with the provisions of this Declaration. Such easements over the
Donna Drive CC&Rs (v2) 42
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Association Maintenance Areas shall be binding upon each Lot and the Owners thereof and the title
of each Owner to his or her Lot shall be subject thereto. An Owner whose Lot includes Association
Maintenance Areas shall not do or allow anything to be done which would conflict or interfere in
any way with the Association's maintenance of the Association Maintenance Areas, including,
without limitation, installing any landscaping or erecting any Improvement or barrier over, across or
upon the Association Maintenance Areas.
7.5. Support and Encroachments. Declarant, the Association and Owners of contiguous
Lots shall have a reciprocal easement appurtenant to each of the Lots over the adjacent Lots and the
Association Property for the purpose of (1) lateral and sub-adjacent support, (2) accommodating any
existing encroachment of any wall or any Improvement (including, without limitation, utility
equipment and other structural appurtenances) resulting from the original construction by Declarant,
and (3) maintaining the same and accommodating authorized construction, reconstruction, repair,
shifting, movement or natural settling of the Improvements or any other portion of the Project
housing their respective Lots. Easements and reciprocal negative easements for utility services and
repairs, replacement and maintenance of the same over all of the Association Property are
specifically reserved for the benefit of the Owners. Declarant expressly reserves for the benefit of
the Association Property, and for the benefit of the Owners and the Association, reciprocal
nonexclusive easements for drainage of water resulting from the normal use of adjoining Lots or
Association Property over, across and upon each of the Lots and the Association Property. The
foregoing easements shall not unreasonably interfere with each Owner's use and enjoyment of his or
her Lot. No portion of the Association Property, including, without limitation, parking areas and
other amenities contemplated as a part of the Property, are proposed to be leased by Declarant to the
Owners or to the Association.
7.6. Associationperty in Other Phases of Development. Declarant hereby reserves to
itself and to the Owners of Lots in subsequently annexed Phases, nonexclusive easements for ingress
and egress over the Association Property of previously annexed Phases. Declarant further reserves
to itself and the Owners of Lots in each Phase of Development, nonexclusive easements for ingress
and egress over the Association Property of subsequently annexed Phases upon annexation thereof
I pursuant to Section 17.4. All Owners shall have ingress and egress to all portions of the Association
Property throughout the Project, subject to the provisions of this Declaration, the Bylaws of the
Association and to the Rules and Regulations of the Association in effect from time to time, and
I Assessments collected from Owners may be expended by the Association without regard to the
particular Phase from which such Assessments came.
I 7.7. Declarant's Rights. Declarant expressly reserves for its benefit the right and
easement for access, ingress and egress on and over the Project to complete any Improvement which
Declarant deems necessary or desirable to implementation of the Declarant' s development plan for
I the Project and to install and maintain such structures, displays, advertising signs, billboards, flags,
sales offices, model homes, interior design and decorator centers, and parking areas for employees,
agents, and prospective buyers as miy be reasonably necessary or convenient for the proper
l development and disposition of the Lots located within the Project by sale, resale, lease or otherwise,
including, without limitation, operation of a sales office. Declarant further reserves for its benefit
the right and easement for access over the Property for construction equipment, access over and
I through the Project for purposes of equipment, material and construction staging, and access over
and through the Project by all contractors, subcontractors, employees and other personnel used in
Donna Drive CC&Rs (v2) 43
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I connection with the planning, design, excavation, construction and other improvement work
necessary to development of the Project. Declarant further expressly reserves for its benefit the right
I to hereafter create and convey such easements, covenants, conditions, restrictions, and licenses
against, over, on, above or below the Project and the Property as necessary or helpful to facilitate
the design, engineering, processing, approval, financing, development, construction and maintenance
I of the Project and the Property, including, without limitation, easements, covenants, conditions,
restrictions, and licenses reasonably necessary to meet set-back, open space, access, fire safety, or
other zoning or planning requirements or policies. This Declaration cannot be amended to modify or
eliminate the easements reserved to Declarant by this Section without prior written consent of
I Declarant, and any attempt to do so shall have no effect.
7.8. Cable Television. Declarant hereby reserves the right to install or have installed a
I Cable System as defined below. The Cable System, if and when installed, shall be maintained by a
cable television franchisee. To the extent required to effectuate the foregoing plan, Declarant
reserves the right to grant nonexclusive easements over the Property as necessary to provide cable
I television services to Owners, including easements for access, ingress and egress for installation,
maintenance and removal of antennae, head end equipment, cable amplifier, line splitting devices,
coaxial cable, amplifier housing and all facilities related thereto (collectively, "Cable System"), as
I well as for the solicitation of sales, marketing, disconnection of service and subscriber equipment
retrieval. Each Lot and the Association Property shall be subject to an easement in favor of all other
Lots and in favor of the entity holding the right to provide cable television service to the Project, to
provide for the passage through the Lots and the Association Property of television connections from
any other Lot to the Cable System, and shall be subject to further easement for the placement and
maintenance of such connections
7.9. Rights of Entry. The Board of Directors shall have a limited right of entry in and upon
the Association Property and the space comprising the Lots for the purpose of inspecting the Project,
and taking whatever corrective or maintenance action may be deemed necessary or proper by the
Board of Directors, consistent with the provisions of this Declaration, including, without limitation,
assuring that the Lots and any slope landscaping and drainage areas thereon are maintained in
accordance with all applicable legal requirements and any original landscaping and drainage plan
which may have been installed by Declarant and assuring that any Association Maintained
Walls/Fences is properly maintained, repaired and, if necessary, replaced. However, such entry
upon a Lot or the interior of a Dwelling thereon shall be made, except to effect emergency repairs or
other emergency measures or in the normal course of maintaining the Association Maintenance
Areas or the Association Maintained Walls/Fences, only after three (3) days prior written notice to
the Owner of such Lot. Nothing herein shall be construed to impose any obligation upon the
Association to maintain or repair any property or Improvements required to be maintained or
repaired by the Owners. Nothing in this Article VI shall in any manner limit the right of the Owner
to exclusive occupancy and control over his or her Lot or the interior of his or her Dwelling.
However, an Owner shall permit a right of entry to the Board of Directors or any other person
authorized by the Board of Directors, as reasonably necessary, such as in case of any emergency
originating in or threatening his or her Lot or the Dwelling thereon, whether the Owner is present or
not. Any damage caused to a Lot or Dwelling by such entry by the Board of Directors or by any
person authorized by the Board of Directors shall be repaired by the Association as a Common
Expense of the Association.
Donna Drive CC&Rs (v2) 44
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7.10. Access Easements for Annexable Territory. If any portion of the Annexable Territory
is not annexed to this Project pursuant to the provisiOns of this Declaration, and that portion of the
Annexable Territory requires ingress and egress access over private streets located within the Project
and/or access to and use of common utilities within the Project, easements shall exist and are hereby
reserved in favor of the owners of that portion of the Annexable Territory for reasonable vehicular
and pedestrian traffic and reasonable use of the common utilities for residential development;
provided, that, in that event, the properties benefitted by that easement, and the owners thereof, shall
be obligated to pay their equitable share of the cost of maintenance and repair of said private streets
and utilities, and, as a condition to the effectiveness of such easements, the properties benefitted, and
the owners thereof shall be subjected to Recorded covenants obligating them to pay annual and
special assessments for the costs of maintenance and repair of said streets. In the event of any
disagreement as to the reasonableness of said annual and/or special assessments, or the division
thereof, the matter shall be submitted to a neutral arbitrator approved by the Board and the
representative of the owners benefitted by such easements or, in the absence of agreement on such
arbitrator, by a judicial reference action pursuant to Code of Civil Procedure Sections 638-645.1 or
any successor statutes thereto.
7.11. Easements for Duet Dwellings.
7.11 .1 Encroachment. Declarant expressly reserves for the benefit of and grants to
each Owner of a Lot on which a Duet Dwelling is constructed, appurtenant easements over, under,
upon and across the Lot that contains the adjoining Duet Dwelling for the following purposes: (a)
accommodating any roof eave, decorative trim or similar Improvement that serves the benefited
Owner's Duet Dwelling, was installed as part of the original construction and extends within the Lot
on which the adjoining Duet Dwelling is located; and (b) accommodating any encroachments due to
engineering errors, errors in original construction, settlement or shifting of any building, or any other
cause. There shall be valid easements for the maintenance of such Improvements and encroachments
as long as they shall exist and the rights and obligations of the Owners shall not be altered in any
way by such encroachments, settlement or shifting; provided, however, that an easement is not
reserved hereby for accommodating any Improvement or encroachment which may occur due to the
willful misconduct of the other Owner. Each Owner of a Duet Dwelling agrees that in the event any
portion of a Duet Dwelling is partially or totally destroyed and then repaired or rebuilt, unintentional
minor encroachments affecting the Lot on which the adjoining Duet Dwelling is located shall be
permitted and there shall be a valid easement for the maintenance of such encroachments so long as
they shall exist.
U 7.11.2 Maintenance, Repair and Reconstruction. Declarant expressly reserves for the
benefit of and grants to the Owner of each Lot on which a Duet Dwelling is constructed, appurtenant
easements over, under, upon and across the adjoining Lot for purposes of providing support of the
Shared Improvements and for access, only to the extent reasonably necessary, for maintenance,
repair, painting and reconstruction of the Owner's Duet Dwelling, including any Shared
Improvements.
7.11.3 Drainage. Declarant expressly reserves for the benefit of and grants to the
Owner of each Lot on which a Duet Dwelling is constructed, the following easements:
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Donna Drive CC&Rs (v2) 45
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(a) An appurtenant easement over the adjoining Duet Dwelling for the
flow of water across and along the roof and gutters of such Residence.
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(b) An appurtenant easement over, upon and across the adjoining Lot for
the flow of water resulting from modifications of the Shared Roof Improvements to an independent
roof system (i.e., if one of the Duet Dwellings is not reconstructed and the portion of the roof on the
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remaining Residence is modified in accordance with Section 3.4.8(f)), which easement shall become
effective upon destruction of one of the Duet Dwellings and a determination that such Dwelling will
not be reconstructed. This easement shall cease upon the reconstruction of the destroyed Duet
Dwelling.
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7.12. Cross-Lot Access Easements.
7.12.1 Maintenance Pathways. Declarant expressly reserves for the benefit of and
grants to the Owner of each Lot identified on Exhibit "E" as a "Benefited Lot" a nonexclusive
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appurtenant easement for access on, over, under, along and across the Maintenance Pathway that
adjoins the Benefited Lot ("Burdened Lot") for purposes maintaining the Benefited Lot and
Dwelling thereon. The Owner of each Benefited Lot shall indemnify and hold harmless the Owner
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of the respective Burdened Lot, and his or her successors and assigns, from and against all claims,
expenses, liabilities, loss, damage, and costs, including without limitation any actions or proceedings
in connection therewith, reasonable attorneys' fees and costs of enforcing this indemnity, incurred in
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connection with, arising from, or attributable to the use of the easements granted in this Section
7.12.1 by the Owner of the Benefited Lot or his or her Invitees ("Claims"). This indemnity does not
include any Claims to the extent they arise out of the acts or omissions of the Owner of the Burdened
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Lot.
7.12.2 Walkway Easement Area. Declarant expressly reserves for the benefit of and
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grants to the Owner of Lot of CARLSBAD TRACT NO. 04-14(A), 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, _____, a nonexclusive appurtenant
I easement for ingress, egress and access on, over, under, along and across the Walkway Easement
Area for purposes of providing access to Lot - and the Dwelling and other Improvements located
thereon. The Owner of Lot shall indemnify and hold harmless the Owner of Lot , and his or
I her successors and assigns, from and against all claims, expenses, liabilities, loss, damage, and
costs, including without limitation any actions or proceedings in connection therewith, reasonable
attorneys' fees and costs of enforcing this indemnity, incurred in connection with, arising from, or
I attributable to the use of the easements granted in this Section 7.12.2 by the Owner of Lot - or his
or her Invitees ("Claims"). This indemnity does not include any Claims to the extent they arise out of
the acts or omissions of the Owner of Lot
I 7.13. City Easement. The City shall have an easement over the Association Property and
any Association Maintenance Area for maintenance purposes, which easement may be exercised
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upon the failure of the Association to maintain the Association Property or any Association
Maintenance Area in accordance with Section 3.2.
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I Donna Drive CC&Rs (v2) 46
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ARTICLE VIII
DECLARANT'S RIGHTS AND RESERVATIONS
I 8.1. Development Rights. Nothing in the Restrictions shall limit, and neither any Owner
nor the Association shall do anything to interfere with, the right of Declarant to subdivide or
resubdivide any portion of the Property, or to complete Improvements to and on the Association
I Property or any portion of the Property owned solely or partially by Declarant, or to alter the
foregoing or its construction plans and designs, or to construct such additional Improvements as
Declarant deems advisable in the course of development of the Property so long as any Lot in the
I Project remains unsold; provided, that an alteration of Declarant's construction plans shall require
prior approval of VA and FHA if such alteration is inconsistent with the general plan of development
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approved by VA and FHA.
8.2. Marketing Rights. The rights of Declarant hereunder shall include, but shall not be
limited to, the exclusive right to install, maintain, locate, relocate and reconfigure such structures,
I displays, signs, billboards, flags, sales offices, model homes, interior design and decorator centers,
and parking areas for employees, agents, and prospective buyers as may be reasonably necessary or
convenient in Declarant's judgment for the proper development and disposition of the Lots located
I within the Project by sale, resale, lease or otherwise, and the right to use any portion of the Project
necessary to provide ongoing maintenance, operation, service, construction, punch-out, and repairs
to individual Lots. Declarant shall have the right to use any portion of the Project necessary to
I provide ongoing maintenance, operation, service, construction, punch-out, and repairs to individual
Lots, and Association Property. Notwithstanding anything in the Restrictions which is or appears to
be to the contrary, Declarant may use any Lots owned by Declarant in the Project, or portions of the
I Association Property as model homes and/or real estate sales or leasing offices; provided that use of
such office shall be limited to construction of the Project and/or sales, resales and leasing of the Lots
located on the Property.
1 8.3. Architectural Review Exemption. Declarant need not seek or obtain Architectural
Committee approval of any Improvement constructed, reconstructed, modified or placed by
I Declarant on any portion of the Property by Declarant, or seek or obtain Architectural Committee
approval of the construction upon the Annexable Territory, or a portion thereof, of a project(s) of a
type different than the Improvements previously constructed by Declarant upon the Property, or the
I annexation of all or a portion of the Annexable Territory containing such other project or projects to
this Declaration pursuant to Article XVI below.
I 8.4. Right to Form Cost Centers. Declarant also reserves the right (but not the obligation),
subject to BRE approval of a revised budget for the Project, to provide for a "split roll" or "cost
center" dues structure, so that the maintenance costs associated with maintenance of Association
I Property, or identified elements thereof, within separate portions of the Project are segregated and
borne by the Owners of the Lots within those portions of the Project.
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8.5. Use of Association Property. Declarant and its prospective purchasers of Lots shall
be entitled to the nonexclusive use of the Association Property and recreational facilities, if any,
thereon, without further cost for access, ingress, egress, use or enjoyment, in order to show the
Property to those prospective purchasers, to dispose of the Property as provided herein, and to
1 develop and sell the Annexable Territory. Declarant, its successors and tenants, shall also be
I Donna Drive CC&is (v2) 47
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entitled to the nonexclusive use of any portions of the Property which comprise private streets,
drives and walkways for the purpose of ingress, egress and accommodating vehicular and pedestrian
traffic to and from the Property and the Annexable Territory. The use of the Association Property by
Declarant shall not unreasonably interfere with the use thereof by the other Members. Each Owner,
by accepting a deed to a Lot, hereby acknowledges that the activities of Declarant may temporarily
or permanently impair the view of such Owner and may constitute an inconvenience or nuisance to
the Owners, and hereby consents to such impairment, inconvenience or nuisance.
8.6. Rialits to Grant Easements for Utilities and Cable Television. This Declaration shall
not limit the right of Declarant to establish, reserve, and/or grant additional licenses, easements,
reservations and rights-of-way to itself, to utility companies, to cable television companies, or to
others as may from time to time be reasonably necessary for the proper development and disposal of
the Project.
8.7. Actions Requiring Declarant Consent. Notwithstanding any other provisions of this ' Declaration to the contrary, and without limiting Declarant's unilateral rights provided elsewhere in
this Declaration or in the Restrictions, until such time as Owners other than Declarant own at least
ninety percent (90%) of the Lots within the Project, or until the fifth (5th) anniversary of the first
I Close of Escrow for a Lot, whichever occurs first, Declarant's written consent shall be required
before the Association may take any action with respect to the following:
I (a) Reduction in the level of, or change in allocation of responsibility for
maintenance of and repairs to all or any portion of the Association Property subject to this
Declaration, or any other maintenance obligations of the Association set forth in this Declaration;
I (b) Conveyance by the Association of all or any portion of the Association
Property;
I (c) Alteration in the method of fixing and collecting Assessments or any
increases in Assessments beyond the amounts permitted under Article V of this Declaration;
Modification of the enforcement and review procedures of the
Architectural Committee, or any change in the architectural and landscaping design originally
installed by Declarant;
Modification to Improvements on the Association Property or to the
level or frequency of maintenance of the Association Property; or
(1) Alteration in the method of enforcing the provisions of this
Declaration.
8.8. Attorney-in-Fact. Each Owner, by accepting a deed to a Lot, hereby irrevocably
appoints Declarant as his or her attorney-in-fact, for himself or herself and each of his or her
Mortgagees, optionees, grantees, licensees, trustees, receivers, lessees, tenants, judgment creditors,
heirs, legatees, devisees, administrators, executors, legal representatives, successors and assigns,
whether voluntary or involuntary, for a period often (10) years after the close of escrow for the sale
of the last Lot in the Project covered by a Final Subdivision Public Report and hereby grants to
Declarant an irrevocable limited power of attorney coupled with an interest for Declarant to act as
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his or her attorney-in-fact in connection with any modification to the development plans of all or any
portion of the Project. Each Owner hereby acknowledges and agrees that this irrevocable limited
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power of attorney is: (a) retained for the benefit of the Declarant and not the Owner; and (b) created
by Owner's acceptance of a deed to a Lot and as part of the consideration for the purchase and sale
of a Lot. Based on the foregoing, each Owner further acknowledges and agrees that this irrevocable
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limited power of attorney is "coupled with an interest" and, pursuant to Section 2356 of the
California Civil Code, as same may be amended, from time to time, may not be terminated by: (a)
the Owner's revocation of such limited power of attorney; (b) the Owner's death; or (c) the Owner's
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incapacity to contract. In furtherance thereof and subject to the limitations and restrictions set forth
in this Article, Declarant shall have the right and power as a duly authorized attorney-in-fact to
perform any of the following actions:
I (a) To prepare, execute, acknowledge and record any map, lot line
adjustment, certificate of compliance or record of survey affecting the Project;
I (b) To prepare; execute, acknowledge and file for approval any application
for zoning or setback changes or lot line adjustments, or variance or conditional use permits, or any
'
other permits or reports required or permitted by law;
(c) To make applications for any property reports or public reports, or
amendments thereto, or exemption from the requirements therefor required or permitted by federal
I and State statutes, rules and regulations relating to the sale, lease, transfer or other disposition of
subdivided lands;
1 (d) To deliver any public reports or property reports, or amendments
thereto, obtain receipts and offer and administer rescission rights required by law;
I (e) To prepare, execute, acknowledge and file for approval any
registration or application for any permit, approval, exemption, ruling or entitlement, which
registration or application is required or permitted by law;
I (f) To prepare, execute, acknowledge and record any deeds, waivers,
releases, reconveyances or other documentation which may be permitted or required to (i) clear title
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to any constructed or unconstructed Units in the Project, (ii) evidence the modifications made to the
Project pursuant to this Section, or (iii) correct any errors or omissions in any deed or other
instruments; and
I (g) To prepare, execute, acknowledge and record on behalf of the Owners
and the Association any easement over the Association Property and any easement reasonably
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necessary for the development and disposition of Lots within the Project.
8.9. Right to Notice. The Association shall provide Declarant with all notices and other
documents to which a Beneficiary is entitled pursuant to this Declaration, provided that Declarant
I shall be provided such notices and other documents without making written request therefor.
8.10. Rithts of Access. Inspection. Notice and Attendance. In addition to Declarant's
I rights as an Owner and a Member, Declarant shall have the following rights: (1) access to and the
right to inspect the Association books and financial records; (2) access to and the right to inspect the
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I Association's maintenance records; (3) access to and the right to inspect the Association Property;
(4) right to receive notice of, attend and speak at all meetings of the Members; and (5) right to
receive copies of the minutes of the meetings of the Board of Directors and meetings of the
I Members, upon request and payment of the actual costs to copy and distribute such records.
8.11. Power of Attorney. Each Owner, with the exception of the VA, hereby grants, upon
I acceptance of his or her deed to his or her Lot, an irrevocable, special power of attorney to Declarant
to execute and Record all documents and maps necessary to allow Declarant to exercise its rights
I under this Article.
8.12. Right to Assign. Declarant shall have the right to assign any or all of its rights and
obligations in this Declaration to any successor in interest by a written assignment. Notwithstanding
any other provision of this Declaration to the contrary, the prior written approval of Declarant, which
may be granted or withheld in its sole discretion, will be required before any amendment to this
Article VII shall be effective. The foregoing rights established and reserved by Declarant shall be
I subject only to the applicable regulations and requirements of the BRE and the city or county in
which the Project is located.
' ARTICLE IX
DWELLING AND USE RESTRICTIONS
I All of the Property shall be held, used and enjoyed subject to the following limitations and restrictions, subject to the exemptions of Declarant set forth in this Declaration.
' 9.1. Single Family Dwellings. Each Dwelling shall be used exclusively for single Family
residential purposes, subject to the exemption granted Declarant under Article VII of this
Declaration. An Owner may rent or lease his or her Lot to a single Family pursuant to the Leasing
I Provisions set forth herein.
9. 1.1 Leasing Provisions. The following provisions shall govern leasing of Lots:
I (a) General. Lots may be leased only in their entirety pursuant to a single
lease agreement with only a single Family as the permitted occupant. All leases must be in writing
I and for an initial term of not less than thirty (30) days, except with Board approval. Within seven (7)
days after executing a lease agreement for the lease of a Lot, the Lot Owner shall provide the Board
with a copy of the lease and the name of the lessee and all other people occupying the Lot. The
I Owner must provide the lessee with copies of the Declaration, Bylaws, and Rules and Regulations.
(b) Compliance with Restrictions and Liability for Assessments. Each
Owner and each lessee, by occupancy of a Lot, covenants and agrees that any lease for a Lot shall
I contain the following provisions and agrees that if such provisions are not expressly contained
therein, then such provisions shall be. deemed incorporated into the lease by existence of this
I covenant on the Lot:
(i) Compliance with Declaration, Bylaws, and Rules and
Regulations. The lessee shall comply with all provisions of the Restrictions and shall control
I the conduct of all other occupants and guests of the leased Lot in order to ensure compliance
with the foregoing. The Owner shall cause all occupants and guests of his or her Lot to
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I comply with the Restrictions and shall be responsible for all violations by such occupants,
notwithstanding the fact that such occupants and guests are fully liable and may be
I separately sanctioned for any such violation. Unpaid fines shall, at the election of the Board,
be recorded as a lien against the Lot, provided any such lien shall not be subject to non-
judicial foreclosure under California Civil Code Sections 2924a, 2924b and 2924c
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Violation of Restrictions. Any violation of the Restrictions by
the lessee, any occupant, or any guest of lessee, shall be deemed a default under the terms of
I the lease and shall authorize the Owner to terminate the lease without liability and to evict
the lessee in accordance with California law. The Owner hereby delegates and assigns to the
Association, acting through the Board, the power and authority of enforcement against the
I lessee for breaches resulting from such violations, including the power and authority to evict
the lessee as attorney-in-fact on behalf and for the benefit of the Owner, in accordance with
the terms hereof. if the Association proceeds to evict the lessee, any costs, including
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attorney's fees and court costs, associated with the eviction shall be a Special Assessment
and lien against the Lot.
Liability for Assessments. When a Lot Owner who is leasing
I his or her Lot fails to pay any Annual Assessment or other Assessment or any other charge to
be paid by the Owner to the Association pursuant to this Declaration for a period of more
than thirty (30) days after it is due and payable, then the delinquent Owner hereby consents
I to the assignment of any rent received from the lessee during the period of delinquency, and,
upon request by the Board, lessee shall pay to the Association all such rent until all unpaid
amounts owned by the Owner to the Association have been paid in full. All such payments
I made by lessee shall reduce, by the same amount, lessee's obligation to make monthly rental
payments to lessor. The above provision shall not be construed to release the Owner from
any obligation, including the obligation for Assessments, for which he or she would
I otherwise be responsible.
9.1.2 Inannlicabilitv to Declarant and Holders of First Mortuanes. Section 9.1.1
I shall not apply to any leasing transaction entered into by Declarant, or by the holder of any first
Mortgage on a Lot who becomes the Owner of a Lot through foreclosure or any other means
I
pursuant to the satisfaction of the indebtedness secured by such Mortgage.
9.2. Parking and Vehicular Restrictions.
' 9.2.1 Authorized Vehicles. The following vehicles are Authorized Vehicles:
motorized land vehicles designed and used primarily for non-commercial passenger transport, such
as automobiles, passenger vans designed to accommodate ten (10) or fewer people, two-wheel
I motorcycles, and pick-up trucks having a manufacturer's rating or payload capacity of one (1) ton or
less. Subject to Section 9.2.3 below, Authorized Vehicles may be parked in any portion of the
Property intended for parking of motorized vehicles. The parking areas of the Property shall be used
for parking Authorized Vehicles only and shall not be used for storage, living, recreational or
business purposes.
9.2.2 Prohibited Vehicles. The following vehicles are Prohibited Vehicles:
recreational vehicles (e.g., motorhomes, travel trailers, camper vans, boats, etc.), commercial-type
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1 vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step vans, concrete trucks, etc.), buses or
vans designed to accommodate more than ten (10) people, vehicles having more than two (2) axles,
I trailers, inoperable vehicles or parts of vehicles, aircraft, other similar vehicles or any vehicle or
vehicular equipment deemed a nuisance by the Board. Prohibited Vehicles may only be parked
(i) within an Owner's fully-enclosed garage with the door closed so long as their presence on the
I Property does not otherwise violate the provisions of this Declaration, and (ii) so long as their
presence on the Property does not otherwise violate the provisions of this Declaration, recreational
vehicles may also be parked adjacent to an Owner's Dwelling so long as such recreational vehicles
are shielded from view from any public street within, adjacent to, or visible from the Property by a
I screen or fence meeting the approval of the Committee.
9.2.3 General Restrictions. All Authorized Vehicles owned or operated by or
within the control of an Owner or a resident of an Owner's Lot and kept within the Property shall be
parked in the assigned garage of that Owner to the extent of the space available therein, or on the
driveway within such Owner's Lot if no garage space remains available; provided, that each Owner
shall maintain his or her garage in a manner which ensures that it is capable of accommodating at
least two standard parking spaces. Recreational vehicles may be parked within the Project as
provided in Section 9.2.2 above. There shall be no parking in the driveways, if to do so obstructs
free traffic flow, constitutes a nuisance, violates the Rules and Regulations, or otherwise creates a
safety hazard. No repair, maintenance or restoration of any vehicle shall be conducted on the
Property except within an enclosed garage when the garage door is closed, provided such activity is
not undertaken as a business, and provided that such activity may be prohibited entirely by the Board
if the Board determines that it constitutes a nuisance.
I 9.2.4 Parking Regulations. The Board may establish additional regulations as it
deems appropriate in its sole discretion with regard to any of the parking areas not assigned to
individual Lots, including, without limitation, designating "parking," "guest parking" and "no ' parking" areas thereon. In any event, no parking shall be permitted in any fire lanes located in the
Project. Any parking areas established on the Association Property shall be subject to such further
reasonable control and use limitations as the Board of Directors may establish. The Board shall
I determine, in its discretion, whether there is a violation of the parking and vehicular restrictions set
forth in this Declaration or established by the Board, and, if such noncompliance is determined by
the Board to exist, the Board shall have the power to enforce all parking and vehicle use regulations
I applicable to the Property, including the power to remove violating vehicles from any of the
Property pursuant to California Vehicle Code Section 22658.2 or other applicable statute.
I 9.3. Nuisances. No noxious or offensive activities (including but not limited to the repair
of motor vehicles) shall be carried on upon the Property or on any public street abutting or visible
from the Property. No horns, whistles, bells or other sound devices, except security devices used
I exclusively to protect the security of a Dwelling and its contents, shall be placed or used in any Lot.
No loud noises, noxious odors, noisy or smoky vehicles, large power equipment or large power tools
(excluding lawn mowers and other equipment utilized in connection with ordinary landscape
I maintenance), unlicensed off-road motor vehicles or items which may unreasonably interfere with
television or radio reception of any Owner in the Project, shall be located, used or placed on any
portion of the Property or on any public street abutting or visible from the Property, or exposed to
1 .the view of other Owners without the prior written approval of the Architectural Committee. The
Board of Directors of the Association shall have the right to determine if any noise, odor, or activity
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I producing such noise or odor constitutes a nuisance. No Owner shall permit or cause anything to be
done or kept upon the Property or on any public street abutting or visible from the Property which
I may increase the rate of insurance on Lots or on the Property, or result in the cancellation of such
insurance, or which will obstruct or interfere with the rights of other Owners. No Person shall
commit or permit any nuisance on the Property. Each Owner shall comply with all of the
I requirements of the local or state health authorities and with all other governmental authorities with
respect to the occupancy and use of a Dwelling. Each Owner shall be accountable to the Association
and other Owners for the conduct and behavior of children and any other Family members or
I persons residing in or visiting his or her Lot. Any damage to the Association Property, personal
property of the Association, or property of another Owner, caused by such children, Family members
or other persons, shall be repaired at the sole expense of the Owner of the Lot where such children,
I Family members or other persons are residing or visiting.
9.4. Signs. Subject to California Civil Code §712, 713 and 4710 (or any applicable ' successor statute), no signs shall be displayed to the public view on any Lot or Dwelling or on any
other portion of the Project, except non-commercial signs may be displayed within a Lot or Dwelling
that are approved by the Board or a committee appointed by the Board, that conform to the Rules
I and Regulations regarding signs, and that conform to the requirements of State law, and applicable
local ordinances. "For Sale" or "For Rent" or "For Exchange" signs shall be allowed to be displayed
within areas of the Project that are designated in the Rules and Regulations regarding such signs, and
I that conform to the requirements of State law, and applicable local ordinances, provided the design,
dimensions and locations are reasonable. An Owner or his or her agent may display one (1) such
"For Sale" or "For Rent" or "For Exchange" sign within his or her Lot and one (1) sign in the
I Association Property advertising directions to the Owner's Lot which is for sale, rent, or exchange,
provided the design, dimensions and locations are reasonable and comply with the Rules and
Regulations regarding signs, and comply with the requirements of State law, and applicable local
I ordinances. These restrictions on display of signs apply to signs that are visible from the exterior of
a Lot or Dwelling, and are not intended to restrict signs that may be seen only from within the Lot or
Dwelling in which the sign(s) is displayed. This Section shall not apply to any signs used by
I Declarant or its agents in connection with the sale of Lots or the construction or alteration of the Lots
or Association Property, traffic and visitor parking signs installed by Declarant, and traffic and
parking control signs installed with the consent of the Board. Notwithstanding the foregoing,
I nothing contained in this Section shall be construed in such manner as to permit the maintenance of
any sign which is not in conformance with any ordinance of the city or county in which the Property
is located.
9.5. Antenna. No radio station, satellite or shortwave operators of any kind shall operate
from any Lot or any other portion of the Property unless approved by the Architectural Committee.
With the exception of any master antenna maintained by the Association or any cable system
mainta
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by applicable cable franchisee, no exterior radio antenna, "C.B." antenna, television
antenna, receiving station, satellite dish or other antenna of any type (collectively, "Signal Reception
Device") shall be erected or maintained anywhere in the Property, without the approval of the
Architectural Committee. In considering whether to approve any such application for installation of
a Signal Reception Device and what conditions, if any, to impose thereon, the Committee may
consider any clearly defined safety objective, the impact of any such Signal Reception Device upon
Project aesthetics and uniformity of appearance, and any potential structural damage arising from
such Signal Reception Device, provided that any restriction imposed by the Committee shall be
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I reasonable, as required by California Civil Code Section 4725 and rules and regulations promulgated
by the Federal Communications Commission pursuant Section 207 of the Telecommunications Act
I of 1996 (collectively, the "Antenna Statutes"). In no event shall the Committee impose any
requirement in violation of the Antenna Statutes that would unreasonably delay or prevent
installation, maintenance or use of such Signal Reception Device, unreasonably increase the cost of
I installation, maintenance or use, or prevent reception of an acceptable quality signal. In reviewing
an application for approval to install a Signal Reception Device, the Committee shall apply the same
standards, criteria and guidelines to such application as applicable to any other proposed exterior
I improvement to any Lot and shall not impose any differential or discriminatory requirements
applicable only to a proposed Signal Reception Device. In granting approval of the installation of
any such Signal Reception Device, the Architectural Committee may further condition such approval
I upon compliance with any reasonable restrictions authorized by Antenna Statutes, including, without
limitation, provisions concerning the maintenance, repair, or replacement of roofs or other Dwelling
components and requirements for the installing Owner to indemnify the Association and its
I Members for loss or damage caused by the installation, maintenance, or use of those Improvements.
9.6. Inside and Outside Installations. No outside installation of any type, including but
not limited to, clotheslines, shall be constructed, erected or maintained on any Lot, excepting
I antenna installed by Declarant as a part of the initial construction of the Property and except as may
be installed by, or with the prior consent of the Architectural Committee. No balcony, patio or deck
covers or enclosures (with the exception of open, unenclosed patio covers located a minimum of 10
feet from the rear property line or fence and open, unenclosed balcony covers of any type located a
minimum of 12 feet from the rear property line which are permitted), wiring, air conditioning, water
softeners, or other machines shall be installed on the exterior of the buildings of the Project or be
I allowed to protrude through the walls or roofs of the buildings (with the exception of those items
installed during the original construction of the Project), unless the prior written approval of the
Architectural Committee is secured. Outdoor patio or lounge furniture, plants and barbecue
I equipment may be maintained pursuant to rules and procedures of the Architectural Committee. The
type and color of all exposed window coverings shall be consistent with the Architectural
Committee's rules and guidelines. No room additions, solariums, swimming pools, spas, jacuzzis,
I saunas, or similar Improvements shall be installed without the prior written approval of the
Architectural Committee. Notwithstanding the specificity of the foregoing, no exterior addition,
change or alteration to any Lot or Dwelling shall be commenced without the prior written approval
of the Architectural Committee. No Owner shall cause or permit any mechanic's lien to be filed
against any portion of the Project for labor or materials alleged to have been furnished or delivered
to the Project or any Lot for such Owner, and any Owner who does so shall immediately cause the
lien to be discharged within five (5) days after notice to the Owner from the Board. If any Owner
fails to remove such mechanic's lien, the Board may discharge the lien and charge the Owner a
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Special Assessment for such cost of discharge.
9.7. Animal Regulations. No animals, livestock, reptiles, insects, poultry or other animals
of any kind shall be kept in any Lot except that usual and ordinary domestic dogs, cats, fish, birds
I inside bird cages, and any other animal designated by a local ordinance as a permitted household pet
within the Project's zoning area may be kept as household pets within any Lot provided that they are
not kept, bred or raised therein for commercial purposes or in unreasonable quantities or sizes. As
I used in the Declaration, "unreasonable quantities" shall ordinarily mean more than two (2) pets
(except with regard to quantities of fish) per Lot; provided, however, that the Board may determine
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that a reasonable number in any instance may be more. The Board shall have the right to limit the
size of pets and may prohibit maintenance of any animal which constitutes, in the opinion of the
I Board of Directors, a nuisance to any other Owner. Animals belonging to Owners, occupants or
their licensees, tenants or invitees within the Property must be kept within an enclosed yard, within
an enclosed patio or balcony or on a leash held by a person capable of controlling the animal.
I Furthermore, any Owner shall be liable to each and all remaining Owners, their Families, guests and
invitees, for any unreasonable noise or damage to person or property caused by any animals brought
or kept upon the Project by an Owner or by members of his or her Family, tenants or guests. It shall ' be the duty and responsibility of each such Owner to clean up after such animals which have
deposited droppings on or otherwise used any portion of the Association Property or any public
street abutting or visible from the Property.
9.8. Business or Commercial Activity. No part of the Property shall be used for any
business, professional, administrative, commercial (including auctions or similar events),
manufactur
ing, mercantile, storage, vending or other nonresidential purposes including, without
limitation, any activity for which the provider is compensated in any way or receives any form of
consideration, regardless of whether the activity is engaged in full or part-time, generates or does not
,I generate a profit, or requires or does not require a license; except that Declarant, its successors and
assigns may use any portion of the Property for a model home site and for sales and leasing purposes
in accordance with Article VII hereof. Notwithstanding the foregoing, the provisions of this Section
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8.8 shall not preclude any of the above-described activities without external evidence thereof,
provided that all of the following conditions are fulfilled: (a) such activities are conducted in
conformance with all applicable governmental ordinances; (b) the patrons or clientele of such
I activities do not visit the Lot or park automobiles or other vehicles within the Property; (c) the
existence or operation of such activities is not apparent or detectable by sight, sound or smell from
outside of the boundaries of the Lot; (d) no such activity increases the liability or casualty insurance
I obligation or premium of the Association; and (e) such activities are consistent with the residential
character of the Property and conform with the provisions of this Declaration. Additionally, the
provisions of this Section 9.8 shall not preclude any of the following:
Health care facilities operating as a business or charity and serving the
sick, elderly, disabled, handicapped, or retarded which are permitted by law or ordinance that
preempts this Declaration;
Family day care center for children which are specifically authorized
by California Health and Safety Code Section 1597.40 and other applicable state statutes. The
I owner/operator of the day care center shall comply with all local and state laws regarding the
licensing and operating of a day care center and, in addition, shall (i) name the Association as an
additional insured on the liability insurance policy or bond carried by the owner/operator of the day
I care center, (ii) defend, indemnify and hold the Association harmless from any liability arising from
the existence and operation of the day care center, (iii) comply with all of the Restrictions, (iv)
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supervise and be completely responsible for children at all times while they are within the Project.
No Owner shall use his or her Lot in such a manner as to interfere unreasonably with the business of
Declarant in selling Lots in the Project, as set forth in Article VII of this Declaration.
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I 9.9. Rubbish Removal. All rubbish, trash, garbage or other waste material shall be kept in
sanitary containers located in appropriate areas screened and concealed from view, and no odor shall
I be permitted to arise therefrom so as to render the Property, or any portion thereof, unsanitary,
unsightly, offensive or detrimental to any other property in the vicinity thereof or to its occupants.
Such containers shall be exposed to the view of neighboring Lots only when set out for a reasonable
I period of time (not to exceed twelve (12) hours before and after scheduled trash collection hours),
and shall be placed on the Association Property immediately in front of the Owner's Dwelling, or
such other location as may be designated from time to time by the Board in its Rules and
I Regulations. Each Owner shall comply with all Restrictions imposed concerning the collection,
sorting, separation and recycling of rubbish, trash, garbage or other waste materials. No clothing,
household fabrics or other unsightly articles shall be hung, dried or aired in such a way as to be
I visible from any other Lots, and no lumber, grass, shrub or tree clippings or plant waste, metals, bulk
material, scrap, refuse or trash shall be kept, stored or allowed to accumulate on any portion of the
Property except within an enclosed structure or if appropriately screened from view. No plants or
seeds infected with noxious insects or plant diseases shall be brought, grown or maintained upon the
Property.
9.10. Further Subdivision. Except as otherwise provided in Article VII, unless at least
I seventy-five percent (75%) of the first Mortgagees or Owners representing seventy-five percent
(75%) of the voting power of the Association residing in Owners other than Declarant have given
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their prior written approval and all applicable laws and regulations have been complied with, no
Owner shall physically or legally subdivide his or her Lot in any manner, including without
limitation, any division of his or her Lot or Dwelling into time-share estates or time-share uses;
I
provided, however, that this provision shall not be construed to limit the right of an Owner (1) to rent
or lease all of his or her Lot by means of a written lease or rental agreement subject to the
Restrictions of this Declaration, (2) to sell his or her Dwelling or (3) to transfer or sell any Dwelling
to more than one Person to be held by them as tenants-in-common, joint tenants, tenants by the
I entirety or as community property. Any failure by the lessee of the Lot to comply with the terms of
this Declaration, the Bylaws of the Association, the Rules and Regulations or any other Restrictions
shall constitute a default under the lease or rental agreement. Notwithstanding the foregoing, no Lot
in the Project may be partitioned or subdivided without the prior written approval of the Beneficiary
of any first Mortgage on that Lot. This Section 9.10 may not be amended without the prior written
approval of the Beneficiaries of at least seventy-five percent (75%) of the first Mortgages of Lots in
I the Project.
9.11. Drainage. There shall be no interference with or alteration of the established drainage
I pattern over the Property, unless an adequate alternative provision is made for proper drainage and is
first approved in writing by the Architectural Committee. For the purpose hereof, "established"
drainage in any Phase is defined as the drainage which exists at the time of the first Close of Escrow
I for the sale of a Lot in such Phase, or that which is shown on any plans approved by the
Architectural Committee, and shall include drainage from the Lots onto the Association Property and
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from the Association Property onto the Lots.
9.12. Water Supply System. No individual water supply or water softener system shall be
permitted in any Lot unless such system is designed, located, constructed and equipped in
I accordance with the requirements, standards, and recommendations of any applicable water district,
the locality in which the Property is located, and all other applicable governmental authorities. Any
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I sewage disposal system shall be installed only after approval by the Architectural Committee and
any governmental health authority having jurisdiction.
1 9.13. View Obstructions. No vegetation or other obstruction shall be planted or maintained
in such location or of such height as to unreasonably obstruct the view from any other Lot or
I Dwelling thereon in the vicinity thereof. If there is a dispute between Owners concerning the
obstruction of a view from a Lot or Dwelling thereon, the dispute shall be submitted to the
Architectural Committee, whose decision in such matters shall be binding. Any such obstruction
I shall, upon request of the Architectural Committee, be removed or otherwise altered to the
satisfaction of the Architectural Committee, by the Owner of the Lot upon which the obstruction is
located. Any item or vegetation maintained upon any patio, deck or balcony, which item or
I vegetation is exposed to the view of any Owner, shall be removed or otherwise altered to the
satisfaction of the Architectural Committee, if such Committee determines that the maintenance of
such item or vegetation in its then existing state is contrary to the purposes or provisions of this
I Declaration. If an Owner fails to perform necessary pruning, trimming or thinning, the Association
shall have the right, after Notice and Hearing, to enter upon such Lot for the purpose of performing
such work. The Architectural Committee shall ensure that the vegetation on the Association
I Property maintained by the Association is cut frequently, so that the view of any Owner is not
unreasonably obstructed. Notwithstanding anything in this Declaration which is or appears to be to
the contrary, each Owner, by accepting title to a Lot, hereby acknowledges that (a) although the
I Architectural Committee may prohibit the installation of Improvements on a Lot or prohibit the
installation or require the pruning, trimming or thinning of landscaping from a Lot where such
Improvements or landscaping would unreasonably obstruct the views from any other Lots, there are
I no protected views within the Property, and no Lot or Dwelling is assured the existence or
unobstructed continuation of any particular view, and (b) any construction, landscaping, or other
installation of Improvements by Declarant or other Owners may impair the view from any Lot or
I Dwelling, and the Owners hereby consent to such view impairment.
9.14. Damage and Destruction to Dwellings. If all or any portion of any Dwelling is
damaged or destroyed by fire or other casualty, it shall be the duty of the Owner of such Dwelling to
I rebuild, repair or reconstruct the same in a manner which will restore it substantially to its
appearance and condition immediately prior to the casualty or as otherwise approved by the
Architectural Committee. The Owner of any damaged Dwelling shall be obligated to proceed with
I all due diligence hereunder, and such Owner shall cause reconstruction to commence within six (6)
months after the damage occurs and to be completed within eighteen (18) months after the damage
occurs, unless prevented by causes beyond his or her reasonable control. A transferee of title to the
I Lot containing a Dwelling which is damaged shall commence and complete reconstruction within
the respective periods which would have remained for the performance of such obligations if the
Owner of the Lot at the time of the damage still held title to the Lot. However, in no event shall
I such transferee of title be required to commence or complete such reconstruction in less than ninety
(90) days from the date such transferee acquired title to Lot.
9.15.
Window Coverings. No window in any Dwelling shall be covered in whole or in
part, inside or outside, with aluminum foil, newspaper, paint, reflective tint or any other material
reasonably deemed by the Architectural Committee to be inappropriate for such use; provided,
however, that an Owner may use plain white sheets to cover windows for a period of time not to
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I exceed three (3) months after Close of Escrow pending the installation of drapes, curtains, shutters or
other appropriate interior window coverings.
1 9.16. Association Property Facilities. Nothing shall be altered or constructed in or removed
from the Association Property, nor shall any change or alteration in the original landscaping plan for
I the Association Property or the Association Maintenance Areas, or any acquisition of additional
Association Property or addition to the Association Property be undertaken without the approval of
the Board of Directors.
I 9.17. Association Maintained Walls/Fences. The Association Maintained Walls/Fences
shall not be removed, reconstructed or modified (whether as to structure, finish or color) without the
prior approval of the Board and any applicable governmental entity with jurisdiction thereof. Upon
any damage to or destruction of the Association Maintained Walls/Fences, the Association shall
restore same (using, so far as possible, materials identical to those used originally by Declarant) to
its original condition as constructed by Declarant. The Architectural Committee shall strictly
I enforce the terms of this provision. This Section shall not preclude the Association from assessing
charges to individual Owners for structural damage to the Association Maintained Walls/Fences
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caused by such Owner or Owner's Family members, guests, invitees or agents.
9.18. Temporary Buildings. No outbuilding, basement, tent, shack, shed, or other like
temporary building or Improvement of any kind shall be placed upon any portion of the Property
I either temporarily or permanently. No garage, carport, trailer, camper, motorhome, recreation
vehicle or other vehicle shall be used as a residence in the Property, either temporarily or
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permanently.
9.19. Drilling. No oil drilling, oil, gas, or mineral development operations, oil refining,
geothermal exploration or development, quarrying or mining operations of any kind shall be
I permitted upon or in any Lot or the Association Property, nor shall oil wells, tanks, tunnels, or
mineral excavations or shafts be permitted upon the surface of any Lot or within five hundred feet
(500') below the surface of the Property. No derrick or other structure designed for use in boring for
I water, oil, geothermal heat or natural gas shall be erected, maintained, or permitted upon any Lot.
9.20. Solar Energy Systems. Each Owner may install a solar energy system on his or her
I Lot which serves his or her Dwelling so long as (a) the design and location of the solar energy
system meets the requirements of applicable zoning district ordinances and the "Uniform Building
Code" and associated ordinances, and (b) the system is not visible from the public view. The
I provisions of this Section are subject to all applicable government statutes, rules, and requirements,
and this Section shall be construed, limited, or modified as necessary to comply with such
governmental provisions.
I 9.21. Rights of Handicapped. Subject to the provisions of Article IV of this Declaration,
each Owner shall have the right to modify his or her Dwelling and the route over the Lot leading to
I the front door of his or her Dwelling, at Owner's sole cost and expense, in order to facilitate access
to his or her Dwelling by persons who are blind, visually handicapped, deaf, or physically disabled,
or to alter conditions which could be hazardous to such persons.
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I 9.22. Firearms and Fireworks. The display and discharge of firearms or fireworks on the
Association Property is prohibited; provided that the display of lawful firearms on the Association
I Property is permitted by law enforcement officers and also is permitted for the limited purpose of
transporting lawful firearms across the Association Property to or from the Owner's Lot. The term
"firearms" includes "B-B" guns, pellet guns, and other firearms of all types, regardless of size.
1 9.23. Hazardous, Toxic, Flammable, Corrosive or Explosive Materials. No Owner nor any
Family member, tenant, lessee, agent, employee, licensee, or guest shall at any time bring onto or
I store in or on the Project any hazardous, toxic, flammable, corrosive or explosive solid, liquid, gas,
or chemical substance or other material which may be hazardous to any Person or property, except
for household items, handled, stored and applied in accordance with all applicable government
I restrictions, which are normal and customary to the use and enjoyment or a residential dwelling.
Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers, and other such
chemical treatments shall meet federal, state, county, and city requirements. Under no circumstances
I may explosives or fireworks be stored by Owners on their Lots or elsewhere within the Project.
Nothing other than natural rain water may be discharged into the storm drains and storm drainage
system located on the Property. Toxic chemicals or hydrocarbon compounds such as gasoline,
I motor oil, antifreeze, solvents, paints, paint thinners, wood preservative and other such fluids shall
not be discharged into storm drains or storm drainage systems on the Property or into any street,
public or private. All water softeners installed in a Lot must be commercially serviced.
I 9.24. Sight Distance Corridors. Pursuant to the requirements of the City, Owners and the
Association shall comply with the following sight distance corridor restrictions:
I "No structure, fence, wall, tree, shrub, sign or other object shall be
placed or permitted on the subject property within an intersection
sight distance corridor established per Carlsbad Engineering
I Standards, Volume 1, Chapter 3, Section 8.B. The underlying
property owner shall maintain this condition."
The locations of site distance corridors within the Project are shown on Exhibit "D".
9.25. Post-Tensioned Slabs. The Dwellings on some or all of the Lots may have been
constructed with post-tensioned concrete slabs ("System"). The System involves placing steel cables
under high tension in the concrete slab located beneath the residence. [However, no steel cable is
shared by Duet Dwellings, nor does any steel cable cross the common Lot boundary between Duet
Dwellings. Each Owner shall be responsible for determining whether the residence on his Lot has
been constructed with a System. Any attempt by an Owner or other person to alter or pierce the
foundation (e.g., saw cutting or drilling) could damage the integrity of the System and/or cause
serious injury or damage to persons and property. No Owner shall cut into or otherwise disturb the
System upon which the Dwelling on his or her Lot is constructed. The Owner of each Lot on which a
Dwelling has been constructed with a System agrees that neither Declarant nor any contractor of
Declarant shall be responsible for any damage or injury resulting from or arising in connection with
the alteration or piercing by the Owner or any employee, agent, family member, representative or
other person of the slab or the foundation of the residence on the Lot. Each Owner shall hold
Declarant harmless from and indemnify Declarant against all claims, demands, losses, costs
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I (including attorney's fees), obligations and liabilities arising out of or in connection with the failure
of the Owner to comply with the provisions of this Section.
1 9.26. Shared Wall Systems. The Shared Wall Systems include a fire wall designed to
withstand fire for a period of one (1) hour. Any alteration or piercing of a Shared Wall System may ' significantly decrease the effectiveness of the wall for its intended purpose. Each Owner of a Duet
Dwelling, by accepting a deed to a Lot on which a Duet Dwelling is constructed, agrees not to alter
the Shared Wall Systems in any manner that would decrease the effectiveness of the fire rated walls
I within the Shared Wall Systems. No Owner of a Duet Dwelling shall attach to a Shared Wall System
any equipment that will cause vibration or noise to the adjoining Duet Dwelling. No Owner of a
Duet Dwelling shall penetrate a Shared Wall System; doing so may cause damage or compromise
I the structural integrity of the Shared Wall System.
9.27. Reduction of Surface Pollutants. The Association shall coordinate any programs
established by the City from time to time to advise Owners with the removal and proper disposal of
toxic and hazardous waste products. Toxic chemicals or hydrocarbon compounds such as gasoline,
motor oil, antifreeze, solvents, paints, paint thinners, wood preservatives and other such fluids shall
not be discharged into any street or drive, public or private, or into any storm drain or storm water
conveyance systems. Use and disposal of pesticides, fungicides, herbicides, insecticides, fertilizers
and other such chemical treatments must, as prescribed in their respective containers, meet Federal,
State, County and City requirements. Best Management Practices (as referenced in the "California
I Storm Water Best Management Practices Handbook") shall be used to eliminate or reduce surface
pollutants when planning any changes to the landscaping and surface improvements.
1 9.28. Water Quality Protection.
9.28.1 Governmental Requirements. To protect the quality of our nation's waters, a
I number of federal, state and local laws, ordinances, rules, regulations and orders prohibit the
discharge of anything other than natural rain water into storm drain systems, including + gutters and
streets that drain into storm drains. These governmental requirements include the Clean Water Act,
I the National Pollution Discharge Elimination System, orders and permits of the State Water
Resources Control Board and the Regional Water Quality Control Board, the ordinances and
regulations of the City and County, and any Storm Water Pollution Prevention Plan covering the
I Community. Each Owner shall comply with all such governmental requirements.
9.28.2 Prohibited Discharges. Most discharges of anything other than natural rain
I water into storm drain systems are unlawful and may result in significant penalties and fines. No
Owner shall discharge or permit to be discharged (for example, by a contractor working for the
Owner) any of the following into any street, gutter, storm drain or storm water conveyance system:
I toxic or hazardous chemicals, hydrocarbon compounds such as gasoline, motor oil, antifreeze,
solvents, paints, paint thinner, wood preservatives, fertilizers, lawn clippings, yard waste, detergents,
pet waste, or other similar materials or pollutants.
1 9.28.3 Use of Certain Chemicals. Each Owner shall comply with and cause its
contractors to comply with all federal, state and City requirements, and the requirements of any other
I applicable governmental agency regarding the use, storage and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers and other such chemicals. Owners should consult with the City,
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other governmental authorities, and their refuse hauler regarding the proper disposal of any toxic or
hazardous materials.
9.28.4 Spillage. Each Owner shall ensure that any landscaping and construction
materials brought into the Project by the Owner or the Owner's contractors are properly contained to ' prevent spillage into any street, gutter or storm drain system. Should a spillage occur, the Owner
shall (or cause the contractor responsible for the spill to) sweep the spilled material and place it in a
container; it shall not be washed into any storm water curb drain inlet. Each Owner shall prevent
erosion and the runoff of soil and other sediment from the Owner's Lot into any street, gutter or I storm drain system.
9.28.5 Compliance with Storm Water Management Plan. The Association, with I respect to the Association Property and Association Maintenance Area, and each Owner, with
respect to his or her Lot, shall comply with the Storm Water Management Plan approved by the City
I for the Project, as such plan may be amended from time to time. The Association shall implement
and follow the Best Management Practices set forth in such plan and the Association shall at all
times comply with post-construction Best Management Practices that apply to the Association
Property or the Association Maintenance Area. The Association shall be responsible for maintaining
I reasonable records required to verify its compliance with these provisions.
9.28.6 Indemnity. Each Owner shall indemnify, protect, defend and hold Declarant
and the Association harmless from any and all claims, liability, actions, penalties or damages
(including attorneys' fees, experts' fees and costs of suit) arising from or attributable to the Owner's
failure to comply with the requirements of this Section 9.28.
ARTICLE X
INSURANCE
10.1. Duty to Obtain Insurance: Types. The Board shall cause to be obtained and
maintained adequate blanket public liability insurance (including medical payments), with such
I limits as may be considered acceptable to FNMA (not less than Two Million Dollars ($2,000,000)
covering all claims for personal injury and property damage arising out of a single occurrence),
insuring against liability for bodily injury, death and property damage arising from the activities of
I the Association and its Members, or from activities of the officers and directors of the Association
acting in their capacity as representatives of the Association, with respect to the Association Property
and the Association Maintenance Areas. The Board shall also cause to be obtained and maintained
I fire and casualty insurance with extended coverage, without deduction for depreciation, in an amount
as near as possible to the full replacement value of the Association Property and the Association
Maintenance Areas and all Improvements thereon. Such insurance shall be maintained for the
I benefit of the Association, the Owners, and the Mortgagees, as their interests may appear as named
insured, subject, however, to loss payment requirements as set forth herein. The Board of Directors
shall purchase such other insurance and endorsements, as it determines necessary, including, but not
I limited to, casualty, errors and omissions, directors, officers and agents liability insurance, plate
glass insurance, medical payments, malicious mischief, liquor liability and vandalism insurance,
flood insurance, fidelity bonds and worker's compensation, and insurance against such other risks as ' is customarily carried with respect to planned interest developments similar in construction, location
and use; provided, that, in any event, the Board shall maintain such insurance coverage as necessary
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1 to satisfy all requirements of FNMA, FHLMC, GNMA, (so long as any of which is a Mortgagee
or Owner of a Lot within the Project) except to the extent such coverage is not available or has been
I waived in writing by FNMA, GNMA, and FIHLMC, as applicable, and (ii) California Civil Code
Sections 5800 and 5805. Fidelity bond coverage which names the Association as an obligee must be
obtained by or on behalf of the Association for any person or entity handling funds of the
I Association, including, but not limited to, officers, directors, trustees, employees and agents of the
Association and employees of the Manager of the Association, whether or not such Persons are
compensated for their services, in an amount not less than the estimated maximum of funds,
I including reserve funds, in the custody of the Association or the Manager, as the case maybe, at any
given time during the term of each bond. However, in no event may the aggregate amount of such
bonds be less than the sum equal to one-fourth (¼) of the Annual Assessments on all Lots in the
I Project, plus reserve funds.
10.2. Waiver of Claim Against Association. As to all policies of insurance maintained by
I or for the benefit of the Association and the Owners, the Association and the Owners hereby waive
and release all claims against one another, the Board of Directors and Declarant, to the extent of the
insurance proceeds available, whether or not the insurable damage or injury is caused by the
I negligence of or breach of any agreement by any of said Persons.
10.3. Right and Duty of Owners to Insure. It is the responsibility of each Owner to provide
I insurance on Owner's personal property and upon all other property and Improvements within his or
her Lot, including without limitation, his or her Dwelling. Nothing herein shall preclude any Owner
from carrying any public liability insurance as he or she deems desirable to cover Owner's individual
I liability for damage to person or property occurring on his or her individual Lot or elsewhere upon
the Property. Such policies shall not adversely affect or diminish any liability under any insurance
obtained by or on behalf of the Association, and duplicate copies of such other policies shall be
I deposited with the Board upon request. If any loss intended to be covered by insurance carried by or
on behalf of the Association shall occur and the proceeds payable thereunder shall be reduced by
reason of insurance carried by any Owner, such Owner shall assign the proceeds of such insurance
carried by him to the Association, to the extent of such reduction, for application by the Board to the
I same purposes as the reduced proceeds are to be applied.
10.4. Notice of Expiration Reciuirements. If available, each of the policies of insurance
I maintained by the Association shall contain a provision that said policy shall not be canceled,
terminated, materially modified or allowed to expire by its terms, without ten (10) days' prior written
notice to the Board and Declarant, and to each Owner and Beneficiary, insurer and guarantor of a
I first Mortgage and every other Person in interest who requests such notice of the insurer. In
addition, fidelity bonds shall provide that they may not be canceled or substantially modified without
ten (10) days prior written notice to any insurance trustee named pursuant to Section 0 and to each
1 FNMA servicer.
10.5. Insurance Premiunis. Insurance premiums for any blanket insurance coverage
obtained by
the Association and any other insurance deemed necessary by the Board of Directors
shall be a Common Expense to be included in the Annual Assessments levied by the Association and
collected from the Owners. That portion of the Annual Assessments necessary for the required ' insurance premiums shall be separately accounted for by the Association in the Reserve Fund, to be
used solely for the payment of premiums of required insurance as such premiums become due.
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1 10.6. Trustee for Policies. The Association, acting through its Board of Directors, is hereby
appointed and shall be deemed trustee of the interests of all named insureds under policies of
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insurance purchased and maintained by the Association. Unless the applicable insurance policy
provides for a different procedure for the filing of claims, all claims made under such policy shall be
sent to the insurance carrier or agent, as applicable, by certified mail and be clearly identified as a
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claim. A record of all claims made shall be kept by the Association. All insurance proceeds under
any such policies as provided for in Section 10.1 above shall be paid to the Board of Directors as
trustees. The Board shall have full power to receive and to acknowledge receipt of the proceeds and
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to deal therewith as provided herein. Insurance proceeds shall be used by the Association for the
repair or replacement of the property for which the insurance was carried or otherwise disposed of as
provided in Article X of this Declaration. The Board is hereby granted the authority to negotiate loss
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settlements with the appropriate insurance carriers, with participation, to the extent they desire, of
first Mortgagees within ten (10) days of receipt of notice of any damage or destruction as provided in
Article X of this Declaration. Any two (2) officers of the Association may sign a loss claim form
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. and release form in connection with the settlement of a loss claim, and such signatures shall be
binding on all the named insureds. Notwithstanding the foregoing, there may be named as an
insured, a representative chosen by the Board, including a trustee with whom the Association may
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enter into an insurance trust agreement or any successor to such trustee who shall have exclusive
authority to negotiate losses under any policy providing property or liability insurance and to
perform such other functions necessary to accomplish this purpose.
1 10.7. Actions as Trustee. Except as otherwise specifically provided in this Declaration, the
Board, acting on behalf of the Association and all Owners, shall have the exclusive right to bind such
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parties in respect to all matters affecting insurance carried by the Association, the settlement of a loss
claim, and the surrender, cancellation, and modification of all such insurance, in a manner
satisfactory to Beneficiaries of seventy-five percent (75%) of the first Mortgages held by first
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Mortgagees who have filed requests under Section 10.4. Duplicate originals or certificates of all
policies of fire and casualty insurance maintained by the Association and of all renewals thereof,
together with proof of payment of premiums, shall be delivered by the Association to all Owners and
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Mortgagees who have requested the same in writing.
10.8. Annual Insurance Review. The Board shall review the insurance carried by or on
behalf of the Association at least annually, for the purpose of determining the amount of the casualty
and fire insurance referred to in Section 9.1 above. If economically feasible, the Board shall obtain a
current appraisal of the full replacement value of the Improvements on the Property except for
foundations and footings, without deduction for depreciation, from a qualified independent insurance
I appraiser, prior to each such annual review.
10.9. Notification to Members. The Board shall, upon issuance or renewal of the
Association policy of public liability insurance, but no less than annually, notify its Members as to
the amount and type of liability insurance carried by the Association, and it shall accompany this
notification with statements to the effect that the Association is or is not insured to the levels
I specified by California Civil Code Section 5805, and that if not so insured, Owners may be
individually liable for the entire amount ofajudgment arising solely as a result of an act or omission
occurring on the Association Property, and if the Association is insured to the levels specified in said
1 Section, then Owners may be individually liable only for their proportional share of assessments
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levied to pay the amount of any judgment which exceeds the limits of the Association's liability
insurance.
1 10.10. Required Waiver. All policies of physical damage insurance shall provide, if
reasonably possible, for waiver of the following rights, to the extent that the respective insurers
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would have the rights without such waivers:
(a) subrogation of claims against the Owners and tenants of the Owners;
I (b) any defense based upon coinsurance;
any right of setoff, counterclaim, apportionment, proration or
I contribution by reason of other insurance not carried by the Association;
any invalidity, other adverse effect or defense on account of any
I breach of warranty or condition caused by the Association, any Owner or any tenant of any Owner,
or arising from any act, neglect, or omission of any named insured or the respective agents,
contractors and employees of any insured;
I (e) any right of the insurer to repair, rebuild or replace, and, if the
Improvement is not repaired, rebuilt or replaced following loss, any right to pay under the insurance
I an amount less than the replacement value of the Improvements insured;
notice of the assignment of any Owner of his or her interest in the
I insurance by virtue of a conveyance of any Lot;
any right to require any assignment of any Mortgage to the insurer;
1 (h) any denial of an Owner's claim because of negligent acts by the
Association or other Owners; and
I (i) prejudice of insurance by any acts or omissions of Owners that are not
under the Association's control.
I ARTICLE XI
DAMAGE TO ASSOCIATION PROPERTY
I Damage to or destruction of all or any portion of the Association Property shall be handled in
the following manner:
I (a) If the Association Property is damaged or destroyed, the Association
shall cause the Association Property to be repaired and reconstructed substantially as it previously
existed. -
I (b) If the cost of effecting total restoration of the Association Property
exceeds the amount of insurance proceeds, the Association shall cause the Association Property to be
repaired and reconstructed substantially as it previously existed, and the difference between the
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1 insurance proceeds and the actual cost of reconstruction shall be levied as a Reconstruction
Assessment against each Lot and its respective Owner.
I (c) To the extent of funds available for restoration, any restoration or
repair of the Association Property shall be performed substantially in accordance with the original
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plans and specifications unless other action is approved by Beneficiaries of fifty-one percent (51%)
of the first Mortgages on Lots in the Property.
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(d) The Board, immediately upon having knowledge of any damage or
destruction affecting a material portion of the Association Property, shall promptly notify all Owners
and Beneficiaries, insurers and guarantors of first Mortgages on Lots in the Project who have filed a
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written request for such notice with the Board. The Board, immediately upon having knowledge of
any damage or destruction affecting a Lot, shall promptly notify any Beneficiary, insurer or
guarantor of any Mortgage encumbering such Lot who has filed a written request for such notice
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.with the Board.
ARTICLE XII
EMINENT DOMAIN
I . If at any time all or any portion of the Association Property, or any interest therein, is taken
for any public or quasi-public use, under any statute, by right of eminent domain or by private
I purchase in lieu of eminent domain, the award in condemnation (exclusive of any severance
damages peculiar to, and affecting only, a particular Lot and recoverable by the Owner thereof) shall
be paid to the Association. Any such award payable to the Association shall be deposited in the
I Operating Fund. No Member shall be entitled to participate as a party, or otherwise, in any
proceedings relating to such condemnation; provided, each Owner shall be entitled to separately
pursue any severance damages applicable to his or her Lot and recoverable by that Owner as
I provided above. The Association shall have the exclusive right to participate in such proceedings
and shall, in its name alone, represent the interests of all Members. The Board of Directors,
immediately upon having knowledge of any taking by eminent domain affecting a material portion
I of the Association Property, or any threat thereof, shall promptly notify all Owners and those
Mortgagees, insurers and guarantors of Mortgages on Lots in the Project who have filed a written
request for such notice with the Board. The Board, immediately upon having knowledge of any
I taking by eminent domain affecting a Lot, or any threat thereof, shall promptly notify any
Mortgagee, insurer or guarantor of a Mortgage encumbering such Lot who has filed a written request
for such notice with the Board.
I ARTICLE XIII
RIGHTS OF MORTGAGEES
1 13.1. Mortgagee Protection. Notwithstanding any other provision of this Declaration, no
amendment or violation of this Declaration shall operate to impair, defeat or render invalid the rights
I of the Beneficiary under any Deed of Trust upon a Lot made in good faith and for value, provided
that after the foreclosure of any such Deed of Trust such Lot shall remain subject to this Declaration,
as amended.
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I 13 .2. First Mortgage: First Mortgagee. For purposes of this Declaration, "first Mortgage"
shall mean a Mortgage with first priority over other Mortgages or Deeds of Trust on a Lot, and "first
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Mortgagee" shall mean the Beneficiary of a first Mortgage.
13.3. First Mortgagee Votes. For purposes of any provision of this Declaration or the other
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Restrictions which require the vote or approval of a specified percentage of first Mortgagees, such
vote approval shall be determined based upon one (1) vote for each Lot encumbered by each such
first Mortgage.
I 13.4. Notice to Mortgagees. Mortgagees and insurers or guarantors of first Mortgages will
be entitled to timely written notice of:
l (a) 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
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such Mortgagee insurer or guarantor, as applicable;
(b) 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
I first Mortgage held, insured or guaranteed by such Mortgagee, insurer or guarantor, which remains
uncured for a period of sixty (60) days;
I (c) any lapse, cancellation or material modification of any insurance
policy or fidelity bond maintained by the Association; and
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(d) any proposed action under this Declaration which would require the
consent of a specified percentage of the first Mortgagees.
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13.5. Right of First Refusal. Every Owner, including every first Mortgagee of a Mortgage
encumbering any Lot, who obtains title to such Lot pursuant to the remedies provided in such
Mortgage, or pursuant to foreclosure of the Mortgage, or by deed (or assignment) in lieu of
foreclosure, shall be exempt from any "right of first refusal" created or purported to be created by
the Restrictions.
13.6. Liability for Assessments. Each first Mortgagee of a Mortgage encumbering any Lot
1 which obtains title to such Lot pursuant to judicial foreclosure or the powers provided in such
Mortgage shall take title to such Lot free and clear of any claims for unpaid assessments or charges
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against such Lot which accrued prior to the time such Mortgagee acquires title to such Lot in
accordance with Section 6.12.
13.7. Mortgagee Approval of Certain Actions. Unless at least sixty-seven percent (67%) of
the first Mortgagees or sixty-seven percent (67%) of the Owners (other than Declarant) have given
their prior written approval, neither, the Association nor the Owners shall:
by act or omission seek to abandon or tenninate the Project; or
change the method of determining the obligations, assessment dues or
I other charges which may be levied against any Owner or change the pro rata interest or obligations
of any Lot for purposes of levying assessments or charges or allocating distributions of hazard
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1 insurance proceeds or condemnation awards unless the change is due to the annexation of additional
phases as authorized in this Declaration; or
I (c) partition or subdivide any Lot; or
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(d) by act or omission, seek to abandon, partition, subdivide, encumber,
sell or transfer the Association Property unless due to the annexation of additional phases as
authorized in this Declaration. (The granting of easements for public utilities or for other purposes
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consistent with the intended use of the Association Property under this Declaration and the granting
of exclusive easements to Owners over portions of the Association Property to conform the
boundaries of the Association Property to the as-built location of Improvements installed or
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constructed by Declarant shall not be deemed a transfer within the meaning of this clause); or
(e) use hazard insurance proceeds for losses to any Property (i.e.,
Improvements to the Lots or Association Property) for other than the repair, replacement or
1 reconstruction of such Property, except as provided by statute in case of substantial loss to the Lots
or Association Property; or
I ( by act or omission change, waive or abandon the provisions of this
Declaration, or the enforcement thereof, pertaining to the architectural design or control of the
exterior appearance of Improvements on the Property or the maintenance of the Association
I Property, or any walks, fences, driveways, or landscaping in the Project; or
(g) fail to maintain or cause to be maintained fire and extended coverage
on insurable Association Property as provided in Article IX of this Declaration.
13.8. Inspection of Books and Records. All Mortgagees, insurers and guarantors of first
I Mortgages shall have the right to (1) examine the books and records of the Association, including
current copies of all the Restrictions and financial statements, during normal business hours, (2)
upon written request, require the Association to submit an annual audited financial statement
l (prepared at the expense of the requesting party if such statement is not otherwise prepared by the
Association) for the preceding Fiscal Year within one hundred twenty (120) days of the end of the
Association's Fiscal Year, (3) upon written request, receive written notice of all meetings of the
I Owners, and (4) designate in writing a representative to attend all such meetings. All Owners shall
also have the right to examine the books and records of the Association, includingcurrent copies of
all the Restrictions and financial statements, during normal business hours.
I 13.8.1 Notice Regarding Amendments, Professional Management and Termination
of Project. All Mortgagees, insurers and guarantors of first Mortgagees, upon written request, shall
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be given sixty (60) days' written notice prior to the effective date of (1) any proposed material
amendment to the Restrictions; (2) any termination of an agreement for professional management of
the Property following any decision of the Owners to assume self-management of the Project; and
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(3) any proposed termination of the Property as a planned residential development.
13.8.2 Reserve Fund. The Reserve Fund described in Article V of this Declaration
must be funded by regular scheduled monthly, quarterly, semiannual, or annual payments rather than
1 by large special assessments.
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I 13.8.3 Fidelity Bond. The Board shall secure and cause to be maintained in force at
all times a fidelity bond for any Person handling funds of the Association, including, but not limited
I to, employees of the professional Manager.
13.8.4 Insurance Proceeds. No provision of the Restrictions shall be construed or
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applied to give any Owner, or any other party, priority over any rights of the Mortgagees of a first
Mortgage in the case of a distribution to Owners of insurance proceeds or condemnation awards for
losses to or taking of Lots and/or Association Property.
13.8.5 Authorization to Furnish Mortgage Information to Board. Mortgagees are
hereby authorized to furnish information to the Board concerning the status of any Mortgage
encumbering a Lot. Each Owner hereby authorizes the first Mortgagee of a first Mortgage on his or
her Lot to furnish information to the Board concerning the status of such first Mortgage and the loan
which it secures.
I 13.8.6 Professional Management. When professional management has been
previously required by the Restrictions or a Mortgagee, insurer, or guarantor of a first Mortgage, any
decision to establish self-management by the Association shall require the approval of sixty-seven
I percent (67%) of the voting power of the Association and the Mortgagees of fifty-one percent (51%)
of the first Mortgages of Lots in the Project.
I 13.9. Payment of Taxes by Mortgagees. First Mortgagees may, jointly or singly, pay taxes
or other charges which are in default and which may or have become a charge against any
Association Property and may pay any overdue premiums on hazard insurance policies, or secure
I new hazard insurance coverage on the lapse of a policy, for Association Property, and First
Mortgagees making such payments shall be owed immediate reimbursement therefor from the
Association.
I 13.10. FHA, FNMA, FHLMC. GNMA and VA Approval. The Association and each Owner
shall take any action or shall adopt any resolutions required by Declarant or the Board to conform
I this Declaration or the Project to the requirements of any of FHA, FNMA, FHLMC, GNMA and
VA.
I ARTICLE XIV DURATION AND AMENDMENT
I 14.1. Duration. This Declaration shall run with the land and shall continue in full force and
effect for a term of fifty (50) years from the date of Recordation hereof, after which time the same
shall be automatically extended for successive periods of ten (10) years, unless a Declaration of
I Termination is Recorded, satisfying the requirements of an amendment to this Declaration as set
forth in Section 0. There shall be no severance by sale, conveyance, encumbrance or hypothecation
of an interest in any Lot from the concomitant Membership in the Association, as long as this
I Declaration shall continue in full force and effect.
14.2. Amendment.
I 14.2.1 Notice to and Vote of Members; VA/FHA Approval. Notice of the subject
matter of a proposed amendment to this Declaration in reasonably detailed form shall be included in
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the notice of any meeting or election of the Association at which a proposed amendment is to be
considered. The resolution shall be adopted by the vote, in person or by proxy, or affirmative
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written ballot of Members representing not less than (i) sixty-seven percent (67%) of the voting
power of the Association, and (ii) sixty-seven percent (67%) of the voting power of the Association
residing in Members other than Declarant, provided that the specified percentage of the voting power
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of the Association necessary to amend a specified section or provision of this Declaration shall not
be less than the percentage of affirmative votes prescribed for action to be taken under that section or
provision. So long as there exists a Class B membership, the prior approval of the VA and FHA
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shall be required for any amendment of this Declaration if they are providing financing with respect
to any Lot. A draft of the proposed amendment shall be submitted to VA and FHA for approval
prior to its approval by the Membership of the Association.
I 14.2.2 Mortgagee ApDroval. In addition to the required notice and consent of
Members and Declarant provided above, the Mortgagees of fifty-one percent (51%) of the first
Mortgages on all the Lots in the Project must approve any amendment to this Declaration which is of
a material nature, including, without limitation, the following:
(a) Any amendment which affects or purports to affect the validity or
priority of encumbrances or the rights or protection granted to Mortgagees, insurers or guarantors of
first Mortgages as provided in Articles and XIII hereof.
I .(b) Any amendment which would necessitate an encumbrancer after it has
acquired a Lot through foreclosure to pay more than its proportionate share of any unpaid assessment
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or assessments accruing after such foreclosure.
(c) Any amendment which would or could result in an encumbrance being
canceled by forfeiture, or in a Lot not being separately assessed for tax purposes.
I (d) Any amendment relating to the insurance provisions as set out in
Article IX hereof, or to the application of insurance proceeds as set Out in Article X hereof, or to the
I disposition of any money received in any taking under condemnation proceedings.
Any amendment which would or could result in partition or
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subdivision of a Lot in any manner inconsistent with the provisions of this Declaration.
Any amendment which would subject any Owner to a right of first
refusal or other such restriction, if such Lot is proposed to be sold, transferred, or otherwise
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.(g) Any amendment concerning:
The weight of any Owner's voting rights;
Rights to use the Association Property;
Reductions in reserves for or responsibility for maintenance,
I repair and replacement of the Association Property;
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I (iv) Boundaries of any Lot;
I (v) Leasing of Lots;
Establishment of self-management by the Association where
professional management has been required by any Mortgagee, insurer or guarantor of a first
I Mortgage;
Expansion or contraction of the Project, or the addition,
annexation or deannexation of real property to or from the Project; provided that the
conveyance of any part of the Property to the Association as Association Property or the
granting of licenses or easements over the Property shall not be considered expansion or
contraction thereof;
Increases in assessments that raise the previously assessed
amount by more than 25%, assessment liens, or the priority or subordination of such liens; or
Any provisions that expressly benefit Mortgage holders,
insurers, or guarantors.
14.2.3 City Rights Regarding Amendments. A copy of a proposed amendment to
I this Declaration shall be provided to the City at least fifteen (15) days prior to recordation of such
amendment. If the proposed amendment affects the City, the City shall have the right to disapprove
the amendment; provided, however, that if the City's written disapproval is not received within ten
I (10) days of the date of delivery of a proposed amendment to the City, such proposed amendment
shall be deemed approved. A copy of the final approved amendment shall be transmitted to the City
for the official record within thirty (30) days after the amendment is Recorded.
I 14.2.4 Termination of Declaration. Termination of this Declaration shall require
approval by the Members as provided in Section 14.2.1. No such termination shall be effective
I unless it is also approved in advance either by fifty-one percent (51%) of the Mortgagees of the first
Mortgages on all of the Lots in the Project (if said termination is proposed by reason of the
substantial destruction or condemnation of the Project) or by sixty-seven percent (67%) of such
I Mortgagees (if said termination is for reasons other than such substantial destruction or
condemnation). Any distribution of excess funds held by the Association upon the termination of
the Project shall be made equally to each Owner.
I 14.2.5 Deemed Approval by Mortgagee. Each Mortgagee of a first Mortgage on a
Lot in the Project which receives proper written notice of a proposed amendment or termination of
I this Declaration by certified or registered mail with a return receipt requested shall be deemed to
have approved the amendment or termination if the Mortgagee fails to submit a response to the
notice within sixty (60) days after the Mortgagee receives the notice.
I 14.2.6 Certificate of Amendment. A copy of each amendment shall be certified by at
least two (2) officers of the Association, and the amendment shall be effective when a Certificate of
Amendment is Recorded. The Certificate, signed and sworn to by two (2) officers of the
I Association, stating that the requisite number of Owners and Mortgagees have either voted for or
consented in writing to any amendment adopted as provided above, when Recorded, shall be
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I conclusive evidence of that fact. The Association shall maintain in its files the record of all such
votes or written consents, for a period of at least four (4) years.
I 14.2.7 Amendments Before First Close of Escrow. Notwithstanding any other
provision of this Section 14.2, at any time prior to the first Close of Escrow for the conveyance of a
Lot within Phase 1, Declarant may unilaterally amend or terminate this Declaration by Recording a
I written instrument which effects the amendment or termination and is signed and acknowledged by
Declarant.
I 14.2.8 Amendments to Conform to VA, FHA, BRE, FNMA, GNMA or FHLMC
Requirements. Notwithstanding any other provision of this Declaration, for so long as Declarant
owns any portion of the Property or Lot therein, Declarant may, in its sole discretion, unilaterally
I amend this Declaration by Recording a written instrument signed by Declarant in order to conform
this Declaration to the requirements of VA, FHA, BRE, FNMA, GNMA or FHLMC then in effect or
to any applicable statutory legal requirements.
14.3. Protection of Declarant. The prior written approval of Declarant will be required
before any amendment which would impair or diminish the rights of Declarant to complete the
Property or sell or lease Lots therein in accordance with this Declaration shall become effective.
Notwithstanding any other provisions of the Restrictions, until such time as (i) the third anniversary
of the date on which Declarant is no longer entitled to add Annexable Territory to the Property
without the consent of the Association pursuant to Section 17. 1, or (ii) Declarant no longer owns any
Lots in the Property and no longer has the right to add Annexable Territory to the Property without
the consent of the Association pursuant to Section 17.1, whichever occurs first, the following
actions, before being undertaken by the Association, shall first be approved in writing by Declarant:
Any amendment or action requiring the approval of first Mortgagees
pursuant to this Declaration, including without limitation all amendments and actions specified in
Section 14.2;
The annexation to the Property of real property other than the
Annexable Territory pursuant to Section 17.2;
The levy of a Capital Improvement Assessment for the construction of
new facilities not constructed on the Association Property by Declarant;
Subject to Section 6.5 regarding limitations on Annual Assessment
increases, any significant reduction of Association maintenance or other services; or
Any modification of the rights reserved and granted to Declarant
herein, including, without limitation, those rights set forth in Section 7. 1. Article VII, and Article
XV.
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ENFORCEMENT
15.1. Enforcement.
15. 1.1 Association. Declarant and Owners. The Association, Declarant and any
I Owner shall have the right to enforce by any proceedings at law or in equity, all covenants,
conditions, restrictions and reservations imposed by the provisions of the Declaration and Rules and
Regulations adopted pursuant to this Declaration. Each Owner shall have a right of action against the
I Association for any failure of the Association to comply with the provisions of the Declaration or of
the Bylaws or Articles. Failure by the Association, Declarant or any Owner to enforce any covenant,
condition, restriction or reservation in the Declaration shall not be deemed a waiver of the right to do
so thereafter.
15.1.2 City. The City shall have the right, but not the obligation, to enforce those
I provisions of this Declaration that are in favor of or in which the City has an interest.
15.2. Legal Proceedings: Arbitration: Actions Arising From Restrictions. Failure to strictly
I comply with any of the terms of the Restrictions by an Owner, his or her Family, guests, employees,
contractors, invitees or tenants, shall be grounds for relief which may include, without limitation, an
action to recover sums due for damages, injunctive relief, foreclosure of any lien, or any
I combination thereof. Failure to enforce any provision hereof shall not constitute a waiver of the
right to enforce that provision, or any other provision hereof. The Board, any Owner (not at the time
in default hereunder), or Declarant (so long as Declarant is an Owner) shall be entitled to bring an
I action for damages against any defaulting Owner, and in addition may enjoin any violation of this
Declaration. Any judgment rendered in any action or proceeding pursuant to this Declaration shall
include a sum for attorneys' fees in such amount as the Court may deem reasonable, in favor of the
I prevailing party, as well as the amount of any delinquent payment, late payment fee, costs of
collection and court costs, and interest thereon. Each remedy provided for in this Declaration shall
be cumulative and not exclusive or exhaustive. Each Owner shall have a right of action against the ' Association for the failure by the Association to comply with the Restrictions. Notwithstanding
anything above to the contrary, any action or claim for enforcement of the Restrictions shall be
subject to the following provisions:
I 15.2.1 Claims for Declaratory Relief or Enforcement of Project Documents. Prior to
the filing of an enforcement action for declaratory, injunctive, or writ relief in conjunction with a
I claim for monetary damages not in excess of Five Thousand Dollars ($5,000), the Board, or any
Owner who seeks such relief, shall first endeavor to submit the matter to alternative dispute
resolution in compliance with the provisions of California Civil Code Sections 5925 - 5960
I 15.2.2 Requirements Regarding Alternative Dispute Resolution. The Board shall
comply with the requirements of California Civil Code Section 5965 by providing Members of the
I Association annually with a summary of the provisions of Article 3 (commencing with California
Civil Code Section 5925) of Chapter 10 (Division 4, Part 5) of the California Civil Code, including
the following language:
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"Failure of a Member of the Association to comply with the
alternative dispute resolution requirements of Section 5930 of the
California Civil Code may result in the loss of your right to sue the
Association or another Member of the Association regarding
enforcement of the Governing Documents or the applicable law."
1 15.3. Procedures for Post-Closing Disputes. In the event a Dispute (defined in Section 15.5
below) arises between an Owner or the Association, on the one hand, and Declarant or Declarant's
current or former officers, directors, members, managers and affiliates (individually, "Declarant
I Party" and collectively, "Declarant Parties"), on the other hand, whether or not such Dispute is
related to, or arises from an act, omission to act or other event occurring prior to the close of escrow
for the Owner's acquisition of the Owner's Lot, initially, the Declarant Party(ies) will attempt to
I resolve any Dispute asserted by an Owner or the Association of which it is given notice. If the
Dispute cannot be resolved between the parties in this manner, the parties shall proceed to mediation,
according to the procedures set forth below, within forty-five (45) days from the date the parties
I determine that the Dispute cannot be resolved between the parties themselves.
15.4. Order of Procedures. Each Owner and the Association, by accepting a deed to any
portion of the Property, and Declarant Parties, by Declarant's execution of this Declaration, agree
that any Dispute regarding claims for construction defects, violations of the standards set forth in
California Civil Code Section 895, et seq., or any other claims whatsoever shall first be subject to the
procedures set forth below in Section 15.5.1. Once said procedures have been exhausted or waived,
the Owner(s) and/or the Association and the Declarant Party(ies) shall submit the Dispute to
mediation pursuant to Section 15.5.2. If the Dispute is not resolved through mediation, the Dispute
shall be submitted and resolved by binding arbitration pursuant to Section 15.5.4.
15.5. Alternative Dispute Resolution. To avoid potentially costly and lengthy traditional
I court proceedings, the following alternative dispute resolution procedures are established for any and
all claims that arise between an Owner or the Association, on the one hand, and one or more
Declarant Parties, on the other hand, whether or not such dispute is related to, or arises from, an act,
I omission to act or other event occurring prior to the close of escrow for the Owner's purchase of a
Lot ( "Disputes"). The alternative dispute resolution procedures in this Section shall be interpreted
and enforced in accordance with the philosophy and intent of the Federal Arbitration Act (9 U.S.C.
I Sections 1-16), which encourages the use of alternative dispute resolution procedures, and federal
court decisions which have found that the Federal Arbitration Act: (i) is a congressional declaration
of a federal policy favoring arbitration agreements, notwithstanding state policies or substantive or
I procedural requirements to the contrary; (ii) requires that federal and state courts rigorously enforce
agreements to arbitrate; (iii) requires the scope of alternative dispute resolution agreements to be
interpreted broadly to favor alternative dispute resolution; and (iv) requires that disputes over
I whether an issue is arbitrable be resolved in favor of arbitration. References in this Declaration to
California Code sections shall not waive any of the rights created by the Federal Arbitration Act.
I 15.5.1 Construction Defect Dispute Notification and Resolution Procedure. Any
Dispute between an Owner or the Association and one or more Declarant Parties concerning a
violation of the standards set forth in California Civil Code Section 895, et seq., whether or not
l California Civil Code Section 895, et seq. applies ("Construction Defect Dispute") shall be subject
to the following provisions:
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Notice. In the event of a Construction Defect Dispute between an
Owner or the Association and one or more Declarant Parties, the Owner or Association (as
applicable) shall notify the Declarant Parties in writing of the Construction Defect Dispute, which
writing shall describe the Construction Defect Dispute ("Claim Notice").
Right to Inspect and Right to Corrective Action. Within a reasonable
period after receipt of the Claim Notice, which period shall not exceed ninety (90) days, the
Declarant Parties and the Owner or Association shall meet at a mutually-acceptable place within the
Project to discuss the Construction Defect Dispute. At such meeting or at such other mutually-
agreeable time, the Declarant Parties and their representatives shall have full access to the property
that is subject to the Construction Defect Dispute for the purposes of inspecting the same. The
parties shall negotiate in good faith in an attempt to resolve the Construction Defect Dispute. If the
Declarant Parties elect to take any corrective action, (i) the Declarant Parties shall have the right to
take and complete such corrective action, and (ii) the Declarant Parties and their representatives and
agents shall be provided full access to the property subject to the Construction Defect Dispute to do
so.
15.5.2 Mediation. If the parties cannot resolve a Construction Defect Dispute
I pursuant to the procedures described in Section 15.5.1 above or if the Dispute is not a Construction.
Defect Dispute, the matter shall be submitted to mediation pursuant to the mediation procedures
adopted by the American Arbitration Association or any successor thereto or to any other entity
I offering mediation services that is acceptable to the parties. No person shall serve as a mediator in
any dispute in which the person has any financial or personal interest in the result of the mediation,
except by the written consent of all parties. Prior to accepting any appointment, the prospective
I mediator shall disclose any circumstances likely to create a presumption of bias or to prevent a
prompt commencement of the mediation process.
I (a) Position Memoranda: Pre-Mediation Conference. Within ten (10) days
of the selection of the mediator, each party shall submit a brief memorandum setting forth its
position with regard to the issues that need to be resolved. The mediator shall have the right to
I schedule a pre-mediation conference and all parties shall attend unless otherwise agreed. The
mediation shall be commenced within ten (10) days following the submittal of the memoranda and
shall be concluded within fifteen (15) days from the commencement of the mediation unless the
I parties mutually agree to extend the mediation period. The mediation shall be held in the County
where the Project is located or such other place as is mutually acceptable to the parties.
I (b) Conduct of Mediation. The mediator has discretion to conduct the
mediation in the manner in which the mediator believes is most appropriate for reaching a settlement
of the dispute. The mediator is authorized to conductjoint and separate meetings with the parties and
I to make oral and written recommendations for settlement. Whenever necessary, the mediator may
also obtain expert advice concerning technical aspects of the dispute, provided the parties agree and
assume the expenses of obtaining such advice. The mediator does not have the authority to impose a
I settlement on the parties.
Exclusion Agreement. Prior to the commencement of the mediation
session, the mediator and all parties to the mediation shall execute an agreement pursuant to
I California Evidence Code Section 1152.5(e) or successor statute in order to exclude the use of any
I Donna Drive cc&as (v2) 74
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I testimony or evidence produced at the mediation in any subsequent dispute resolution forum,
including, but not limited to, court proceedings, reference proceedings or arbitration hearings.
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Pursuant to California Evidence Code Section 1152.5(a), the agreement shall specifically state that
evidence of anything said or of any admission made in the course of the mediation is not admissible
evidence, and disclosure of any such evidence shall not be compelled in any civil action in which,
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pursuant to law, testimony can be compelled to be given. Unless the document provides otherwise,
no document prepared for the purpose of, or in the course of, or pursuant to, the mediation, or copy
thereof, is admissible in evidence; and disclosure of any such document shall not be compelled in
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any civil action in which, pursuant to law, testimony can be compelled to be given.
Persons Permitted at Sessions. Persons other than the parties, the
representatives and the mediator may attend mediation sessions only with the permission of the
I parties and the consent of the mediator. Confidential information disclosed to a mediator by the
parties or by witnesses in the course of the mediation shall not be divulged by the mediator. All
records, reports, or other documents received by the mediator while serving in such capacity shall be
I confidential. There shall be no stenographic record of the mediation process.
Expenses. The expenses of witnesses for either side shall be paid by
I the party producing such witnesses. All other expenses of the mediation, including required
traveling and other expenses of the mediator, and the expenses of any witnesses, or the cost of any
professionals or expert advice produced at the direct request of the mediator, shall be borne equally
by the parties unless they agree otherwise.
15.5.3 Compliance with Procedures. Each Owner and the Association, by accepting
I a deed to any portion of the Property, covenants that it shall forbear from commencing any litigation
against the Declarant Parties without first complying with the procedures described in this Section
15.5.
I 15.5.4 ARBITRATION OF DISPUTES.
I .(a) Agreement to Arbitrate. IF THE PARTIES CANNOT RESOLVE
THE DISPUTE PURSUANT TO THE PROCEDURES DESCRIBED IN SECTION 15.5.1 OR
15.5.2 ABOVE, THE DECLARANT PARTIES AND THE OWNER(S) OR ASSOCIATION (AS
I APPLICABLE) SHALL RESOLVE ALL SUCH DISPUTES EXCLUSIVELY THROUGH
BINDING ARBITRATION IN THE COUNTY IN WHICH THE PROPERTY IS LOCATED AND
WAIVE THEIR RIGHTS TO RESOLVE SUCH DISPUTES IN ANY OTHER MANNER;
I PROVIDED, HOWEVER, THE PARTIES TO THE DISPUTE MAY ELECT TO RESOLVE
SUCH DISPUTE THROUGH A SMALL CLAIMS COURT PROCEEDING.
I .(b) Waiver of Trial by Judge or Jury. BINDING ARBITRATION
INVOLVES WAIVER OF THE RIGHT TO HAVE CLAIMS AND DEFENSES DECIDED BY A
JUDGE OR JURY INSTEAD ALL CLAIMS AND DISPUTES WILL BE DECIDED BY THE
I ARBITRATOR.
(c) Rules Applicable to All Cases. The arbitration will be conducted by
Judicial Arbitration and Mediation Services ("JAMS") in accordance with the rules of JAMS in
I effect as of the initiation of the arbitration ("JAMS Rules"), as supplemented by this Section 15.5.4.
Donna Drive CC&Rs (v2) 75
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The following supplemental rules shall apply to all arbitration proceedings respecting Disputes and
shall govern in the event of a conflict between the rules set forth below and the JAMS Rules.
qualifications of Arbitrators. The arbitrator shall be neutral
and impartial and either a retired judge or a member or former member of the California
State Bar with at least 15 years' experience as a practicing lawyer.
Appointment of Arbitrator. The arbitrator to preside over the
Dispute shall be selected in accordance with the JAMS Rules, but no later than sixty (60)
days after a notice of claim is filed.
Expenses. All fees charged by JAMS and the arbitrator shall be
I advanced by the Declarant Party(ies). If the Declarant Party(ies) are the prevailing party(ies)
in the arbitration, the arbitrator may, in his or her discretion and only to the extent permitted
by law and the JAMS Minimum Standards of Procedural Fairness, direct the Owner(s)
I and/or Association to reimburse the Declarant Parties all or part of the JAMS fee and the
arbitrator's fee advanced by the Declarant Parties.
I (iv) Preliminary Procedures. If state or federal law requires the
parties to take steps or procedures before commencing an action in court, then the parties
must take such steps or follow such procedures, as the case may be, before commencing the
I arbitration. In addition, nothing contained herein shall be deemed a waiver or limitation of
the provisions of California Civil Code Section 6000, 6100 or 6150.
I (v) Participation by Other Parties. Each Owner, the Association
and the Declarant Parties, to the extent any such party is defending a claim in the arbitration,
may, if it chooses, have all necessary and appropriate parties included as parties to the
I arbitration.
Rules of Law. The arbitrator must follow California
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substantive law (including statutes of limitations) and strict conformity with all California
statutes including, but not limited to, the rules of evidence is expressly required, and the
arbitrator shall apply applicable law relating to privilege and work product. The arbitrator
shall be authorized to provide all recognized remedies available at law or equity for any
I cause of action.
Attorneys' Fees and Costs. Each party shall bear its own
I attorneys' fees and costs (including expert witness costs) in the arbitration.
Decision. Within thirty (30) days after the hearing is closed,
I the arbitrator must issue a reasoned award and written decision.
(d) Additional Rules Applicable to Certain Cases. In any arbitration in
I which a claim of an Owner, the Association or the Declarant Parties exceeds $250,000 in value, the
following additional rules will supplement the JAMS Rules and govern in the event of a conflict
between the following rules and the rules set forth above, the JAMS Rules, or both.
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I (i) Qualifications of Arbitrator. In addition to the requirements of
Section 15.5 .4(c)(i) above, the arbitrator shall be a retired judge of the California Superior
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Court, a California Court of Appeal, or the California Supreme Court.
Additional Discovery Rights. In addition to the discovery
rights provided for in the JAMS Comprehensive Arbitration Rules, the parties will have the
1 following discovery rights:
Inspection. Examination and/or Testing. The right to a
I reasonable inspection, examination and/or test of any site, defect, personal injury or property
damage relevant to any claim.
I (iv) Deposition of Opposing Party. The right to take one deposition
of each opposing party. The deposition of a person designated by an entity or organization as
most knowledgeable, or an individual officer or employee of an entity or organization, shall
I count as the deposition of a party that is not a natural person.
Deposition of Expert Witnesses. The right to take the ' deposition of each expert witness designated by an opposing party.
Additional Depositions. The arbitrator shall have the discretion
I to allow additional depositions and longer depositions upon a showing of good cause.
(e) Procedure for Appeal of Certain Cases. In any arbitration in which a
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claim or arbitration award of an Owner, the Association or a Declarant Party exceeds $500,000 in
value, each Owner and the Association, by acceptance of a deed to any portion of the Property, and
the Declarant Parties, by Declarant's execution of this Declaration, hereby adopt and agree to the
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JAMS Optional Appeal Procedure. The following additional rules will supplement the JAMS
Optional Appeal Procedure and govern in the event of a conflict between the following rules and the
JAMS Optional Appeal Procedure.
Right to Appeal. There shall be no right to appeal unless the
oral evidence received by the arbitrator was preserved in a manner such that it can be
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converted to an accurate and reliable written transcript.
Appellate Panel. An appeal shall be decided by one (1) neutral
appeal arbitrator unless either party, within the time permitted for the appointment of the
I appeal arbitrator, elects to have the appeal decided by a panel of three (3) appeal arbitrators.
Any party who elects to have an appeal decided by a panel of three (3) appeal arbitrators
agrees to be solely responsible for the cost of having two (2) additional appeal arbitrators.
I The sole appeal arbitrator, or at least one member of any panel of three (3) arbitrators, shall
have prior experience as a member of an appellate panel of the California Court of Appeal.
I (iii) Issues on Appeal. The only issues that may be considered on
appeal are: (1) the award of money was excessive; (2) the award of money was insufficient;
(3) the arbitrator awarded non-monetary relief that was inappropriate; (4) a party who
I received non-monetary relief should have received other or additional relief. A majority of
the appeal arbitrators may affirm the arbitration award or make any alternative award they
I Donna Drive CC&Rs (v2) 77
find to be just, but they must not reject the arbitrator's decisions that (a) a particular party is
entitled to relief of some nature or amount or (b) a particular party is responsible to provide
relief of some nature or amount.
(iv) Expenses and Costs on Appeal. The fees charged by JAMS
and the appeal arbitrator(s) shall be advanced by the Declarant Party(ies), except as provided
in Section 15.5 .4(e(ii) above. The party who files the appeal must, at its sole expense,
provide JAMS and all non-appealing parties with a certified copy of the hearing transcript,
and must provide JAMS with copies of all documentary evidence and all other tangible
evidence received by the arbitrator. The appeal arbitrators may, within thirty (30) days of
their determination award costs of the nature provided in the Federal Rules of Appellate
Procedure. If the Declarant Party(ies) are the prevailing party on appeal, the appeal
arbitrator(s) may, in its or their discretion and only to the extent permitted by law and JAMS
Minimum Standards of Procedural Fairness, include the non-prevailingparty's(ies') pro rata
share of the JAMS fee and arbitrator's fee advanced by the Declarant Parties in the award of
costs on appeal.
AGREEMENT TO ARBITRATE. EACH OWNER AND THE
ASSOCIATION, BY ACCEPTANCE OF A DEED TO ANY PORTION OF THE PROPERTY,
AND DECLARANT PARTIES, BY DECLARANT'S EXECUTION OF THIS DECLARATION,
AGREE TO HAVE ANY DISPUTES DECIDED BY NEUTRAL ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, AND THEY ARE GIVING UP ANY RIGHTS THEY MIGHT POSSESS
TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. TO THE EXTENT
THAT THE CALIFORNIA ARBITRATION ACT IS INCONSISTENT WITH THE FEDERAL
ARBITRATION ACT, THE FEDERAL ARBITRATION ACT SHALL CONTROL.
FURTHERMORE, EACH OWNER AND THE ASSOCIATION, BY ACCEPTANCE OF A DEED
TO ANY PORTION OF THE PROPERTY, AND THE DECLARANT PARTIES, BY
DECLARANT'S EXECUTION OF THIS DECLARATION, ARE GIVING UP THEIR
RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS SECTION 15.5. IF AN OWNER, THE ASSOCIATION
OR A DECLARANT PARTY REFUSES TO SUBMIT TO ARBITRATION, SUCH PARTY MAY
BE COMPELLED TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE
CALIFORNIA ARBITRATION ACT.
Final and Binding Award. The decision of the arbitrator shall be final
and binding. A petition to confirm, vacate, modify or correct an award may be filed in any court of
competent jurisdiction in the County in which the Property is located, but the award may be vacated,
modified or corrected only as permitted by the Federal Arbitration Act.
Severability. If the arbitrator or any court determines that any
provision of this Section 15.5 is unenforceable for any reason, that provision shall be severed, and
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(v) New Evidence. The appeal arbitrator(s) must not receive new
I evidence. The appeal arbitrator(s) must make their decision based only on the evidence that
was presented to the arbitrator, except that the appeal arbitrator(s) may visit any site involved
in the Dispute.
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I proceedings agreed to in this Section 15.5 shall be conducted under the remaining enforceable terms
of this Section 15.5.
(i) Amendment. Notwithstanding any other provision of this Declaration
to the contrary, this Section 15.5 shall not be amended without the consent of Declarant.
I 15.6. Violation of Restrictions. Without in any way limiting the generality of the
foregoing, if the Board of Directors determines that there is a violation of any provision of this
Declaration, or the Architectural Committee determines that an Improvement which is the
I maintenance responsibility of an Owner is in need of installation, repair, restoration or painting, then
the Board shall give written notice to the responsible Owner of the condition or violation complained
of. Unless the Architectural Committee has approved in writing corrective plans proposed by the
I Owner to remedy the condition complained of within such period of time as may be determined
reasonable by the Board after it has given said written notice, and such corrective work so approved
is completed thereafter within the time allotted by the Board, the Board, after Notice and Hearing,
I shall undertake to remedy such condition or violation complained of, and the cost thereof shall be
charged to the Owner and his or her Lot whose Dwelling is the subject matter of the corrective work.
Such cost shall be deemed to be a Special Assessment to such Owner and shall be subject to
I enforcement and collection by the Board in accordance with the procedures provided for in this
Declaration. The Board may also adopt a schedule of reasonable fines or penalties which, in its
reasonable discretion, it may assess against an Owner for the failure of such Owner, or of a resident
I of or visitor to such Owner's Lot, to comply with any provision of the Restrictions. Such fines or
penalties shall be deemed to be a Special Assessment and may only be assessed by the Board after
Notice and Hearing.
1 15.7. Enforcement of Certain Bonded Obligations
I 15.7.1 Consideration by Board of Directors. If (1) the Improvements to be located
on the Association Property in any Phase of Development are not completed prior to the issuance of
a Final Subdivision Public Report for that Phase by the BRE for the sale of Lots in the Project, and
I (2) the Association is obligee under a bond or other arrangement ("Bond") required by the BRE to
secure performance of the commitment of Declarant to complete such Improvements, the Board of
Directors of the Association shall consider and vote on the question of action by the Association to
I enforce the obligations under the Bond, with respect to any such Improvement for which a Notice of
Completion has not been filed within sixty (60) days after the completion date specified for that
Improvement in the Planned Construction Statement appended to the Bond. If the Association has
I given an extension in writing for the completion of any Improvement on the Association Property,
the Board shall be directed to consider and vote on the aforesaid question (if a Notice of Completion
has not been filed), within thirty (30) days after the expiration of the extension.
15.7.2 Consideration by the Members. A special meeting of Members, for the
purpose of voting to override a decision by the Board not to initiate action to enforce the obligations
I under the Bond or on the failure of the Board to consider and vote on the question, shall be held no
fewer than thirty-five (35) days nor more than forty-five (45) days after receipt by the Board of a
petition for such a meeting signed by Members representing five percent (5%) of the total voting
power of the Association residing in Members other than Declarant. A vote at such meeting to take I action to enforce the obligations under the Bond by Members representing a majority of the total
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I voting power of the Association residing in Members other than Declarant shall be deemed to be the
decision of the Association, and the Board shall thereafter implement this decision by initiating and
I pursuing appropriate action in the name of the Association.
ARTICLE XVI
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GENERAL PROVISIONS
16.1. Severability. The provisions of this Declaration shall be deemed independent and
severable, and a determination of invalidity or partial invalidity or unenforceability of any one
I provision or portion hereof by a court of competent jurisdiction shall not affect the validity or
enforceability of any other provisions hereof.
I 16.2. Interpretation. The provisions of this Declaration shall be liberally construed to
effectuate its purpose of creating a uniform plan for the creation and operation of a planned
residential development and for the maintenance of the Association Property and the Association
I Maintenance Areas, and any violation of this Declaration shall be deemed to be a nuisance. The
Article and Section headings, titles and captions have been inserted for convenience only, and shall
not be considered or referred to in resolving questions of interpretation or construction. As used
I herein, the singular shall include the plural and the masculine, feminine and neuter shall each include
the other, unless the context dictates otherwise. In interpreting the Restrictions and the deed to any
Lot, the physical as-built boundaries of Improvements, including any fences located on the boundary
I between two Lots, which are constructed or reconstructed in substantial accordance with the original
plans for the Project shall be conclusively presumed to be the boundaries of the Lots, regardless of
settling or lateral movement of the Improvements and regardless of minor variances between Lot
I boundaries, as defined in this Declaration, any Notice of Addition or any Lot deed, and the
boundaries of those Improvements, as constructed or reconstructed. As used in this Declaration, the
term "including" shall be construed and understood to mean "including, without limitation" or
I "including, but not limited to."
16.3. Mergers or Consolidations. Upon a merger or consolidation of the Association with
I another association, its properties, rights and obligations may, by operation of law, be transferred to
another surviving or consolidated association or, alternatively, the properties, rights and obligations
of another association may, by operation of law, be added to the properties, rights and obligations of
the Association as a surviving corporation pursuant to a merger. The surviving or consolidated
association may administer and enforce the covenants, conditions and restrictions established by this
Declaration governing the Property, together with the covenants and restrictions established upon
any other property, as one (1) plan.
16.4. Use of Association ProDerty. The Board of Directors shall have the right to limit the
I number of guests that an Owner or such Owner's tenant may permit to use the open parking areas or
other facilities, including recreation facilities, and the Board shall have the right to set further
reasonable restrictions on the time and manner of use of said parking areas, recreation facilities, and
I other facilities in accordance with the Rules and Regulations, including, without limitation, Rules
and Regulations restricting or prohibiting the use of all or designated portions of the recreation
facilities of the Property by minors, guests of an Owner or his or her tenants.
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16.5. No Public Right or Dedication. Except as may otherwise be expressly provided
herein, nothing contained in this Declaration shall be deemed to be a gift or dedication of all or any
part of the Property to the public, or for any public use; provided, that the foregoing provisions shall
not be construed or understood to limit the effectiveness of any public dedication expressly set forth
on any subdivision map or any other instrument Recorded with respect to the Property, or any
portion thereof.
16.6. No Representations or Warranties. No representations or warranties of any kind,
express or implied, have been given or made by Declarant, or its agents or employees in connection
with the Property, or any portion thereof, concerning its physical condition, zoning, compliance with
applicable laws, or fitness for intended use, or in connection with the subdivision, sale, operation,
maintenance, cost of maintenance, taxes or regulation thereof as a planned residential development
project, except as specifically and expressly set forth in this Declaration and except as may be filed
by Declarant from time to time with the BRE.
16.7. Nonliability and Indemnification.
16.7.1 General Limitation. Except as specifically provided in the Restrictions or as
required by law, no right, power, or responsibility conferred on the Board or the Architectural
Committee by this Declaration, the Articles or the Bylaws shall be construed as a duty, obligation or
disability charged upon the Board, the Architectural Committee, any member of the Board or of the
Architectural Committee, or any other officer, employee or agent of the Association. No such
Person shall be liable to any party (other than the Association or a party claiming in the name of the
Association) for injuries or damage resulting from such Person's acts or omissions within what such
Person reasonably believed to be the scope of his or her Association duties ("Official Acts"), except
to the extent that such injuries or damage result from such Person's willful or malicious misconduct.
No such Person shall be liable to the Association (or to any party claiming in the name of the
Association) for injuries or damage resulting from such Person's Official Acts, except to the extent
that such injuries or damage result from such Person's negligence or willful or malicious
misconduct.
16.7.2 Indemnification. The Association shall pay all expenses incurred by, and
satisfy any judgment or fine levied against, any person as a result of any action or threatened action
against such Person to impose liability on such Person for his or her Official Acts, provided that:
The Board determines that such Person acted in good faith and in a
manner such Person reasonably believed to be in the best interests of the Association;
In the case of a criminal proceeding, the Board determines that such
Person had no reasonable cause to believe his or her conduct was unlawful; and
In the case of an action or threatened action by or in the right of the
Association, the Board determines that such Person acted with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position would use under similar circumstances.
Any determination of the Board required under this Section 15.12 must be approved
I by a majority vote of a quorum consisting of Directors who are not parties to the action or threatened
action giving rise to the indemnification. If the Board fails or refuses to make any such
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I determination, such determination may be made by the vote or written consent of a majority of a
quorum of the Members of the Association, provided that the Person to be indemnified shall not be
I entitled to vote.
- Payments made hereunder shall include amounts paid and expenses incurred in
settling any such action or threatened action. This Section 15.12 shall be construed to authorize
I payments and indemnification to the fullest extent now or hereafter permitted by applicable law and
any restriction on liability or provision for indemnification shall be in addition to any such restriction
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or indemnification provided by applicable law.
The entitlement to indemnification hereunder shall inure to the benefit of the estate,
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executor, administrator, heirs, legatees, or devisees of any Person entitled to such indemnification.
16.8. Notices. Except as otherwise provided in this Declaration, in each instance in which
notice is to be given to an Owner, the same shall be in writing and may be delivered personally to the
I Owner, in which case personal delivery of such notice to one (1) or more co-owners of a Lot or to
any general partner of a partnership owning a Lot shall be deemed delivery to all co-owners or to the
partnership, as the case may be. Personal delivery of such notice to any officer or agent for the
I service of process on a corporation shall be deemed delivery to the corporation. In lieu of the
foregoing, such notice may be delivered by regular United States mail, postage prepaid, addressed to
the Owner at the most recent address furnished by such Owner to the Association or, if no such
I address shall have been furnished, to the Street address of such Owner's Lot. Such notice shall be
deemed delivered three (3) business days after the time of such mailing, except for notice of a
meeting of Members or of the Board of Directors in which case the notice provisions of the Bylaws
I of the Association shall control. Any notice to be given to the Association may be delivered
personally to any member of the Board, or sent by United States mail, postage prepaid, addressed to
the Association at such address as shall be fixed from time to time and circulated to all Owners. Any
I notice to be given to the Declarant shall be delivered personally, or sent by registered or certified
mail, return receipt requested, addressed to the principal office of the Declarant, or such other
address as may be provided from time to time by the Declarant.
I 16.9. Priorities and Inconsistencies. If there are conflicts or inconsistencies between this
Declaration and the Articles of Incorporation or the Bylaws of the Association, the terms and
I provisions of this Declaration shall prevail.
16.10. Constructive Notice and Acceptance. Every person who owns, occupies or acquires
I any right, title, estate or interest in or to any Lot or other portion of the Property does hereby consent
and agree, and shall be conclusively deemed to have consented and agreed, to every limitation,
restriction, easement, reservation, condition and covenant contained herein, whether or not any
reference to these restrictions is contained in the instrument by which such person acquired an
interest in the Property, or any portion thereof.
16.11. Declarant Delivery of Documents.
16.11.1 Phase 1. Commencing not later than ninety (90) days after the Close of
Escrow for the sale of the first Lot in Phase 1 of the Project, copies of the documents listed below, as
soon as readily obtainable, shall be delivered by the Declarant to the Board of Directors at the office
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of the Association, or at such other place as the Board of Directors shall prescribe. The obligation to
deliver the documents listed below shall apply to any documents obtained by the Declarant no matter
when obtained, provided, however, such obligation shall terminate upon the earlier of (1) the
I conveyance of the last Lot in Phase 1 of the Project or (2) three (3) years after the expiration of the
most recently issued Final Subdivision Public Report for Phase 1 of the Project:
I (a) The Recorded subdivision map or maps for Phase 1;
The deeds and easements executed by the Declarant conveying the
I Phase 1 Association Property to the Association, to the extent applicable;
The Recorded Declaration, including all amendments thereto, and any
I Notice of Addition of Territory;
The Association's filed Articles of Incorporation, and all amendments
i thereto;
(e) The Association's Bylaws, and all amendments thereto;
I (f) All architectural guidelines and all other rules regulating the use of an
owner's interest in the Project or use of the Association Property which have been promulgated by
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the Association;
The plans approved by the local agency or county where the
subdivision is located for the construction or improvement of facilities that the Association is
I obligated to maintain or repair; provided, however, that the plans need not be as-built plans and that
the plans may bear restrictions on their commercial exploitation or use and may contain disclaimers
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regarding their accuracy;
All notice of completion certificates issued for Association Property
Improvements;
I (i) Any bond or other security device in which the Association is the
beneficiary;
I (j) Any written warranty being transferred to the Association for
Association Property equipment, fixtures or improvements;
I (k) Any insurance policy procured for the benefit of the Association, its
governing board or the Association Property;
I (1) Any lease or contract to which the Association is a party;
(m) The membership register, including mailing addresses and telephone
I numbers, books of account and minutes of meetings of the Members, of the governing body and of
committees of the governing body of the Association; and
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(n) Any instrument referred to in California Business and Professions
Code Section 11018.6(d) but not described above which establishes or defines the common, mutual
or reciprocal rights or responsibilities of Members of the Association.
16.11.2Subseciuent Phases ofDevelopment. Commencing not later than ninety (90)
days after the annexation of additional Phases of Development to the Project, copies of those
documents listed under subdivision (a) which are applicable to that Phase of Development, shall, as
soon as readily obtainable, be delivered by the Declarant to the Board of Directors of the Association
at the office of the Association, or at such other place as the Board of Directors of the Association
shall prescribe. The obligation to deliver the documents listed in subsection (a) shall apply to any
documents obtained by the Declarant no matter when obtained, provided, however, such obligation
shall terminate as to the documentation applicable to each Phase of Development upon the earlier of
(1) the conveyance of the last Lot for the applicable Phase of Development or (2) three (3) years
after expiration of the most recently issued Final Subdivision Public Report for the applicable Phase
of Development.
16.12. Additional Provisions. Notwithstanding the provisions contained in the Restrictions,
the Association and the Owners should be aware that there may be provisions of various laws,
including, without limitation, the Davis-Stirling Common Interest Development Act contained in the
California Civil Code, which may modify, supplement or override the Restrictions as a matter of
law.
ARTICLE XVII
ANNEXATION OF ADDITIONAL PROPERTY
Additional real property may be annexed to Phase 1 and such additional real property may
become subject to this Declaration by any of the methods set forth hereinafter.
17.1. Additions by Declarant. Declarant or its successors or assigns shall have the right
from time to time to add the Annexable Territory, or any portion or portions thereof (including
recreation facilities, if any, located thereon), to the Property and to bring such added territory within
the general plan and scheme of this Declaration without the approval of the Association, its Board of
Directors, or Members. As each Phase of Development is developed, Declarant may, with respect
thereto, Record a supplemental declaration ("Supplemental Declaration") which may supplement
this Declaration with such additional, supplemental or amendatory covenants, conditions,
restrictions, reservations and easements as Declarant may deem appropriate for that Phase of
Development.
17.2. Other Additions. In addition to the provision for annexation specified in Section 17.1
above, additional real property may be annexed to the Property and brought within the general plan
and scheme of this Declaration upon the approval by vote or written consent of Members entitled to
exercise no less than two-thirds (2/3rds) of the voting power of the Association.
17.3. Rights and Obligations-Added Territory. Subject to the provisions of Sectionl7.4,
upon the Recording of a Notice of Addition of Territory containing the provisions as set forth in this
Section 17.3, all provisions contained in this Declaration shall apply to the real property described in
such Notice of Addition of Territory (the "added territory") in the same manner as if it were
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I originally covered by this Declaration. Thereafter, the rights, powers and responsibilities of the
parties to this Declaration with respect to the added territory shall be the same as with respect to the
property originally covered hereby, and the rights, powers and responsibilities of the Owners, lessees
I and occupants of Lots within the added territory, as well as within the property originally subject to
this Declaration, shall be the same as if the added territory were originally covered by this
Declaration. Voting rights attributable to the Lots in the added territory shall not vest until Annual
I Assessments have commenced as to such Lots.
17.4. Notice of Addition of Territory. The additions authorized under Sections 17. land
I 17.2 shall be made by Recording a Notice of Addition of Territory, or other similar instrument
(which Notice or Instrument may contain the Supplemental Declaration, if any, affecting each such
Phase of Development), with respect to the added territory which shall be executed by Declarant and
I shall extend the general plan and scheme of this Declaration to such added territory ("Notice of
Addition"). The Notice of Addition for any addition under Section 17.1 shall be signed by
Declarant. The Notice of Addition for any addition under Section 17.2 shall be signed by at least
I two (2) officers of the Association and shall certify that the requisite approval of the Members under
Section 17.2 was obtained. The Recordation of said Notice of Addition shall constitute and
effectuate the annexation of the added territory described therein, and thereupon said added territory
I shall become and constitute a part of the Project, become subject to this Declaration and
encompassed within the general plan and scheme of covenants, conditions, restrictions, reservation
of easements and equitable servitudes contained herein, and become subject to the functions, powers
I and jurisdiction of the Association; and the Owners of Lots in said added territory shall
automatically become Members of the Association. Such Notice of Addition may contain a
Supplemental Declaration with such additions and modifications of the covenants, conditions,
I restrictions, reservation of easements and equitable servitudes contained in this Declaration as may
be necessary to reflect the different character, if any, of the added territory, or as Declarant may
deem appropriate in the development of the added territory, and as are not inconsistent with the
I general plan and scheme of this Declaration. In no event, however, shall such Notice of Addition or
Supplemental Declaration revoke, modify or add to the covenants, conditions, restrictions,
reservation of easements, or equitable servitudes established by this Declaration as the same shall
I pertain to the real property originally covered by this Declaration. Notwithstanding any other
provisions of this Article XVI, at any time prior to the first Close of Escrow for the sale of a Lot
within a Phase of Development, Declarant may amend the Supplemental Declaration applicable to
I such Phase of Development by Recording a written instrument which effects the amendment and is
signed and acknowledged by Declarant.
I 17.5. Completion Requirements. All intended Improvements in any Phase of Development
other than Phase I shall be substantially completed or the completion of such Improvements shall be
secured by a bond or other arrangement acceptable to the BRE prior to the first Close of Escrow for
I the sale of a Lot in such Phase.
17.6. Deannexation Amendment. Notwithstanding anything herein which is or may appear
I to be to the contrary, Declarant may amend a Notice of Addition or delete all or a portion of a Phase
of Development from coverage of this Declaration and the jurisdiction of the Association, so long as
Declarant is the owner of all of such Phase of Development, and provided that (1) an amending
instrument or a Notice of Deletion of Territory, as applicable, is Recorded in the same manner as the I applicable Notice of Addition was Recorded, (2) Declarant has not exercised any Association vote
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with respect to any portion of such Phase of Development, (3) assessments have not yet commenced
with respect to any portion of such Phase of Development, (4) Close of Escrow has not occurred for
the sale of any Lot in such Phase of Development, and (5) the Association has not made any
expenditures or incurred any obligations with respect to any portion of such Phase of Development.
Any such amendment or deannexation shall be effective upon the Recordation of the amending
instrument or Notice of Deletion of Territory, as applicable, which need only be executed by
Declarant.
This Declaration is dated for identification purposes 20
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I STATE OF CALIFORNIA
COUNTY OF
"Declarant"
DONNA DRIVE, LLC,
a Delaware limited liability company
By:
Name:
Title:
On , before me, , a Notary Public,
personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument,
and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
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1 SUBORDINATION AGREEMENT
The undersigned, as Beneficiary of the beneficial interest in and under a Deed of Trust dated
and recorded on as Instrument
No. , in the Official Records of San Diego County, California (the "Deed of
Trust") hereby expressly subordinates said Deed of Trust and its beneficial interest thereunder to the
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foregoing Declaration of Covenants, Conditions and Restrictions and Reservation of Easements for
Donna Drive ("Declaration"), and to all interests to be conveyed to the Association in accordance
with the Declaration. By executing this Subordination Agreement, the undersigned agrees that
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should the undersigned or its successors or assigns acquire title to all or any portion of the Property
by foreclosure (whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in
or relating to the Deed of Trust, the undersigned and such successors and assigns will acquire title
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subject to the provisions of the Declaration, which shall remain in full force and effect; provided,
however, that in such event the undersigned or its successors and assigns shall succeed to the rights
of Declarant under the Declaration, including, without limitation, the right to deannex all or any
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portion of the Property from the coverage of the Declaration and any applicable Notice of Addition
pursuant to the provisions of Article XVI of the Declaration.
I Dated:
By:
I Name:_____________________
Title:_____________________________________
STATE OF CALIFORNIA
I COUNTY OF_____________ )
I On before me, a Notary Public,
I personally appeared who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument,
I and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
I WITNESS my hand and official seal.
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I Notary Public
Donna Drive CC&RS (v2)
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I EXHIBIT "A"
LEGAL DESCRIPTION OF AN1'EXABLE TERRITORY
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Donna Drive CC&Rs (v2) Exhibit "A"
ASSOCIATION MAINTENANCE AREA
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Donna Drive CC&Rs (v2) Exhibit "B"
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I EXHIBIT "C"
ASSOCIATION MAINTAINED WALLS/FENCE
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Donna Drive CC&Rs (v2) Exhibit "C"
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EXHIBIT "D"
SIGHT DISTANCE CORRIDOR LOCATIONS
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Donna Drive CC&Rs (v2) Exhibit "D"
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MAINTENANCE PATHWAY LOCATIONS
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EXHIBIT "F"
WALKWAY EASEMENT AREA
Donna Drive CC&Rs (v2) Exhibit "F"