MUP 2007-964ANAMCB
RWAMOCOds
City of La Quinta
unity Development Department
5 Calle Tampico
�La inta, California 92253
-7125 FAX: (760) 777-1233
CITY OF LA
OFFICE USE ONLY
Case No. IMIJP 07 —9
Date Recvd. 9 If /0-7
Fee: t. z
Related Apps.:
Logged in by: �
APPLICATION FOR MINOR USE PERMIT APPROVAL
MINOR USE PERMIT applications are reviewed and approved by the Community Development Director
pursuant to Section 9.2I 0.020, of the Zoning Code. The purpose of the review is to ensure that land uses requiring
the permit do not have an adverse impact on surrounding properties, residents, or businesses.
APPLICANT I,y L CAjn j4w,, c�c,c �1 %� S L L L_ C_
`j (Print)
MAILING ADDRESS 7�bu- _ 26p Phone No.
CITY, STATE, ZIP: r (&Lg=jn 4!�A 1?2cGQFaxNo. / $(j 2G z
PROPERTY OWNER (If different):_
(Print)
MAILING ADDRESS: Phone No.
CITY, STATE, ZIP: Fax No.
PROJECT LOCATION: --( ( -
rn
PROPOSED
^USE AND/OR
�CC�ONSTRUCTION (Including operational information): n
o
aV_
UrS+
(attach sheets if needed)
LEGAL DESCRIPTION (LOT & TRACTOR A.P.N.):
AFA-) -S -azo - 624
A 18\Minor Use Permit
P.O. Box 1504
LA QUINTA, CALIFORNIA 92247-1504
78-495 CALLE TAMPICO
LA QUINTA, CALIFORNIA 92253
January 30, 2009
Ms. Penny Waidell
JLH Realty &Construction
19520 Jamboree Rd. Suite 400
Irvine, CA 92612
SUBJECT: MINOR USE PERMIT 2007-964
Ms. Waidell:
(760) 777-7000
FAX (760) 777-7101
k
On October 30, 2008 our office requested additional information needed to process the subject
application. If we fail to receive either a formal letter of withdrawal or the requested items within
30 days of this letter, our office will close the file. A refund can be requested by submitting a
request to our office. Please note, per Section 9.260.010 of the La Quinta Zoning Code you are
entitled to fifty percent of the original fee. If you have any questions concerning this matter,
please contact me immediately at (760) 777-7131.
)NNE FItRANCO
istant Planner
C: File
P.O. Box 1504
LA QUINTA, CALIFORNIA 92247-1504
78-495 CALLS TAMPICO (760) 777-7000
LA QUINTA, CALIFORNIA 92253 FAX (760) 777-7101
October 20, 2008
Ms. Penny Waidell
JLH Realty & Construction
19520 Jamboree Rd. Suite 400
Irvine, CA 92612
SUBJECT: MINOR USE PERMIT 2007-964
GUESTHOUSES FOR TTM 35060
Dear Ms. Waidell:
The subject file is an outstanding item that was submitted for approval by the former project
manager for The Estate. In order to further process the application the following items need
to be submitted:
1. A site plan that shows the overall project and which lots will have the guesthouses
with full kitchen facilities. Also include a floor plan of the guesthouse with kitchen,-
2.
itchen;
2. A check for the correct amount. The amount submitted to the Planning Department
of $75 only covers the fee for the guesthouse or guesthouses for one unit.
3. A completed second page of the MUP application; the file is missing this part of the
application. The second page is included as an attachment.
I have attached a copy of the application and check that were submitted. If you have any
questions, please feel free to call me at (760) 777-7131.
gncer ly,
90E FRANCO
Assistant Planner
C�
Recording requested by:
When recorded return to:
GALLAGHER & MOORE
Frederick C. Moore, Esq.
2 Park Plaza, Suite 300
Irvine, California 92614
CJ
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
THE ESTATES AT LA QUINTA
A Residential Planned Development
NOTE: AS MORE FULLY DESCRIBED IN THIS DECLARATION (e.g., EXHIBIT
"D") OR OTHERWISE PROVIDED BY DECLARANT, IN THE EVENT OF ANY
DISPUTE(S) ARISING HEREUNDER, OR RELATING TO THE DESIGN AND/OR
CONSTRUCTION OF THE PROJECT, SUCH DISPUTES) SHALL BE SUBMITTED TO
A NONADVERSARIAL PROCEDURE AND IF NOT RESOLVED, SUBMITTED THEREAF-
TER TO AN ALTERNATIVE DISPUTE RESOLUTION PROCEDURE (BINDING
ARBITRATION OR JUDICIAL REFERENCE), AND AS A RESULT THEREOF, SUCH
DISPUTES) WILL NOT BE LITIGATED IN A COURT OR BEFORE A JURY. ANY
PERSON PURCHASING IN THIS DEVELOPMENT KNOWINGLY AND VOLUNTARILY
AGREES TO BE BOUND BY A PROCEDURE WHICH DOES NOT INCLUDE A RIGHT TO
A JURY.
IF THIS PROCEDURE IS UNACCEPTABLE, AN INDIVIDUAL OR ENTITY SHOULD
NOT PURCHASE IN THIS PROJECT.
1
TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . 3
1.
Annexation Property . . . . . . . . . .
. . 3
2.
Architectural Review Committee . . . .
. . 3
3.
Architectural Guidelines . . . . . . .
. . 3
4.
Articles . . . . . . . . . . . . . . .
. . 3
5.
Assessments . . . . . . . . . . . . . .
. . 3
6.
Association
4
7.
Association Walls . . .
4
8.
Best Management Practices or BMPs . . .
. . 5
9.
Board . . . . . . . . . . . . . . . . .
. . 6
10.
By -Laws . . . . . . . . . . . . . . . .
. . 6
11.
City . . . . . . . . . . . . . . . . .
. . 6
12.
Common Area . . . . . . . . . . . . . .
. . 6
13.
Common Expenses . . . . . . . . . . . .
. . 7
14.
County . . . . . . . . . . . . . . . .
. . 7
15.
Declarant . . . . . . . . . . . . . . .
. . 7
16.
Declaration . . . . . . . . . . . . . .
. . 7
17.
Dispute . . . . . . . . . . . . . . . .
. . 8
18.
DRE
8
19.
Entitlements From City . . . . . . . .
. . 8
20.
Express Limited Warranty . . . . . . .
. . 8
21.
FHLMC . . . . . . . . . . . . . . . . .
. . 8
22.
FNMA . . . . . . . . . . . . . . . . .
. . 8
23.
GNMA . . . . . . . . . . . . . . . . .
. . 8
24.
Improvements . . . . . . . . . . . . .
. . 8
25.
Include, Including . . . . . . . . . .
. . 9
26.
Local Government Agency . . . . . . . .
. . 9
27.
Lot . . . . . . . .
9
28.
Maintain, Maintenance . . . . .
. . 9
29.
Maintenance Guidelines; Maintenance
Manual; Maintenance Recommendations . .
. . 9
30.
Member . . . . . . . . . . . . . . . .
. . 10
31.
Mortgage . . . . . . . . . . . . . . .
. . 10
32.
Mortgagee . . . . . . . . . . . . . . .
. . 10
33.
Mortgagor . . . . . . . . . . . . . . .
. . 10
34.
Notice and Hearing . . . . . . . . . .
. . 10
35.
Notice of Annexation . . . . . . . . .
. . 10
36.
Owner . . . . . . . . . . . . . . . . .
. . 11
37.
Phase . . . . . . . . . . . . . . .
. . 11
38.
Project . . . . . . . . . . . . . . . .
. . 11
39.
Property . . . . . . . . . . . . .
11
40.
Residence . . . . . . . . .
11
41.
Rules and Regulations . . . . . . . . .
. . 11
42.
Special Benefit Area . . . . . . . . .
. . 11
43.
VA/FHA . . . . . . . . . . . . . . . .
11
44.
Water Quality Management Plans
12
45.
Interpretation . . . . . . .
12
46.
Application of Definitions . . . . . .
. . 13
ARTICLE II GENERAL
PLAN OF DEVELOPMENT . . . . . . . .
. . 13
1.
Introduction . . . . . . . . . . . . .
. . 13
18324.283-14780.FCM 091307
i
AN
2.
Rights and Obligations of Owners . . . . .
13
3..
Description of Common Area . . . . . . . .
13
4.
Membership in the Association . . . . . . .
14
5.
Annexation of Subsequent Phases . . . . . .
14
6.
Declarant's Use of Utilities . . . . . . .
14
7.
Development Control . . . . . . . . . . . .
14
8.
Non -Liability of Declarant . . . . . . . .
16
ARTICLE III
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON AREA . . . . . . .
17
1.
Owners' Easements . . .
17
2.
Limitations on Owners' Easement Rights
17
3.
Easements for Common Walls . . .
19
4.
Delegation of Common Area Use Rights . . .
19
5.
Easements for Community Cable
Television, Telecommunication Systems and
Alarm System Cabling . . . . . . . . . . .
20
6.
Easements for Unintentional Encroachments
20
7.
Easements for Utilities
21
8.
Easements for Maintenance of the
Common Area . .
22
9.
Easements for Clustered Mailboxes . . . . .
23
10.
Easements Over Sidewalks and Parkways . . .
23
11.
Easements for Drainage . . . . . . . . . .
23
12.
Easement for Area Drains . . . . . . . . .
23
13.
Easement for Driveways . . . . . . . . . .
24
14.
Easements for Construction and Sales . . .
24
15.
Easements to the City . . . . . . . . . . .
25
16.
Reservation of Construction Rights
by Declarant . . . . . . . . . . . . . . .
25
17.
Title to the Common Area . . . . . . . . .
25
18.
Reservation of Common Area Easements . . .
27
19.
Easements for the Architectural Review
Committee . . . . . . . . . . . . . . . . .
27
20.
Easement for Access to and from
Washington Street . . . . . . . . . . . . .
28
21.
Easements Set Forth on Final Map and
in Official Records of County . . . . . . .
28
ARTICLE IV
THE
ASSOCIATION . . . . . . . . . . . . . . . .
28
1.
Membership . . . . . . . . . . . . . . . .
28
2.
Voting Rights . . . . . . . . . . . . . . .
28
3.
Special Procedures For Appointment of
Members to the Board . . . . . . . . . . .
29
4.
Vesting of Voting Rights . . . . . . . . .
30
5.
Adjustment of Voting Rights . . . . . . . .
30
6.
Suspension of Voting Rights . . . . . . . .
30
7.
Transfer . . . . . . . . . . . . . . . . .
30
8.
Record Date . . . . . . . . . . . . . . . .
31
ARTICLE V
POWERS AND DUTIES OF THE ASSOCIATION . . . . . .
31
1.
Management Body . . . . . . . . . . . . . .
31
2.
Powers . . . . . . . . . . . . . . . . . .
31
18324.283-14780.FCM 091307 ii
18324.283-14780.FCM 091307 ii i
A
3.
Duties
35
4.
Discretionary Powers . . . . . . . . .
. 45
5.
Notification by Association of Defects
46
6.
Awards Rendered in Construction Defects
Disputes . . . . . . . . . . . . . . . .
. 46
7.
Special Meeting of the Association for
Construction Defect Disputes . . . . . .
. 46
8.
Dispute Notification and Resolution
Procedure . .
47
9.
Repair of Willful Damage to Common Area
47
10.
Delegations of Duties . . . . . . . . . .
. 47
11.
Right of Entry for Emergency . . . . . .
. 47
12.
Right of Entry for Repairs . . . . . . .
. 47
13.
Limitations on Board Action . . . . . . .
. 48
14.
Licenses, Easements and Rights -of -Way . .
. 49
15.
New Improvements . . . . . . . . . . . .
. 50
16.
Association Rules and Regulations . . . .
. 50
17.
Nonliability and Indemnification . . . .
. 51
ARTICLE VI ASSESSMENTS . . . .
52
1.
Creation of the Lien and Personal
Obligation of Assessments . . . . . .
52
2.
Purpose of Regular Assessments: Levy
and Collection
53
3.
Regular Assessments - Basis
53
4.
Special Assessments for Capital
Improvements . . . . . . . .
. 56
5.
Compliance Assessments . . . . . . . . .
. 57
6.
Special Benefit Assessments . . . . . . .
. 57
7.
Date of Commencement of Regular
Assessments: Due Dates . . . . . . . . .
. 58
8.
Model Homes . . . . . . . . . . . . . . .
. 58
9.
Collection of Assessments . . . . . . . .
. 59
10.
Notice of Increase in Assessments . . . .
. 59
11.
Certification of Payment . . . . . . . .
. 59
12.
Delivery by Owner . . . . . . . . . . . .
. 59
13.
Delivery by Declarant . . . . . . . . . .
. 60
14.
Reserves . .
60
15.
Offsets and Waiver Prohibited . . . . . .
. 60
16.
Exempt Property . . . . . . . . . . . . .
. 61
ARTICLE VII EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE ASSOCIATION . . . . . . . . .
. 61
1.
Effect of Nonpayment of Assessments:
Remedies of the Association . . . . . . .
. 61
2.
Notice of Delinquent Assessments . . . .
. 62
3.
Foreclosure Sale . . . . . . . . . . . .
. 62
4.
Curing of Default . . . . . . . . . .
. 62
5.
Cumulative Remedies . . . . . . . . . . .
. 62
6.
Mortgagee Protection . . . . . . . . . .
. 62
ARTICLE VIII USE
RESTRICTIONS . . . . . . . . . . . . . . .
. 63
1.
Private Residential Dwelling . . . . . .
. 63
18324.283-14780.FCM 091307 ii i
•
2.
Common Area Use . . . . . . . . . . . . . .
63
3.
Conduct Affecting Insurance . . . . . . . .
63
4.
Liability for Damage . . . . . . . . . . .
63
5.
Signs . . . . . . . . . . . . . . . . . . .
64
6.
Maintenance of Animals . . . . . . . . . .
64
7.
Quiet Enjoyment . . . . . . . . . . . . . .
65
8.
Grading/Irrigation . . . . . . . . . . . .
65
9.
Structural Changes . . . . . . . . . . . .
66
10.
Improvements . . . . . . . . . . . . . . .
66
11.
Windows . . .
67
12.
Commercial Activity . . . . . . . . . . .
67
13.
Parking . . . . . . . . . . . . . . . . . .
68
14.
Regulation of Parking . . . . . . . . . . .
69
15.
Compliance With Management Documents . . .
69
16.
Declarant's Improvements . . . . . . . . .
69
17.
Solar Heating . . . . . . . . . . . . . . .
69
18.
Antennas . . . . . . . . . . . . . . . . .
70
19.
Leasing . . . . . . . . . . . . . . . . . .
70
20.
Drilling . . . . . . . . . . . . . . . . .
70
21.
Trash . . . . . . . . . . . . . . . . . . .
71
22.
Drainage . . . . . . . . . . . . . . . . .
71
23.
Prohibition Against Further Subdivision . .
71
24.
Patios and Balconies . . . . . . . . . . .
72
25.
Exemption of Declarant . . . . . . . . . .
72
26.
No Easements for View Purposes;
Disclaimer . .
73
27.
Post Tension Slabs . . . . . . . . . . . .
73
28.
Public Right -of -Way . . . . . . . . . . . .
74
29.
Pollutant Control . . .
74
30.
Water Quality Maintenance Obligations . . .
75
31.
Rights of Disabled . . . . . . . . . . . .
76
32.
Reclaimed Water . . . . . . . . . . . . . .
76
33.
Guest Suites . . . . . . . . . . . . . . .
76
34.
Sight Triangles . . . . . . . . . . . . . .
76
35.
Bighorn Sheet - Exterior Lighting and
Landscaping and Hillside Restrictions . . .
76
36.
Zero Lot Line Restrictions . . . . . . . .
76
37.
No Warranty of Enforceability . . . . . . .
83
ARTICLE IX ARCHITECTURAL REVIEW - APPROVAL . . . . . . . .
83
1.
Exemptions From Architectural Review . . .
83
2.
Architectural Review . . .
83
3.
Architectural Review Committee . . . . . .
84
4.
Meetings of the Architectural Review
Committee
84
5.
Architectural Standards/Guidelines . . . .
85
6.
Architectural Approval - Review of Plans
and Specifications .
7.
Decisions of the Architectural Review
Committee . . . . . . . . . . . . . . . . .
87
8.
Submittal to City - Right of
Architectural Review Committee to Review
87
9.
Approval of City . . . . . . . . . . . . .
88
10.
Conflicts Between City and Architectural
Review Committee . . . . . . . . . . . . .
88
18324.283-14780.FCM 091307 iv
18324.283-14780.FCM 091307 v
a
11.
No Waiver of Future Approvals . . . . . .
. 88
12.
Compensation of Members . . . . . . . . .
. 88
13.
Variances . . . . . . . . . . . . . . . .
. 89
14.
Inspection of Work . . . . . . . . . . .
. 89
15.
Non -Liability of Architectural Review
Committee Members . . . . . . . . . . . .
. 89
16.
Appeal . . . . . . . . . . . . . . . . .
. 90
ARTICLE X
REPAIR AND MAINTENANCE . . . . . . . . . . . .
. 90
1.
Repair and Maintenance by Association . .
. 90
2.
Maintenance Manual
92
3.
Maintenance of Phases Subject to
Construction Easement . . . . . . . . . .
. 93
4.
Repair and Maintenance by Owner . . . . .
. 93
5.
Maintenance of Public Utilities . . . . .
. 94
6.
Damage and Destruction Affecting a
Residence - Duty to Rebuild . . . . . . .
. 94
7.
Owners' Cooperation for Maintenance . . .
. 94
ARTICLE XI
ENVIRONMENTAL AND OTHER DISCLOSURES
AND
REQUIREMENTS . . . . . . . . . . . . . . .
. 95
1.
Environmental Requirements . . . . . . .
. 95
ARTICLE XII
DAMAGE OR DESTRUCTION TO
THE
COMMON AREA . . . . . . . . . . . . . . .
. 96
1.
Restoration of Damaged Common Area . . .
. 96
2.
Election by Owners Not to Restore
Damaged Common Area . . . . . . . . . . .
. 97
3.
Retention of Excess Insurance Proceeds
in General Fund . . . . . . . . . . . . .
. 97
ARTICLE XIII
CONDEMNATION . . . . . . . . . . . . . . . . .
. 98
1.
Distribution of Awards - Common Area . .
. 98
2.
Board of Directors as Attorney -in -Fact .
. 98
ARTICLE XIV
COVENANT AGAINST PARTITION . . . . . . . . . .
. 98
1.
Covenant Against Partition . . . . . . .
. 98
ARTICLE XV
INSURANCE . . . . . . . . . . . . . . . . . .
. 98
1.
Required Insurance Coverage . . . . . . .
. 98
2.
Optional Insurance Coverage . . . . . . .
. 99
3.
Notice of Cancellation of Insurance . . .
. 100
4.
Review of Coverage . . . . . . . . . . .
. 100
5.
Waiver by Owners . . . . . . . . . . . .
. 100
6.
Premiums, Proceeds and Settlement . . . .
. 100
7.
Rights and Duties of Owners to Insure . .
. 101
8.
Trustee for Policies . . . . . . . . . .
. 101
9.
Mortgage Clause . . . . . . . . . . . . .
. 101
10.
Compliance With Requirements of
FHLMC and FNMA . . . . . . . . . . . . .
. 102
18324.283-14780.FCM 091307 v
18324.283-14780.FCM 091307 v 1
I
11.
Required Waiver . . . . . . . . . . . . .
. 102
12.
Annual Notification of Insurance . . . .
. 102
ARTICLE XVI
MORTGAGEE
PROTECTION . . . . . . . . . . . . .
. 103
1.
Mortgagee Protection Provisions . . . . .
. 103
2.
Violation of Mortgagee Protection
Provisions . . . . . . . . . . . . . . .
. 107
3.
Amendments to Conform With Mortgagee
Requirements . . . . . . . . . . . . . .
. 107
ARTICLE XVII
ENFORCEMENT
OF BONDED OBLIGATIONS . . . . . .
. 107
1.
Enforcement of Bonded Obligations . . . .
. 107
ARTICLE XVIII
ANNEXATION
OF ADDITIONAL PROPERTY . . . . . .
. 108
1.
Development of the Project . . . . . . .
. 108
2.
Annexation Pursuant to Approval . . . . .
. 109
3.
Annexation Pursuant to General Plan
of Development . . . . . . . . . . . . .
. 109
4.
Notice of Annexation . . . . . . . . . .
. 109
5.
Effective Date of Annexation
110
6.
Amendments to Notice of Annexation . . .
. 110
7.
Right of De -Annexation . . . . . . . . .
. 110
8.
Parties to Notice of Annexation . . . . .
. 110
ARTICLE XIX
GENERAL
PROVISIONS . . . . . . . . . . . . . .
. 111
1.
Enforcement . . . . . . . . . . . . . . .
. 111
2.
Severability . . . . . . . . . . . . . .
. 113
3.
Term . . . . . . . . . . . . . . . . . .
113
4.
Construction
114
5.
Singular Includes Plural . . . . . . . .
. 114
6.
Covenants Running With the Land . . . . .
. 114
7.
Amendments . . . . . . . . . . . . . . .
. 114
8.
Encroachments . . . . . . . . . . . . . .
. 117
9.
Notices . . . . . . . . . . . . . . . . .
. 117
10.
Attorneys' Fees . . . . . . . . . . . . .
. 117
11.
Mergers or Consolidations . . . . . . . .
. 118
12.
No Representations or Warranties . . . .
. 118
13.
Project Disclosures . . .
118
14.
Conflicts in Management Documents For
the Project
120
15.
Davis -Stirling Act . . . . . . . . . . .
. 120
16.
Notices Provided Pursuant to Right to
Repair Law . . . . . . . . . . . . . . .
. 121
17.
Declarant's Representative . . . . . . .
. 121
18.
Exhibits . . . . . . . . . . . . . . . .
. 121
18324.283-14780.FCM 091307 v 1
18324.283-14780.FCM 091307 v i i
EXHIBITS:
Exhibit
A
Parkways, Medians, and Other
Landscaped Areas to be
Maintained by Association
Exhibit
B
Shared Driveways
Exhibit
C
Annexation Property
Exhibit
D
Walls
Exhibit
E
Dispute Notification and Resolution Procedure
Exhibit
F
Landscape Height Restrictions
(line of sight)
Exhibit
G
Prohibited Plants
Exhibit
H
Sideyard Easements
Exhibit
I
Church Easement
Exhibit
J
Notices Provided By Declarant
Pursuant to Right to
Repair Law
18324.283-14780.FCM 091307 v i i
0 •
DECLARATION OF COVENANTS, CONDITIONS
AND RESTRICTIONS, AND
RESERVATION OF EASEMENTS FOR
THE ESTATES AT LA QUINTA
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRIC-
TIONS, AND RESERVATION OF EASEMENTS FOR THE ESTATES AT LA QUINTA is
made this day of 1 2007, by WL CANYON RIDGE
ASSOCIATES, LLC, a Delaware limited liability company
("Declarant").
W I T N E S S E T H:
A. Declarant owns that certain real property located in
the City of La Quinta, County of Riverside, State of California,
more particularly described as follows:
Lots —through , inclusive, of Tract No. 35060,
as per Map recorded in Book , Pages _ to _,
inclusive, of Maps filed in the Office of the
County Recorder of Riverside County, State of Cali-
fornia
(hereinafter referred to as the "Lots"). The Lots and the "Common
Area" (defined below) are hereinafter sometimes collectively
referred to as the "Property".
B. Declarant also owns that certain real property
located in the City of La Quinta, County of Riverside, State of
California, more particularly described as follows:
Lots _ through inclusive, of Tract No. 35060,
as per Map recorded in Book , Pages _ to _,
inclusive, of Maps filed in the Office of the
County Recorder of Riverside County, State of Cali-
fornia;
Nonexclusive easements in, on, over, under, across and
through those portions of the real property described on
Exhibit "A" attached hereto and incorporated by reference
for the landscaping, irrigation, drainage, and slope
maintenance; and
Nonexclusive easements in, on, over, under, across and
through those portions of the Lots described and/or
depicted on Exhibit "B" attached hereto and incorporated
by reference for purposes of pedestrian and vehicular
ingress, egress, access, utilities, drainage, and general
street usage purposes.
18324.283-14780.FCM 091307
(hereinafter referred to as the "Common Area"). The Lots and the
"Common Area" (defined below) are hereinafter sometimes
collectively referred to as "Phase 1" or the "Property".
C. Declarant also owns that certain real property
located in the City of La Quinta, County of Riverside, State of
California, more particularly described in Exhibit "C" attached
hereto ("Annexation Property"), which may, from time to time, be
annexed to and become part of the Project (as hereinafter defined),
in accordance with the Article herein entitled "Annexation of
Additional Property."
D. Declarant desires to develop the Property and all
portions of the Annexation Property, which are annexed thereto
pursuant to this Declaration, as a common interest development,
more particularly described in Section 1351(k) of the California
Civil Code as a "planned development" (hereinafter referred to as
the "Project"), consisting of single-family detached homes,
landscaped areas and other improvements, as more fully described
below.
E. Declarant deems it desirable to impose a general
plan for the development, maintenance, improvement, protection,
use, occupancy, and enjoyment of the Project, and to establish,
adopt, and impose covenants, conditions, and restrictions upon the
Project for the purpose of enforcing, protecting, and preserving
the value, desirability, and attractiveness of the Project.
F. Declarant deems it desirable for the efficient en-
forcement, protection and preservation of the value, desirability
and attractiveness of the Project to create a corporation which
shall be delegated and assigned the powers of administering and
enforcing said covenants, conditions and restrictions.
G. The Estates at La Quinta Community Association, a
California nonprofit, mutual benefit corporation, has been or will
be incorporated under the laws of the State of California for the
purpose of exercising the aforesaid powers.
H. Declarant intends to convey the Property subject to
the covenants, conditions, and restrictions set forth hereinbelow.
NOW, THEREFORE, Declarant agrees and declares that it has
established, and does hereby establish, a plan for the development,
maintenance, protection, improvement, use, occupancy, and enjoyment
of the Project, and has fixed, and does hereby fix, the covenants,
conditions, restrictions, easements, reservations, equitable
servitudes, liens, and charges (hereinafter collectively referred
to as the "Protective Covenants") upon the Project. Each and all
18324.283-14780.FCM 091307 - 2
•
of the Protective Covenants shall run with the land, shall be
enforceable, and shall inure to the benefit of and be binding upon
Declarant, its successors and assigns, all subsequent owners of all
or any portion of the Project, together with their grantees,
successors, heirs, executors, administrators, devisees, and
assigns, and may be enforced by any Owner or the Association.
ARTICLE I
DEFINITIONS
Section 1. "Annexation Property" shall mean and refer
to that certain real property described in Exhibit "C" attached
hereto (hereinafter referred to as "Annexation Property"), includ-
ing all Improvements (as defined below) constructed thereon, all or
any portion of which may be annexed into the Project by Declarant,
as set forth in the Article herein entitled "Annexation of Addi-
tional Property."
Section 2. "Architectural Review Committee" shall
mean and refer to the architectural committee created pursuant to
the Article herein entitled "Architectural Review - Approval."
Section 3. "Architectural Guidelines" shall, if used
herein, mean and refer to those certain architectural standards,
landscape standards and other general policies, procedures and
criteria which may be adopted by the Board pursuant to this
Declaration for use by the Architectural Review Committee in
reviewing plans and specifications for proposed Improvements to an
Owner's Lot. The Architectural Guidelines are general guidelines
and may be amended from time to time by a majority of the Board. A
copy of the Architectural Guidelines may be obtained from the
Architectural Review Committee.
Section 4. "Articles" shall mean and refer to the Ar-
ticles of Incorporation of The Estates at La Quinta Community
Association, as filed in the Office of the Secretary of State of
the State of California, as such Articles may be amended, from time
to time.
Section 5. "Assessments" shall be used as a generic
term which shall mean and refer to the following:
(a) "Regular Assessment" shall mean and refer to an
annual charge against each Owner and his respective Lot rep-
resenting a portion of the Common Expenses of the Association;
(b) "Compliance Assessment" shall mean and refer to
the charge against an Owner representing the costs incurred by
18324.283-14780.FCM 091307 - 3 -
the Association in the repair of any damage to the Common Area
or any Improvements which are maintained by the Association as
part of a Special Benefit Area for which such Owner (or any
member of his/her family, or his/her guests, invitees, tenants
or lessees) was responsible, the costs incurred by the
Association in bringing such Owner and his Lot into compliance
with this Declaration, or any amount due the Association based
upon disciplinary proceedings against an Owner in accordance
with this Declaration, and/or any amount due the Association
to reimburse the Association for administrative costs attrib-
utable to an Owner as provided herein;
(c) "Special Assessment" shall mean and refer to
the charge against an Owner and his respective Lot repre-
senting a portion of the cost of reconstructing any damaged or
destroyed portion or portions of the Common Area, of con-
structing or installing any capital improvements to the Common
Area, or of taking any extraordinary action for the benefit of
the Common Area (e.g., including but not limited to funding
the reserve accounts) or the membership of the Association
pursuant to the provisions of this Declaration; and
(d) "Special Benefit Assessment" shall mean and
refer to a charge levied by the Association against an Owner
and his respective Lot to cover the expenses incurred by the
Association in the operation, maintenance, repair and/or
funding of reserves for a portion of the Project designated by
Declarant or the Association as a "Special Benefit Area,"
which expenses are allocable only to the Owners and their Lots
within such an Area. As of the recordation of this
Declaration, no Special Benefit Areas have been designated by
Declarant.
Section 6. "Association" shall mean and refer to The
Estates at La Quinta Community Association, a California nonprofit,
mutual benefit corporation, in which all Owners shall have a mem-
bership interest as more particularly described hereinbelow, pro-
vided that membership shall be limited to Owners.
Section 7. "Association Walls" shall mean and refer
to those certain walls and pilasters which were originally
constructed by Declarant on the Common Area and/or a Lot which are
designated herein, by the Declarant, by the Board, or in a Notice
of Annexation by Declarant to constitute Association Walls, and
which will be maintained in whole or in part by the Association as
provided herein. The Association Walls included in Phase 1 of the
Project are generally depicted on Exhibit "D" attached hereto. The
Association Walls applicable to a specific later Phase may be
depicted on an Exhibit attached to the Notice of Annexation
recorded on such Phase. All depictions of the Association Walls
18324.283-14780.FCM 091307 - 4
are for illustrative purposes only, and the "as -built" condition
shall be controlling. Maintenance of walls in the Project, unless
identified as an Association Wall on an exhibit to this Declaration
or a Notice of Annexation, or by the Board, shall be maintained as
a party wall in accordance with applicable standards under
California law; however the structural integrity thereof shall be
that of the Owner, not the Association, unless otherwise agreed to
by a majority vote of the members of the Board.
Section 8. "Best Management Practices or BMPs" shall
mean and refer to those certain structural, treatment control, and
non-structural water quality management practices set forth in, or
otherwise required pursuant to, the Water Quality Management Plans
("WQMP") approved for or applicable to the Project. The structural
and treatment control Best Management Practices may include,
without limitation, landscape planting, hillside landscaping, roof
runoff controls, efficient irrigation technology, slope and channel
protection measures, storm drain signage, trash storage areas,
litter control requirements, in -flow based treatment control BMPs
(e.g., vegetated buffer strips, vegetated swales, multiple systems,
bioretentions, and hydrodynamic separation systems), volume based
treatment control BMPs (e.g., wet ponds, constructed wetlands,
extended detention basins, water quality inlets, reten-
tion/irrigation, infiltration basins, infiltration trenches, media
filters, and manufactured proprietary devices), detention basins,
retention basins, debris basins, "V" ditches, bench drains, catch
basins, catch basin media filters, fossil filters, inlet trash
racks, drainpacs and other storm drain filtration devices, energy
dissipaters, culverts, pipes, and related storm drain and water
quality facilities constructed in the Project. The non-structural
Best Management Practices generally require the Association and the
Owners and other residents within the Project to be aware of the
sensitive natural environment surrounding the Project and to take
appropriate actions to control runoff from the Project. With
respect to the Association, the non-structural Best Management
Practices may include: (i) providing informational materials to the
Owners and other residents within the Project regarding general
good housekeeping practices for protection of storm water quality;
(ii) restricting certain activities addressed in the informational
materials to protect the quality of water entering the storm drain
system; (iii) managing the landscaping on the Common Area,
including, without limitation, using fertilizers and pesticides in
accordance with the "Management Guidelines for Use of Fertilizers
and Pesticides" which is included, if applicable, in the appendix
to the Water Quality Management Plans; (iv) performing on a
regularly scheduled basis maintenance consisting, at a minimum, of
litter control, emptying of common trash receptacles and sweeping
of dumpster enclosures; (v) inspecting and cleaning the catch
basins located on the Common Area; and (vi) sweeping any on-site
private paved areas on a regular basis and prior to the rainy
18324.283-14780.FCM 091307 - 5-
season (i.e., prior to October 15th of each year). With respect to
the Owners and other residents within the Project, the non-
structural Best Management Practices may include, among other
things, restricting certain activities to protect the quality of
water entering the storm drain system (e.g., prohibiting the
disposal of motor oil, paint products, car detergents and other
pollutants into the storm drains in the Project). The Best Manage-
ment Practices are designed and intended to control runoff and must
be implemented by the Association, and the Owners and other
residents within the Project. The Best Management Practices may be
modified from time to time by the Declarant or any public agency
having jurisdiction regarding water quality for runoff waters from
the Project in order to control runoff as the Project develops and
runoff conditions change. Compliance by the Association and the
Owners with the Best Management Practices, as they may be modified
from time to time, may be monitored and enforced by any public
agency having jurisdiction regarding water quality for runoff
waters from the Project, including, without limitation, the City,
County, Regional Water Quality Control Board, and State Water
Resources Board.
Section 9. "Board" shall mean and refer to the Board
of Directors of the Association, elected in accordance with the By -
Laws of the Association and this Declaration.
Section 10. "By -Laws" shall mean and refer to the By -
Laws of the Association which have been, or will be, adopted by the
Board, as such By -Laws may be amended, from time to time.
Section 11. "City" shall mean and refer to the City of
La Quinta, California, and its various departments, divisions,
employees, and representatives.
Section 12. "Common Area" is used herein as a generic
term to mean and refer to: (a) all real and personal property, and
all Improvements thereon, which are owned by the Association; and
(b) all real property, and Improvements thereon, over which the
Association has an easement (e.g., easements for the landscaping,
irrigation, and maintenance of front'yard areas and parkways and
medians along certain streets [see Exhibit "A"]), lease and/or
which the Association is otherwise responsible pursuant to this
Declaration to manage, control and/or maintain for the common use,
benefit and enjoyment of all Owners in the Project. If the Project
is completed as currently planned, the Common Area shall include,
without limitation, easements for the landscaping, irrigation, and
maintenance of front yard areas, parkways, medians, and other
landscaped areas along certain streets within the Project,
easements for the maintenance and repair of Association Walls
(e.g., for Phase 1, see Exhibit "D" attached hereto), recreational
facilities, Project entry monumentation, private streets, guard
18324.283-14780.FCM 091307 - 6
house, tower, and entry gates, storm water retention basins (e.g.,
Lots H and I of Tract 30560), once same have been annexed into the
Project), and such other Improvements as may be designated, from
time to time, in this Declaration (as same may be amended), by the
Board, and/or set forth in one (1) or more Notices of Annexation
recorded in the Office of the County Recorder, pursuant to the
Article herein entitled "Annexation of Additional Property."
Generally, the Common Area in Phase 1 of the Project consists of
that certain real property described in Paragraph B of the recitals
and in applicable Exhibits attached hereto, together with the
Improvements (as that term is defined herein) and easements refer-
enced herein.
Section 13. "Common Expenses" shall mean and refer to
the actual and estimated costs to be paid by the Association for
the following: (a) owning, maintaining, managing, operating,
painting, repairing, and replacing the Common Area; (b) managing
and administering the Association, including, but not limited to,
compensation paid by the Association to managers, accountants,
attorneys and any Association employees; (c) providing utilities
and other services to the Common Area; (d) providing insurance as
provided for herein; (e) paying that portion of any Assessment
attributable to Common Expenses not paid by the Owner responsible
for payment; (f) paying taxes for the Association; (g) water supply
costs and costs and expenses for the emergency pumping reserve
associated with the Lake Management Plan applicable to the Project
and/or required by the Entitlements from City; and (h) paying for
all other goods and services designated by, or in accordance with,
other expenses incurred by the Association for the benefit of all
Owners, and reasonably required for the Association to perform its
powers and duties as set forth in this Declaration. Additionally,
the Common Expenses shall include adequate reserves, as the Board
shall determine to be appropriate, for the repair and replacement
of those elements of the Common Area which must be repaired or re-
placed on a periodic basis, rather than on a regular annual basis.
Section 14. "County" shall mean and refer to the Coun-
ty of Riverside, California, and its various departments,
divisions, employees, and representatives.
Section 15. "Declarant" shall mean and refer to WL
CANYON RIDGE ASSOCIATES, LLC, a Delaware limited liability company,
and its successors, and to any person or entity acquiring all of
Declarant's interest in the Project (including all of Declarant's
rights and obligations as created and established herein) pursuant
to a written assignment from Declarant which is recorded in the
Office of the County Recorder.
Section 16. "Declaration" shall mean and refer to this
Declaration of Covenants, Conditions and Restrictions, and Reser-
18324.283-14780.FCM 091307 - 7-
vation of Easements, and to all amendments to this Declaration as
may be recorded, from time to time, in the Office of the County
Recorder, in accordance with Section 1351(h) and Section 1353 of
the California Civil Code.
Section 17. "Dispute" shall have the meaning set forth
in Exhibit "E" attached hereto and incorporated by reference.
Section 18. "DRE" shall mean and refer to the Depart-
ment of Real Estate of the State of California, which administers
the sale of subdivided lands pursuant to Sections 11000, et sec.,
of the California Business and Professions Code, or any similar
California statute hereinafter enacted.
Section 19. "Entitlements From City" shall mean any
and all agreements, building permits and related permits, condi-
tions of approval, and other documents, instruments or similar
writings involving the City which regulate or relate to utilization
of real property in the Project.
Section 20. "Express Limited Warranty" shall mean and
refer to the express written limited warranty, if any, that may be
provided to an initial Owner at the time of such Owner's
acquisition of a Lot (e.g., Homebuilder's Limited Warranty).
Section 21. "FHLMC" shall mean and refer to the
Federal Home Loan Mortgage Corporation (The Mortgage Corporation)
created by Title III of the Emergency Home Finance Act of 1970, as
amended, from time to time, including any successors thereto.
Section 22. "FNMA" shall mean and refer to the Federal
National Mortgage Association, a government-sponsored private
corporation established pursuant to Title VIII of the Housing and
Urban Development Act of 1968, as amended, from time to time,
including any successors thereto.
Section 23. "GNMA" shall mean and refer to the Govern-
ment National Mortgage Association administered by the United
States Department of Housing and Urban Development, including any
successors thereto.
Section 24. "Improvements" shall mean and refer to all
structures and appurtenances thereto of every kind, including, but
not limited to, Residences, street lights, buildings, awnings,
shades, screens, screen doors, skylights, side yard and rear yard
walls (wood fences are prohibited in the Project), mail kiosks,
swimming pools, spas, garages, pavement, driveways, walkways,
parking areas, perimeter walls, retaining walls, street trees,
private storm drains, flood walls, flag poles, monument signs,
patios, grading of a Lot or disturbing the existing grade in any
18324.283-14780.FCM 091307 - 8
manner, irrigation equipment and all related facilities, exterior
air conditioning units, solar panels and related facilities,
greenbelts, drainage swales, streetscapes, antennas and related fa-
cilities, exterior lighting and any landscaping which, if left in
its natural state, would grow to a height in excess of twenty-five
feet (25' ) . Improvements shall also mean and refer to all additions
and/or modifications to the exterior of any Residence, including,
but not limited to, (a) painting the exterior of any Residence or
other structure, (b) changing the roofing material on any
Residence, and/or (c) building, constructing, installing, altering
or planting, as the case may be, any spas, patio covers, patio
slabs, balcony covers, decks, gazebos, stairs, screening walls,
shades, awnings, screen doors, exterior doors, skylights, solar
heating panels, air conditioning, and/or water softening or
refining fixtures or systems.
Section 25. "Include, Including" (whether capitalized
or not) shall mean "includes without limitation" and "including
without limitation," respectively.
Section 26. "Local Government Agency." Local Govern-
ment Agency means the City, the County, a public school district,
and any other local or municipal government entity or agency,
including, without limitation, any community service area, special
assessment district, maintenance district or community facilities
district.
Section 27. "Lot" shall mean and refer to a plot of
land within the Project as depicted and/or described on a recorded
subdivision map, tract map or parcel map (as such plot of land may
be modified by a recorded lot line adjustment) , and to all Improve-
ments, including the Residence, constructed thereon. Only those
plots of land which are designed and intended for the construction
of a Residence and ownership by an individual Owner shall be deemed
"Lots." "Lot" shall not mean or refer to any plot of land owned in
fee by the Association as Common Area.
Section 28. "Maintain, Maintenance" (whether capital-
ized or not) shall mean "inspect, maintain, repair and replace" and
"maintenance, repair and replacement," respectively; provided,
however, that "maintain" or "maintenance" shall not include
inspection, repair and replace(ment) where the context or specific
language of this Declaration provides another meaning.
Section 29. "Maintenance Guidelines; Maintenance
Manual; Maintenance Recommendations" Maintenance Guidelines means
any current written guidelines (e.g., First Year Customer Care
Program Performance Standards, Maintenance of Your House Recommen-
dations, Natural Occurrences, Suggested Maintenance Schedules,
etc.) setting forth procedures and standards for the maintenance
18324.283-14780.FCM 091307 - 9-
•
and operation of a Lot/Residence and/or Common Area Improvements
that may be provided to an Owner and/or the Association by
Declarant, or by any governmental agency or for the maintenance of
a Lot/Residence and/or other Improvements Declarant has constructed
on or in the Project. Maintenance Guidelines include any Mainte-
nance Manual and Maintenance Recommendations prepared at
Declarant's direction, and all recommended inspections, schedules
and maintenance activities for components of the Common Area and/or
a Lot/Residence.
Section 30. "Member" shall mean and refer to every
person or entity who holds membership in the Association, as more
particularly set forth in the Article herein entitled "The Asso-
ciation," and shall be synonymous with the term "Owner."
Section 31. "Mortgage" shall mean and include any
mortgage or deed of trust, or other conveyance of a Lot to secure
the performance of an obligation, which conveyance will be recon-
veyed upon the completion -of such performance, including an in-
stallment land sales contract (as defined in Sections 2985 through
2985.6 of the California Civil Code, as same may be amended, from
time to time). The term "Deed of Trust," when used herein, shall be
synonymous with the term "Mortgage."
Section 32. "Mortgagee" shall mean and refer to a per-
son or entity to whom a Mortgage is made, and shall include the
beneficiary of a Deed of Trust or the vendor under an installment
land sales contract, as the case may be, and the assignor of a
Mortgagee, beneficiary or vendor.
Section 33. "Mortgagor" shall mean and refer to a per-
son or entity who mortgages his or its property to another, i.e.,
the maker of a Mortgage, and shall include the trustor of a Deed of
Trust and the vendee under an installment land sales contract.
Section 34. "Notice and Hearing" shall mean and refer
to written notice and a hearing before the Board or the Architec-
tural Review Committee of the Association, or other tribunal
created by the Board in the manner provided in the By -Laws, at
which the affected Owner shall have an opportunity to be heard in
the manner provided herein and in the By -Laws.
Section 35. "Notice of Annexation" shall mean and
refer to that certain instrument recorded by Declarant utilized to
annex all or any portion of the Annexation Property into the
Project, in accordance with the provisions of this Declaration,
thereby subjecting said subsequent Phase to the provisions of this
Declaration and to the jurisdiction of the Association.
18324.283-14780.FCM 091307 _10-
Section 36. "Owner" shall mean and refer to the record
Owner, or Owners if more than one (1), or the purchaser under a
conditional sales contract of fee title to, or an undivided in-
terest in, any Lot in the Project. The term "Owner" shall include
the Declarant, the vendee under an installment land sales contract
(as described in Sections 2985 through 2985.6 of the California
Civil Code, as same may be amended, from time to time) and the
holder of a leasehold estate having a term of twenty (20) or more
years, including renewal periods. The foregoing is not intended to
include persons or entities who hold an interest in a Lot merely as
security for the performance of an obligation.
Section 37. "Phase" shall mean and refer to: (a) the
Lots and the Common Area; and (b) one (1) or more Lots within the
Annexation Property and/or Common Area which are annexed to the
Project by the recordation of a Notice of Annexation in the Office
of the County Recorder and for which a Final Subdivision Public
Report has been issued by the DRE.
Section 38. "Project" shall mean and refer to the
Property and to all Improvements, including the Residences, con-
structed thereon and the Common Area and all Annexation Property
which is annexed and made subject to this Declaration in accordance
with the applicable provisions of this Declaration.
Section 39. "Property" shall mean and refer to all of
that certain real property described in Paragraphs A and B of the
recitals hereinabove.
Section 40. "Residence" shall mean and refer to the
individual dwelling and the related Improvements which are con-
structed upon a separate Lot and which are designed and intended
for use and occupancy as a residence.
Section 41. "Rules and Regulations" shall mean and re-
fer to the Rules and Regulations adopted by the Board pursuant to
the By -Laws and this Declaration, as they may be amended, from time
to time.
Section 42. "Special Benefit Area" shall mean and
refer to any portion of the Project designated herein, by the
Board, or in a Notice of Annexation as a "Special Benefit Area" or
which is identified or referred to as an area or facility benefit-
ting primarily the Owners within such an area.
Section 43. "VA FHA" shall mean and refer to the
United States Veterans Administration and/or Federal Housing Ad-
ministration, including the department or agency of the United
States government as shall succeed to the VA and/or FHA.
18324.283-14780.FCM 091307 - 11 -
Section 44. "Water Quality Management Plans" shall
mean and refer to all applicable plans and requirements for the
management of storm water at the Project, including, without
limitation, any applicable National Pollutant Discharge Elimination
System ("NPDES") permit requirements, Standard Urban Storm Water
Mitigation Plan ("SUSMP"), Storm Water Pollution Prevention Plan
("SWPPP"), Water Quality Management Plan ("WQMP"), Drainage Area
Management Plan ("DAMP"), Local Implementation Plan ("LIP"), and
other storm water quality management plans that may be prepared for
the Project in compliance with applicable federal, state and local
laws and approved by the applicable Public Agencies. The Water
Quality Management Plans address water runoff generated by the
residential areas and other development Improvements within the
Project and will be monitored by various Public Agencies (e.g., the
Regional Water Quality Control Board and the City). The Water
Quality Management Plans contain, among other things, certain Best
Management Practices that must be followed by the Association, the
owners and/or other residents within the Project. The Water Quality
Management Plans and the related Best Management Practices may be
modified at any time by the Declarant and/or the Public Agencies
having jurisdiction over such matters.
Section 45. Interpretation.
(a) General Rules. This Declaration shall be
liberally construed to effectuate its purpose of creating a
uniform plan for subdividing, maintaining, improving and
selling the Lots. As used in this Declaration, the singular
includes the plural and the plural the singular. The mascu-
line, feminine and neuter each includes the other, unless the
context dictates otherwise.
(b) Articles. Sections and Exhibits. The Article
and Section headings are inserted for convenience only and may
not be considered in resolving questions of interpretation or
construction. Unless otherwise indicated, any references in
this Declaration to articles, sections or exhibits are to
Articles, Sections and Exhibits of this Declaration. Except
as may otherwise be provided herein, all exhibits attached to
this Declaration are incorporated in this Declaration by this
reference. The locations and dimensions of any Improvements
depicted on the Exhibits attached hereto and to any Notice of
Annexation are approximate only, and the as -built location and
dimension of any such Improvements shall control.
(c) Priorities and Inconsistencies. If there are
conflicts or inconsistencies between this Declaration and the
Articles, Bylaws, or Rules and Regulations, then the provi-
sions of this Declaration shall prevail.
18324.283-14780.FCM 091307 -12-
(d) Severability. The provisions of this
Declaration are independent and severable. A determination of
invalidity, partial invalidity or unenforceability of any one
(1) provision of this Declaration by a court of competent
jurisdiction does not affect the validity or enforceability of
any other provisions of this Declaration.
(e) Statutory References. All references made in
this Declaration to statutes are to those statutes as
currently in effect or to subsequently enacted replacement
statutes.
Section 46. Application of Definitions. The aforesaid
definitions shall be applicable to this Declaration and to any
supplements or amendments hereto, including, but not limited to,
any Notices of Annexation filed or recorded pursuant to the pro-
visions of this Declaration, unless the context shall prohibit such
application.
ARTICLE II
GENERAL PLAN OF DEVELOPMENT
Section 1. Introduction. The Declarant has designed
the Project as a multi -phase planned residential community, which,
if completed as proposed, may consist of seventy-four (74) Resi-
dences, together with various Common Area improvements and related
amenities. The Project will be developed in a series of phases in
accordance with the general plan of development submitted to and
approved by the City and the DRE. The Association will maintain
the Common Area and will be the management body for the Project, as
provided herein.
Section 2. Rights and Obligations of Owners. Each
Owner of a Lot in the Project shall automatically become a Member
of the Association and shall be obligated for the payment of
Assessments to the Association. Subject to the provisions of this
Declaration which reserve rights in favor of the Declarant, each
Owner, his family members, tenants and invitees will be entitled to
the use and enjoyment of the Common Area of the Project.
Section 3. Description of Common Area. The Common
Area in Phase 1 is planned to initially consist generally of the
Property, easements, and improvements described in Recital B and/or
depicted on applicable Exhibits attached hereto. As future phases
are annexed to the Property, if ever, the Common Area will expand
as identified in the Notices of Annexation recorded in accordance
with the requirements herein. Each Owner of a Lot in the Project
shall have a nonexclusive easement appurtenant to his/her Lot for
18324.283-14780.FCM 091307 -13-
use and enjoyment of all Common Area within the Project, in accord-
ance with the terms and provisions of this Declaration. Subject to
applicable restrictions set forth herein and in any Notice of
Annexation, the Association shall be responsible for the ownership,
if applicable, maintenance, and operation of all Common Area within
the Project.
Section 4. Membership in the Association. As more
particularly set forth in this Declaration, each Owner of a Lot in
the Project shall automatically become a member of the Association,
and shall be obligated for the payment of Assessments to the
Association. In addition, each Owner, his family, members, lessees,
tenants, guests and invitees, will be entitled to the use and
enjoyment of the Common Area within the Project, in accordance with
this Declaration, the By -Laws and Rules and Regulations adopted by
the Board.
Section 5. Annexation of Subsequent Phases. At such
time as subsequent Phases are developed, if ever, Declarant shall
annex such Phases to the Project in accordance with the provisions
herein, including the Article entitled "Annexation of Additional
Property."
Section 6. Declarant's Use of Utilities. For as long
as Declarant owns a Lot in Tract No. 35060 and/or the Annexation
Property, Declarant hereby reserves unto itself, and its successors
and assigns, together with the right to grant and transfer all or
a portion of the same, easement rights to use any private utilities
within the Project for, including, but not limited to, construc-
tion, access and connection of utilities by Declarant for purposes
of developing the real property comprising the Project, including
the Annexation Property.
Section 7. Development Control. In order that the
Project be completed and established as a planned residential
community, Declarant shall have the sole discretion and control
over all aspects of construction of Residences and Improvements
owned by itself, and over the selling and marketing of Lots in the
Project. Further, Declarant shall have the sole discretion and
control to:
(a) Install, construct, modify, alter or remove any
Improvements in the Project owned or controlled by Declarant;
(b) Redesign or otherwise alter the style (e.g.,
architectural), size (e.g., adding additional square footage
or reducing the square footage of the Residences), color or
appearance of any Improvements in any portion of the Project
owned or controlled by Declarant;
18324.283-14780.FCM 091307 -14-
(c) Construct such additional Improvements on any
portion of the Project owned or controlled by Declarant;
(d) Subdivide, re -subdivide, grade or regrade any
portion of the Property and/or Annexation Property owned or
controlled by Declarant; and/or
(e) Otherwise control all aspects of designing and
constructing the Improvements in the Project, and regulating
the marketing of Lots in the Project and/or Annexation
Property subject to approval by the Declarant.
Declarant hereby reserves unto itself, and its successors and
assigns, together with the right to grant and transfer all or a
portion of the same, a nonexclusive easement for ingress and egress
on, over and across the Project as necessary to construct
Improvements, and further reserves for itself the right, (a) until
all Lots in Tract No. 35060 and the Annexation Property are
initially sold (and escrows have closed), or (b) twenty-five (25)
years from the recordation of this Declaration, whichever occurs
first:
(i) A nonexclusive easement for ingress and egress
on, over and across the Project as necessary to construct the
Lots, Residences, and all other Improvements;
(ii) The exclusive right to maintain one (1) or more
sales office(s), construction trailer(s), model complex(es),
interior design and decorator center(s), construction parking
areas, temporary utility facilities and/or lines, and parking
area for employees, agents and prospective buyers;
(iii) The exclusive right to place reasonable signs,
flags, banners, billboards or other forms of advertising on
any portion of the Project owned or controlled by Declarant
and/or Common Area (specifically including the Project entry
area), as Declarant deems necessary, irrespective of size,
color, shape or materials of such items, except to the extent
that the exercise of said exclusive right conflicts with any
provision of the City's Municipal Code or other applicable
governmental regulations;
(iv) A nonexclusive right to utilize the Common Area
and any unassigned open parking spaces in connection with its
program for the sale or leasing of Lots in the Project;
(v) The right to determine, so long as Declarant
owns an interest in the Project or any portion of the Annex-
ation Property, the hours of operation of the Project entry
gates, if any, except to the extent that the exercise of said
18324.283-14780.FCM 091307 _15-
right unreasonably interferes with any Owner's ingress, egress
rights in connection with the Project;
(vi) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Lot owned by Declarant, as Declarant may, in its sole discre-
tion, deem appropriate;
(vii) The right to conduct any commercial activity
upon any Lot owned or controlled by Declarant which reasonably
relates to the development, marketing, leasing or sale of the
Lots or other property in the Project; and
(viii) The right to utilize the Common Area in the
Project and exclude Owners and their guests so long as such
exclusion is not unreasonable, for marketing, sales and
promotional activities which relate to the leasing or sale of
the Lots or other property in the Project. The Declarant
agrees to pay any and all maintenance or repair costs associ-
ated with the use of the Common Area for marketing purposes
and to obtain a reasonable amount of liability insurance
naming the Association as an additional insured during such
use of the Common Area.
Each Owner hereby grants, upon 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 under this Declaration.
Section B. Non -Liability of Declarant. The purpose of
this Article is merely to describe the proposed general plan of
development for the Project. Without limiting the generality of the
foregoing, nothing in this Section or elsewhere in this Declaration
shall limit the right of Declarant to complete construction of the
Project, to alter same or to construct such additional Improvements
as Declarant shall deem advisable prior to the completion and sale
of all Lots in the Project. Declarant may assign any or all of its
rights under this Declaration to any successor to all or any part
of Declarant's interest in the Project by an express written as-
signment recorded in the Office of the County Recorder.
18324.283-14780.FCM 091307 -16-
ARTICLE III
RESERVATION OF EASEMENTS AND OTHER
PROPERTY RIGHTS IN THE COMMON AREA
Section 1. Owners' Easements. Every Owner shall have
a nonexclusive right and easement of access and use in and to the
Common Area, subject to the limitations and restrictions set forth
in this Declaration or in any recorded Notice of Annexation (e.g.,
access to certain slopes, etc.). Said right and easement shall be
appurtenant to and shall pass with title to every Lot, subject to
the limitations set forth herein, including in Section 2 below.
Section 2. Limitations on Owners' Easement Rights.
The rights and easements of access, use and enjoyment set forth in
Section 1 hereinabove shall be subject to the provisions of this
Declaration, including, but not limited to, the following:
(a) The right of the Association to reasonably
limit the number of guests of Owners using the Common Area;
(b) The right of the Association to establish and
enforce reasonable Rules and Regulations pertaining to the use
of the Common Area;
(c) The right of the Association, in accordance
with its Articles, By -Laws and this Declaration, to borrow
money with the assent of sixty-seven percent (67%) of the
voting power of the Association, excluding Declarant, and/or
to mortgage, pledge, deed in trust or otherwise hypothecate
any or all of its real or personal property as security for
money borrowed or debts incurred, for the purpose of improving
or repairing the Common Area and related facilities;
(d) The right of the Association to suspend the
voting rights and rights and easements of use and enjoyment of
the Common Area of any Member, and the persons deriving such
rights and easements from any Member for any period during
which any Assessment against such Member's Lot remains unpaid
and delinquent (except such rights as are reasonably required
to access said Member's Residence); and after Notice and
Hearing, to impose monetary penalties or suspend such use
rights and easements for a period not to exceed thirty (30)
days for any violation of this Declaration or Rules and
Regulations, it being understood that any suspension for
either nonpayment of any Assessments or breach of such re-
strictions shall not constitute a waiver or discharge of the
Member's obligations to pay Assessments as provided herein;
18324.283-14780.FCM 091307 -17-
(e) Subject to the terms and provisions of the
Article herein entitled "Mortgagee Protection," the right of
the Association to dedicate or transfer easements over all or
any part of the Common Area to any public agency, authority,
entity, or utility for such purposes and subject to such
conditions as may be agreed to by the Owners. No such dedica-
tion or transfer shall be effective unless: (1) an instrument
approving said dedication or transfer is signed by Owners
representing sixty-seven percent (670) of the voting power of
the Association, excluding Declarant, and recorded in the
Office of the County Recorder, and (2) a written notice of the
proposed dedication or transfer is sent to every Owner not
less than fifteen (15) days nor more than thirty (30) days in
advance; provided, however, that the dedication or transfer of
easements for utilities or for other public purposes consis-
tent with the intended use of the Common Area shall not
require the prior approval of the Members of the Association;
(f) The right of Declarant (and its sales agents,
representatives, customers and prospective purchasers) to the
nonexclusive use of the Common Area without charge for sales,
display access and exhibit purposes related to selling,
marketing, showing and otherwise disposing of Lots in the
Project, which rights Declarant hereby reserves; provided,
however, such use shall cease with respect to only the
applicable party upon the date that Declarant no longer owns
any Lot in the Project, including the Annexation Property. In
addition, such use shall not unreasonably interfere with the
rights of enjoyment of other Owners as provided herein;
(g) The right of the Association, acting by and
through its Architectural Review Committee, to enact uniform
and reasonable architectural standards;
(h) The right of Declarant to designate additional
Common Area, pursuant to terms of the Article herein entitled
"Annexation of Additional Property";
(i) The right of the Association to perform and
exercise its duties and powers as set forth herein;
(j) Other rights of the Association, the Architec-
tural Review Committee, the Board, the Owners, and Declarant
with respect to the Common Area as may be provided for in this
Declaration or recorded Notice of Annexation;
(k) The right of Declarant to grant and transfer
easements on, over and across the Project, including the
Annexation Property, for the development, installation,
construction and maintenance of electric, telephone, cable
18324.283-14780.FCM 091307 -18-
television, water, gas, sanitary sewer lines and drainage
facilities, as shown on any recorded subdivision map covering
the Project and as may be reasonably necessary for the proper
maintenance and/or development of the Project, or conveyance
of Lots and/or Common Area;
(1) Any limitations, restrictions or conditions
affecting the use, enjoyment or maintenance of the Common Area
imposed by Declarant, or by the City, or other governmental
agency having jurisdiction to impose any such limitations,
restrictions or conditions, including, but not limited to, the
rights of the City or such other governmental agency having
jurisdiction to use their vehicles or appropriate equipment
over those portions of the Common Area designed for vehicular
movement to perform municipal functions or emergency or
essential public services; and
(m) Any limitations or restrictions on an Owner's
right to use his/her Lot so as not to interfere with any and
all street light standards, mailboxes, improvement locations,
and sidewalk, parkway, and utility easements affecting such
Owner's Lot.
Section 3. Easements for Common Walls. There is
hereby created, established and granted an easement appurtenant to
the real property in the Project for the placement of all common
walls, where such walls were originally installed by Declarant,
regardless of whether such walls are located precisely upon the
boundary separating two (2) residential Lots or a residential Lot
and Common Area. Those Owners who have a common wall which adjoins
their Lots and effectively creates the boundary line between such
Lots (including the Association and its Common Area) shall equally
have the right to use such wall and each shall have the exclusive
right to the use of the interior surface of the wall facing his
Residence or Common Area. Neither Owner shall drive nails, screws,
bolts or other objects more than halfway through any common wall,
interfere with the adjacent Owner's use and enjoyment of the common
wall, or impair, in any way, the structural integrity of the common
wall. In the event that any portion of such wall, except the
interior surface of one (1) side, is damaged or injured from any
cause, other than the act or negligence of either party, it shall
be repaired or rebuilt at their joint expense. Wood fences are
prohibited within the Project.
Section 4. Delegation of Common Area Use Rights. Any
Owner who resides within the Project may delegate, in accordance
with the By -Laws, his rights of use and enjoyment to the Common
Area to the members of his immediate family and any other persons
residing within his Residence. In the event an Owner has rented or
leased his Residence, his rights of use and enjoyment to the Common
18324.283-14780.FCM 091307 _19-
Area shall be automatically delegated to his tenants or lessees for
the duration of their tenancy, and the Owner shall forfeit any
rights of use and enjoyment to the Common Area for the duration of
such tenancy, except those rights of ingress and egress which are
reasonably necessary to carry out the appropriate duties of a
landlord. In the event of a conditional sales contract, the seller
under the contract shall be deemed to delegate his rights of use
and enjoyment to the Common Area to the purchaser under the
contract.
Section 5. Easements for Community Cable Television,
Telecommunication Systems and Alarm System Cabling. There are
hereby reserved for the benefit of Declarant and its successors and
assigns with respect to property.owned by Declarant, nonexclusive
easements for ingress, egress and access on, over, under and across
the Project for purposes of installation, operation, maintenance,
repair, inspection, replacement and removal of transmission lines
and other facilities and equipment for (a) a community antenna
television system, (b) telecommunications and fiber optics systems,
and (c) alarm system cabling. Such easements shall be freely
transferable to any other person(s) or entity(ies) for the purpose
of providing any or all of such services. The exercise of all
rights reserved hereunder shall not unreasonably interfere with the
Owners' use and enjoyment of the Project.
Section 6. Easements for Unintentional Encroachments.
Declarant reserves for its benefit, and the benefit of the Owners,
and hereby create, establish and grant a nonexclusive easement
appurtenant to each Lot on, over and across those portions of any
adjacent Lot (whether a residential Lot or a Common Area Lot), not
to exceed one foot (1'), for the encroachment by any foundations
and footings, and not to exceed three feet (31) for eaves or other
overhangs, wing walls and/or chimneys existing as of the date that
escrow is initially closed for the sale of said Lot from Declarant
to an Owner. Additionally, there is hereby created, established
and granted nonexclusive easements appurtenant to any Lot on, over
and across those portions of any such adjacent Lot (whether a
residential Lot or a Common Area Lot), not to exceed one foot (1'),
for the encroachment by any Improvement resulting from any
subsequent settling or shifting of any Improvements. All of the
aforesaid encroachments shall be measured at the point of en-
croachment along a line which is perpendicular to the common
property line between the affected Lots. Declarant further reserves
reciprocal easements for utility services and repairs, replacement,
and maintenance of the same over the Lots for the benefit of the
Owners. Use of the foregoing easements may not unreasonably
interfere with each Owner's use and enjoyment of the Owner's
respective Lot.
18324.283-14780.FCM 091307 - 2
Section 7. Easements for Utilities. The rights and
duties of the Owners of Lots within the Project with respect to
sanitary sewer, storm drain, water, electricity, gas, television
cable (or CATV service) and telephone lines, and other facilities,
shall be governed by the following:
(a) Each respective utility company shall maintain
all utility facilities and connections on the Project owned by
such utility company; provided, however, that if any company
shall fail to do so, it shall be the obligation of each Owner
to maintain those facilities and connections located upon such
Owner's Lot or provide service to only such Owner's Lot, and
it shall be the obligation of the Association to maintain
those facilities and connections located upon and which
provide service to only the Common Area;
(b) Wherever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project and it becomes necessary to gain
access to said connections, cables and/or lines through a Lot
owned by someone other than the Owner of the Lot served by
said connections, cables and/or lines, the Owner of the Lot
served by said connections, cables and/or lines shall have the
right, and is hereby granted an easement to the full extent
necessary therefor, to enter upon such other Lot or to have
the utility companies enter upon such other Lot to repair,
replace and generally maintain said connections, cables and/or
lines. In the event that any damage shall be proximately
caused by such entry, said Owner or utility company shall
repair the same at its respective expense;
(c) Whenever sanitary sewer, water or gas connec-
tions, television cables, electricity or telephone lines are
installed within the Project, and said connections, cables
and/or lines serve more than one (1) Lot, the Owner of each
Lot served by said connections, cables and/or lines shall be
entitled to the full use and enjoyment of such portions of
same as service his Lot;
(d) In the event of a dispute between Owners re-
specting the repair or rebuilding of the aforesaid connec-
tions, cables and/or lines, or the sharing of the cost
thereof, said Owner shall first contact the appropriate
utility company or applicable private purveyor in an effort to
resolve the dispute; provided, however, if the dispute remains
unresolved, upon the written request of one (1) of such Owners
addressed to the Association, the matter shall be submitted to
the Board who, after Notice and Hearing in which the Owner
shall have an opportunity to be heard, shall decide the
18324.283-14780.FCM 091307 -21-
•
dispute, and the decision of the Board shall be final and
conclusive on the Owners;
(e) Easements over the Project for the installation
and maintenance of electric and telephone lines, water, gas,
drainage and sanitary sewer connections and facilities, and
television antenna cables and facilities, all as shown on the
recorded map of the Project, or otherwise of record, and/or as
may be hereafter required or needed to service the Project,
are hereby reserved by Declarant, together with the right to
grant and transfer the same.
(f) Each Lot granted to an Owner is subject to all
easements for utility installation and maintenance, storm
drains and other purposes, as more particularly shown on the
recorded subdivision map(s) for the Project or otherwise of
record or apparent. Any installation or construction of
landscaping or structures within said easement areas may be
done only in accordance with the terms, conditions and
provisions of said easements. Notwithstanding that an Owner
may install Improvements (including landscaping) within a
utility easement area with the approval of the Architectural
Review Committee, each Owner acknowledges that such Improve-
ments (including landscaping) may, unless otherwise prohibit-
ed, be removed by the respective utility company, private
purveyor, or public agency to maintain, repair or replace any
of the foregoing facilities without any liability to the Owner
to repair or restore any Improvements (including landscaping);
and
(g) Utility services shall be installed and
maintained underground, to the extent required by the City.
As required by the City, any ground -mounted equipment located
in view from any street or Common Area shall be screened by
dense landscaping, of a sufficient height to fully screen such
equipment above its horizontal plane.
Section S. Easements for Maintenance of the Common
Area. There is hereby created, established and granted a nonexclu-
sive easement in favor of the Association for ingress, egress and
access on, over and across those portions of the Lots in the
Project as reasonably required by the Association to perform its
maintenance obligations for the Project and Common Area, as more
particularly set forth herein, including, but not limited to, the
Articles entitled "Powers and Duties of the Association" and
"Repair and Maintenance." In the event it becomes necessary for
the Association to enter upon any Lot for purposes of: (a) main-
taining the Project or the Common Area; or (b) bringing an Owner
and/or his Lot into compliance with this Declaration in accordance
with the provisions set forth herein, the Association, and its duly
18324.283-14780.FCM 091307 -22-
authorized agents and employees, shall have the right, after
reasonable notice to the Owner and at a reasonable hour of the day,
to enter upon such Owner's Lot for the performance of such work.
Such entry shall be made with as little inconvenience to the Owner
as is practicable, and in the event that any damage shall be
proximately caused by such entry, the Association shall repair the
same at its expense. Notwithstanding the foregoing, no advance
notice of entry is required in the event of an emergency or any
regularly scheduled maintenance by the Association.
Section 9. Easements for Clustered Mailboxes. In or-
der to comply with the various requirements of the City and the
United States Postal Service, kiosk mailboxes may be installed on
certain Lots within the Project. Easements are hereby created,
granted and established on and over the affected Lots, if any, in
favor of all Owners in the Project and the United States Postal
Service for delivery and deposit and retrieval of mail.
Section 10. Easements Over Sidewalks and Parkways.
Declarant hereby reserves, establishes, grants, and covenants for
itself, its successors and assigns, that each and every Owner, his
tenants and invitees shall have, appurtenant nonexclusive
reciprocal easements on, over and across all sidewalks, if any, lo-
cated on portions of Lots immediately adjacent to the streets
within the Project for pedestrian access, use and enjoyment.
Section 11. Easements for Drainage. There are hereby
created, granted and reserved over each Lot in the Project ease-
ments for drainage according to the patterns for drainage created
by the as -built condition of the Project by Declarant, as well as
according to the actual, natural and existing patterns for drainage
(including, but not limited to, easements to accommodate any
"cross -lot drainage," whereby water runoff from one [1] or more
contiguous Lots [or Common Area] drains across another Owner's Lot,
subject to the approval of any applicable governmental agencies
that may be required). Each Owner covenants and agrees that he
shall not obstruct or otherwise interfere with said drainage
patterns of waters from adjacent Lots in the Project over his Lot,
or, in the alternative, that in the event it is necessary and
essential to alter said drainage pattern for the protection and use
of his Lot, he will make adequate provisions for proper drainage
and obtain all appropriate approvals from the respective
governmental authorities, as applicable, and the Architectural
Review Committee.
Section 12. Easement for Area Drains. Declarant here-
by establishes, grants, and reserves nonexclusive reciprocal
easements over the Lots and Common Area for drainage purposes to
accommodate the drainage system, including, but not limited to area
drains and pipes, originally installed by Declarant. The Lot Owner
18324.283-14780.FCM 091307 -23-
served by said drainage system shall be responsible to maintain and
preserve said system in an operating condition to ensure proper
drainage on, over, under, across and through the yard area of his
or her Lot in accordance with the established drainage patterns
created by the precise grading plans for the Project, and shall
bear the cost of the maintenance, repair or replacement associated
with the drainage system which affects his or her Lot. No Owner
shall alter or remove the drainage system or modify the grade of
the yard area in his or her Lot without the express written consent
of the Architectural Review Committee and City, as applicable. In
the event any portion of the drainage system is damaged, destroyed
or not properly maintained, any Lot Owner affected by such drainage
system may cause said repair, restoration or maintenance work to be
completed and shall be entitled to recover the appropriate expenses
from the Lot Owner responsible for such damage, destruction or need
for maintenance. Notwithstanding the foregoing, if any portion of
the drainage system is damaged or destroyed as a proximate result
of any act or omission of any Owner, or any member of his family,
guests, tenants, lessees and/or invitees (without regard to fault),
such Owner shall immediately repair and/or rebuild such drainage
system, and shall bear all of the costs thereof, including any cost
and/or expense related to personal injury or property damage to any
person, Residence, or Lot in the Project.
Section 13. Easement for Driveways. Declarant hereby
establishes, grants, and reserves nonexclusive reciprocal easements
over portions of those Lots described and/or depicted on Exhibit
"B" attached hereto and incorporated herein by reference,
nonexclusive reciprocal easements for use, ingress, egress, access,
repair, drainage or other purposes associated with a shared
driveway as necessary to accommodate the shared driveway situation
as originally constructed by Declarant (e.g., for vehicular and
pedestrian ingress, egress and access, and for the installation,
maintenance and repair of utilities [including, but not limited to,
underground sewer laterals, water services, irrigation lines, storm
laterals, and gas, electric, telephone and cable television
services]), and, as incidental thereto, reasonable rights for the
drainage of surface waters.
Section 14. Easements for Construction and Sales. De-
clarant hereby expressly reserve for itself, for the benefit of its
agents, employees and contractors, and for the benefit of their
successors and assigns, for a period of twenty-five (25) years from
the recordation of this Declaration, or until all Lots in Tract No.
35060 and the Annexation Property are initially sold (and escrows
closed), whichever occurs first, nonexclusive easements for access,
ingress and egress in, on, over, and across the Project as
necessary to construct the Improvements, and further reserves the
exclusive right to carry on normal sales activity, including the
operation of a models complex and sales office, and the display of
18324.283-14780.FCM 091307 -24-
0 •
promotional signs and exhibits in connection with the sale or lease
of Lots in the Project. Furthermore, nothing in this Declaration
shall limit the right of the Declarant to establish additional
licenses, easements, and rights-of-way in favor of Declarant,
utility companies or others as may, from time to time, be reason-
ably necessary for the development of the Project. The foregoing
rights established and reserved by Declarant shall be subject only
to the applicable regulations and requirements of the City. The
foregoing rights of Declarant may be assigned to any successor to
all or part of Declarant's interest in the Project by an express
assignment recorded in the Office of the County Recorder.
Section 15. Easements to the City. There is hereby
created, reserved, and granted to Declarant, together with the
right to grant and transfer same to the City, easements for ingress
and egress over the Project for the purpose of permitting the City
to perform various obligations and responsibilities within or
adjacent to the Project.
Section 16. Reservation of Construction Rights by De-
clarant. In order that the Project be completed and established as
a planned residential community, nothing in this Declaration shall
limit the right of Declarant to: (a) complete construction of any
Improvements in the Project; (b) redesign or otherwise modify the
Improvements owned by Declarant; (c) construct such additional
Improvements on any portion of the Project owned by Declarant; or
(d) otherwise control all aspects of constructing the Project or
selling or leasing of Lots in the Project. Furthermore, nothing in
this Declaration shall limit the right of Declarant to establish
additional licenses, easements and rights-of-way in favor of
Declarant, utility companies or others as may, from time to time,
be reasonably necessary for the development of the Project. The
foregoing rights established and reserved by Declarant shall be
subject only to the applicable regulations and requirements of the
City and the DRE. The foregoing rights of Declarant may be
assigned to any successor to all or part of Declarant's interest in
the Property and Annexation Property by an express assignment re-
corded with the County Recorder.
Section 17. Title to the Common Area.
(a) Transfer of Title to Common Area. Declarant
hereby covenants, for itself and its successors and assigns,
to convey to the Association fee simple title to, or a
nonexclusive easement in, as appropriate, the Common Area,
free and clear of all liens and encumbrances (i.e., if the
Common Area title being conveyed is fee simple), in a particu-
lar phase of the Project, if any, prior to or concurrent with
a first close of escrow for the sale of a Lot in such Phase,
subject to the Protective Covenants set forth in this Declara-
18324.283-14780.FCM 091307 -25-
• 0
tion or which are of record at the time of the conveyance. If
a "Phase" consists of only "Common Area", then Declarant
shall, within thirty (30) days after recordation of the
annexation document, convey to the Association such Common
Area in fee simple or by easement.
(b) Completion of Common Area. In the event that
Improvements proposed to be constructed on any portion of the
Common Area so annexed to the Project have not been completed
prior to the first close of escrow for a Lot in the property
being annexed, as evidenced by a "Notice of Completion"
recorded in the Office of the County Recorder, then the
completion of such Improvements shall be assured in accordance
with Section 11018.5 of the California Business and Profes-
sions Code, or any similar statute hereafter enacted.
(c) Commencement of Association Responsibilities.
Except as otherwise provided herein and/or in the grant deed
conveying Common Area, the Association's responsibility to
maintain the Common Area conveyed to the Association shall
commence concurrently with the levy of assessments by the
Association for maintenance of such Common Area. The Associa-
tion shall not interfere with the performance of any warranty
or other contractual maintenance obligations which the
contractor or subcontractors of Declarant may be bound to
perform. Notwithstanding the foregoing, maintenance performed
by such contractors and subcontractors of Declarant shall not
serve to postpone the commencement of Regular Assessments
pursuant to this Declaration, nor entitle an Owner to claim
any offset or reduction in the amount of such Regular Assess-
ments. Prior to the time that the Common Area is conveyed to
the Association, the Declarant shall be responsible for
maintaining the Common Area in a manner commensurate with its
status as the owner thereof; to the extent that the Declarant
has made any Improvements to the Common Area pursuant to the
City's conditions of approval for the Project, Declarant shall
maintain the Improvements in the same manner as required of
the Association by this Declaration.
(d) Character of Improvements to Common Area. The
nature, design, quality and quantity of all Improvements to
the Common Area shall be determined by Declarant, in its sole
discretion. The Association shall be obligated to accept title
to all Common Area in the Project, whether identified herein
or in a Notice of Annexation, conveyed by Declarant, and
undertake all maintenance responsibilities for the Common Area
as provided herein.
(e) Disputes. In the event that a dispute arises
between Declarant and the Association with respect to the
18324.283-14780.FCM 091307 -26-
nature, design, quality or quantity of the Improvements, or
the acceptance of maintenance responsibilities therefor,
resolution of the dispute shall be submitted to arbitration in
accordance with the applicable provisions below.
(f) Formation of Landscape Maintenance District
Community Facilities District, or Other Special District.
Notwithstanding any provision contained herein to the con-
trary, the Board shall have the power and authority to convey
the Common Area, or any portion thereof, to the City upon
request of the City to include the Common Area, or any such
portion, in a landscape maintenance district, community
facilities district or other special district and/or delegate
its maintenance obligations to the City or to such landscape
maintenance district, community facilities district or other
special district. Each Owner of a Lot shall pay all assess-
ments, special taxes and other charges levied against such Lot
in connection with any such landscape maintenance district,
community facilities district or other special district. Each
Owner of a Lot in the Project, by acceptance of a deed from
Declarant for such Lot, agrees to refrain from taking any
action which would in any way interfere with the formation of
or annexation into a landscape maintenance district, community
facilities district, or other special district, the operation
of such districts, or decisions made or actions taken by the
City with respect to such districts, including, without
limitation, the timing of commencement, amount, spreading or
use of the assessments, special taxes or other charges
collected by such districts.
Section 18. Reservation of Common Area Easements.
Declarant does hereby reserve the right to grant nonexclusive ease-
ments over the Common Area in favor of Owners of any Annexation
Property which is annexed to the Project pursuant to this Declara-
tion, and, upon the recordation of a Notice of Annexation affecting
the Annexation Property, the Owners described in this Declaration
shall automatically obtain nonexclusive easements over all Common
Area which is a part of said Annexation Property subject to all
applicable restrictions set forth herein and in the Notice of
Annexation.
Section 19. Easements for the Architectural Review
Committee. There is hereby created, reserved and granted to Declar-
ant, together with the right to grant and transfer same to the
members of the Architectural Review Committee, easements for
ingress and egress over the Project for the purpose of permitting
the Architectural Review Committee to perform its various powers
and responsibilities as more particularly described in this Dec-
laration.
18324.283-14780.FCM 091307 -27-
•
Section 20. Easement for Access to and from Washington
Street. The owner of the adjacent property to the north of the
Project has granted a non-exclusive easement to the Association and
all Lot Owners and residents of the Project and their tenants,
guests, and invitees for pedestrian and vehicular access, ingress
and egress over such adjacent property to Washington Street, on the
terms and conditions set forth in that certain Easement Agreement
between Declarant and Saint Francis of Assisi Catholic Church
recorded in the Official Records in the Office of the County
Recorder for San Bernardino County, California.
Section 21. Easements Set Forth on Final Map and in
Official Records of County. In addition to the foregoing
easements, the Project is subject to any and all easements set
forth on the recorded Tract Map for the Project and/or recorded
against the Project (or any portion thereof) in the Official
Records of the County.
ARTICLE IV
THE ASSOCIATION
Section 1. Membership. Every person or entity who or
which is an Owner as defined hereinabove shall be a Member of the
Association. The foregoing, however, is not intended to include
persons or entities who hold an interest in a Lot in the Project
merely as security for the performance of an obligation. All
memberships in the Association shall be appurtenant to the Lot
owned by each Member, and memberships in the Association shall not
be assignable, except to the person or entity to whom the title to
the Lot has been transferred, as provided in Section 8 hereinbelow.
Ownership of such Lot shall be the sole qualification for member-
ship in the Association. The memberships in the Association shall
not be transferred, pledged or alienated in any way, except upon
the transfer of title to said Lot, and then only to the purchaser
or Mortgagee of such Lot. Any attempt to make a prohibited member-
ship transfer shall be void and will not be reflected in the books
of the Association.
Section 2. Voting Rights. The Association shall have
two (2) classes of voting membership, as follows:
(a) Class A. Class A Members shall be all Owners,
with the exception of the Declarant until such time as the
Class B Membership terminates, and shall be entitled to one
(1) vote for each Lot owned. When more than one (1) person
holds an interest in any Lot, all such persons shall be Mem-
bers. The vote for such Lot shall be exercised as they de-
termine among themselves, but in no event shall more than one
18324.283-14780.FCM 091307 -28-
(1) vote be cast with respect to any Lot. The Association
shall recognize the vote cast by a Co -Owner, unless another
Co -Owner shall cast a conflicting vote, in which case, both
votes shall be null and void, and not recognized by the
Association. The non-voting Co -Owner or Co -Owners shall be
jointly and severally responsible for all of the obligations
imposed upon the jointly owned Lot.
(b) Class B. The Class B Member shall be the
Declarant and shall be entitled to three (3) votes for each
Lot owned in the Project upon which Declarant is then paying
the appropriate monthly Assessments provided for hereinbelow.
The Class B membership shall cease and be converted to Class
A membership upon the happening of either of the following
events, whichever occurs earliest:
(1) The second anniversary of the first close
of escrow for the sale of a Lot pursuant to the original
issuance by the DRE of the most recently issued Final
Subdivision Public Report for a Phase of the Project; or
(2) The fourth anniversary of the first close
of an escrow for the sale of a Lot pursuant to the
original issuance by the DRE of a Final Subdivision
Public Report for the initial Phase of the Project; or
(c) December 31, 2011.
Any action by the Association which must have the ap-
proval of the membership of the Association before being under-
taken, shall require the vote or written assent of both a majority
of the Class B membership as well as a majority of the Class A
membership, so long as there are two (2) outstanding classes of
membership, unless a specific provision of this Declaration or the
By -Laws or Articles of the Association requires (i) the approval of
a greater percentage of the voting membership, or (ii) a vote by
Members other than Declarant, or (iii) a specific approval
percentage of all the Members. Notwithstanding the foregoing, any
action by the Association pursuant to the Article contained herein
entitled "Enforcement of Bonded Obligations" shall only require a
majority of the voting power of the Owners, other than Declarant.
Section 3. Special Procedures For Appointment of
Members to the Board. The Declarant shall be entitled to solely
appoint a majority of the members of the Board until the first to
occur of the following events:
18329.283-19780.FCM 091307 -29-
(a) The election of the Board immediately following
the close of escrow by Declarant of at least fifty-five (55)
Lots in the Project; or
(b) December 31, 2011.
In the event Declarant shall not have sold and closed
escrows for at least fifty-five (55) Lots by December 31, 2011,
Declarant's right to elect a majority of the members of the Board
shall be automatically extended until the aforesaid number of Lots
have been sold, but in no event later than December 31, 2012.
Notwithstanding the foregoing, the Class A Members shall
be entitled to elect at least one of the members of the Board, so
long as there are two (2) classes of membership outstanding in the
Corporation.
Section 4. Vesting of Voting Rights. The voting
rights attributable to any given Lot in the Project as provided for
herein shall not vest until the Assessments provided for hereinbe-
low have been levied by the Association against said Lot.
Section 5. Adjustment of Voting Rights. The voting
rights in the Association shall be adjusted on the first day of the
first month immediately following the first close of an escrow for
the sale of a Lot in a subsequent Phase of the Project.
Section 6. Suspension of Voting Rights. The Board
shall have the authority to suspend the voting rights of any Member
to vote at any meeting of the Members for any period during which
such Owner is delinquent in the payment of any Assessment,
regardless of type, it being understood that any suspension for
nonpayment of any Assessment shall not constitute a waiver or
discharge of the Member's obligation to pay the Assessments pro-
vided for in this Declaration.
Section 7. Transfer. The Association membership held
by any Owner of a Lot shall not be transferred, pledged or alien-
ated in any way, except as incidental to the sale of such Lot, and
the membership shall be automatically transferred upon the sale of
such Lot. In the event of such sale, the Association membership may
only be transferred, pledged or alienated to the bona fide
purchaser or purchasers of the Lot, or to the Mortgagee (or third
party purchaser) of such Lot upon a foreclosure sale, deed in lieu
or other remedy set forth in the mortgage. Any attempt to make a
prohibited transfer is void and will not be reflected upon the
books and records of the Association. The Association may levy a
reasonable transfer fee against new Owners and their Lots (which
fee shall be a Compliance Assessment chargeable to such new Owner)
to reimburse the Association for the actual administrative cost of
18324.283-14780.FCM 091307 - 3
transferring the memberships to the new Owners on the records of
the Association.
Section 8. Record Date. The Board of Directors may
fix a date as a record date for the determination of the Class A
Members (other than Declarant) entitled to notice of any meeting of
the Members. Any record date fixed by the Board shall ensure
reasonable time to comply with all notice requirements set forth in
this Declaration. If the Board does not fix a record date for
notice to Members, the record date for notice shall be the close of
business on the tenth (10th) business day preceding the day on
which notice is to be given. In addition, the Board may fix a date
in the future as a record date for the determination of the Members
entitled to vote. The record date so f ixed shall be not be more
than sixty (60) days prior to the date of the meeting of the
Members. If the Board does not fix a record date for determining
Members entitled to vote, Members on the day of the meeting who are
otherwise eligible to vote are entitled to vote at the meeting.
ARTICLE V
POWERS AND DUTIES OF THE ASSOCIATION
Section 1. Management Body. The Association is hereby
designated as the management body of the Project. The Members of
the Association shall be the Owners in the Project, as provided
herein, and the affairs of the Association shall be managed by a
Board of Directors, as more particularly set forth in the By -Laws.
The initial Directors shall be appointed solely by the Declarant.
Thereafter, the Board shall be elected or appointed as provided in
said By -Laws.
Section 2. Powers. The Board, for and on behalf of
the Association, shall have the right and power to do all things
necessary to conduct, manage and control the affairs and business
of the Association. Subject to the provisions of the Articles, the
By -Laws and this Declaration, the Board shall have all general
powers authorized under the California Corporations Code for non-
profit, mutual benefit corporations, and shall have, but not be
limited to, the following specific powers:
(a) Enforce the provisions of this Declaration
(including but not limited to the ability to record a notice
of noncompliance or violation, if allowed), including any
amendments thereto, and all contracts or any agreements to
which the Association is a party;
(b) Acquire title, manage, maintain, repair and
replace all Common Area and Improvements located thereon,
18324.283-14780.FCM 091307 - 3 1-
• 0
including all personal property, in a neat, clean, safe and
attractive condition at all times, and pay all utilities,
gardening and other necessary services for the Common Area,
all as more specifically set forth in this Declaration,
including the Article herein entitled "Repair and Mainte-
nance";
(c) Maintain fire, casualty, liability and worker's
compensation coverage, fidelity bond coverage and other
insurance coverage pursuant to the terms of that Article
herein entitled "Insurance";
(d) Obtain, for the benefit of the Common Area, all
commonly metered water, gas and electric services, and provide
(if appropriate, as determined by the Board in its sole and
absolute discretion) for refuse collection and cable (or CATV)
television service;
(e) Grant easements or licenses, where necessary,
for utilities and sewer facilities over, on and across the
Common Area to serve the Project;
(f) Pay all taxes and special assessments which
would be a lien upon the entire Project or the Common Area,
and discharge any lien or encumbrance levied against the
entire Project or the Common Area;
(g) Delegate its powers in accordance with and
subject to all limitations imposed by law;
(h) Levy and collect Assessments on the Owners of
all Lots in the Project in which Assessments have commenced,
and enforce payment of such Assessments in accordance with the
terms and provisions set forth in the Article herein entitled
"Effect of Nonpayment of Assessments: Remedies of the Associa-
tion";
(i) Pay for reconstruction of any portion of the
Common Area damaged or destroyed;
(j) Employ and retain a professional manager and/or
management company to perform all or any portion of the duties
and responsibilities of the Board and engage such other
personnel (including attorneys, budget preparers, and accoun-
tants) as necessary for the operation of the Project and
administration of the Association;
(k) Enter into any Lot when necessary in connection
with maintenance or construction for which the Association is
responsible;
18324.283-14780.FCM 091307 -32-
(1) Subject to notification to the DRE, contract
with Declarant, its successors or assigns, for the purpose of
entry into a maintenance and/or subsidy agreement, made by and
between Declarant and the Association, for the purpose of
temporarily reducing and/or abating the financial obligations
of Owners in the Project;
(m) Purchase such other labor, services, materials,
supplies and the like, as needed for the proper maintenance of
the Common Area and/or proper operation of the Association;
(n) Adopt reasonable Rules and Regulations con-
cerning the maintenance, improvement, use and/or occupancy of
any portion of the Project (including, without limitation,
rules and regulations for the use, inspection, and maintenance
and use of the recreational facilities within the Project) and
election procedures in compliance with California Civil Code
Section 1363.03;
(o) Grant exclusive easements to Owners over por-
tions of the Common Area in accordance with California Civil
Code Section 1363.07, as same may be amended from time to
time, and with the assent of sixty-seven percent (670) of the
voting power of the Association;
(p) Execute lot line adjustments (and corresponding
deeds), enter into a maintenance and/or other agreement with
Declarant or a third party, subject to Civil Code Section
1363.07, if applicable, grant fee title to or easements over
the Common Area to Declarant or a third party, and/or receive
fee title to or an easement over real property owned by
Declarant or a third party as reasonably necessary due to
those conditions in the field where it is not readily apparent
where Lot lines are located and the respective party's
maintenance responsibilities commence and end, and such
adjustments, deeds and/or agreements will promote a clearly
defined and uniform maintenance plan by the respective
parties;
(q) Grant easements or licenses to any public
agency, governmental entity or utility, where necessary, for
utilities and sewer facilities on, over and across the Common
Area to serve the Project for purposes consistent with the use
and enjoyment of the Common Area or the Project for residen-
tial purposes;
(r) Subject to compliance with Section 1369.510 et
seg. of the California Civil Code, as same may be amended from
time to time, institute, defend, settle or intervene on behalf
of the Association any dispute resolution proceeding in
18329.283-19780.FCM 091307 -33-
matters pertaining to (i) enforcement of the Declaration,
Rules and Regulations and/or By -Laws; (ii) damage to the
Common Area; (iii) damage to the Lots which arises out of, or
is integrally related to, damage to the Common Area that the
Association is obligated to maintain or repair;
(s) Execute all necessary documents in order to
effectuate the Express Limited Warranty, including, without
limitation, the "Limited Warranty Validation Form," if
applicable.
(t) Negotiate and enter into agreements for
Telecommunication Services, with terms not in excess of ten
(10) years, provided that Declarant does not have a direct or
indirect ownership interest in the supplier of such services
or equipment equal to or greater than ten percent (10%);
(u) Negotiate and enter into agreements with any
nonprofit corporations (e.g., governing portions of the
Project and/or Annexation Property, including the amenities
located thereon) or Local Government Agencies;
(v) Negotiate and enter into contracts in which the
Association enters into litigation or any alternative dispute
resolution procedure when the Association's obligation to pay
for services is set in whole or in part on a contingency basis
except (i) contracts for collection of assessment or other
accounts receivable; (ii) contracts involving evaluation of
services; or (iii) contracts with a total amount to be paid by
the Corporation not in excess of Forty Thousand Dollars
($40,000.00);
(w) Authorize an agent, management company
representative, or bookkeeper to appear and participate in a
small claims court action on behalf of the Association in
accordance with California Code of Civil Procedure Section
116.540;
(x) Without any limitation of the foregoing powers,
(i) operate, maintain, and inspect the Common Area and its
various components in conformance with any Maintenance
Guidelines and any Maintenance Manual, and (ii) review any
Maintenance Manual for necessary or appropriate revisions as
deemed necessary by the Board (Declarant recommends at least
an annual review);
(y) As applicable, comply with terms and provisions
of California Civil Code Section 1375, as amended, in connec-
tion with any potential litigation based upon a claim for
defects in the design or construction of the Common Area;
18324.283-14780.FCM 091307 -34-
(z) As required by the City, monitor the Project
(using a list of indicators provided by the California
Department of Fish and Game) for any signs that bighorn sheet
are entering the Project and report any observations of
bighorn sheep on or near the Project site to the California
Department of Fish and Game and City immediately. If
information suggests that bighorn sheep are entering the
Project, within three (3) months after receipt of such
information, the Association shall construct, at the
Association's sole cost and expense, an eight (8) foot high
permanent fence between the Project and the hillside, which
fence shall not contain gaps of greater than eleven (11)
centimeters (4.3 inches). If requested to do so by the
California Department of Fish and Game, the Association shall
(at its sole cost and expense) construct temporary fencing to
the specifications of the California Department of Fish and
Game to prevent bighorn sheep from entering the Project site
pending the construction of the permanent fence. Any and all
fencing constructed shall be subject to the City's Hillside
Conservation Overlay District. The Association shall also
have the power to post signs within the Project discouraging
people from entering the hillside from any portion of the
Project; and
(aa) Perform any and all other acts and things that
a nonprofit, mutual benefit corporation organized under the
laws of the State of California is empowered to do, which may
be necessary, convenient or appropriate in the administration
of its affairs for the specific purposes of meeting its duties
as set forth in this Declaration.
Section 3. Duties. Notwithstanding the Association's
obligations, as more specifically set forth herein, including in
the Article entitled "Repair and Maintenance," the Board shall
perform and execute the following duties for and on behalf of the
Association:
(a) Own, maintain and operate the Common Area, for
the common use and benefit of all Owners in the Project;
(b) Provide, water, sewer, gas, electricity, gar-
bage and trash collection, and other necessary utility ser-
vices for the Common Area and, if not separately metered or
provided, for the Lots;
(c) Provide insurance for the Association and its
Members in accordance with the provisions herein, including
the Article hereinbelow entitled "Insurance" and distribute
any notices thereof required by law, as same may be amended,
from time to time;
18324.283-14780.FCM 091307 -35-
(d) Accept, as part of the Project, all property
included in or annexed to the Project, in accordance with the
terms and provisions of this Declaration, and accept all
Owners as Members of the Association. In addition, the
Association shall accept all Common Area, conveyed, leased or
otherwise transferred to it, if any, by Declarant, its
successors or assigns, or appropriate governmental agency;
(e) Maintain and repair all portions of the Common
Area in a neat, clean, safe, attractive, sanitary and orderly
condition at all times and paint, maintain, repair and replace
all of the Common Area Improvements so as to keep same in a
neat, clean, safe, attractive, sanitary and orderly condition
at all times. Without limiting the generality of the forego-
ing, if the Project is completed as currently planned, the
Association shall be responsible for landscaping, irrigating,
maintaining, repairing, and/or replacing (as appropriate), the
front yard areas, and the parkways, medians, and other areas
along certain streets, Association Walls (for Phase 1, see
Exhibit "D"), recreational facilities, Project entry
monumentation, private streets, guard house, tower, and entry
gates, storm water retention basins (e.g. , Lots H and I of
Tract 30560, and all related systems in a condition comparable
to the condition initially approved by the City. In the event
any maintenance or repairs to the Common Area are required due
to the willful or negligent acts or omissions of an Owner or
Owners, the Association shall levy the cost of such mainte-
nance and repair as a Compliance Assessment against the
responsible Owner(s);
(f) In addition to all other provisions set forth
herein respecting the maintenance of the Common Area, maintain
private sewers (unless public), storm drains (unless public),
and Common Area lighting facilities, in a condition comparable
to the condition initially approved by the City;
(g) Maintain the structural and treatment control
Best Management Practices located within the Common Area and
perform non-structural Best Management Practices applicable to
the Common Area, as set forth in the Water Quality Management
Plans approved for the Project;
(h) Pay all real and personal property taxes and
Assessments which the Association is required to pay pursuant
to the terms and provisions of this Declaration or by law,
unless separately assessed to Owners; provided, however, that
it shall be the obligation of each Owner to pay his respective
share of the tax assessment levied on the Project prior to
separate assessments by the Tax Assessor pursuant to the
18324.283-14780.FCM 091307 -36-
i
0
applicable provisions of the California Revenue and Taxation
Code;
(i) Contract for any other material, supplies,
furniture, labor, services, maintenance, repairs, structural
alterations and insurance which the Association is required to
pay for pursuant to the terms and provisions of this Dec-
laration or by law;
(j) Unless otherwise provided in the By -Laws for
the Association, cause financial statements for the Associa-
tion to be regularly prepared and copies distributed to each
Member of the Association, regardless of the number of Members
or the amount of assets of the Association, as follows:
(1) A pro forma operating statement (budget)
for each fiscal year shall be distributed within the time
period specified by statute prior to the beginning of the
fiscal year (e.g., not less than 30 days nor more than 90
days prior to the beginning of the fiscal year), and
shall contain the following information:
i) An itemized estimate of the Associa-
tion's revenue and expenses, determined on an
accrual basis;
ii) A summary, printed in bold type, of
the current status of the Association's reserves,
based upon the most recent review or study conduct-
ed pursuant to California Civil Code Section 1365.5
("Study"), as may be amended, from time to time,
and prepared in accordance with all requirements of
law (e.g., Civil Code Section 1365, 1365.2.5);
iii) A statement prepared in accordance
with all requirements of law (e.g., Civil Code
Section 1365, 1365.2) as to both of the following:
a) Whether the Board has deter-
mined or anticipates that the levy of one (1)
or more Special Assessments will be required
to repair, replace or restore any major compo-
nent (e.g., Improvement to the Common Area) or
to provide adequate reserves therefor; and
b) The mechanism or mechanisms by
which the Board will fund reserves to repair
or replace major components, including assess-
ments, borrowing, use of other assets, defer-
18324.283-14780.FCM 091307 -37-
ral of selected replacement of repairs, or
alternative mechanisms.
iv) A general statement prepared in
accordance with all requirements of law (e.g.,
Civil Code Section 1365, 1365.2) setting forth the
procedures utilized by the Association to calculate
and establish reserves to defray the costs of
future repairs, replacements or additions to the
Common Area Improvements.
Notwithstanding the foregoing, in lieu of
distributing the pro forma budget required hereinabove,
the Board may elect to distribute a summary of the pro
forma budget to all Members with a written notice, in at
least 10 -point bold type on the front page, that the pro
forma budget is available at the business office of the
Association, or at another suitable location within the
Project, and that copies will be provided upon request
and at the expense of the Association. If any Member
requests that a copy of the pro forma budget required
herein be mailed to said Member, the Association shall
provide the copy to the Member by first-class mail at the
expense of the Association, and mailed within five (5)
days of the receipt of said request;
(2) A balance sheet as of an accounting date
which is the last day of the month closest in time to six
(6) months from the date of closing for the first sale of
a Lot, and an operating statement for the period from the
date of the first closing to the said accounting date,
shall be distributed within sixty (60) days after the
accounting date. This operating statement shall include
a schedule of Assessments received, and receivable, and
the number of Lots which paid the Assessments;
(3) An annual report consisting of the fol-
lowing shall be distributed within one hundred twenty
(120) days after the close of the fiscal year:
i) A balance sheet as of the last day
of the Association's fiscal year;
ii) An operating (income) statement for
the fiscal year;
iii) A statement of changes in financial
position for the fiscal year; and
18324.283-14780.FCM 091307 -38-
•
•
iv) Information, if any, required to be
reported pursuant to Sections 8322 and 1365 of the
California Corporations and Civil Codes, respec-
tively, as same may be amended from time to time.
This annual report shall ordinarily be prepared by a
licensee of the California Board of Accountancy, in
accordance with generally accepted accounting principles,
for any fiscal year in which the gross income of the
Association exceeds Seventy -Five Thousand Dollars
($75,000.00). However, if for any reason the report is
not prepared by a licensee of the California Board of
Accountancy, said report shall be accompanied by a
certificate from an authorized officer of the Association
that the statements were prepared without audit from the
books and records of the Association;
(4) A statement of the Association's policies
and practices in enforcing its remedies against Members
for nonpayment of Assessments, as set forth in the
Article herein entitled "Effect of Nonpayment of Assess-
ments: Remedies of the Association," which shall be dis-
tributed within the time period required by statute prior
to the beginning of the fiscal year (e.g., not less than
30 days nor more than 90 days prior to the beginning of
the fiscal year); and
(5) A summary of the Association's general
liability insurance policy, earthquake and flood insur-
ance policy, to the extent they have been issued, and
liability coverage policy for the Board, which includes
statements and information required under California
Civil Code Section 1365(e), as same may be amended from
time to time. Currently, such items of disclosure
include the following: (1) the name of the insurer; (2)
the type of insurance; (3) the policy limits of the
insurance; and (4) the insurance deductibles.
The Association shall, as soon as
reasonably practical, notify its Members by first-class
mail if any of the policies described in Subparagraph (i)
above have lapsed, been canceled, and are not immediately
renewed, restored or replaced, or if there is a
significant change, such as a reduction in coverage or
limits, or an increase in the deductible for any of those
policies. If the Association receives any notice of
nonrenewal of a policy described in the subparagraph
above, the Association shall immediately notify its
Members if replacement coverage will not be in effect by
the date the existing coverage will lapse. To the extent
18324.283-14780.FCM 091307 -39-
the information noted above is described within the
respective insurance policies, the Association may
distribute such information to the Members and be in
compliance with the disclosure requirements of the
referenced Civil Code Section. Notification regarding
cancellation or policy renewals must comply with Civil
Code Section 1365(e) (2) , as same may be amended from time
to time. Currently, the summary distributed pursuant to
Subparagraph (i) shall contain, in at least 10 -point
boldface type, the following statement: "This summary of
the Association's policies of insurance provides only
certain information, as required by Subdivision (e) of
Section 1365 of the California Civil Code, and should not
be considered a substitute for the complete policy terms
and conditions contained in the actual policies of
insurance. Any Association Member may, upon request and
provision of reasonable notice, review the Association's
insurance policies and, upon request and payment of
reasonable duplication charges, obtain copies of those
policies. Although the Association maintains the
policies of insurance specified in this summary, the
Association's policies of insurance may not cover your
property, including personal property or real property
improvements to or around your dwelling, or personal
injuries or other losses that occur within or around your
dwelling. Even if a loss is covered, you may
nevertheless be responsible for paying all or a portion
of any deductible that applies. Association Members
should consult with their individual insurance broker or
agent for appropriate additional coverage."
(k) The Board shall review on a quarterly basis,
the following:
i) A current reconciliation of the
Association's operating accounts;
ii) A current reconciliation of amounts
collected as reserves;
iii) The current year's actual amounts
collected as reserves and expenses compared to the
current year's budget;
iv) An income and expense statement for
the Association's operating and reserve accounts;
and
V) The most current account statements
prepared by the financial institutions where the
18324.283-14780.FCM 091307 - 4 0-
•
Association maintains its operating and reserve
accounts.
Withdrawal of funds from the Association's reserve
account shall require the signature of either: (i) two
(2) members of the Board; or (ii) one (1) member of the
Board and an officer of the Association who is not also
a member of its Board. As used in this Section, "reserve
account" means moneys that the Board has identified from
its annual budget for use to defray the future repair or
replacement of, or additions to, those major components
of the Common Area which the Association is obligated to
repair or replace on a periodic basis, rather than on a
regular annual basis. Except as may otherwise be allowed
pursuant to Civil Code Section 1365.5(c), the Board shall
not use any funds collected and budgeted as "reserve"
moneys for any costs and/or expenses that are not related
to repair and/or replacement costs for those elements of
the Common Area that must be repaired and/or replaced on
a periodic basis. The Board may transfer any interest
earned in all reserve accounts into the Association's
general operating account in order to satisfy all or a
portion of the income tax liability based on such
interest income. Notwithstanding the foregoing, temporary
transfer of funds may occur in compliance with Civil Code
Section 1365.5, as same may be amended from time to time.
In the event reserve funds are temporarily transferred to
pay for dispute resolution proceedings, the Board shall
comply with the disclosure and notification requirements
of Civil Code Section 1365.5(d), as same may be amended
from time to time.
(1) At least once every three (3) years, cause a
study of the reserve account requirements of the Project to be
conducted if the current replacement value of the major
components which the Association is obligated to repair,
replace, restore or maintain is equal to or greater than one-
half (1/2) of the gross Association budget for any fiscal year
of the Association. In connection with such study, the Board
shall cause to be conducted, if required by law, a visual
inspection of the accessible areas of the major components of
the Common Area which the Association is obligated to repair,
replace, restore, or maintain. The Board shall consider and
implement, as the Board determines appropriate, any necessary
adjustments to the Board's analysis of the reserve account
requirements as a result of such review. The reserve study
shall consider and include, at a minimum, the requirements set
forth in Section 1365.5(e) of the California Civil Code, as
the same shall be amended, from time to time;
18324.283-14780.FCM 091307 - 4 1-
(m) Assume and pay out of the Assessments provided
for hereinbelow all costs and expenses incurred by the
Association in connection with the performance and execution
of all of the aforesaid powers and duties, and any other
powers and duties the Association may assume as provided for
in Section 4 hereinbelow;
(n) Formulate, adopt and enforce such Rules and
Regulations as it may deem proper for the operation of the
Common Area (including, without limitation, rules and regula-
tions relating to the use, inspection, and maintenance of
recreational facilities within the Project) and as necessary
to establish election procedures in compliance with California
Civil Code Section 1363.03, as more particularly described
herein. Notice of adoption of any such Rules and Regulations
and of any change, amendment or repeal thereof, shall be given
in writing to each Member and shall be on file in the princi-
pal office of the Association. In the event of any conflict
between such Rules and Regulations and this Declaration, this
Declaration shall prevail;
(o) Enforce and abide by all applicable provisions
of this Declaration, the Articles, the By -Laws, any applicable
Express Limited Warranty, all Rules and Regulations of the
Association and Architectural Review Committee, and of all
other documents pertaining to the ownership, use, management
and control of the Project;
(p) Give notices in writing to FHLMC, FNMA and
GNMA, and other lenders and investors participating in the
financing of the sale of Lots in the Project, as required
herein;
(q) Within ten (10) days of the mailing or delivery
of a written request from an Owner, provide said Owner with a
copy of this Declaration and the By -Laws and the Articles for
the Association, together with the pro forma budget, an
insurance policy summary, a true statement in writing as to
the amount of any delinquent Assessments, penalties, attor-
neys' fees and other charges therein as provided by this
Declaration or other management documents of the Board as of
the date of such request, the most recent financial statement,
the Association's current Regular and Special Assessments, and
any change in the Association's current Assessments and fees
which have been approved by the Board but have not become due
and payable as of the date the disclosure is provided pursuant
to this Section. The Board may impose a fee for providing the
foregoing, but in no event shall the fee exceed the actual
cost to prepare and reproduce the requested documents. In
addition, the Board shall make available, as required by law,
18324.283-14780.FCM 091307 -42-
during normal working business hours, upon request under
reasonable circumstance, to any prospective purchaser of a
Lot, any Owner of a Lot, any first Mortgagee and the hold-
er(s), insurer(s) and guarantor(s) of a first Mortgage of any
Lot, current copies of this Declaration, the Articles, the By -
Laws, the Rules and Regulations governing the Lot, a true
statement, in writing, setting forth the amount of the
Association's current regular and special assessments and
fees, any assessments, monetary fines and/or penalties levied
upon the Member's interest in the Project that are unpaid on
the date of the statement, and information on late charges,
interest and costs of collection which, as of the date of the
statement, are or may be made a lien upon the Member's
interest in the Project, and all of the books, the membership
register, including mailing addresses and telephone numbers,
records and financing statements of the Association;
(r) Elect the officers of the Association and fill
any vacancies on the Board, except if such vacancy is created
by the removal of a Director;
(s) Appoint the Members to the various Committees
formed by the Board (e.g., the Nominating Committee, the
Architectural Review Committee, etc.) as more particularly set
forth herein or in the By -Laws;
(t) Cause a summary of the provisions of Section
1369.590 of the California Civil Code, as same may be amended
from time to time, regarding alternative dispute resolution
prefiling requirements and which specifically reference
Section 1369.510 et seg. of the Civil Code, to be prepared and
annually distributed to each Member of the Association. The
summary shall be provided either at the time the pro forma
operating budget is distributed herein or in the manner
specified in Section 5016 of the California Corporations Code,
as same may be amended from time to time. The summary shall
include a description of the Association's internal dispute
resolution process, as required by Section 1363.850 of the
Civil Code;
(u) Periodically review and revise the Maintenance
Guidelines, if any, as the Board may deem reasonable and
prudent to adjust to the changing needs of the Project;
(v) Except as otherwise allowed under Section 1375
of the California Civil Code, as same may be amended from time
to time, obtain approval from a majority of Members prior to
incurring dispute resolution expenses, including without
limitation attorneys' fees, where the Association initiates
dispute resolution proceedings or is joined as a plaintiff in
18324.283-14780.FCM 091307 -43-
dispute resolution proceedings. Such approval shall not be
necessary if the legal proceedings are initiated to (i)
enforce use restrictions contained herein, (ii) enforce
architectural control provisions contained herein; or (iii)
collect any unpaid assessments levied pursuant to this
Declaration;
(w) Comply with the provisions of California Civil
Code Section 1375, as same may be amended from time to time,
as provided hereinbelow;
(x) Cause a notice regarding "Assessments And
Foreclosure" to be prepared and annually distributed to each
Member of the Association in accordance with California Civil
Code Section 1365.1, as the same may be amended from time to
time. Except as otherwise provided in California Civil Code
Section 1365.1, as the same may be amended from time to time,
the notice shall be printed in 12 -point type and shall be
distributed during the sixty (60) day period immediately
preceding the beginning of the Association's fiscal year;
(y) Adopt and provide a fair, reasonable and
expeditious procedure for resolving disputes between the
Association and Members that complies with applicable law
(e.g_, Civil Code Section 1363.810 et se .) which, if the
Board so decides, may be the procedure set forth in Civil Code
Section 1363.840;
(z) As required by applicable law [e.g., California
Civil Code Section 1378(c), as the same may be amended from
time to time, or any successor statute], cause a notice of any
requirements for Association approval of physical changes to
Lots or Common Area to be prepared and annually distributed to
Members. The notice shall describe the types of changes that
require Association approval and shall include a copy of the
procedure used to review and approve or disapprove a proposed
change;
(aa) Without any limitation of the foregoing duties,
(1) operate, maintain, and inspect the Common Area and its
various components in conformance with any Maintenance Guide-
lines and any Maintenance Manual, and (2) review any Mainte-
nance Manual for necessary or appropriate revisions as deemed
necessary by the Board (e.g., at least an annual review); and
(ab) As required by the City, monitor the Project
(using a list of indicators provided by the California
Department of Fish and Game) for any signs that bighorn sheet
are entering the Project and report any observations of
bighorn sheep on or near the Project site to the California
18329.283-19780.FCM 091307 -44-
Department of Fish and Game and City immediately. If
information suggests that bighorn sheep are entering the
Project, within three (3) months after receipt of such
information, the Association shall construct, at the
Association's sole cost and expense, an eight (8) foot high
permanent fence between the Project and the hillside, which
fence shall not contain gaps of greater than eleven (11)
centimeters (4.3 inches). If requested to do so by the
California Department of Fish and Game, the Association shall
(at its sole cost and expense) construct temporary fencing to
the specifications of the California Department of Fish and
Game to prevent bighorn sheep from entering the Project site
pending the construction of the permanent fence. Any and all
fencing constructed shall be subject to the City's Hillside
Conservation Overlay District. To the extent that any portion
of the Project site begins to be used by persons entering the
hillside from the Project site, the Association shall post
signs within the Project discouraging people from entering the
hillside from any portion of the Project.
Section 4. Discretionary Powers. The Board, at its
option, may assume, perform and execute the following powers and
duties for and on behalf of the Association:
(a) Retain the services of a manager for the
Project and provide such other personnel as the Association
deems necessary and proper to assist in the operation of the
Association and/or management of the Common Area regardless of
whether such other personnel are employed directly by the
Association or otherwise, and enforce the Entitlements From
City relating directly or indirectly to the development of the
Project;
(b) Remove or replace any Improvement that extends
into the Common Area under authority of an easement when
access to a utility line underneath such Improvement is
requested by any utility company; provided, however, that the
cost shall be assessed against the Owner of the Lot involved
as a Compliance Assessment if said Owner caused the Improve-
ment to be so placed in the Common Area without legal right to
do so;
(c) Incur any liability or pay any costs or ex-
penses for a single Lot or Owner thereof to keep such Lot
and/or Owner in compliance with this Declaration and/or any
Notice of Annexation; provided, however, that in the event the
Association does incur any such liability or pay any such
costs or expenses, the amount thereof shall be specially
assessed to the Owner of such Lot as a Compliance Assessment;
provided further, however, that nothing herein shall permit
18324.283-14780.FCM 091307 -45-
the Association to assess the Owners for any new Improvements
to the Common Area, except as otherwise provided in this
Declaration;
(d) Subject to the limitations set forth in this
Article, contract for any other material, furniture, labor,
services, maintenance, repairs, structural alterations or
insurance, or pay any taxes or Assessments which, in the
opinion of the Board, shall be necessary or proper for the
operation of the Common Area, for the benefit of the Owners or
for the enforcement of this Declaration; and
(e) Enter into a maintenance or subsidy agreement
with Declarant, at DeclarantIssole discretion, to temporarily
reduce the financial obligations of the Owners (or certain
Owners) for Assessment.
Section 5. Notification by Association of Defects.
The Board agrees that in the event of any alleged defect in any
improved Common Area for which the Association believes the
Declarant may be responsible, the Board will provide Declarant with
written notice of such defect in accordance with Civil Code Section
1375, as the same may be amended and/or comply with the nonadversa-
rial procedure provided to the Association by Declarant. Declarant
shall have a reasonable opportunity to inspect such alleged defect,
and if Declarant agrees with the Board (or otherwise elects to
perform the work) to repair, replace or otherwise cure any defect
in workmanship and/or material. The Association acknowledges and
agrees that Declarant (or its authorized agents) shall be entitled
at its sole discretion to determine the material and methods to be
used in effecting such repair, replacement or cure.
Section 6. Awards Rendered in Construction Defects
Disputes. Any recovery by the Association or any Owner for any
damage, to or defect in, the Common Area shall be utilized solely
for the purpose of correcting such damage or defect.
Section 7. Special Meeting of the Association for
Construction Defect Disputes. In the event the Board decides to
commence binding arbitration proceedings under the Express Limited
Warranty or decides to commence any other legal proceedings against
any of the "Declarant Parties" (e.g., as defined in Exhibit "E"
attached to this Declaration) relating to construction defect
Disputes, the Secretary shall call a special meeting of the
Association. In addition to the information required by Section
1375 to be specified in the notice of such meeting, the notice
shall also specify the following: (a) the estimated costs to repair
the defects; (b) how the necessary repairs will be funded; (c) the
name of the attorney whom the Association is contemplating
retaining and an estimate of the attorney's fees, consultant's fees
18324.283-14780.FCM 091307 -46-
and any other costs to be incurred to prosecute such proceedings;
(d) how such fees and costs will be funded; (e) each Member's duty
to disclose to prospective purchasers the alleged defects; and (f)
the potential impact the proceedings may have on the marketability
and availability of financing for Lots in the Project. Such notice
shall be sent to all Members of the Association. The decision of
the Board to commence any other legal proceedings against the
Declarant, or other Declarant Parties relating to a construction
defect Dispute must be approved by not less than fifty-one percent
(51%) of the voting power of the Association residing in Members
other than the Declarant.
Section 8. Dispute Notification and Resolution
Procedure. Except as expressly provided in this Declaration and/or
required by any applicable Express Limited Warranty (i.e., with
respect to claims covered thereby), any and all disputes involving,
arising out of, and/or relating to Declarant, the Association, or
the Common Area shall be resolved according to the provisions and
procedures set forth in Exhibit "E" attached hereto and incorporat-
ed by reference.
Section 9. Repair of Willful Damage to Common Area.
Notwithstanding the Association's duty to maintain the Common Area,
in the event that the maintenance, repair or replacement of any
element of such Areas becomes necessary due to the willful or
negligent acts or omissions of any Owner, his family, guests or
invitees, after prior Notice and Hearing, the Board shall assess
the cost of such maintenance, repair and/or replacement as a
Compliance Assessment against the Lot owned by such Owner.
Section 10. Delegations of Duties. In the event that
the Association shall delegate any or all of its duties, powers or
functions to any person, corporation or firm to act as manager,
neither the Association nor the members of its Board shall be
liable for any omission or improper exercise by the manager of any
such duty, power or function so delegated.
Section 11. Right of Entry for Emergency. The Board,
any person authorized by the Board, Declarant (so long as it owns
an interest in the Project), or any Owner may enter any Lot in the
event of any emergency involving illness or potential danger to
life or property. Such entry shall be made with as little inconve-
nience to the Owner as is practicable, and in the event that any
damage shall be proximately caused by or result from said entry,
the Association and/or Owner shall repair the same at its expense.
Section 12. Right of Entry for Repairs. Except as
otherwise provided herein, the Board, or any person authorized by
the Board, shall have the right to enter, upon reasonable notice,
any Lot to effect necessary repairs which the Owner has failed to
18324.283-14780.FCM 091307 - 4 7
perform or which are necessary in connection with the repairs to
the Common Area or an adjoining Lot. Such entry shall be made with
as little inconvenience to the Owner as is practicable, and in the
event that any damage shall be proximately caused by or result from
said entry, the Association shall repair the same at its expense.
Section 13. Limitations on Board Action. The Board
shall be prohibited from taking any of the following actions,
except with the vote or written assent of a majority of the voting
power of the Association and a majority of the votes residing in
Members, other than the Declarant:
(a) Entering into a contract with a third person,
wherein the third person will furnish goods or services for
the Common Area or the Association for a term longer than one
(1) year, with the following exceptions:
(1) A management contract, the terms of which
have been approved by the VA/FHA and are consistent with
provisions herein;
(2) A contract with a public utility company
if the rates charged for the materials or services are
regulated by the Public Utilities Commission; provided,
however, that the term of the contract shall not exceed
the shortest term for which the supplier will contract at
the regulated rate;
(3) Prepaid casualty and/or liability insur-
ance policies of not to exceed three (3) years duration,
provided that the policy permits for short -rate cancella-
tion by the insured;
(4) Agreements for cable television services
and equipment or satellite dish equipment and services of
not to exceed five (5) years duration, provided that the
lessor under the agreement is not an entity in which
Declarant has a direct or indirect interest of ten
percent (10%) or more; and
(5) Agreements for sale or lease of burglar
alarm and fire alarm,equipment, installation and services
of not to exceed five (5) years duration provided that
the supplier or suppliers are not entities in which the
Declarant has a direct or indirect ownership interest of
ten percent (10%) or more.
(b) Incurring aggregate expenditures for capital
improvements to the Common Area in any fiscal year in excess
18324.283-14780.FCM 091307 -48-
of f ive percent (5%) of the budgeted gross expenses of the
Association for that fiscal year;
(c) Selling during any fiscal year property of the
Association having an aggregate fair market value greater than
five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year;
(d) Paying compensation to Directors or to officers
of the Association for services performed in the conduct of
the Association's business; provided, however, that the Board
may cause a Director or officer to be reimbursed for expenses
incurred in carrying on the business of the Association;
(e) Filling a vacancy on the Board created by the
removal of a Director;
(f) Except as otherwise allowed under Section 1375
of the California Civil Code, as same may be amended from time
to time, incurring dispute resolution expenses, including
without limitation attorneys' fees, where the Association
initiates dispute resolution proceedings or is joined as a
plaintiff in dispute resolution proceedings. Such approval
shall not be necessary if the legal proceedings are initiated
to (i) enforce the use restrictions contained herein, (ii)
enforce the architectural control provisions contained herein;
or (iii) collect any unpaid assessments levied pursuant to
this Declaration.
(g) Amending or limiting the Association's duties
and obligations (and benefits) with respect to the Express
Limited Warranty, if applicable.
Section 14. Licenses, Easements and Rights -of -Way. The
Board, for and on behalf of the Association, is authorized and
empowered to grant such licenses, easements and rights-of-way for
sewer lines, water lines, underground conduits, storm drains and
other public utility purposes over those portions of the Common
Area upon which no building or other structure has been erected as
may be necessary and appropriate for the orderly maintenance,
preservation and enjoyment of the Common Area or for the preser-
vation of the health, safety, convenience and welfare of the Own-
ers. Such licenses, easements and rights-of-way may be granted at
any time prior to twenty-one (21) years after the death of the
individuals who have signed this Declaration and their issue who
are in being as of the date hereof, and the right to grant such
licenses, easements and rights-of-way is hereby expressly reserved.
In addition, the Board, for and on behalf of the Association, may
grant exclusive easements to Owners for use and enjoyment over
portions of the Common Area, as the Board determines is reasonable.
18324.283-14780.FCM 091307 -49-
•
Section 15. New Improvements. Except as otherwise pro-
vided in this Declaration, and subject to the Article herein
entitled "Architectural Review - Approval," the Association may
construct new Improvements or additions to the Common Area or de-
molish existing Improvements, provided that in the case of any
Improvement, addition or demolition involving a total expenditure
in excess of five percent (5%) of the budgeted gross expenses of
the Association for that fiscal year, the written consent or vote
of the Owners in the Project as to the maximum total cost therefor
shall first be obtained in accordance with the appropriate
provisions herein, and provided that no Lot shall be altered or
damaged by any such demolition or construction without the consent
of the Owner thereof. The Board shall levy a Special Assessment on
all Owners in the Project for the cost of such work. Notwithstand-
ing the foregoing, if the new Improvements or the demolition of
existing Improvements relates to Special Benefit Improvements, only
the vote or written consent of Owners representing a majority of
Lots within such Special Benefit Area need to be obtained, and the
Board shall levy a Special Assessment solely on the Owners in the
respective Special Benefit Area for the cost of such work.
Section 16. Association Rules and Regulations. The
Board shall also have the power to adopt, amend and repeal Rules
and Regulations, as it deems reasonable, which may include the
establishment of a system of fines and penalties enforceable as
Compliance Assessments. The Rules and Regulations shall govern such
matters in furtherance of the purposes of the Association,
including, without limitation, the use of the Common Area, signs,
trash collection, minimum standards for maintenance of Lots
consistent with such standards as may be set forth in this
Declaration or adopted by the Architectural Review Committee,
election procedures in compliance with California Civil Code
Section 1363.03, and any other matter which is within the jur-
isdiction of the Association; provided, however, that the Rules and
Regulations may not discriminate among Owners and shall not be
inconsistent with this Declaration, the Articles or By -Laws. A copy
of the Rules and Regulations as they may, from time to time, be
adopted, amended or repealed, or a notice setting forth the
adoption, amendment or repeal of specific portions of the Rules and
Regulations, shall be delivered to each Owner. The Rules and
Regulations shall have the same force and effect as if they were
set forth in and were part of this Declaration, and shall be
binding on the Owners and their successors in interest, whether or
not actually received thereby. The Rules and Regulations, as
adopted, amended or repealed, shall be available at the principal
office of the Association to each Owner upon request. In the event
of any conflict between any such Rules and Regulations and any
other provisions of this Declaration, or the Articles or By -Laws,
the provisions of the Rules and Regulations shall be deemed to be
superseded.
18324.283-14780.FCM 091307 -50-
Section 17. Nonliability and Indemnification.
(a) General Limitation. Except as specifically
provided in this Declaration, or as required by law, no right,
power or responsibility conferred on the Board or the Archi-
tectural Review Committee by this Declaration, the Articles or
the By -Laws, shall be construed as a duty or obligation
charged upon the Board, the Architectural Review Committee,
any member of the Board or the Architectural Review 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 Associa-
tion) for injuries or damage resulting from such person's acts
or omissions within what such person reasonably believed to be
the scope of his 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;
(b) Personal Liability Limitation. No person who
suffers injury, including, but not limited to, bodily injury
(including, without limitation, emotional distress or wrongful
death) or property damage or loss as a result of the tortious
act or omission of a volunteer Board member or volunteer
Association officer shall recover damages from such Board
member or officer if all the following conditions are satis-
fied:
(1) At the time the act or omission occurred,
the Board member or officer resided in the Project as
either a tenant or an Owner of two (2) or fewer Lots;
(2) The act or omission was performed within
the scope of the Board member's or officer's Association
duties;
(3) The act or omission was performed in good
faith;
(4) The act or omission was not willful,
wanton or grossly negligent; and
(5) The Association maintained and had in
effect at the time the act or omission occurred, and at
the time a claim was made, one (1) or more policies of
insurance which included coverage for general liability
18324.283-14780.FCM 091307 - 5 1-
for the Association and individual liability of officers
and Directors of the Association for negligent acts or
omissions in such capacity, and both types of coverage
were in the amount of at least Five Hundred Thousand
Dollars ($500,000.00).
(c) 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 Official Acts, provided that:
(1) The Board determines that such person
acted in good faith and in the manner such person
reasonably believed to be in the best interests of the
Association; and
(2) In the case of an action or threatened
action by or in the name of the Association, the Board
determines that such person acted with such care,
including reasonable inquiry, as an ordinary prudent
person in a like position would use under similar
circumstances.
Any determination of the Board required under this
Section must be approved 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 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
entitled to vote. The entitlement to indemnification hereun-
der shall inure to the benefit of the estate, executor,
administrator, heirs or devisees of any person entitled to
such indemnification.
ARTICLE VI
ASSESSMENTS
Section 1. Creation of the Lien and Personal obliga-
tion of Assessments. The Declarant, for each Lot owned within the
Project, hereby covenants, and each Owner of any Lot, by acceptance
of a deed therefor, whether or not it shall be so expressed in such
deed, is deemed to covenant and agree to pay to the Association:
(a) Regular Assessments; (b) Special Assessments for capital im-
provements and such other purposes set forth herein; (c) Compliance
Assessments, including, but not limited to, costs incurred by the
18324.283-14780.FCM 091307 - 52
0 •
Association in the repair of damage to the Common Area for which
such Owner was responsible and costs incurred by the Association in
bringing such Owner and his Lot into compliance with this Declara-
tion; (d) Special Benefit Assessments; and (e) such other assess-
ments as the Association may periodically establish. Except as
otherwise provided by law, the Regular, Special and Special Benefit
Assessments, together with interest, costs and reasonable attor-
neys' fees for the collection thereof, shall be a charge on the
land and shall be a continuing lien upon the Lot against which each
such Assessment is made. Each Regular Assessment, Special Assess-
ment and Special Benefit Assessment, together with interest, costs
and reasonable attorneys' fees for the collection thereof, shall
also be the personal obligation of the Owner of such property at
the time when the Assessment fell due. Each Compliance Assessment
levied against an Owner, together with interest, costs and
reasonable attorneys' fees for the collection thereof, shall be the
personal obligation of the Owner of the property at the time of the
Assessment. The personal obligation for delinquent Assessments
shall not pass to an Owner's successors in title unless expressly
assumed by them.
Section 2. Purpose of Regular Assessments: Levy and
Collection. The Regular Assessments levied by the Association shall
be used exclusively to promote the health, safety and welfare of
all Owners in the Project, and to maintain and improve the Common
Area. The Association, by and through the Board, shall levy and
collect Assessments from the Owner of each Lot in the Project in an
amount sufficient to cover all of the Common Expenses incurred by
the Association in connection with the performance and execution of
its powers and duties set forth in this Declaration, the By -Laws
and the Articles. In connection therewith, the Association shall
not impose or collect Assessments, penalties or fees that exceed
the amount reasonably necessary for the purpose or purposes for
which they were levied. Regular Assessments may be collected on a
monthly installment basis.
Section 3. Regular Assessments - Basis. Regular
Assessments payable to the Association shall be assessed equally
against all Owners of Lots. Each Owner's proportionate share of the
Common Expenses of the Association for any fiscal year shall be a
fraction, the numerator of which shall be the number of Lots owned
by such Owner, and the denominator of which shall be the total num-
ber of Lots in the Project which are subject to assessment. During
the period the Project is being built out, Declarant may annex one
or more Phases into the Project in accordance with the provisions
of this Declaration. Until the first day of the fiscal year
immediately following the close of escrow for the sale of the first
Lot in the Project to an Owner, the maximum Regular Assessment
shall be as set forth in the budget reviewed and approved by the
DRE. Notwithstanding the commencement for payment of Regular
18324.283-14780.FCM 091307 -53-
• 0
Assessments, or any other provisions of this Declaration, Declarant
and any other Owner of a Lot which does not include a structural
Improvement for human occupancy shall be exempt from the payment of
that portion of any Assessment (e.g., Regular Assessment) which is
for the purpose of defraying operating expenses and reserves
directly attributable to the existence and/or use of such struc-
tural Improvements. This exemption shall include, but shall not
necessarily be limited to, that portion of any Assessment at-
tributable to roof replacement, exterior maintenance, exterior
walkway and carport lighting, refuse disposal, cable television and
domestic water supplied to Residences. This exemption shall be in
effect only until the earliest to occur of: (i) the recordation of
a notice of completion for the structural Improvements; (ii) the
occupation or use of the Residence; or (iii) the completion of all
elements of the Lot which the Association is obligated to maintain,
if any. Declarant and any Owner shall also be exempted from the
payment of that portion of any Assessment which is for the purpose
of defraying expenses and reserves directly attributable to the
existence and use of any Common Area facilities that are not
complete at the time Assessments commence. This latter exemption
shall only be in effect as to a particular Common Area facility
until the earlier of: (x) the recordation of a notice of completion
for such Common Area facility; or (y) the placement into use of the
particular Common Area facility. Subject to the limitations of
California Civil Code Section 1366, as same may be amended, from
time to time, from and after the first day of the fiscal year imme-
diately following the conveyance of the first Lot to an Owner, the
maximum Regular Assessment may be increased subject to the
following limitations:
(a) Increases in Regular Assessments for any fiscal
year which are less than or equal to twenty percent (20%)
above the maximum Regular Assessment for the immediately
preceding fiscal year may be approved by DRE and/or the Board,
provided that the Board shall: (1) comply with the provisions
set forth in Section 1365(a) of the California Civil Code with
respect to the distribution of the pro forma operating budget
of the Association for the forthcoming fiscal year; or (2)
obtain the approval of Owners, constituting a quorum and
casting a majority of affirmative votes at a meeting or an
election of the Association conducted in accordance with
California Corporations Code Sections 7510, et sec., and
Sections 7613, et seq. For purposes of this entire Section 3,
a quorum means Owners representing more than fifty percent
(50%) of the of the total voting power of the Association;
(b) Increases in Regular Assessments for any fiscal
year which are greater than twenty percent (20%) above Regular
Assessments for the immediately preceding fiscal year may be
approved by the Board only after the Board obtains the
18324.283-14780.FCM 091307 -54-
approval of Owners, constituting a quorum and casting a
majority of affirmative votes at a meeting or election of the
Association, conducted in accordance with Sections 7510, et
seg., and Section 7613 of the Corporations Code; and
(c) The Assessment increases limitation set forth
in Subsection (b) above does not apply to increases in
Assessments related to emergency situations, which shall be
deemed to include the following:
(1) Extraordinary expenses required by an
order by a court of competent jurisdiction;
(2) Extraordinary expenses for the maintenance
or repair of Common Area that is necessary to remedy any
dangerous condition in the Project that represents a
threat of damage or injury to any person or property; and
(3) Extraordinary expenses necessary to repair
or maintain the Common Area that could not have been
reasonably anticipated by the Board at the time the most
recent Association budget was prepared. Notwithstanding
the foregoing, in the event that the Board increases the
Regular Assessment above twenty percent (20%) pursuant to
this Subparagraph (3), the Board shall distribute written
notice concerning such increase to all Owners and a copy
of a resolution adopted by the Board setting forth: (i)
the necessity of the extraordinary expenses; and (ii) the
justification why said expenses were not reasonably
foreseeable at the time the most recent budget was
prepared. For the purpose of calculating whether an
increase to Regular Assessments exceeds twenty percent
(20%), the term "Regular Assessments" shall be deemed to
include the amount assessed against each Lot by the
Association as a Regular Assessment, plus any amount paid
by the Declarant as a subsidy or pursuant to any subsidy
or maintenance agreements, to the extent such subsidy
payments offset an amount which would otherwise be paid
by Owners as Regular Assessments.
The Board may fix the Regular Assessment at an amount not
in excess of the maximum Regular Assessment. So long as Declarant
is offering Lots for sale pursuant to a Final Subdivision Public
Report, the Regular Assessment may not be decreased by ten percent
(100) or more without the express prior written consent of the
Declarant and the DRE. Notwithstanding the foregoing, following the
annexation of a subsequent Phase of the Project, pursuant to the
provisions set forth in this Declaration, the maximum Regular
Assessment may be automatically increased (or decreased) for all
Lots in the Project on the first day of the month following the
18329.283-19780.FCM 091307 - 5 5 -
F�
• 0
first close of an escrow for the sale of a Lot in said Phase
without any approval of the Members of the Association to the
amount recommended by the DRE in connection with its review and
processing of the Association budget for such Phase. The Associa-
tion may, upon ratification by a majority of the Board, enter into
an agreement with Declarant, its successors or assigns, to reduce
or abate Assessments, upon such terms and conditions as may be
agreed to by the parties.
Section 4. Special Assessments for Capital Improve-
ments. In addition to the Regular Assessments authorized above, the
Board may not, subject to the limitations of California Civil Code
Section 1366, without the vote or written approval of Members
constituting a quorum (which shall mean more than fifty percent
[50%] of Owners of the Association) casting a majority of affirma-
tive votes at a meeting or election of the Association, conducted
in accordance with Sections 7510, et sea., and 7613 of the
Corporations Code, levy Special Assessments to defray the costs of
any action or undertaking on behalf of the Association which in the
aggregate exceed five percent (5%) of the budgeted gross expenses
of the Association for that fiscal year. The five percent (5%)
limitation shall not apply to increases in Special Assessments
related to an emergency situation which shall be deemed to include
the following:
(a) Extraordinary expenses required by an order by
a court of competent jurisdiction;
(b) Extraordinary expenses for the maintenance or
repair of Common Area that is necessary to remedy any danger-
ous condition in the Project that represents a threat of
damage or injury to any person or property; and
(c) Extraordinary expenses necessary to repair or
maintain the Common Area that could not have been reasonably
anticipated by the Board at the time the most recent Associ-
ation budget was prepared. Notwithstanding the foregoing, in
the event the Board levies any Special Assessment that exceeds
the five percent (5%) limitation pursuant to this Section, the
Board shall distribute written notice concerning said Special
Assessment to all Owners and a copy of a resolution adopted by
the Board setting forth: (1) the necessity of said Special
Assessment; and (2) the justification why said Special
Assessment was not reasonably foreseeable at the time the most
recent budget was prepared.
Every Special Assessment shall be levied upon the same basis as
that prescribed for the levying of Regular Assessments.
18329.283-19780.FCM 091307 -56-
Section 5. Compliance Assessments. A Compliance
Assessment may not be characterized nor treated as an assessment
which may become a lien against the Owner's Lot enforceable by a
sale in accordance with the provisions of Sections 2924, 2924(b)
and 2924(c) of the Civil Code; provided, however, at such time as
sales of Lots in the Project are no longer governed by regulations
adopted by the DRE, the foregoing shall not apply to any Compliance
Assessment imposed against an Owner consisting of a reasonable late
payment penalty for delinquent Assessments and/or charges to re-
imburse the Association for the loss of interest and for costs
reasonably incurred (including attorneys' fees) in its efforts to
collect delinquent Assessments or imposed for costs incurred by the
Association in the repair of damage to Common Area and facilities
for which the Member or the Member's guests or tenants were
responsible.
Section 6. Special Benefit Assessments. Special Bene-
fit Assessments shall mean and refer to a charge levied by the
Association against an Owner and his respective Lot to cover the
expenses incurred by the Association in the operation, maintenance,
repair, and/or funding of reserves as to a portion of the Project
designated herein, by the Board, or in a Notice of Annexation as a
"Special Benefit Area" or which is identified or referred to as an
area or facility benefitting primarily the Owners within such an
Area. As of the recordation of this Declaration, no Special Benefit
Areas are contemplated for the Project. These expenses shall be
chargeable only to Owners in a Special Benefit Area, and may in-
clude, without limitation, the following:
(a) Maintenance, management, operation, repair and
replacement of particular Improvements within the Special
Benefit Area;
(b) Utilities or services for the benefit of Owners
within the Special Benefit Area;
(c) Reasonable reserves, as deemed appropriate by
the Board, for repair and replacement of any Improvements
maintained by the Association within a Special Benefit Area;
and
(d) Unpaid Special Benefit Assessments.
The Association shall distribute to Owners within any Special
Benefit Area a pro forma operating statement and budget for the
upcoming fiscal year which shall estimate the expenses attributable
to the Special Benefit Area, and shall set forth the amount and
payment schedule of the Special Benefit Assessments. Increases in
Special Benefit Area Assessments for any fiscal year which are less
than or equal to twenty percent (20%) above the maximum Special
18329.283-14780.FCM 091307 -57-
Benefit Area Assessment for the immediately preceding fiscal year
may be approved by the Board, provided that the Board shall obtain
the approval of Owners constituting a quorum and casting a majority
of affirmative votes at a meeting or election conducted in
accordance with Section 7510 et seq., and 7613 of the Corporations
Code. For purposes of this Section, a quorum means Owners repre-
senting more than fifty percent (50%) of the voting power of the
Members of Lots affected by the Special Benefit Area Assessment.
The Assessment increase limitation set forth hereinabove does not
apply to increases in Special Benefit Area Assessments related to
emergency situations that could not have been reasonably anticipat-
ed by the Board at the time the most recent Association budget was
prepared which determined the amount of the Special Benefit Area
Assessments.
Section 7. Date of Commencement of Regular Assess-
ments: Due Dates. Subject to the terms of any maintenance and/or
subsidy agreement entered into by the Association and Declarant,
the Regular Assessments provided for herein shall commence as to
all Lots in each Phase on the first day of the first month
following the first close of escrow for the sale of a Lot in such
Phase, or on the first day of the first month following the first
occupancy of a Lot in such Phase pursuant to a rental or lease
agreement (except as such lease may apply to a model Lot or Lot
used as a sales office, design center or construction office by the
Declarant) with the Declarant, or its authorized agent, whichever
occurs first. Except as otherwise provided in this Article, the
first Regular Assessments shall be adjusted according to the number
of months remaining in the fiscal year as set forth in the By -Laws.
The Board shall fix the amount of the Regular Assessment against
each Lot at least thirty (30) days in advance of each Regular
Assessment period. Written notice of the Regular Assessment shall
be sent to every Owner subject thereto at least thirty (30) days in
advance of each Assessment period. The due dates shall be es-
tablished by the Board. Notwithstanding any other provisions of
this Declaration, until the earlier to occur of: (a) the
recordation of a Notice of Completion of an Improvement to the
Common Area; or (b) the placement into use of the Common Area, each
Owner (including Declarant) may be declared by the Board to be
exempt from paying that portion of the Regular Assessment which is
directly attributable to expenses and reserves to be incurred by
the Association in the maintenance, operation and repair of such
Common Area.
Section 8. Model Homes. 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 as "Model Home") shall not commence
the Regular Assessments against such Lots or other Lots within the
Phase until the earlier to occur of:
18324.283-14780.FCM 091307 -58-
i
C�
(a) discontinuance of use of such Lot as a Model
Home; or
(b) conveyance of any non -Model Home Lots in the
Phase.
During the period of time commencing on
after conveyance of a Lot being used by
and ending on the date Regular Assessments
Lot, Declarant shall be solely responsible t
of the Phase in which a Lot is being used as
shall have the right to inspect the area
Declarant pursuant to this Section to determ
nance meets reasonable standards.
the first
Declarant
day of the month
as a Model Home
commence against such
o maintain all portions
Model Home. The Board
s being maintained by
ine that such mainte-
Section 9. Collection of Assessments. Except as oth-
erwise provided above or in any subsequent Notice of Annexation,
Regular and Special Assessments shall be levied at a uniform rate
for all Lots and may be collected on a monthly basis. If any
installment of a Regular Assessment is less than the amount
assessed and the payment does not specify the Association funds or
fund into which it should be deposited, the receipt by the
Association from that Member shall be credited in order of priority
first to the operating fund, until that portion of the Regular
Assessment has been satisfied, and second to the reserve fund.
Compliance Assessments and Special Benefit Assessments shall be due
thirty (30) days after such Assessment has been levied unless
otherwise determined by the Board in a manner consistent with Civil
Code Section 1366, as may be amended from time to time.
Section 10. Notice of Increase in Assessments. The
Board shall provide to the Owners, by first class mail to the
address on file with the Association, notice of any increase in
Regular, Special, and/or Special Benefit Assessments not less than
thirty (30) nor more than sixty (60) days prior to such increase
becoming due.
Section 11. Certification of Payment. The Association
shall, upon demand and for a reasonable charge, furnish a cer-
tificate signed by an officer or agent of the Association setting
forth whether the Assessments on a specified Lot have been paid. If
a certificate states that Assessments have been paid, such certif-
icate shall be conclusive evidence of such payment.
Section 12. Delivery by Owner. Each Owner of a Lot
shall, as soon as practicable prior to the transfer of title to the
Lot or the execution of a real property sales contract, as defined
in California Civil Code, Section 2985, or as may be amended, from
time to time, give to the prospective purchaser a copy of this
Declaration and copies of the By -Laws and Articles of the Associa-
18324.283-14780.FCM 091307 - 5 9 -
0 0
tion, and a true statement, in writing, from the Board as to the
amount of the Association's current Regular and Special Assessments
and fees, as well as any delinquent Assessments and information
relating to penalties, attorneys' fees and other charges authorized
by this Declaration on the Lot as of the date the statement is
issued, and any change in the Association's current Assessments and
fees which have been approved by the Board but have not become due
and payable as of the date disclosure is provided pursuant to this
Section.
Section 13. Delivery by Declarant. Within ninety (90)
days following the first close of escrow for the sale of a Lot in
the Project, or as soon as reasonably obtainable, the Declarant
shall provide the Association with copies of the (1) recorded tract
map for the Project; (2) Common Area easement and/or grant deeds in
Phase 1; (3) this Declaration; (4) filed Articles of Incorporation;
(5) the Association's By -Laws; (6) Rules and Regulations or
architectural guidelines adopted by the Association, if any; (7)
notice of completion certificates for Common Area, if any, in Phase
1; (8) completion bond(s) naming the Association as a beneficiary,
if any; (9) warranties for Common Area equipment or fixtures, if
any, in Phase 1; (10) insurance policies obtained for the
Association; and (11) membership register, to the extent it is
available and if required by law.
Section 14. Reserves. The Regular Assessments shall
include reasonable amounts, as determined by the Board, collected
as reserves for the future periodic maintenance, repair and re-
placement of all or a portion of the Common Area or any such other
purpose determined by the Board. All amounts collected as reserves
shall be deposited by the Board in a separate bank account for the
purposes for which they were collected, and are to be segregated
from and not commingled with any other funds of the Association.
The expenditure of such funds shall be limited to the repair and
replacement of those elements of the Common Area which must be
repaired or replaced according to a reserve study as permitted by
Section 1365.5 of the California Civil Code, as same may be amended
from time to time.
Section 15. Offsets and Waiver Prohibited. No Owner
may waive or otherwise avoid liability for the Assessments provided
for herein for any reason whatsoever, including, but not limited
to, non-use of the Common Area or abandonment of his Lot, nor shall
any Owner be entitled to any offset against any Assessment provided
for herein for any reason whatsoever, including, but not limited
to, any expenditure made by such Owner for or on behalf of the
Association.
18324.283-14780.FCM 091307 -60-
Section 16. Exempt Property. The following property
subject to this Declaration shall be exempt from the Assessments
herein:
(a) All property dedicated to and accepted by any
public authority;
(b) All property owned by a charitable or nonprofit
organization exempt from taxation by the laws of the State of
California. However, no land or Improvements devoted to
dwelling use shall be exempt from said Assessment; and
(c) All Common Area owned in fee by the Associa-
tion.
ARTICLE VII
EFFECT OF NONPAYMENT OF ASSESSMENTS:
REMEDIES OF THE ASSOCIATION
Section 1. Effect of Nonpayment of Assessments: Reme-
dies of the Association. Any installment of a Regular, Special,
Special Benefit, or Compliance Assessment not paid within fifteen
(15) days after it is due and payable, shall be deemed delinquent
and the Owner shall be required to pay: (a) reasonable costs of
collection, including reasonable attorneys' fees; (b) a reasonable
late charge not exceeding ten percent (100) of the delinquent
Assessment or Ten Dollars ($10.00), whichever is greater, or as
may, from time to time, be established by the Board in accordance
with California law; and (c) interest on all sums imposed under
this Section at an annual percentage rate not to exceed twelve per-
cent (12%), commencing thirty (30) days after the Assessment was
due. The Association need not accept any tender of a partial
payment of an assessment installment and all costs and attorneys'
fees attributable thereto, and any acceptance of any such tender
does not waive the Association's right to demand and receive full
payments thereafter. Payments for Assessments shall first be
applied to the principal owed for the Assessments and only after
such principal amount is paid in full, shall such payments be
applied to interest or collection expenses for such Assessments.
The Board, for and on behalf of the Association, may commence legal
action against the Owner personally obligated to pay the same, or,
in the case of a Regular, Special or Special Benefit Assessment,
may foreclose the lien against his Lot. Such lien may also be fore-
closed by a power of sale or other nonjudicial procedure provided
for by the laws of the State of California. In furtherance thereof,
each Owner hereby vests in the Association, its successors or
assigns, the right and power to bring all actions at law or to
pursue lien foreclosure against any Owner for purposes of col-
18324.283-14780.FCM 091307 - 6 1-
•
•
lecting such Delinquent Assessments. To the extent permitted by
law, each Owner waives, with respect to the extent of any liens
created pursuant to this Article, the benefit of any homestead or
exemption laws of California in effect at the time any Assessment,
or installment thereof becomes delinquent or any lien is imposed.
Section 2. Notice of Delinquent Assessments. No ac-
tion shall be brought to foreclose a lien for delinquent Assess-
ments, or to proceed under the power of sale herein, unless the
Association complies with all applicable provisions of law (e.g.,
California Civil Code Section 1367.1(a), as the same may be amended
from time to time, and provisions of California Civil Code Section
2924, 2924(b), and 2924(c), as may be amended from time to time).
Section 3. Foreclosure Sale. Any foreclosure sale
provided for above is to be conducted by the Board, its attorney or
other persons authorized by the Board in accordance with the
provisions of Sections 2924, 2924a, 2924b and 2924c of the Cali-
fornia Civil Code, as same may be amended, from time to time,
applicable to the exercise of powers of sale in Mortgages and deeds
of trust, or in any other manner permitted by law. The Association,
through duly authorized agents, shall have the power to bid on the
Lot at a foreclosure sale, and to acquire, hold, lease, mortgage
and convey the same. Any Owner, by acceptance of a deed for his
Lot, hereby expressly waives any objection to the enforcement and
foreclosure of the lien in this manner.
Section 4. Curing of Default. Upon the timely curing
of any default for which a Notice of Delinquent Assessments or lien
was filed by the Association, the officers thereof are hereby
authorized to file or record, as the case may be, an appropriate
release of such Notice upon payment by the defaulting Owner of a
reasonable fee to be determined by the Association to cover the
costs of preparing and filing or recording such release.
Section S. Cumulative Remedies. The Association's
remedies for nonpayment of Assessments, including, but not limited
to, an action to recover a money judgment, Assessment lien and
right of foreclosure and sale, are cumulative and in addition to
and not in substitution of any other rights and remedies which the
Association and its assigns may have hereunder or at law.
Section 6. Mortgagee Protection. Notwithstanding all
other provisions hereof, no lien created hereunder, nor any breach
of the terms and provisions of this Declaration, nor the en-
forcement of any term or provision hereof, shall defeat or render
invalid the rights of any Mortgagee under any recorded Mortgage or
deed of trust upon a Lot made in good faith and for value;
provided, that after such Mortgagee or other person or entity
obtains title to such Lot by judicial or nonjudicial foreclosure,
18329.283-19780.FCM 091307 -62-
such Lot shall remain subject to this Declaration and the payment
of Assessments which fall due subsequent to the date of taking
title.
ARTICLE VIII
USE RESTRICTIONS
The Lots and Common Area shall be occupied and used only
as set forth below.
Section 1. Private Residential Dwelling. Each Lot
shall be used as a private residential dwelling and for no other
purpose, except such temporary uses as shall be permitted by
Declarant while the Project is being developed and Lots are being
sold by Declarant; provided, however, that Declarant reserves the
right, for a period of five (5) years from recordation of this
Declaration, or until all Lots in Tract No. 35060 and the Annex-
ation Property are sold (and escrows closed), whichever shall first
occur, to carry on normal sales activity on the Project, including
the operation of models, sales offices, design centers, and
construction offices, provided Declarant shall not unreasonably in-
terfere with any other Owner's use of the Common Area.
Section 2. Common Area Use. Use of the Common Area
shall be subject to the provisions of this Declaration, the Rules
and Regulations and to any additional limitations imposed by the
Association.
Section 3. Conduct Affecting Insurance. Nothing shall
be done or kept in any Lot or in the Common Area which will in-
crease the rate of insurance on the Common Area without the ap-
proval of the Association. No Owner shall permit anything to be
done or kept in his Lot or in the Common Area which will result in
the cancellation of insurance on the Common Area or which would be
in violation of any law. If, by reason of the occupancy or use of
said premises by the Owner, the rate of insurance to the Common
Area shall be increased, the Owner shall become personally liable
for the additional insurance premiums.
Section 4. Liability for Damage. Each Owner shall be
liable to the Association, pursuant to the laws of the State of
California, for any and all costs and expenses which may be in-
curred by the Association to repair any damage to the Common Area
which be sustained by reason of the negligence or willful
misconduct of said Owner or of his family, tenants, lessees or
contract purchasers, or their respective guests or invitees,
whether minor or adult. After approval by a majority of the Board,
18324.283-14780.FCM 091307 -63-
any such costs and expenses shall be levied by the Board as a
Compliance Assessment against such Owner's Lot.
Section 5. Signs. Subject to the provisions of Cali-
fornia Civil Code, Sections 712, 713, 1353.5 and 1353.6, and
California Government Code Section 434.5, as same may be amended
from time to time, no sign of any kind shall be displayed to the
public view on or from any Lot or the Common Area without the
approval of the Association, except such signs as may be used by
Declarant for a period of five (5) years from recordation of this
Declaration or until all Lots in Tract No. 35060 and the Annexation
Property are sold (and escrows closed), whichever is first to
occur, in connection with the development of the Project and sale
of Lots, and except one (1) "for sale," "for lease" or "for ex-
change" sign of reasonable size (but not exceeding six [6] square
feet) on any Lot. The foregoing restrictions shall not apply to any
sign of customary and reasonable dimensions displayed on the
Owner's Lot (or another Owner's Lot with consent) which states that
the Residence is for sale, lease or exchange, or advertising
directions to the Residence by the Owner or his or her agent, and
which is reasonably located in plain view of the public, so long as
it is consistent with any standards promulgated by the Architectur-
al Review Committee. All signs permitted under this Section shall
conform with the City's sign ordinance, if any, and with all
applicable governmental regulations.
Section 6. Maintenance of Animals. No animals of any
kind shall be raised, bred or kept in any Lot or in the Common
Area, except that common domesticated dogs, cats, birds, or other
household pets (other than small household pets such as fish) may
be kept in each Lot in reasonable numbers; provided, however, that
no animal shall be kept, bred or maintained for any commercial
purpose and shall not exceed any weight limitations, if any, estab-
lished by the Board. As used in this Declaration, "reasonable
numbers" shall ordinarily mean two (2) total pets (excluding, as an
example only, fish, birds and other small household pets) per Lot;
however, the Board may determine that a reasonable number in any
instance may be more or less than two (2). Any Owner desiring to
keep an "exotic animal" within his Lot shall make prior application
to the Board for permission to keep an exotic animal. As used
herein, the term "exotic animal" shall mean any type of snake or
reptile which can grow to a length longer than two feet, any from
of livestock, any type of spider, any animal which is poisonous or
which would pose a risk of harm to any person or to a common
domesticated household animal or human being if such exotic animal
escaped from its Lot, or any other animal (other than a common
domesticated dog, cat, bird or other household pet) which is
designated by the Board, from time to time, as an exotic animal.
The Board shall hold a hearing on such application and shall give
at least five (5) days prior written notice of such hearing to the
18324.283-14780.FCM 091307 -64-
applicant, to the applicant's adjoining neighbors, and to such
other Owners within the Project as the Board may deem appropriate.
The Board may, in its sole and absolute discretion, approve or
disapprove such application, and may also impose such conditions
upon the right to keep an exotic animal as the Board may deem
appropriate, including, without limitation, requiring the Owner to
construct a secure enclosure to prevent the animal from escaping,
to give written notice to other Owners of the presence of such
exotic animal, to procure and maintain additional liability
insurance, to reimburse the Association for any costs incurred by
the Association as a result of the animal escaping, etc. In all
cases, animals may only be kept in accordance with applicable City
ordinances and codes. Each Owner shall be responsible for cleaning
up any excrement or other unclean or unsanitary condition caused by
said animal in the Project. While walking or exercising an animal
in the Project, the owner thereof shall, at all times, have readily
available means to cleanup any excrement or other unclean or
unsanitary conditions caused by said animal. All permissible pets
belonging to Owners, tenants, lessees or guests must be kept within
an enclosed area, or on a leash being held by a person capable of
controlling the animal. The Association, upon the approval of two-
thirds (2/3) of the Board, shall have the right to prohibit main-
tenance of any animal within the Project which constitutes a pri-
vate nuisance to any other person. Every person bringing an animal
upon or keeping an animal in the Project shall be liable pursuant
to the laws of the State of California to each and all persons for
any injury or damage to persons or property caused by such animal.
Section 7. Quiet Enjoyment. No Owner shall permit or
suffer anything to be done or kept upon such Owner's Lot which will
obstruct or interfere with the rights of quiet enjoyment of the
other occupants, or annoy them by unreasonable noises or otherwise,
nor will any Owner commit or permit any nuisance on the premises or
commit or suffer any immoral or illegal act to be committed
thereon. Notwithstanding the foregoing, for as long as Declarant
owns an interest in the Project, the Declarant's efforts in selling
the Lots may interfere with the Owners' quiet enjoyment of the
Lots, however, by acceptance of a deed to a Lot in the Project,
each Owner acknowledges this and waives any claims against the
Declarant for nuisance due to any activity related to constructing,
selling or marketing the Lots. Each Owner shall comply with all of
the requirements of the Board of Health and of all other govern-
mental authorities with respect to said premises, and shall remove
all rubbish, trash and garbage from his Lot. All clotheslines,
refuse containers, woodpiles, storage boxes, tools and equipment
shall be prohibited from any Lot unless obscured from view by a
wall or appropriate screen.
Section 8. Grading/ Irrigation. No Owner shall permit
any act to be performed on such Owner's Lot which would result in
18329.283-19780.FCM 091307 - 6 5-
erosion of the Common Area, including, but not limited to, changing
the grading of his Lot or over -irrigating same. If the Owner
permits any such act resulting in erosion of or other damage to the
Common Area, said Lot Owner will be personally liable to the
Association for such damage and a Special Assessment shall be
levied against such Lot Owner's Lot to recover all costs and
expenses incurred to repair or reconstruct that portion of the
Common Area damaged by such Lot Owner.
Section 9. Structural Chancres. There shall be no
structural alteration, construction or removal of any Residence,
wall, or other structure whatsoever in the Project without the
prior written approval of the Board or its designated Architectural
Review Committee (including any necessary City approval), as
required herein, except such works of construction by Declarant
during the development of the Project. As required by the City,
the entry tower height shall not exceed twenty-eight (28) feet; the
perimeter wall and berming along the Washington Street frontage for
the Project shall not exceed a combined height of ten (10) feet, of
which the wall height shall not exceed six (6) feet; landscaping
along the Washington Street frontage shall not include turf between
the curb and sidewalk; where garages and courtyard walls meet, the
wall shall be set back a minimum of six (6) inches from the face of
the garage to minimize cracking; air conditioning compressors may
not be placed in sideyards of Lots unless a minimum five (5) foot
clearance between the compressor and the side property line of the
Lot is provided; and no fence or wall shall be constructed around
any retention basin unless approved by the City's Community
Development Director and the City Engineer.
As required by the City, all Lots located in that portion of
the Project commonly known as "Hacienda" shall have a minimum front
yard building setback of fifteen (15) feet, except for garages,
which shall have a minimum front yard setback of twenty (20) feet;
garages oriented parallel to the fronting street shall have a
minimum front yard setback of fifteen (15) feet; setback
measurements for the Hacienda units located on Lots 1 through 11,
inclusive, of Tract 35060 shall be measured from the back of the
curb.
Nothing in this Declaration or the Rules and Regulations shall
require the installation of an Improvement in any manner which
violates Civil Code Section 1353.7 (relating to the installation
and repair of a roof).
Section 10. Improvements. There shall be no construc-
tion, alteration or removal of any Improvement in the Project
(other than those repairs or rebuilding permitted under the Article
entitled "Damage or Destruction to the Common Area") without the
approval of the Architectural Review Committee, as set forth
18324.283-14780.FCM 091307 -66-
hereinbelow, and, if necessary, the City. No Improvement shall be
constructed upon any portion of any Common Area, other than such
Improvements as shall be constructed: (a) by the Declarant (or a
person or entity to whom Declarant assigns its rights as develop-
er), or (b) by the Association as provided herein. No fence or wall
may be erected, altered or maintained on any Lot except with the
Architectural Review Committee's prior written approval. No
projections of any type may be placed or permitted to remain above
the roof of any Residence within the Project, except one (1) or
more chimneys and vents originally installed, if at all, by
Declarant. No basketball backboard or other fixed sports apparatus
may be constructed or maintained in the Project without the
Architectural Review Committee's prior written approval (The Board
may adopt Rules and Regulations regarding the use of portable
basketball apparatus). No patio cover, wiring or air conditioning
fixture, water softeners or other devices may be installed on the
exterior of the Residence, on a Lot, or be allowed to protrude
through the walls or roof of the Residence (with the exception of
those items installed during the original construction of the
Residence by Declarant) unless the Architectural Review Committee's
prior written approval is obtained.
Section 11. Windows. No window in any Residence shall
be covered in whole or in part, inside or outside, with aluminum
foil, newspaper, paint, tint or any other material reasonably
deemed inappropriate for such use by the Association.
Section 12. Commercial Activity. No business, commer-
cial, manufacturing, mercantile, storage, vending or industrial
operations of any kind shall be conducted in or upon any Lot or the
Common Area, except such temporary uses as shall be permitted by
Declarant. Notwithstanding the foregoing, this Section shall not
preclude an Owner from maintaining a home -office and conducting
business activities therefrom on the following conditions: (a)
there is no external evidence of such activity; (b) such activities
are conducted in conformance with all applicable government
ordinances (e.q., all applicable permits and licenses are
obtained); (c) the patrons or clientele of such activities do not
visit the Residence or park automobiles or other vehicles within
the Project; (d) the existence or operation of such activities is
not apparent or detectable by sight, sound or smell from outside of
the boundaries of the Residence or Lot; (e) no such activity
increases the liability or casualty insurance obligation or premium
of the Association; and (f) such activities are consistent with the
residential character of the Project and conform with the provi-
sions of this Declaration. Until such time as Declarant no longer
has an ownership interest in the Project, no Owner or the Associa-
tion shall use a Residence as an office for the rental, resale or
leasing of Lots without the prior written consent of Declarant.
18324.283-14780.FCM 091307 -67-
Section 13. Parking. All vehicles in the Project shall
be parked in accordance with the following:
(a) Restrictions Regarding the Private Streets. The
streets within the Project (i.e., drives and aisles) are
private streets and are subject to the Protective Covenants of
the Declaration, as well as all applicable laws, ordinances
and regulations of all governmental agencies having jurisdic-
tion over the Project. Any unassigned open parking spaces
shall be available on a first-come, first-served basis to
guests and visitors and shall be marked as "visitor only."
Notwithstanding the foregoing, no vehicle may be temporarily
parked in any designated parking stall for more than twenty
(20) continuous hours;
(b) Vehicles. No Owner shall park, store or keep
any large commercial type vehicle or any recreational vehicle
(including, but not limited to, campers, motorhomes, trailers,
boat trailers, boats, aircraft, mobile homes or other similar
vehicles) on his Lot, unless such vehicle is adequately
screened from public view in a manner approved by the Board,
or any portion of the Common Area. Any standard passenger
automobile (including campers, vans and similar vehicles up to
and including one ton when used for everyday transportation)
may be parked within an Owner's respective garage or on said
Owner's driveway, provided such automobile does not extend
into or onto any portion of the sidewalk, if any. Parking may
only occur on a driveway, including the apron, which is equal
to or in excess of eighteen feet (18') in length.
(c) Repairs. No Owner shall conduct major repairs
to any motor vehicle of any kind whatsoever in his garage or
upon the Common Area, except for emergency repairs thereto
within his garage and then only to the extent necessary to
enable the vehicle to be moved to a proper repair facility. No
Owner shall park or store an inoperative vehicle on his or her
Lot, other than in the garage, or in the Project for more than
forty-eight (48) hours.
(d) Storage of Goods in Garages. Unless otherwise
provided by the Rules and Regulations adopted by unanimous
approval of the Board, each Owner shall keep his garage
readily available for parking his respective vehicle therein
and shall not store any goods or materials therein, nor use
any portion of the garage for a workshop or other use if such
storage or use would prevent said Owner from parking the
number of four (4) wheel vehicles therein for which said
garage was originally designed and constructed by Declarant
(e.g., 2, 3 or 4, as the case may be).
18324.283-14780.FCM 091307 - 6 8
•
•
(e) Garage Doors/Size. Each Owner shall ensure that
his garage door opener is in proper working order at all
times. Each Owner acknowledges that one or more of the parking
spaces in the garage may not be large enough to accommodate a
full size vehicle.
(f) Transfer of Interest. No Owner may lease, sub-
lease, sell or give any parking space (s) within his garage to
any individual who is not a resident within the Project.
Section 14. Regulation of Parking. Subject to the
rights of the Association, through its officers, committees and
agents, the Board is hereby empowered to establish "parking" and
"no parking" areas within the Common Area, and require parking in
certain locations (e.g., garages), in accordance with Section
22658.2 of the California Vehicle Code, or any similar statute
hereafter enacted, as well as to enforce these parking limitations
by all means lawful for such enforcement, including, but not
limited to, the levying of fines and the citing and towing of
vehicles. Parking is limited in accordance with signs installed by
Declarant or authorized by the City.
Section 15. Compliance With Management Documents. All
Owners shall be Members of the Association and shall comply with
the terms and conditions as set forth herein and in the Articles
and the By -Laws, and all Rules and Regulations of the Association
and Architectural Review Committee. No Owner shall transfer any
membership or interest in the Association, except upon the transfer
of the Lot to which it is appurtenant.
Section 16. Declarant's Improvements. Nothing in this
Article or elsewhere in this Declaration shall limit the right of
Declarant to complete construction of any Improvements to the
Common Area and/or to any Lot owned by Declarant, or to alter the
foregoing or to construct such additional Improvements as Declarant
deems advisable prior to completion and sale of the entire Project.
The rights of Declarant under this Declaration may be assigned by
Declarant to any successor to all or any part of Declarant's
interest in the Project, as developer, by an express assignment
incorporated in a recorded deed transferring such interest to such
successor.
Section 17. Solar Heating. No solar heating panels or
other solar energy collection equipment shall be installed on any
portion of any Lot or Common Area, or any Improvement thereon, un-
less such equipment is installed in such location and in such
manner as to be obscured from the view of other persons in the
Project to the greatest degree practicable without significantly
decreasing its efficiency. No person shall install any such panels
or equipment without the prior written consent of the Architectural
18329.283-19780.FCM 091307 -69-
Review Committee, which shall have the right to reasonably restrict
and determine the size, shape, color, style, materials or location
of any such panels or equipment within the Project, subject to the
provisions of California Civil Code Section 714, as same may be
amended, from time to time. At a minimum, any solar panels are to
be integrated with the roof design with the panels and frame
colored to match the roof or bronze anodized.
Section 18. Antennas. No radio station or shortwave
operators of any kind shall operate from any Lot. Except as may be
otherwise authorized by law, no Owner shall install, or cause to be
installed, or maintain any television, radio, "Citizens Band"
(C.B.) antenna, satellite dish or other similar electronic
receiving or broadcasting device (including those devices having a
diameter or diagonal measurement of one meter or less) in the
Project in such a manner as to be visible from the Common Area,
unless (1) approved by the Architectural Review Committee (which
approval for a video or television antenna, including a satellite
dish, shall not be unreasonably withheld or delayed but may include
restrictions which do not significantly increase the cost of the
installation, maintenance or use of the device or significantly
decrease its efficiency or performance or preclude reception of an
acceptable quality signal) and (2) in compliance with all applica-
ble ordinances of the City, California Statutes (e.g., Civil Code
Section 1376), and Federal Regulations, as each may be amended or
revised.
Section 19. Leasing. No Owner shall be permitted to
rent or lease his Lot for transient or hotel purposes or for a
period of less than thirty (30) days. All rental and lease agree-
ments shall be in writing and shall provide that the terms of such
agreement shall be subject in all respects to the provisions of
this Declaration, By -Laws and Articles, and that any failure by the
tenant or lessee to comply with the terms of such documents shall
constitute a default under such agreement. Notwithstanding the
foregoing, Declarant may require each Owner to comply with initial
Owner occupancy restrictions that require the initial Owner of Lot
purchased from Declarant to physically reside in a Lot for a fixed
period of time after the close of escrow (e.g., one year) or resale
restrictions which prohibit the sale of the Lot for a specific
period of time unless a hardship situation exists, as determined by
the Declarant.
Section 20. Drilling. No oil drilling, oil development
operations, oil refining, quarrying or mining operations of any
kind shall be permitted within the Project, nor shall oil wells,
tanks, tunnels or mineral excavations be permitted within the
Project. No derrick or other structure designed for use in boring
for oil, water or natural gas shall be erected, maintained or
permitted within the Project.
18324.283-14780.FCM 091307 - 7
Section 21. Trash. No rubbish, trash, garbage or other
waste material shall be kept or permitted upon any portion of the
Project, except in covered sanitary containers approved by the City
located in garages, or appropriate paved areas screened and
concealed from view by a wall or other screen approved by the
Architectural Review Committee, or in such portions of the Project,
if any, improved with trash receptacles provided for the use of all
Owners, and no odor shall be permitted to arise therefrom so as to
render the Project, or any portion thereof, unsanitary, unsightly,
offensive or detrimental to any other property in the vicinity
thereof or to its occupants. All such refuse which is put out for
pickup, shall be in conformance with all appropriate standards
established by the City or governing agency. In the event trash is
collected from each individual Lot, appropriate sanitary containers
may be exposed to the view of neighboring Residences only when set
out on the sidewalks or streets no earlier than 5:00 p.m. the night
prior to the trash pick-up day and removed from the sidewalk or
street within ten (10) hours after pickup, unless otherwise
modified by the Board.
Section 22. Drainage. There shall be no interference
with the established drainage pattern over any Lot within the
Project as to affect any other Lot or the Common Area, unless
adequate alternative provision is made for proper drainage and is
approved in writing by the Architectural Review Committee. For
purposes hereof, "established" drainage is defined as the drainage
which exists at the time such Lot is conveyed to a purchaser from
Declarant, or later grading changes that are shown on plans ap-
proved by the Architectural Review Committee. Each Owner further
agrees not to obstruct, retard or otherwise interfere with, in any
manner whatsoever, any drainage swales, or to perform any grading
or construction on his Lot which may result in creating an
excessive amount of surface water runoff (i.e., an amount of water
beyond the flow originally intended and provided for by the as
built condition of Declarant) to flow into said drainage swales.
Except as may be otherwise maintained by the Association, each
Owner of a Lot shall, at his sole cost and expense, maintain that
portion of any drainage swale or other drainage devices located on
his respective Lot.
Section 23. Prohibition Against Further Subdivision.
No Owner shall make any conveyance, execute any document or map, or
enter into any contract which shall purport to further subdivide
any Lot in any manner whatsoever, including, without limitation,
subdividing such Lot into additional lots, condominiums, stock
cooperatives or timeshare uses, whether by map, deed or contract.
Any such conveyance, document, map or contract shall be void and of
no force or effect whatsoever.
18329.283-19780.FCM 091307 -71-
Section 24. Patios and Balconies. Patios and bal-
conies, and all furniture, plants and other improvements situated
therein, shall be kept at all times in a neat, clean, safe and
attractive condition. Clothes, towels, blankets, laundry, or
clotheslines shall not be placed on or hung from any patio or
balcony, or any portion of the Common Area, where doing so would be
visible from any other Lot, the Common Area or the public. Patios
and balconies shall not be used for storage of any items deemed
inappropriate by the Architectural Review Committee.
Section 25. Exemption of Declarant. Nothing in this
Article or elsewhere in this Declaration shall limit, restrict,
abridge or control, in any manner whatsoever, the rights of De-
clarant to complete the planning, development, grading, construc-
tion, advertising, marketing, leasing and sales of the Lots, and
all other property within the Project (including any property which
may be annexed thereto pursuant to the provisions of this Declara-
tion), including, without limitation, the following specific
rights, which may be exercised by Declarant or by its agents and
employees, in conjunction with such development and marketing of
the Lots in the Project, including the Annexation Property:
(a) The right to maintain and operate one (1) or
more advertising, model, sales or leasing office(s), and
construction trailer(s), construction parking areas, temporary
utility facilities and/or lines, and parking area for
employees located upon any Lot(s) owned by Declarant or upon
any Common Area without payment of rent or approval of the -
Association;
(b) The right to post and display from any Lot(s)
owned or controlled by Declarant or from any Common Area any
sign, flag, banner, billboard or other advertising which
Declarant may, in its sole discretion, deem appropriate,
irrespective of size, color, shape or materials of such items,
except to the extent that the exercise of said right conflicts
with any provisions of the City's Municipal Code or other
applicable governmental regulations;
(c) The right to install, place, replace, con-
struct, reconstruct, modify or remove any Improvement from any
Lot owned or controlled by Declarant, from any Common Area, as
Declarant may, in its sole discretion, deem appropriate; pro-
vided that in the event Declarant removes any Association
owned Improvement from any Common Area without the express
prior written consent of the Board, Declarant shall replace
such Improvement with an Improvement of substantially similar
value, appearance and utility within a reasonable period
following completion of any work necessitating the removal of
the Improvement;
18329.283-19780.FCM 091307 -72-
0 0
(d) The right to conduct any commercial activity
upon any Lot owned or controlled by Declarant or upon any
Common Area which reasonably relates to the development,
marketing, leasing or sales of the Lots in the Project; and
(e) The right to park vehicles upon any Lot owned
or controlled by Declarant or upon any Common Area.
All or any portion of the rights of Declarant and
elsewhere in this Declaration may be assigned by Declarant to any
successor - in- interest in the Project, including the Annexation
Property, by an express written assignment recorded in the Office
of the County Recorder.
Section 26. No Easements for View Purposes• Dis-
claimer. This Declaration, including the Article entitled
"Architectural Review - Approval," sets forth procedures for the
approval of Improvements which may be constructed upon Lots in the
Project which are consistent with the architectural standards
adopted, from time to time, pursuant to said Article. The
architectural standards may have some effect on views and the pass-
age of light and air to individual Lots. However, by promulgation
and enforcement of the architectural standards, or otherwise,
neither Declarant, the Board nor the Architectural Review Com-
mittee, or the members, employees or consultants of any of the
foregoing, have made any representations whatsoever concerning the
view, if any, that a particular Lot or other Improvement thereon
will enjoy. There are no express or implied easements or rights
whatsoever appurtenant to any Lot for view purposes, or for the
passage of light and air. Each Owner, by accepting a deed to a Lot,
hereby expressly acknowledges and agrees that further construction
within the Project may impair the view from such Owner's Lot, and
each Owner hereby expressly consents to any such impairment. The
City makes no claim, warranty, or guarantee that views from any Lot
will be preserved as development of surrounding properties occurs.
Section 27. Post Tension Slabs. Each Owner hereby
acknowledges that the concrete slab for Owner's Residence MAY be
reinforced with a grid of steel cables which would be installed in
the concrete and then tightened to create very high tension. This
type of slab is commonly known as a "Post Tension Slab." Each Owner
further acknowledges cutting into a Post Tension Slab for any
reason (e.g., to install a floor safe, to remodel plumbing, etc.)
is very hazardous and may result in serious damage to the Residence
and/or personal injury. By accepting a grant deed to the Lot, and
subject to confirmation by the Owner that his/her Residence was
constructed with a post tension slab, each such Owner hereby
specifically covenants and agrees that:
18324.283-14780.FCM 091307 -73-
0 i
(a) He/she shall not cut into or otherwise tamper
with the Post Tension Slab;
(b) He/she shall not knowingly permit any other
person to cut into or tamper with the Post Tension Slab so
long as Owner owns any interest in the Lot;
(c) He/she shall disclose the existence of the Post
Tension Slab to any tenant, lessee, or grantee of the Resi-
dence; and
(d) He/she shall indemnify and hold Declarant and
its respective officers, employees, contractors and agents,
free and harmless from and against any and all claims,
damages, losses, or other liability (including attorneys'
fees) arising from any breach of this Section.
Section 28. Public Right -of -Way. No Owner shall
construct any Improvement in the public right-of-way or public
utility easement adjacent to or within the Project, if applicable,
unless the Owner obtains all necessary permits from the City,
public utility company, and approval from the Board, as necessary.
Section 29. Pollutant Control. The Association and
each Owner shall comply with any NPDES requirements and the BMP
guidelines (as defined below), as such requirements and guidelines
apply to the Project.
A. NPDES Reguirements. The Project is subject to
all Federal, State and local requirements of the National Pollutant
Discharge Elimination System ("NPDES") adopted pursuant to the
Federal Clean Water Act. Pursuant to a NPDES General Permit
adopted by the State Water Resources Control Board, the City has
adopted a Storm Water Pollution Prevention Plan for the Project
("SWPPP") which identifies certain Best Management Practices
("BMPs") to reduce the discharge of pollutants to storm water
facilities, before, during and after construction on the Project is
completed (e.g., NPDES and Section 5650 of the California Fish and
Game Code prohibit, among other things, discharging anything other
than natural rain water into storm drainage systems). The
Association and the Owners shall comply with all applicable BMPs
and perform all maintenance imposed by the SWPPP, as amended, and
the Association shall obtain any certifications and permits or
accept an assignment from Declarant of any such certifications and
permits as are required by the SWPPP. The costs of the Asso-
ciation's portion of such maintenance, if any, shall be treated as
Common Expenses.
B. Guidelines. The Association shall ensure that
all Common Area landscape irrigation is implemented in accordance
18324.283-14780.FCM 091307 -74-
with the BMPs, including without limitation (a) the provision for
water sensors and programmable irrigation times allowing for short
cycles, (b) the use of planting material similar to that installed
by Declarant, as applicable, and with similar water requirements in
order to reduce excess irrigation runoff and to promote surface
filtration, and (c) maintain all permanent slopes with required
landscaping with native or other drought tolerant planting
materials.
Except as specifically approved in writing by the City, no
hazardous activities, including those described in the City's
Municipal Code, as the same may be amended from time to time (e.g.,
welding, open flame or storage of flammable liquids) shall be
conducted within the Project at any time. Nothing other than
natural rain water or potable water may be discharged into the
storm drains and storm drainage system located on private or public
property. Toxic chemicals or hydrocarbon compounds such as
gasoline, motor oil, antifreeze, solvents, paints, paint thinners,
wood preservative and other such fluids shall not be discharged
into any street, public or private, or into storm drains or storm
water conveyance systems. Use and disposal of pesticides,
fungicides, herbicides, insecticides, fertilizers and other such
chemical treatments shall meet Federal, State, County, and City
requirements as prescribed on their respective containers. All
Owners within the Project are required to comply with such
restrictions.
Section 30. Water Quality Maintenance Obligations.
The Association and Owners shall maintain the Project in a manner
consistent with the Water Quality Management Plans ("WQMP")
applicable to the Project, and shall at all times comply with,
among other things, the following requirements and restrictions:
(a) Automobile Washing. Anyone washing an
automobile within the Project is encouraged to use a bucket
and sponge only, rather than a hose. The Association shall
strongly encourage the use of commercially available biode-
gradable or low phosphate detergents for automobile washing.
(b) Oil and Fluid Leaks. All automobiles with oil
or fluid leaks must be given immediate attention, either
through repair or the implementation of other measures (such
as the use of a drip pan) to reduce the risk of fluids
entering the storm drain system.
(c) Automotive Repair Work. As set forth above, no
Owner shall conduct any repairs to any motor vehicle of any
kind whatsoever in his garage, driveway (if any) or upon any
portion of the Common Area or his Lot, except for emergency
repairs thereto (drip pans must be used during repair work to
18324.283-14780.FCM 091307 -75-
•
•
catch any fluid leaks resulting from the repair) and then only
to the extent necessary to enable the vehicle to be moved to
a proper repair facility. All inadvertent spills must be
cleaned up immediately using absorbent sand or other effective
means. All clean-up materials shall be disposed of in
compliance with applicable laws and regulations.
(d) Cleaning Parking Areas. Parking area surfaces
within the Project shall be swept clean as required by the
Water Quality Management Plans.
Section 31. Rights of Disabled. Subject to the provi-
sions of the Declaration, Civil Code Section 1360, State and
Federal laws regarding accommodations for the handicapped, and
approval by the Architectural Control Committee, each Owner may
modify his Lot and residence and the route leading to the front
door of his residence, at his sole expense, in order to facilitate
access to his residence by persons who are blind, visually
impaired, deaf or physically disabled, or to alter conditions which
could be hazardous to such persons.
Section 32. Reclaimed Water. The water used to
irrigate the Common Area may be reclaimed water. Reclaimed water is
not potable and therefore not suitable for human consumption.
Based upon a number of independent studies, the California
Department of Health Services has determined that inadvertent
consumption of reclaimed water by domestic pets and other animals
will generally not cause harm and, further, that the use of
reclaimed water has not resulted in any reported significant
adverse health consequences. As with any water overspray, the
repeated spray of reclaimed water may stain or discolor personal
property, fencing and structural improvements over time. The water
district's reclaimed water may be disinfected with chlorine, and
its clarity to the human eye is indistinguishable from domestic
water. The standards for reclaimed water quality are established
by various governmental regulatory agencies, and these standards
are subject to change. Declarant and the Association, and their
respective employees, consultants and agents are not liable for any
property damage or personal injury by reclaimed water.
Section 33. Guest Suites. As authorized by the
Specific Plan in, which the Project is located, and subject to the
approval of the Architectural Review Committee and the City, a
maximum of one (1) guest suite may be established on any Lot within
the Project, provided that the guest suite is architecturally
compatible with the primary Residence on the Lot, does not include
a garage or accessory structure, and does not have full kitchen
facilities (except with the approval of a minor use permit). The
Specific Plan defines a "guest suite" as an attached unit with
sleeping and sanitary facilities and limited food preparation
facilities which will be used primarily for sleeping purposes for
members of the family occupying the main building, their non-paying
18324.283-14780.FCM 091307 -76-
guests, and domestic employees. Guest suites may be attached to a
garage that services the primary Residence on the Lot.
Section 34. Sight Triangles. As required by the City,
plants located within sight triangles (as defined by the American
Association of State Highway Transportation Officials and depicted
on Exhibit "F" attached hereto and incorporated by this reference)
shall not be of a height greater than thirty (30) inches from the
pavement surface, and tree canopies shall not hang lower than
eighty (80) inches above the pavement surface.
Section 35. Bighorn Sheet - Exterior Lighting and
Landscaping and Hillside Restrictions. The Santa Rosa Mountains
and hillside located immediately to the west of the Project are
habitat for bighorn sheep. To minimize the effect of the Project
on such habitat, as required by the City, all exterior lighting
within the Project shall be directed away from the hillside located
to the west of the Project. In addition, all exotic or toxic
plants, such as Oleander and Prunis, and plants which are known to
invade or degrade bighorn sheep habitat, such as tamarisk and
fountain grass, are strictly prohibited within the Project.
Additional prohibited plant materials are set forth in Exhibit "G"
attached hereto and incorporated herein by this reference. Owners
and other residents of the Project and their guests may not enter
the hillside from any portion of the Project. To the extent that
any portion of the Project begins to be used by persons to enter
the hillsides, the Association shall post notices discouraging such
use.
Section 36. Zero Lot Line Restrictions. The specific
Lot boundaries in the Project are similar to a zero lot line
development. To accommodate this system of ownership, the Declarant
creates, reserves, establishes, and grants various easements for
ingress, egress, access, sideyard, and related purposes as
generally set forth herein (e.g., referred to in Exhibit "H" as a
side yard easement). The rights and obligations of the Owners of
the Lots are as set forth herein, and each such Owner acknowledges
and agrees that he or she has a vested interest in the
establishment and preservation of said system of ownership.
(a) Definitions. The following definitions shall be
applicable to the Lots located within the Project:
(1) "Adjoining Lot" shall mean and refer to
each Lot which has a zero lot line wall constructed
thereon, and which is burdened by permanent easements
appurtenant to the adjoining Dominant Lot for sideyard
(e.g., gardening, landscaping, irrigation, yard),
drainage, encroachment, ingress, egress and access
purposes (generally depicted on Exhibit "H". Lots may be
both an "Adjoining Lot" and a "Dominant Lot" depending on
18324.283-14780.FCM 091307 -77-
the location of the easements in the front, side or rear
portions of the Lot).
(2) "Dominant Lot" shall mean those Lots which
have permanent easements appurtenant thereto over the
Adjoining Lot (except the residential portion thereof)
for sideyard (e.g., gardening, landscaping, irrigation,
yard), drainage, encroachment, ingress, egress and access
purposes as set forth herein.
(3) "Dominant Owner" shall mean and refer to
any Owner whose Lot is benefitted by permanent easements
appurtenant thereto over an Adjoining Lot.
(4) "Adjoining Owner" shall mean and refer to
any Owner whose Lot is burdened by permanent easements
appurtenant to an adjoining Dominant Lot.
(5) "Zero Lot Line Walls" shall mean that
certain portion of a particular structural wall of a Lot
which contains no doors or first floor windows, and which
is constructed substantially parallel to the Lot
boundary, such that one (1) side of said Wall is the
interior of the residential structure on the Lot
(including but not limited to the garage) and the other
side of the Wall serves as part of the boundary of the
sideyard associated with the Dominant Lot.
(6) "Fences" shall refer collectively to the
types of fences and walls more particularly described
below:
i) "Front Yard Fences" shall mean and
refer to any fence or wall (other than a wall which
constitutes all or a portion of a Lot) which: (A)
generally parallels the street or front yard area
of any Lot and extends between two (2) adjacent
Lot; or (B) extends parallel to the boundary line
of the Lot within the Front Yard Landscaping Area;
and/or (C) borders the street along a corner Lot.
ii) "Rear Fences" shall mean and refer
to any fence or wall (other than a fence or wall
which constitutes all or a portion of a Lot) which:
(A) is located approximately on the rear boundary
line of a Lot or generally parallels the street or
landscape area behind a Lot and extends between two
(2) adjacent Lots; (B) is located generally
parallel to the side boundary line between two Lots
and serves as the effective boundary between the
rear yard of adjacent Lots or the street; and (C)
18324.283-14780.FCM 091307 -78-
u
E
which generally parallels a street or a corner Lot
or a side boundary line paralleling the street.
(7) "Ingress/Egress/Access Easement Areas"
shall mean those areas designated on Exhibit "H" attached
hereto, (i.e., described and depicted as a side yard
easement).
(8) "Front Yard Landscaping Areas" shall mean
those areas of a Lot maintained by the Association as
Common Area (see Exhibit "A" attached hereto).
(b) Establishment of Zero Lot Line Easements. In
order to create and establish a zero lot line system of owner-
ship within the Project, Declarant hereby creates, estab-
lishes, grants, and reserves permanent easements appurtenant
to owners of Dominant Lots on, over and across those certain
portions of their respective adjacent Adjoining Lots (except
the residential portion thereof), which are shown and
described on Exhibit "H" to accommodate ingress, egress,
access, gardening, landscaping, irrigation, yard, drainage,
and encroachments for any foundations, footings, eaves,
overhangs, chimneys or other similar Improvements originally
constructed by Declarant or shown on applicable Project
improvement or architectural plans submitted by the Declarant
and approved by the City. Said easements shall be used
generally for gardening, landscaping, irrigation, yard,
drainage, ingress, egress, access, encroachment, and other
purposes provided herein, and shall be subject to each and all
of the Protective Covenants set forth in this Declaration.
(c) Ownership of Zero Lot Line Walls. Ownership of
each Zero Lot Line Wall shall be vested in the Owner of the
Adjoining Lot upon which the Zero Lot Line Wall is located.
Notwithstanding said vesting of ownership, all Zero Lot Line
Walls constitute party walls, and the rights and obligations
of the Owners with respect to the use, enjoyment, maintenance
and repair of Zero Lot Line Walls shall be as set forth
herein.
(d) Maintenance of Zero Lot Line Walls. The
Adjoining Lot Owner shall paint, maintain, and repair the Zero
Lot Line Wall, including that portion which faces the Dominant
Owner's Lot, in a neat, clean, safe, sanitary and attractive
condition at all times, and shall bear all costs thereof (the
Declarant reserves unto the owners of the Adjoining Lots
easement rights over the side yard easement area for
maintenance purposes for the zero lot line wall, encroachments
and drainage). Notwithstanding the foregoing, in the event any
painting, maintenance or repair is required due to the fault
of the Dominant Owner, the Dominant Owner shall promptly cause
said work to be performed and shall bear all costs thereof.
18329.283-19780.FCM 091307 -79-
In no event, may the Dominant Owner paint or drive nails,
screws, bolts or other objects into the Zero Lot Line Wall, or
permit or suffer anything else to be done to such Wall which
would tend to damage, alter or impair the structural integrity
of such Wall. Further, a Dominant Owner shall not, under any
circumstances, plant any tree, shrub or other landscaping, or
build, erect or otherwise install any Improvement of any kind
which would unreasonably impede or interfere with (e.g.,
within two feet (21) of the Zero Lot Line Wall) the necessary
maintenance and repairs to the Zero Lot Line Wall by the
Adjoining Lot Owner, and impair the structural integrity of
such Wall.
(e) Use of Ingress/Egress/Access Easement Areas.
Each Dominant Owner shall have the right and responsibility to
landscape, improve, and otherwise maintain the In-
gress/Egress/Access Easement Area appurtenant to his or her
Lot in a neat, clean, safe, sanitary and attractive condition
at all times, and shall bear all costs thereof, provided any
hardscape, landscaping and irrigation system, and Improvements
shall be first approved by the Board. However, said Owner
shall not plant any tree, shrub or other landscaping
(including the irrigation thereof) or allow to be constructed
any Improvement (e.g., hardscape) upon the
Ingress/Egress/Access Easement Area which would: (1) impair or
otherwise threaten the structural integrity of any adjacent
Lot; or (2) interfere with the Adjoining Owner's right of
ingress, egress, and access, as set forth herein. Neither the
Adjoining Owner nor the Dominant Owner may construct, install
or erect any Improvement in the Ingress/Egress/Access Easement
Area, except as expressly permitted by the Board, and, if
necessary, approved by the City.
(f) Adjoining Owner's Access Rights. The Owner of
the Adjoining Lot shall have an easement for ingress, egress
and access on, over and across the Ingress/ Egress/Access
Easement Area and the Dominant Lot (which does not include any
residential portion of said Lot) as may be reasonably neces-
sary to allow the Owner of the Adjoining Lot to paint, main-
tain and repair his/her Zero Lot Line Wall, his/her Lot, in-
cluding any gutter or downspout attached thereto. The Ass-
ociation, as otherwise noted herein, has all necessary
easements over the Project, and all Lots located thereon, to
access the residential structures to perform all necessary
maintenance obligations of the Association. Except in the
case of a bona fide emergency, the Owner of the Adjoining Lot
shall give the Owner of the Dominant Lot at least twenty-four
(24) hours prior written notice of his/her intention to enter
upon the yard portion of the Dominant Lot and the
Ingress/Egress/Access Easement Area, and shall perform all
necessary work during reasonable daylight hours. In the event
of an emergency, such entry may be made at any time and
18324.283-14780.FCM 091307 -80-
•
•
•
without notice. Under all circumstances, the Owners shall use
their best efforts to minimize the duration of the work and
the inconvenience to the Owners of other Lots.
(g) Ownership of Walls. Ownership of each Front
Yard Fence and Rear Fence, or portion thereof, shall be vested
in the Owner of the Lot upon which said Fence, or portion
thereof, is located. Notwithstanding said vesting of owner-
ship, the rights and obligations of the Owners with respect to
the use, enjoyment, maintenance and repair of the Fences shall
be as set forth herein or otherwise determined by the Board.
(h) Maintenance of the Fences. The rights and re-
sponsibilities of the Owners with respect to the maintenance
and repair of Fences shall be as follows (common fences
dividing yard areas shall be maintained by the applicable
Owners):
(1) Front Yard Fences. As generally depicted
on Exhibit "D" attached hereto, except as maintained by
the Association or otherwise determined by the Board,
Owners of a Front Yard Fence shall share the cost to
paint, maintain, and repair such Front Yard Fence, so as
to keep such Front Yard Fence in a neat, clean, safe,
sanitary and attractive condition at all times. No Owner
may construct, erect, raise, remove, or otherwise alter
any Front Yard Fence without the prior express written
consent of the Board. In the event that any portion of
such fence, except the interior surface of one side, is
damaged or injured from any cause, other than the act or
negligence of either party, it shall be repaired or
rebuilt at their joint expense.
(2) Rear Fences. Except as may be maintained
by the Association (e.g., see Exhibit "D") or determined
by the Board, each co -Owner of a Rear Fence shall paint,
maintain and repair such Rear Fence for which he/she/it
is responsible, so as to keep such Fence in an attractive
condition at all times. No Owner may construct, erect,
raise, remove or otherwise alter any Rear Fence without
the prior written approval of the Board. In the event
that any portion of such fence, except the interior
surface of one side, is damaged or injured from any
cause, other than the act or negligence of either party,
it shall be repaired or rebuilt at their joint expense.
(i) Alterations. No alterations, repairs or
restoration to any Zero Lot Line Wall, Front Yard Fence or
Rear Fence shall be commenced, erected or maintained until the
plans and specifications showing the nature, kind, shape,
height, materials, location and approximate cost of same shall
have been approved, in writing, by the Board. Except for the
18324.283-14780.FCM 091307 -81-
Fences originally constructed by Declarant, no wall, fence or
other structure of any kind shall be constructed on any Lot
without the prior written approval of the Board.
(j) Easements for Installation of Utility Lines.
Other than as may be constructed by Declarant (e.g., as per
plans submitted by the Declarant and approved by the City, or
depicted on the final map for the Project, or described or
depicted in a separate instrument), no Owner has any addition-
al easement rights for the installation of utility lines in,
on, over, under or through any other Lot.
(k) Drainage Easements. The Declarant hereby
creates, establishes, reserves, and grants to Owners of
Dominant and Adjoining Lots nonexclusive reciprocal easements
over the Ingress/Egress/Access Easement Areas for drainage
purposes to accommodate the drainage system, including, but
not limited to, area drains and pipes, originally installed by
Declarant. The Dominant Owners and Adjoining Owners served by
said drainage system shall be responsible to maintain and
preserve that portion of said system servicing their
respective Lot in an operating condition to ensure proper
drainage on, over and across the Ingress/Egress/Access
Easement Area in accordance with the established drainage
patterns created by Declarant for each Lot. No Owner shall
alter or remove the drainage system without the express
written consent of the Owner of the Lot served by such
drainage system and the Board. In the event any portion of the
drainage system is damaged or destroyed, either Lot Owner may
cause said repair or restoration work to be completed and
shall be entitled to recover the actual expenses from the
responsible Lot Owner. Without limiting the generality of the
foregoing, if any portion of the drainage system is damaged or
destroyed as a proximate result of any act or omission of any
Owner, or any member of his family, guests, tenants, lessees
and/or invitees (without regard to fault), such Owner shall
repair and/or rebuild such drainage system, and shall bear all
of the costs thereof. Pursuant to the provisions herein, the
Association may have easement rights for drainage in, on,
over, under, across and through the Lots.
(1) Indemnification by Dominant Owners. Each
Dominant Owner shall indemnify and save the respective
Adjoining Owner harmless from and against any and all liabili-
ty arising out of or otherwise resulting from any negligent
act or omission of the Dominant Owner relating to the exercise
of its rights or the performance of its obligations hereunder.
(m) Indemnification by Adjoining Owners. Each
Adjoining Owner shall indemnify and save the respective Domi-
nant Owner harmless from and against any and all liability
arising out of or otherwise resulting from any negligent act
18329.283-19780.FCM 091307 -82-
10.
or omission of the Adjoining Owner relating to the exercise of
its rights or the performance of its obligations hereunder.
(n) Right of Contribution. The right of any Owner
to contribution from any other Owner for work performed
pursuant to this Article shall be appurtenant to and shall run
with the land, and shall be binding upon the Owners and their
successors, assigns and grantees. Notwithstanding the forego-
ing, the duty and obligation to pay contribution for work
already performed, pursuant to the provisions of this Section,
shall not run with the land or be binding upon: (1) any
Mortgagee who obtains title pursuant to either a foreclosure
under its deed of trust or by a deed in lieu of foreclosure,
or (2) any purchaser at a foreclosure sale under such deed of
trust.
Section 37. No Warranty of Enforceability. While
Declarant has no reason to believe that any of the Protective
Covenants contained in this Article or elsewhere in this Declara-
tion are or may be invalid or unenforceable for any reason or to
any extent, Declarant makes no warranty or representation as to the
present or future validity or enforceability of any such Protective
Covenants. Any Owner acquiring a Lot in the Project in reliance on
one or more of such Protective Covenants shall assume all risks of
the validity and enforceability thereof and, by acquiring the Lot,
agrees to hold Declarant harmless therefrom.
ARTICLE IX
ARCHITECTURAL REVIEW - APPROVAL
Section 1. Exemptions From Architectural Review.
Declarant shall be exempt from compliance with any of the pro-
visions of this Article as they may relate to the original con-
struction and development of the Project by Declarant in accordance
with the plans approved by the City; provided, however, if
Declarant shall desire to construct any Improvements to the exteri-
or of a Residence after such Residence has been completed and
approved by the City, Declarant shall obtain approval for such
Improvements from the City; and, provided further, if Declarant
shall retain a Residence for personal use, any Improvements to the
exterior of such Residence shall be subject to architectural ap-
proval pursuant to this Article. The provisions of this Article
may not be amended without the express written consent of Declarant
so long as Declarant is offering any Lots for sale or lease, or so
long as Declarant owns any portion of the Annexation Property and
such property may be annexed into the Project in accordance with
the Article herein entitled "Annexation of Additional Property."
Section 2. Architectural Review. Except for the pur-
poses of proper maintenance and repair, and except as may otherwise
18324.283-14780.FCM 091307 -83-
be permitted hereunder, no person shall install any Improvement,
including, without limitation, solar heating panels, lighting,
shades, screens, awnings, patio covers, decorations, walls, screen
doors, aerials, antennas, radio or television broadcasting or
receiving devices, air conditioning units, or change or otherwise
alter the exterior of any Residence or appurtenant Improvement
unless same is approved by the Architectural Review Committee. For
the purposes of this Section, the term "exterior" shall mean any
outside wall, outside surface, roof, outside door, patio, balcony,
deck, garage or other outside structure of said Residence which is
visible to others in the Project and/or to the public. Wood fences
and wind chimes are prohibited within the Project.
Section 3. Architectural Review Committee. The
Architectural Review Committee is hereby authorized with the rights
and powers set forth in this Article. Said Committee shall consist
of not less than three (3) members, nor more than five (5) members.
In the event of the failure or inability of any member of the
Architectural Review Committee to act, the remaining members shall
designate a successor who shall serve for the remainder of the term
of the member he replaces. The Declarant shall appoint all of the
original members of the Architectural Review Committee, and
replacements thereto. Further, Declarant reserves the power to
appoint a majority of the members of the Architectural Review
Committee until the fifth (5th) anniversary of the first Close of
Escrow for the sale of a Lot pursuant to a final subdivision public
report issued by the DRE for the Project. After one (1) year from
the date of such first Close of Escrow, the Board shall have the
power to appoint one (1) member to the Architectural Review
Committee until ninety percent (90%) of the Lots in the Project
have been sold, or until the fifth anniversary date of the first
Close of Escrow for the sale of a Lot pursuant to a Final Subdi-
vision Public Report for the first Phase of the Project, whichever
first occurs. Thereafter, the Board shall have the power to appoint
all of the members of the Architectural Review Committee. All mem-
bers appointed to the Architectural Review Committee by the Board
shall be from the membership of the Association. Members appointed
to the Architectural Review Committee by the Declarant, however,
need not be members of the Association. No member of the Architec-
tural Review Committee shall be liable to any person for his
decisions or failure to act in making decisions as a member of the
Architectural Review Committee. Declarant may, in its discretion
and at any time, assign to the Association by written assignment
its powers of removal and appointment with respect to the Architec-
tural Review Committee, subject to such terms and conditions
regarding the exercise thereof as Declarant may impose.
Section 4. Meetings of the Architectural Review Com-
mittee. The Architectural Review Committee shall meet, from time to
time, as necessary to perform its duties hereunder. The Architec-
tural Review Committee may, by a majority vote of the members
thereof, delegate any of its rights and responsibilities hereunder
18324.283-14780.FCM 091307 -84-
(except the right to approve any Improvement or architectural
submittal required by this Declaration) to one (1) or more duly
licensed architects, who shall have full authority to act on behalf
of the Architectural Review Committee on all matters so delegated.
Section 5. Architectural Standards/Guidelines. The
Board (or Architectural Review Committee if authorized by a
majority of the Board) may, from time to time, adopt architectural
standards/guidelines to be administered through the Architectural
Review Committee for use by said Committee in reviewing plans and
specifications for proposed Improvements to an Owner's Lot. The
architectural standards/guidelines may include, without limitation,
those guidelines, procedures, limitations and restrictions upon
Owners set forth below:
(a) The placement, reconstruction, addition, change
or alteration of any Improvement on a Lot or the exterior of
a Residence, including the nature, kind, shape, materials, ex-
terior color, location, and height of any Improvement,
including landscaping;
(b) A description of the type of such construction,
additions, changes or alterations which, if completed in
conformity with the architectural standards, do not require
approval of the Architectural Review Committee;
(c) Conformity of completed Improvements to plans
and specifications approved by the Architectural Review
Committee;
(d) Time limitations for the completion of the
Improvements for which approval is required pursuant to the
architectural standards;
(e) Procedures for submission of plans and speci-
fications submitted for Architectural Review Committee review,
including, without limitation, floor plans, site plans,
drainage plans, elevation drawings, landscape plans and a
description or samples of exterior colors and materials;
(f) Restrictions controlling the species and place-
ment of any trees, plants, shrubbery, ground cover, etc., to
be placed, planted, irrigated and maintained in the Project
(i.e., approved landscape palettes, plant material consistent
with the applicable fuel modification requirements);
(g) Restrictions controlling the placement of any
trees, plants, shrubbery, ground cover, etc., to be placed
planted, irrigated and maintained in the Project (including
requirements regarding the use of root barriers and/or other
similar devices to prevent damage to Residences, hardscape and
other Improvements); and
18324.283-14780.FCM 091307 -85-
(h) A reasonable schedule of fees for submission of
plans and specifications or bonds (or cash deposits) to ensure
proper completion and clean up of the anticipated work and
compliance with the approved plans.
The architectural standards may be periodically updated or revised
by the Board, as the Board, in its reasonable discretion, may deem
appropriate. The Architectural Review Committee shall maintain a
copy of the then current architectural standards on file at all
times, and shall provide each Owner with a copy of the architectur-
al standards upon written request. The Board shall establish a
reasonable fee for copies of the architectural standards, and other
related materials, to cover costs of reproduction, administration
and handling.
Section 6. Architectural Approval - Review of Plans
and Specifications. The Architectural Review Committee shall comply
with the Architectural guidelines/ standards adopted by the Board
(including any supplementary Rules and Regulations thereto adopted
by the Board) to examine any request made pursuant to this Article,
in order to ensure that the proposed plans are in conformance with
and are harmonious to the exterior design and existing materials of
the buildings in the Project. The Architectural Review 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 and progress to
ensure its conformance with the plans approved by the Architectural
Review Committee. No construction, alteration, grading, addition,
excavation, demolition, modification, decoration, redecoration or
reconstruction of an Improvement shall be commenced or maintained
by any Owner 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 Architectural
Review Committee and approved in writing by the Architectural
Review Committee. The address for submission of such plans and
specifications, shall be provided to the Owners by the Board.
The Architectural Review Committee shall approve the
plans and specifications submitted for its approval only if it
deems that: (a) the construction, alterations or additions
contemplated thereby and the locations indicated will not be
detrimental to the appearance of the surrounding area of the
Project as a whole; (b) the appearance of any structure affected
thereby will be in harmony with surrounding structures; (c) the
construction thereof will not detract from the beauty, wholesome-
ness and attractiveness of the Common Area, or the enjoyment
thereof by the Owners; (d) the upkeep and maintenance thereof will
not become a burden on the Association; and (e) the plans and
specifications substantially comply with the Architectural
standards/guidelines. The Architectural Review Committee may
condition its approval of proposals or plans and specifications for
18324.283-14780.FCM 091307 -86-
any Improvement: (i) on such changes therein as it deems ap-
propriate, (ii) upon the agreement by the person submitting the
same to grant appropriate easements to the Association for the
maintenance of the Improvement, or (iii) upon the agreement of the
person submitting the same to reimburse the Association for the
cost of such maintenance, or all of the above, and may require
submission of additional plans and specifications or other in-
formation prior to approving or disapproving the submission.
The Architectural Review Committee may also issue rules
or guidelines setting forth procedures for submission of plans for
approval, requiring a payment of a fee to the Association to
accompany each submission of plans and specifications, or ad-
ditional factors which it will take into consideration in reviewing
submissions which are consistent with the Architectural stan-
dards/guidelines.
The Architectural Review 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, landscape plans and
description or samples of exterior material and colors.
Section 7. Decisions of the Architectural Review Com-
mittee. Until receipt by the Architectural Review Committee of any
required plans and specifications, and such other information as
may be required in Section 6 above, the Architectural Review
Committee may postpone review of any plans submitted for approval.
Decisions of the Architectural Review Committee and the reasons
therefor should be transmitted by the Architectural Review
Committee to the applicant, at the address set forth in the ap-
plication for approval, within forty-five (45) days after receipt
by the Architectural Review Committee of all plans, specifications
and materials required. Any application submitted pursuant to the
provisions of Section 6 above shall be deemed approved, unless
written disapproval or a request for additional information or
materials by the Architectural Review Committee shall have been
transmitted to the applicant within forty-five (45) days after the
receipt by the Architectural Review Committee of all required
materials.
Section 8. Submittal to City - Right of Architectural
Review Committee to Review. Upon obtaining the written approval of
the Architectural Review Committee, the Owner shall thereafter
submit plans and specifications to the City. In the event that all
necessary approvals of the City for the issuance of a building
permit or other permits required to commence the work contemplated
in the plans and specifications are not obtained within six (6)
months from the date of approval by the Architectural Review
Committee, the Architectural Review Committee shall have the right,
but not the obligation, to re -review all previously approved plans
and specifications. In addition, in the event that the City
18324.283-14780.FCM 091307 -87-
requires modifications to the plans and specifications previously
approved by the Architectural Review Committee, the Owner shall
submit to the Architectural Review Committee all modifications to
the plans and specifications previously approved by the Architec-
tural Review Committee. In the event the Owner is obligated to
resubmit plans and specifications to the Architectural Review
Committee to reflect the modifications required by the City, said
Committee shall have the right to review and to impose further
conditions on any such modifications.
Section 9. Approval of City. Each Owner is solely
responsible for ensuring that all plans and specifications
submitted by such Owner to the Architectural Review Committee
comply with, and do not violate, any applicable provision of law,
including, without limitation, the Fair Employment and Housing Act
(California Government Code Section 12900 et sect.), the City's
Municipal Code, all applicable building and construction codes, and
all other applicable laws, regulations, and ordinances governing
land use and public safety. Approval of any proposed or existing
Improvement, or completion of an Improvement, by the Architectural
Review Committee or the Board shall not be construed to warrant or
represent in any way that the Improvement was approved by or
complies with the minimum standards of the City or any other
applicable provisions of law. Similarly, approval of any proposed
or existing Improvement by the City shall not be construed to
constitute approval of such Improvement by the Architectural Review
Committee or the Board.
Section 10. Conflicts Between City and Architectural
Review Committee. In the event of any conflict in the conditions of
approval of any proposed Improvements imposed by the City and the
Architectural Review Committee, the more restrictive of such
conditions shall .be controlling. Further, nothing herein shall
limit the Architectural Review Committee from imposing conditions
of approval of any proposed Improvements which are more restrictive
than conditions as may be imposed by the City.
Section 11. No Waiver of Future Approvals. The approv-
al of the Architectural Review Committee to any submissions for any
work done, or proposed to be done, or in connection with any other
matter requiring the approval or consent of the Architectural
Review Committee, shall not be deemed to constitute a waiver of any
right to withhold approval or consent of any similar proposals,
plans and specifications, drawings or other matters subsequently or
additionally submitted for approval.
Section 12. Compensation of Members. The members of
the Architectural Review Committee shall receive no compensation
for services rendered, other than reimbursement by the Association
for expenses incurred in the performance of such members' duties
hereunder. The Association may compensate any duly licensed
18324.283-14780.FCM 091307 - 8 8
Architect who has been delegated rights and duties as provided in
this Article.
Section 13. Variances. Where circumstances such as to-
pography, location of buildings, location of landscaping or other
matters require, the Architectural Review Committee, by the vote or
written assent of a majority of the members thereof, may allow
reasonable variances as to any of the Protective Covenants con-
tained in this Declaration or provisions under the rules and
regulations promulgated by the Architectural Review Committee, on
such terms and conditions as it shall require. The granting of such
a variance shall not operate to waive any of the terms and
provisions of this Declaration for any purpose, except as to the
particular Lot and particular provision hereof covered by the
variance, nor shall it affect in any way the Owner's obligation to
comply with all governmental laws and regulations affecting the
Owner's use of his Lot, including, but not limited to, zoning
ordinances, Lot setback lines or requirements imposed by the City
or other governmental authority.
Section 14. Inspection of Work. Upon consent of the
Owner, which consent shall not be unreasonably withheld, any member
or authorized representative of the Architectural Review Committee
may, at any reasonable hour and upon reasonable notice, enter and
inspect any Lot which has been the subject matter of an approval of
a submission for an Improvement to his Lot. Such entry shall be
made with as little inconvenience to the Owner as reasonably
possible, and any damage caused thereby shall be repaired by the
Association. If the Architectural Review Committee finds that such
work was not done in substantial compliance with the approved plans
and specifications, it shall notify the Owner in writing of such
noncompliance, specifying the particulars of noncompliance and
shall require the Owner to remedy the same within thirty (30) days
from the date of notification of such noncompliance. If a noncom-
pliance exists, the Board, after Notice and Hearing, may levy a
Compliance Assessment against such Owner for the costs of removing
or remedying such noncompliance.
Section 15. Non -Liability of Architectural Review Com-
mittee Members. Neither Declarant, the Association, the Board or
the Architectural Review Committee, or the members or designated
representatives thereof, shall be liable for damages to any Owner
submitting plans or specifications to them for approval, or to any
Owner in the Project affected by this Declaration by reason of
mistake in judgment, negligence or nonfeasance, unless due to
willful misconduct or bad faith of the Architectural Review Com-
mittee. The Architectural Review Committee's approval or disap-
proval of a submission shall be based solely on the considerations
set forth in this Article, and in such rules and regulations as may
be promulgated by the Architectural Review Committee, and the
Architectural Review Committee shall not be responsible for
reviewing, nor shall its approval of any plan or design be deemed
18324.283-14780.FCM 091307 -89-
approval of, any plans or design from the standpoint of structural
safety and conformance with building or other codes.
Section 16. Appeal. In the event plans and specifica-
tions submitted to the Architectural Review Committee are disap-
proved, the party making such submission may appeal in writing to
the Board. The written request must be received by the Board not
more than thirty (30) days following the final decision of the
Architectural Review Committee. The Board shall submit such request
to the Architectural Review Committee for review, and the written
recommendations of the Architectural Review Committee will be
submitted to the Board. Within sixty (60) days following receipt of
the request for appeal, the Board shall consider the appeal at an
open meeting and render its written decision. The failure by the
Board to render a decision within said sixty (60) day period shall
be deemed a decision in favor of the party making such submission.
ARTICLE X
REPAIR AND MAINTENANCE
Section 1. Repair and Maintenance by Association.
Without limiting the generality of the provisions herein, including
the Article entitled "Powers and Duties of the Association," the
Association shall have the duty to maintain, in a neat, clean,
safe, sanitary, attractive and orderly condition at all times, the
Common Area designated by the Board, the Declarant in this Declara-
tion, or in any subsequent Notice(s) of Annexation, as generally
indicated hereinbelow:
(a) The Common Area (and all Improvements thereon)
to be maintained, irrigated, landscaped, repaired, improved,
restored and replaced in a neat, clean, safe, attractive and
orderly condition at all times shall include, but not be
limited to, the following:
(1) Landscaping, irrigating, and otherwise
maintaining the Common Area (including, without
limitation, the storm water retention basins) and those
portions of the Lots and parkways and medians along the
streets described and/or depicted on Exhibit "A" attached
hereto or a recorded Notice of Annexation, in a condition
comparable to the condition originally approved by the
City.
(2) Maintaining the private
house, tower, Project entry gates, and
systems within the Project in a condition
the condition originally approved by the
E
18324.283-14780.FCM 091307 - 9
guard
access control
comparable to
City;
• 1 0
(3) Maintaining those portions of the Associa-
tion Walls, if any, described and/or depicted in this
Declaration or in a recorded Notice of Annexation (e.g.,
see Exhibit "D" attached hereto), in a condition
comparable to the condition originally approved by the
City.
(4) Maintaining those portions of the private
street that provide access from Washington Street to both
the Project and the church property adjacent to the
Project and the wall located outside of the Project
described and/or depicted on Exhibit "A" attached hereto
and incorporated by this reference, in a condition
comparable to the condition originally approved by the
City.
(5) Maintaining all Project entry
monumentation and recreational facilities, in a condition
comparable to the condition originally approved by the
City.
(6) Maintaining all other areas, facilities,
equipment, services, aesthetic components or other
Improvements of whatever nature as may, from time to
time, be set forth in any Notice of Annexation, budget
approved by the DRE, or as approved by the Board or
Declarant.
(7) Performing all necessary tasks required to
conform with applicable City and/or State regulations and
the Entitlements from City.
(b) Maintain everything that the Association is
obligated to maintain in a clean, sanitary and attractive
condition reasonably consistent with the level of maintenance
reflected in the most current budget of the Association, and
in conformance with any Maintenance Guidelines. Unless
specifically provided in any Maintenance Guidelines, or as
required by the product manufacturers' maintenance
guidelines/recommendations, or as commonly accepted mainte-
nance practices may govern, the Board shall determine, in its
sole discretion, the level and frequency of maintenance of the
Common Area and Improvements thereon (each Owner shall
maintain everything that the Owner is obligated to maintain in
a clean, sanitary and attractive condition and in conformance
with any Maintenance Guidelines and Maintenance Recommenda-
tions and any product manufacturers' maintenance
guidelines/recommendations, as well as commonly accepted
maintenance practices);
(c) Maintain all other areas, facilities, furni-
ture, equipment, services or aesthetic components of whatso-
18324.283-14780.FCM 091307 - 9 1-
0 •
ever nature as may, from time to time, be requested by the
vote or written consent of three-fourths (3/4) of the voting
power of the Members or designated by the Board; and
(d) Except as otherwise herein specified as being
paid by individual Owners, the costs of maintenance, repair,
restoration and replacement as provided in this Article shall
be Common Expenses and shall be paid out of the general fund
of the Association.
Section 2. Maintenance Manual. The Declarant may
deliver to the Board a "Maintenance Manual" which sets forth the
Declarant's and its consultants' recommended frequency of inspec-
tions and maintenance of various components of the Common Area.
The Board shall, during its meetings, determine whether the
recommended inspections and maintenance activities have been
followed, and, if any such recommendations have not been followed,
what corrective steps, if any, need to be taken to assure proper
inspection and maintenance of the Common Area. The Board shall
keep a record of such determinations in the Board's minutes. The
Board shall, from time to time, make appropriate revisions to the
Maintenance Manual. The Board shall review the Maintenance Manual
for appropriate revisions at least on an annual basis after the
Board has prepared the annual pro forma budget and reserve study
required by the By -Laws.
In addition to the obligations set forth in the
Maintenance Manual, the Board may have the Common Area thoroughly
inspected at least once every three (3) years (i.e., which does not
include the standard inspections and clean out operations necessary
to ensure that all Common Area drainage devices are free of debris
and operating) to (a) determine whether the Common Area is being
maintained adequately in accordance with applicable standards of
maintenance, (b) identify the condition of the Common Area and any
Improvements thereon, including the existence of any hazards or
defects, and the need for performing additional maintenance,
refurbishment, replacement or repair, and (c) recommend preventa-
tive actions which may be taken to reduce potential maintenance
costs to be incurred in the future. The Board may employ such
experts and consultants as are necessary to perform such inspec-
tion. The Board may have a report of the results of the inspection
prepared. If determined appropriate by the Board, the report shall
be furnished to Owners within the time set forth for furnishing
Owners with the budget. The report should include at least the
following:
(a) A description of the condition of the Common
Area, including a list of items inspected and the status of
maintenance, repair and need for replacement of all such
items;
18324.283-14780.FCM 091307 -92-
(b) A description of all maintenance, repair and
replacement planned for the ensuing fiscal year and included
in the budget;
(c) If any maintenance, repair or replacement is to
be deferred, the reason for such deferral;
(d) A summary of all reports of inspections
performed by any expert or consultant employed by the Board to
perform inspections;
(e) A report of the status of compliance with the
maintenance, replacement and repair needs set forth in the
inspection report for preceding years; and
(f) Such other matters as the Board deems appropri-
ate.
ppropri-ate.
Section 3. Maintenance of Phases Subject to Construc-
tion Easement. Notwithstanding anything stated to the contrary in
this Declaration, the Association shall have no obligation to
maintain or repair any portion of a Phase until commencement of the
Association's Assessments against the Lots within such Phase.
Should any Improvements overlap between Phases, the Association
shall only be responsible to maintain that portion of such
Improvements which lie in the Phase(s) in which the Association's
maintenance obligations have commenced.
Section 4. Repair and Maintenance by Owner. Except
as the Association shall be obligated to maintain and repair as may
be provided in this Declaration (including, without limitation,
Section 1 above):
(a) Each Owner shall maintain his Lot and the
Residence located thereon, including, without limitation, all
walls (but excepting therefrom those portions of the walls
that are to be maintained by the Association, if any), roofs,
patios, patio covers, decks, deck covers, balconies, windows,
window frames, screens, locks and doors of his Residence,
landscaping and irrigation improvements (except any slope
areas and other landscape areas and/or walls that are to be
maintained by the Association), irrigation lines, sewer
laterals, and all other Improvements located on or servicing
such Owner's Lot in a neat, clean, safe and attractive
condition at all times, and make all repairs as they may be
required.
(b) Each Owner shall, within six (6) months after
he or she closes escrow for the sale of his/her Lot from
Declarant (i.e., the date of recordation of the grant deed
conveying the Lot from the Declarant to the Owner), install
the landscaping in the yard areas of Owner's Lot. Thereafter,
18324.283-14780.FCM 091307 -93-
each Owner shall maintain his or her Lot in a neat and attrac-
tive condition, including all necessary landscaping and gar-
dening, to properly maintain and periodically replace, when
necessary, the trees, plants, grass and other vegetation
originally placed on such Lot by Declarant, if any. The Board
may adopt Rules and Regulations proposed by the Architectural
Review Committee to regulate landscaping permitted within the
Project. In the event that any Owner shall fail to install and
maintain landscaping, including all slope areas within the
Lot, if any, in conformance with the Rules and Regulations, or
shall allow his landscaping to deteriorate to a dangerous,
unsafe, unsightly or unattractive condition, the Board, after
Notice and Hearing, may enter such Owner's property for the
purpose of remedying the condition, and such Owner shall
promptly reimburse the Association for the cost thereof. Such
cost may be levied by the Board as a Compliance Assessment.
No Owner may modify, change, tamper with, or alter in any
manner the Common Area without the prior written approval of
the Board, which approval may be withheld in the Board's sole
and absolute discretion.
Section 5. Maintenance of Public Utilities. Nothing
contained herein shall require or obligate the Association to
maintain, replace or restore the underground facilities or public
utilities which are located within easements in the Common Area
owned by such public utilities. However, the Association shall take
such steps as are necessary or convenient to ensure that such
facilities are properly maintained, replaced or restored by such
public utilities.
Section 6. Damage and Destruction Affecting a Resi-
dence - Duty to Rebuild. In the event any Residence is damaged or
destroyed by fire or other casualty, it shall be the duty of the
Owner of such Residence to repair or reconstruct said Residence in
a manner which will restore it to its condition and appearance
immediately prior in time to such damage or destruction, or as
otherwise approved by the Architectural Review Committee. The
Architectural Review Committee shall not approve such variance if
the finished Residence would be inharmonious or out of keeping with
the overall architectural theme of the Project, or with the
exterior design of any adjacent Residences. The affected Owner
shall be obligated to proceed, with all due diligence hereunder,
and shall be responsible for commencing reconstruction within three
(3) months after the damage occurs, and completing such reconstruc-
tion as soon as reasonably possible thereafter.
Section 7. Owners' Cooperation for Maintenance. The
Owners of Residences which are located on adjacent Lots shall
cooperate with each other as is reasonably necessary to enable each
Owner to properly maintain and repair his respective Residence
and/or to mitigate any damage to his Residence.
18324.283-14780.FCM 091307 -94-
ARTICLE XI
ENVIRONMENTAL AND OTHER DISCLOSURES
AND REQUIREMENTS
Section 1. Environmental Recruirements.
(a) Duties and Obligations of the Owners. To
reduce and/or eliminate negative effects on the environment
within the Project, all Owners and/or tenants, as applicable,
shall:
(1) Coordinate efforts to establish or work
with established disposal programs to remove and properly
dispose of toxic and hazardous waste products.
(2) Not discharge toxic chemicals or hydrocar-
bon compounds such as gasoline, motor oil, antifreeze,
solvents, paints, paint thinners, wood preservatives, and
other such fluids into any streets, public or private, or
into drainage, storm drain or storm water conveyance
systems. Use and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers and other such
chemical treatments shall meet Federal, State, and County
requirements as prescribed in their respective contain-
ers.
(3) Use Best Management Practices to eliminate
or reduce surface pollutants when planning any changes to
the landscaping and surface improvements to the Project.
(4) Comply with the drainage requirements of
all applicable National Pollution Discharge Elimination
System (NPDES) requirements.
(b) Duties and Obligations of the Association.
Notwithstanding anything to the contrary set forth herein, the
Association shall:
(1) Contract with a contractor to perform all
activities required to minimize the pollution of storm
drain water and to comply with all Best Management
Practices applicable to the Project, including, without
limitation, the following:
i) If applicable, maintain "NO
DUMPING" stenciling message on all catch basins and
storm drain inlet facilities within the Project;
ii)
systems on all
Common Area;
Provide efficient irrigation
landscaped areas located in the
18324.283-14780.FCM 091307 -95-
•
•
iii) Minimize irrigation runoff by
using controllers to provide several short watering
cycles;
iv) Immediately correct any irrigation
design or maintenance deficiencies which cause
excessive runoff;
V) Prohibit application of fertiliz-
ers within three (3) days prior to an anticipated
rain;
vi) Follow all fertilizer applications
with light irrigation to permit fertilizer to soak
into the landscaped area;
vii) Dispose of waste properly; and
viii) Otherwise comply and implement all
Best Management Practices set forth in the Water
Quality Management Plans applicable to the Project.
The Association and all Owners, as applicable, shall comply with
all NPDES requirements and Best Management Practices and enforce
all applicable structural, treatment control, and non-structural
Best Management Practices as outlined and defined in the specific
Water Quality Management Plans for the Project in order to prevent
the discharge of pollutants and contaminants into the public water
storm drain system.
ARTICLE XII
DAMAGE OR DESTRUCTION TO
THE COMMON AREA
Section 1. Restoration of Damaged Common Area. Except
as otherwise provided in Section 2 hereinbelow, damage to or de-
struction of all or any portion of the Common Area shall be handled
in the following manner:
(a) In the event of damage to or destruction of the
Common Area, and the insurance proceeds are sufficient to
effect total restoration, the Association shall, as promptly
as is practical, cause the Common Area to be repaired and
reconstructed in a good workmanlike manner to its condition
prior to such damage or destruction.
(b) If the insurance proceeds available are at
least ninety percent (900) of the estimated cost of total
repair and reconstruction to the Common Area, the Association
shall, as promptly as practical, cause such Common Area to be
18329.283-19780.FCM 091307 -96-
repaired and reconstructed in a good workmanlike manner to its
condition prior to the damage or destruction, and the differ-
ence between the insurance proceeds and the actual cost shall
be levied by the Association as a Special Assessment against
each of the Lots on an equal basis.
(c) If the insurance proceeds available are less
than ninety percent (90%) of the estimated cost of total
repair and reconstruction to the Common Area, the Owners
shall, by the written consent or vote of a majority of the
Owners, determine whether:
(1) To restore the Common Area as promptly as
practical to its condition prior to the damage or
destruction, and to raise the necessary funds over and
above the insurance proceeds available by levying Assess-
ments against each of the Lots on an equal basis; or
(2) To restore the Common Area in a way which
utilizes all available proceeds and an additional amount
not in excess of ten percent (10%) of the estimated cost
of total reconstruction and repair to the Common Area,
and which is assessable as provided above to all Lots,
but which is less expensive than restoring the Common
Area to its condition prior to the damage or destruction.
Section 2. Election by Owners Not to Restore Damaged
Common Area.
(a) Notwithstanding the provisions set forth in
Section 1 hereinabove, in the event sixty-seven percent (67%)
of the Owners, other than Declarant and sixty-seven percent
(67%) of the first Mortgagees (based upon one [1] vote for
each first Mortgage owned) have given their prior written
approval, the Owners may not elect to rebuild or restore the
Common Area and to disburse the available insurance proceeds
to the general fund of the Association.
(b) In the event the Owners shall have so voted not
to rebuild the Common Area, the Common Area shall be cleared
and landscaped and the cost thereof shall be paid for out of
the available insurance proceeds prior to their distribution
to the general fund of the Association.
Section 3. Retention of Excess Insurance Proceeds in
General Fund. In the event any excess insurance proceeds remain
after restoring the destroyed Common Area pursuant to this Article,
the Board shall retain such sums in the general fund of the
Association.
18329.283-19780.FCM 091307 -97-
ARTICLE XIII
CONDEMNATION
Section 1. Distribution of Awards - Common Area. A
condemnation award affecting all or any portion of the Common Area
shall be remitted to the general fund of the Association.
Section 2. Board of Directors as Attorney - in - Fact.
All Owners hereby appoint the Board as their special attorney-in-
fact to handle the negotiations, settlements and agreements per-
taining to any condemnation affecting only the Common Area.
ARTICLE XIV
COVENANT AGAINST PARTITION
Section 1. Covenant Against Partition. By acceptance
of a deed to a Lot, each Owner shall be deemed to covenant for
himself, and for his heirs, representatives, successors and
assigns, that he will not institute legal proceedings to effect
judicial partition of his interest in the Project, unless the
Project: (a) has been in existence in excess of fifty (50) years,
(b) is obsolete and uneconomical, and (c) the Owners of fifty
percent (50%) of the total of all Lots in the Project join in such
action for partition.
ARTICLE XV
INSURANCE
Section 1. Required Insurance Coverage. The Associa-
tion, acting by and through the Board, shall obtain for the Asso-
ciation and shall maintain and pay the premiums for the following
insurance coverage:
(a) Casualty and Fire Insurance. A policy or
policies of casualty and fire insurance with extended coverage
endorsement in an amount equal to one hundred percent (100%)
of the current replacement cost (without deduction for
depreciation or co-insurance) of the Common Area, together
with all Improvements located thereon. Said policies shall be
primary and shall be maintained for the benefit of the
Association and Owners. The coverage does not need to include
land, foundations, excavations or other items normally
excluded from such coverage. Such policy or policies must
contain, if required and if obtainable:
(1) An Agreed Amount and Inflation Guard
Endorsement;
18324.283-14780.FCM 091307 _98-
L1
E
(2) Construction Code Endorsements (such as
Demolition Cost Endorsement);
(3) A Contingent Liability from Operation of
Building Laws Endorsement; and
(4) An Increased Cost of Construction En-
dorsement, if there is a construction code provision
which would become operative and require changes to
undamaged portions of any Improvements or the Common
Area.
(b) General Liability Insurance. A policy or pol-
icies of full coverage general liability insurance (with
cross -liability endorsement, if obtainable) insuring the
Association, the Board, the Owners, the Declarant, and the
agents and employees of each of the foregoing against any
liability to the public or to any Owner, his family, invitees
and/or tenants, arising from or incident to the ownership,
occupation, use, maintenance and/or repair of the Common Area.
The limits of liability under this Section shall be set by the
Board and shall be reviewed at least annually by the Board and
increased or decreased at the discretion of the Board;
provided, however, if FHLMC and/or FNMA participate in the
financing of Lots in the Project, said limits shall not be
less than the minimum limits required under the then current
FHLMC and/or FNMA regulations.
(c) Fidelity Bonds. Officers' and Directors' errors
and omissions insurance, and fidelity bonds naming all persons
signing checks or otherwise possessing fiscal responsibilities
on behalf of the Association, including, but not limited to,
officers, Directors, trustees and employees of the Associa-
tion, and officers, employees and agents of any management
company employed by the Association who handle or are respon-
sible for the administration of Association funds. Such
coverage shall be in an amount deemed reasonably appropriate
by the Association, but shall not be less than the estimated
maximum funds, in the custody of the Association, or twenty-
five percent (250) of the estimated annual operating expenses
of the Project, plus reserves, whichever is greater. In addi-
tion, if the Association enters into an agreement for pro-
fessional management of the Project, the Association shall
require such company to submit evidence of its fidelity bond
coverage to the same extent as the Association's coverage. The
Association shall be named as an additional obligee in the
management agent's bond.
Section 2. Optional Insurance Coverage. The Associa-
tion, acting at its option and by and through the Board, may pur-
chase such additional coverage or other insurance as it may deem
necessary or appropriate, or otherwise financially beneficial for
18324.283-14780.FCM 091307 _99-
•
C1
the Owners, including, but not limited to, earthquake insurance,
flood insurance, Workers' Compensation Insurance and plate glass
insurance.
Section 3. Notice of Cancellation of Insurance. All
policies of insurance maintained by the Association pursuant to
this Article shall contain a provision that coverage under said
policies may not be canceled, terminated, allowed to expire by
their own terms, or be substantially modified by any party without
at least thirty (30) days' prior written notice to the Board, to
each Owner and to such first Mortgagees who have filed written
requests with the Association for such notice. A list of the Owners
and such first Mortgagees shall be made available by the As-
sociation to the insurance carrier upon request.
Section 4. Review of Coverage. The Board shall annu-
ally determine whether the amounts and types of insurance coverage
that it has obtained pursuant to this Article shall provide
adequate coverage for the Project, based upon the then current
construction costs, insurance practices in the area in which the
Project is located and all other factors which may indicate that
either additional insurance coverage or increased coverage under
the existing policies is necessary or desirable to protect the
interests of the Association, the Owners and their respective
Mortgagees. If the Board determines that increased coverage or
additional insurance is appropriate, it shall obtain same.
Section 5. Waiver by Owners. As to all policies of
insurance maintained by the Association which will not be voided or
impaired thereby, each Owner hereby waives and releases all claims
against the Association, the Board, the Declarant, and the agents
and employees of each of the foregoing, and all other Owners, with
respect to any loss covered by such insurance, whether or not
caused by the negligence of, or breach of, any agreement by said
persons, but only to the extent of the insurance proceeds received
in compensation for such loss.
Section 6. Premiums Proceeds and Settlement. Insur-
ance premiums for all blanket insurance coverage and any other
insurance coverage which the Board has determined is necessary to
protect the interests of the Association, the Owners and their
respective Mortgagees, shall be a Common Expense to be included in
the Regular Assessments levied by the Association. All insurance
proceeds paid to the Association shall be disbursed as follows: (a)
in the event of any damage or destruction to the Common Area, such
proceeds shall be disbursed in accordance with the provisions of
the Article herein entitled "Damage or Destruction to the Common
Area"; and (b) in the event of any other loss, the proceeds shall
be disbursed as the Board shall deem appropriate, subject to the
limitations set forth in the Article herein entitled "Mortgagee
Protection." The Association is hereby granted the authority to
negotiate loss settlements with the appropriate insurance carriers.
18329.283-19780.FCM 091307 _100-
Any two (2) Directors may sign a loss claim form and release form
in connection with the settlement of a loss claim, and such
signatures shall be binding on the Association and its Members.
Section 7. Rights and Duties of Owners to Insure.
Nothing herein shall preclude any Owner from carrying any casualty
and fire insurance for his Residence and all personal property
within his Residence, and/or public liability insurance as he may
deem desirable to cover his individual liability for damage to
person or property occurring inside his individual Lot or elsewhere
upon the Project. Each Owner hereby acknowledges and agrees that
the Association does not maintain any property or liability
insurance for an Owner's Lot. If obtainable, any liability
insurance coverage carried by an Owner shall contain a waiver of
subrogation of claims against the Declarant, the Association, the
Board, their agents and employees, and all other Owners. Such other
policies shall not adversely affect or diminish any liability under
insurance obtained by the Association. If any loss intended to be
covered by insurance carried by 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 same purposes as the
reduced proceeds are to be applied.
Section 8. Trustee for Policies. The Association is
hereby appointed and shall be deemed trustee for the interests of
all insureds under the policies of insurance maintained by the
Association. All insurance proceeds under such policies shall be
paid to the Board, as trustees, and the Board shall have full power
to receive such funds on behalf of the Association, the Owners and
their respective Mortgagees, and to deal therewith as provided for
in this Declaration.
Section 9. Mortgage Clause. All insurance policies
should have the "standard mortgage clause," or equivalent en-
dorsement, providing that coverage of a Mortgagee under the in-
surance policy will not be adversely affected or diminished by an
act or neglect of the Mortgagor, which is commonly accepted by
private institutional mortgage investors in the area in which the
Project is located, unless such coverage is prohibited by ap-
plicable law. Mortgages owned by FNMA must name as a Mortgagee
either FNMA or the servicers for the Mortgages held by FNMA en-
cumbering the Residences. When a servicer is named as the Mort-
gagee, its name should be followed by the phrase "its successors
and assigns." If the Mortgage is owned in whole by FHLMC, the name
of the servicer of the Mortgage followed by the phrase "its
successors and assigns, beneficiary" should be named as Mortgagee
instead of FHLMC. The mortgage clause should be endorsed to fully
protect FHLMC's interests or the interest of FHLMC and the servicer
where applicable. If FHLMC must be named as Mortgagee, the
endorsement should show the servicer's address in lieu of FHLMC's
18324.283-14780.FCM 091307 - 101 -
•
•
address. A mortgage clause in favor of Mortgagees holding Mort-
gages on Residences is not required on a policy insuring the Common
Area.
Section 10. Compliance With Requirements of FHLMC and
FNMA. Notwithstanding the provisions of this Article, the Associa-
tion shall obtain and maintain in effect such policies of insurance
meeting all requirements of FHLMC and FNMA established by those
entities for planned development projects for so long as any of
such agencies continue to be a Mortgagee, Owner, insurer or
guarantor of a Mortgage in the Project, except to the extent such
coverage is not available or has been waived, in writing, by such
agencies.
Section 11. Required Waiver. All policies of hazard
and physical damage insurance may provide, only if available at a
reasonable cost to the Association as determined by the Board, in
its sole discretion, for waiver of the following rights, to the
extent that the respective insurers would have the rights without
such waivers:
(a) Any defense based on co-insurance;
(b) Any right of set-off, counterclaim, apportion-
ment, proration or contribution by reason of other insurance
not carried by the Association;
(c) Any invalidity, other adverse effect or defense
on account of any 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;
(d) If applicable, any right of the insurer to
repair, rebuild or replace, and, in the event the Residence is
not repaired, rebuilt or replaced following loss, any right to
pay under the insurance an amount less than the replacement
value of the improvements insured or the fair market value
thereof;
(e) If applicable, notice of the assignment of any
Owner of its interest in the insurance by virtue of a convey-
ance of any Lot; and
(f) Any right to require any assignment of any
Mortgage to the insurer.
Section 12. Annual Notification of Insurance. The
Association shall, upon issuance or renewal of insurance, but not
less than annually, notify its Members as to the amount and type of
insurance carried by the Association, and it shall accompany this
18324.283-14780.FCM 091307 -102-
notification with statements to the effect that the Association is
or is not insured to the levels specified by this Article, and that
if not so insured, Owners may be individually liable for the entire
amount of a judgment, and if the Association is insured to the
levels specified in Section 1 above, then Owners may be individual-
ly liable only for their proportional share of Assessments levied
to pay the amount of any judgment which exceeds the limits of the
Association's insurance. The Association shall further prepare and
distribute to all its Members a summary of the Association's
insurance coverage pursuant to Section 1365 of the California Civil
Code, as same may be amended from time to time.
ARTICLE XVI
MORTGAGEE PROTECTION
Section 1. Mortgagee Protection Provisions. Notwith-
standing any other provisions in this Declaration to the contrary,
in order to induce FHLMC and FNMA, and other lenders and investors,
to participate in the financing of the sale of Lots in the Project,
the following provisions contained within this Article are added
hereto, and to the extent these added provisions conflict with any
other provisions in this Declaration, these added provisions shall
control. This Declaration, the Articles and the By -Laws for the
Association are hereinafter collectively referred to in this
Article as the "constituent documents."
(a) The right of an Owner to sell, transfer or
otherwise convey his or her Lot shall not be subject to any
right of first refusal or any similar restriction in favor of
the Association;
(b) The lien of the Assessments provided for herein
shall be subordinate to the lien of any first Mortgage now or
hereafter recorded upon any Lot. The sale or transfer of any
Lot shall not affect the Assessment lien; however, the sale or
transfer of any Lot pursuant to judicial or nonjudicial
foreclosure of a first Mortgage or pursuant to any remedies
provided for in the Mortgage shall extinguish the lien of such
Assessments as to payments which became due prior thereto. No
sale or transfer shall relieve such Lot from liability for
Assessments due thereafter. Any first Mortgagee who obtains
title to a Lot pursuant to the remedies provided in the
Mortgage, or foreclosure of the Mortgage, or any purchaser at
a foreclosure sale of a first Mortgage will not be liable for
unpaid Assessments or charges which accrue prior to the ac-
quisition of title to such Lot by the Mortgagee (except for
claims for a share of such Assessments or charges resulting
from a reallocation of such Assessments or charges to all
Lots, including the mortgaged Lot);
18324.283-14780.FCM 091307 -103-
C�
C�
(c) Except as provided by statute in case of con-
demnation or substantial loss to the Lots and/or Common Area,
unless sixty-seven percent (670) of the Owners, other than
Declarant, or sixty-seven percent (67%) of the first Mortgag-
ees (based upon one [1] vote for each Lot encumbered by said
Mortgagee's first Mortgage) have given their prior written
approval, neither the Association nor the Owners shall be
entitled to:
(1) Change the method of determining the
obligations, Assessments, dues or other charges which may
be levied against an Owner's Lot;
(2) By act or omission seek to abandon, parti-
tion, subdivide, encumber, sell or transfer all or any
portion of the Common Area. The granting of easements for
public utilities or for other purposes consistent with
the intended uses of the Common Area or the residential
nature of the Project, shall not be deemed a transfer
within the meaning of this clause;
(3) Use hazard insurance proceeds for losses
to the Common Area for other than repair, replacement or
reconstruction;
(4) Effect any decision of the Association to
terminate professional management and assume self-
management of the Project, where such professional man-
agement was previously a requirement by a holder, insurer
or guarantor of any first Mortgage;
(5) By act or omission, change, waive or
abandon any provisions of this Declaration, or enforce-
ment thereof, pertaining to architectural design of the
Residences situated on a Lot or the maintenance and
operation of the Common Area within the Project, in-
cluding, without limitation, walls and landscaping within
the Project;
(6) Fail to maintain fire and extended cov-
erage on the insurable Common Area on a current re-
placement cost basis in an amount not less than one
hundred percent (100%) of the insurable value thereof;
and
(7) Abandon or terminate the Association,
except for abandonment, partition or termination as may
be provided by law.
(d) All taxes, Assessments and charges which may
become liens prior to the first Mortgage under local law shall
18324.283-14780.FCM 091307 - 104 -
relate only to individual Lots, and not to the Project as a
whole;
(e) No provision of the constituent documents shall
be interpreted to give any Owner or any other party priority
over any rights of the first Mortgagee in the case of a
distribution to such Owner of insurance proceeds or condemna-
tion awards for losses to or a taking of all or any portion of
the Common Area or such Owner's Lot;
(f) The Assessments provided for in the constituent
documents shall include an adequate reserve fund for mainte-
nance, repairs and replacement of those elements of the Common
Area that must be replaced on a periodic basis, and shall be
payable in regular installments, rather than by Special
Assessments;
(g) Each holder, insurer or guarantor of a first
Mortgage who has filed with the Association a written request
for notice shall be entitled to timely written notice of:
(1) Any condemnation or eminent domain pro-
ceeding, and any loss or taking resulting from such
proceeding which affects the Project, or any portion
thereof;
(2) Any substantial damage or destruction to
the Project, or any portion thereof, when such loss
exceeds Ten Thousand Dollars ($10,000.00);
(3) Any default in the performance by an indi-
vidual Owner of any obligation under the constituent
documents which is not cured within sixty (60) days after
the Association learns of such default, which notice
shall state the length of time which such Owner has been
delinquent;
(4) Any lapse, cancellation or material
modification of any insurance policy or fidelity bond
maintained by the Association;
(5) Any abandonment or termination of the
Project; and
(6) Any proposed action that requires the
consent of a specified percentage of eligible Mortgagees.
(h) Any agreement for professional management of
the Project, or any contract providing for services of the
Declarant may not exceed one (1) year, renewable by agreement
of the parties for successive one (1) year periods. Any such
agreement must provide for termination by either party with or
18324.283-14780.FCM 091307 -105-
• 0
without cause and without payment of a termination fee on at
least thirty (30) days' written notice, but not more than
ninety (90) days;
(i) First Mortgagees of Lots may, jointly or
singly, pay taxes or other charges which are in default and
which may have become a lien on the Common Area, and may pay
overdue premiums on hazard insurance policies or secure new
hazard insurance coverage on the lapse of a policy for the
Common Area, and first Mortgagees making such payments shall
be owed immediate reimbursement therefor from the Association.
Upon demand by any first Mortgagee, the Board shall execute,
on behalf of the Association, an agreement establishing the
right of all first Mortgagees to such reimbursement;
(j) A first Mortgagee of a Lot in the Project will,
upon request, be entitled to:
(1) Examine the books and records of the
Association during normal business hours;
(2) An audited financial statement from the
Association for the previous fiscal year (without expense
to the holder, insurer or guarantor requesting said
statement), however, if an audited financial statement is
not available and until such time as the Project contains
fifty (50) Lots, any Mortgage holder may be allowed to
have an audited financial statement prepared, at its own
expense; and
(3) Receive written notice of all meetings of
the Association and be permitted to designate a rep-
resentative to attend all such meetings.
(k) Each Owner shall notify the Association in
writing within ten (10) days after the close of escrow for the
purchase of his Lot of the name and address of his first
Mortgagee, and thereafter, each Owner shall promptly notify
the Association of any changes of name or address for his
first Mortgagee;
(1) If any Lot (or portion thereof) or the Common
Area (or portion thereof) is made the subject matter of any
condemnation or eminent domain proceeding, or is otherwise
sought to be acquired by a condemning authority, then the
institutional holder of any first Mortgage on such Lot will be
entitled to timely written notice of any such proceeding or
proposed acquisition; and
(m) Subject to the provisions set forth herein, in
the event any portion of the Common Area encroaches upon any
Lot or any Lot encroaches upon the Common Area as a result of
18329.283-19780.FCM 091307 -106-
the construction, reconstruction or repair by Declarant or
shifting, settlement or movement of any portion of the
Project, a valid easement for the encroachment and for the
maintenance of the same shall exist so long as the encroach-
ment exists.
Section 2. Violation of Mortgagee Protection Provi-
sions. No breach of any of the foregoing Protective Covenants shall
cause any forfeiture of title or reversion or bestow any right of
re-entry whatsoever, but in the event that any one or more of these
Protective Covenants shall be violated, the Declarant, its
successors and assigns, the Association, or any Owner in the
Project may commence a legal action in any court of competent
jurisdiction to enjoin or abate said violation and/or to recover
damages; provided, however, that any such violation shall not
defeat or render invalid the lien of any Mortgage or deed of trust
made in good faith and for value. Said Protective Covenants shall
be binding upon and effective against any Owner whose title is
acquired by foreclosure, trustee sale or otherwise.
Section 3. Amendments to Conform With Mortgagee Re-
cruirements . It is the intent of Declarant that this Declaration and
the Articles and By -Laws of the Association, and the Project in
general, meet all requirements necessary to purchase, guarantee,
insure or subsidize any Mortgage of a Lot in the Project by the
FHLMC and the FNMA. In furtherance of said intent, Declarant may
amend this Declaration without the consent of the Members at any
time after the close of escrow for the first sale of a Lot in the
Project by recording a written instrument setting forth the
amendment, provided that the amendment is necessary to cause this
Declaration to comply with the requirements of the DRE, FHLMC,
FNMA, and/or GNMA; provided, however, that any such amendment shall
be effective only if Declarant mails a copy of the amendment to all
of the foregoing entities which are, or have agreed to be, a
holder, insurer or guarantor of a first Mortgage, by certified or
registered mail, with a "return receipt" requested, and does not,
within sixty (60) days thereafter, receive a notice of disapproval
from any such entity. Said amendments shall not be recorded by
Declarant until after the expiration of such sixty (60) day period.
ARTICLE XVII
ENFORCEMENT OF BONDED OBLIGATIONS
Section 1. Enforcement of Bonded Obligations. In the
event that the Improvements of the Common Area in any Phase have
not been completed prior to the first close of escrow for a Lot
following the issuance of a Final Subdivision Public Report by the
DRE for such Phase, and the Association is obligee under a bond or
other arrangement (hereinafter referred to as the "Bond") to secure
18324.283-14780.FCM 091307 -107-
•
•
a performance of the commitment of Declarant to complete such im-
provements, the following provisions shall be applicable:
(a) The Board shall consider and vote on the
question of action by the Association to enforce the obliga-
tions under the Bond with respect to any improvements for
which a Notice of Completion has not been filed within sixty
(60) days after the completion date specified for such im-
provements in the Planned Construction Statement appended to
the Bond. If the Association has given an extension in writing
for the completion of any Common Area improvement, the Board
shall consider and vote on the aforesaid question if a Notice
of Completion has not been filed within thirty (30) days after
the expiration of such extension.
(b) In the event that the Board determines not to
initiate action to enforce the obligations under the Bond, or
in the event the Board fails to consider and vote on such
question as provided above, the Board shall call a special
meeting of the Members for the purpose of voting to override
such decision or such failure to act by the Board. Such
meeting shall be called according to the provisions of the By -
Laws dealing with meetings of the Members, but in any event,
such meeting shall be held not less than thirty-five (35) days
nor more than forty-five (45) days after receipt by the Board
of a petition for such meeting signed by Members representing
five percent (5%) of the total voting power of the Associa-
tion.
(c) The only Members entitled to vote at such
meeting of Members shall be the Owners, other than Declarant.
A vote at such meeting of a majority of the voting power of
such Members, other than the Declarant, to take action to
enforce the obligations under the Bond shall be deemed to be
the decision of the Association, and the Board shall thereaf-
ter implement such decision by initiating and pursuing
appropriate action in the name of the Association.
ARTICLE XVIII
ANNEXATION OF ADDITIONAL PROPERTY
Additional property may be annexed to and become subject
to this Declaration as set forth in this Article.
Section 1. Development of the Proiect. The Declarant
intends to sequentially develop the Annexation Property on a phased
basis; however, Declarant may elect not to develop all or any
portions of said Annexation Property, may annex such portions of
the Annexation Property in Phases of any size, and may develop
18324.283-14780.FCM 091307 -108-
•
Phases in any order and at
provisions of this Article.
•
any given time, subject to the
Section 2. Annexation Pursuant to Approval. Except as
otherwise allowed pursuant to Section 3 hereinbelow, upon obtaining
the approval in writing of the Association pursuant to the vote or
written assent of sixty-seven percent (67a) of the total voting
power of Association Members, the owner of any property who desires
to annex said property to the scheme of this Declaration and to
subject it to the jurisdiction of the Association may file of
record a Notice of Annexation, as described in Section 4 of this
Article.
Section 3. Annexation Pursuant to General Plan of
Development. Declarant shall have the right, subject to the
provisions of this Article, to annex into the Project all or any
portions of the Annexation Property, thereby making such Annexation
Property subject to this Declaration and to the jurisdiction of the
Association, without the vote or written assent of the Association
or its Members, provided and on condition that:
(a) Any annexation pursuant to this Section shall
be allowed when the proposed annexation is approved by the
Declarant and in substantial conformance with the overall
general plan of phased development for the Project originally
submitted to and approved by the DRE with the Phase 1 Final
Subdivision Public Report application (e.g., the Annexation
Property as depicted and/or described on Exhibit "C"), or as
subsequently approved by the DRE; and
(b) A Notice of Annexation, as described in Section
4 of this Article, shall be recorded covering the designated
portions of the Annexation Property.
Section 4. Notice of Annexation. The annexation of
additional property authorized under this Article shall be made in
filing of record a Notice of Annexation, or similar instrument,
covering said additional property, and the Notice of Annexation
shall expressly provide that the scheme of this Declaration shall
extend to such additional property. The Notice of Annexation may
contain such complementary additions to and modifications of the
Protective Covenants set forth in this Declaration which are neces-
sary to reflect the different character, if any, of the annexed
property, including, but not limited to, marketing and selling
vacant Lots, the architectural guidelines for any construction
thereon, maintenance responsibilities between the Association and
the Owners in this annexed property and payment of Assessments
which are fair, reasonable, and appropriate, and are not inconsis-
tent with the general scheme of this Declaration. Except as set
forth in this Section, no Notice of Annexation shall delete,
revoke, modify or otherwise alter the Protective Covenants set
forth in this Declaration. A Notice of Annexation may annex solely
18324.283-14780.FCM 091307 _109-
•
•
Common Area so long as such annexation would not violate the
provisions in this Declaration regarding increases in Regular
Assessments and is approved by the DRE.
Section 5. Effective Date of Annexation. Any Notice
of Annexation recorded on a subsequent Phase of the Project shall
become effective immediately upon the first close of an escrow for
the sale of a Lot in said Phase, as evidenced by the recordation of
the first instrument of conveyance for said Lot, or, in the event
that only Common Area is being annexed, upon the recordation of the
deed conveying the Common Area to the Association.
Section 6. Amendments to Notice of Annexation. Not-
withstanding any other provisions in this Declaration to the con-
trary, a Notice of Annexation may be amended by the requisite
affirmative vote of the Owners for such Phase upon the vote or
written consent of a majority of a quorum of the Members (and first
Mortgagees, if applicable), as set forth in the Article herein
entitled "General Provisions," in only the annexed property
described in said Notice of Annexation, rather than by the Owners
casting affirmative votes or giving written consent on behalf of a
majority of all Members of the Association (and first Mortgagees,
if applicable) in the Project, on the following conditions:
(a) Such amendment applies only to the annexed
property described in said Notice of Annexation; and
(b) Such amendment shall in no way contradict,
revoke or otherwise alter any of the Protective Covenants set
forth in this Declaration.
Section 7. Right of De -Annexation. Declarant hereby
reserves the right, following receipt of written approval from the
City, to delete all or any portions of the Annexation Property
which may be annexed to the Project pursuant to this Declaration,
and to delete said property from the scheme of this Declaration and
from the jurisdiction of the Association, provided and on condition
that (i) the de -annexation shall be made prior to the first close
of an escrow for the sale of a Residence in the property to be de -
annexed, (2) the de -annexation is recorded in the same manner as
the applicable Notice of Annexation, (3) the Declarant has not
exercised any vote with respect to any Residence in such property,
and (4) no Assessments have commenced on any portion of the
property subject to the de -annexation.
Section 8. Parties to Notice of Annexation. For so
long as Declarant has the right to annex all or any portion of the
Annexation Property into the Project, each Notice of Annexation
covering property owned by Declarant shall be executed only by
Declarant. Declarant's execution of any Notice of Annexation shall
evidence Declarant's consent thereto.
18329.283-19780.FCM 091307 - 110 -
0 •
ARTICLE XIX
GENERAL PROVISIONS
Section 1. Enforcement.
(a) The City, Association and/or the Owner of any
Lot in the Project, including the Declarant, shall have the
right, but not the obligation, to enforce, by proceedings at
law or in equity, any or all of the covenants imposed by this
Declaration, including, without limitation, the right to
prosecute a proceeding, at law or in equity, against the
person or persons who have violated, or are attempting to
violate, any of said covenants, to enjoin or prevent them from
doing so, to cause said violation to be remedied and/or to
recover damages for said violation; provided, however, that
with respect to Assessment liens, the Association shall have
the exclusive right to the enforcement thereof.
(b) The result of every act or omission whereby any
of the covenants contained in this Declaration are violated,
in whole or in part, is hereby declared to be and constitutes
a nuisance, and every remedy allowed by law or equity against
a nuisance, either public or private, shall be applicable
against every such result and may be exercised by the City,
Association or by any Owner, including the Declarant or its
successors in interest.
(c) The remedies herein provided for breach of the
covenants contained in this Declaration shall be deemed
cumulative, and none of such remedies shall be deemed exclu-
sive.
(d) The failure of the City, the Association or any
Owner, including the Declarant, to enforce any of the
covenants contained in this Declaration shall not constitute
a waiver of the right to enforce the same thereafter.
(e) Prior to filing a civil action by either the
Association or by an Owner solely for declaratory relief or
injunctive relief, or for declaratory relief or injunctive
relief in conjunction with a claim for monetary damages other
than Association Assessments, related to the enforcement of
the Association governing documents, the parties may be
required to comply with the provisions set forth herein and
Civil Code Section 1369.510, et sec., if applicable. Failure
to comply with the prefiling requirements of Section 1369.510,
et sect., of the Civil Code may result in the loss of the right
to sue regarding enforcement of the Association's governing
documents.
18324.283-14780.FCM 091307 - 111 -
• 0
(f) A breach of the covenants contained in this
Declaration shall not affect or impair the lien or charge of
any bona fide mortgage or deed of trust made in good faith and
for value on any Lot; provided, however, that any subsequent
Owner of such Lot shall be bound by said covenants, whether or
not such Owner's title was acquired by foreclosure, a trus-
tee's sale or otherwise.
(g) Each Owner agrees, by the acceptance of his
deed, that recovery of damages at law for any breach of the
provisions of this Declaration would not be an adequate
remedy. In order to encourage compliance, deter noncompliance,
and enable the effective enforcement of this Declaration, the
Declarant, so long as Declarant owns any Lot within the
Project, and/or the Association is authorized to establish and
collect fines and penalties, in addition to any fines and
penalties which may be imposed by the City pursuant to the
appropriate authority of applicable municipal codes, for the
breach of any provision of this Declaration which is not cured
or which reoccurs after the violating Owner has received
written notification of said violation. The fines and penal-
ties shall be determined by taking into account the: (1)
violation, (2) desirability of deterring future violations,
(3) the expense related to alternative legal action, and (4)
all other reasonable related factors.
(h) The Board, for and on behalf of the Associa-
tion, may assess monetary penalties against an Owner as a
Compliance Assessment and/or temporarily suspend said Owner's
voting rights for the period during which any Assessment
against said Owner's Lot remains unpaid; provided, however,
the requirements for Notice and Hearing set forth in the By -
Laws shall be followed with respect to the accused Owner
before a decision to impose discipline is reached.
(i) The Board, for and on behalf of the Associa-
tion, may, after Notice and Hearing, temporarily suspend an
Owner's voting rights for a period not to exceed thirty (30)
days for any infraction of the Association's published Rules
and Regulations; provided, however, the requirements for
Notice and Hearing set forth in the By -Laws shall be followed
with respect to the accused Owner before a decision to impose
discipline is reached.
(j) Additional City Rights. In addition to the
above general rights of enforcement, the City and any other
governmental entity with appropriate jurisdiction shall have
the right, through its agents and employees, to enter upon any
part of the Project for the purpose of enforcing all applica-
ble codes and/or local ordinances, including, but not limited
to, the California Vehicle Code, and is hereby granted an
18324.283-14780.FCM 091307 -112-
0 0
easement over the Project for such purpose. The rights of City
to compel performance shall include the following:
(1) Failure of Association to Maintain Common
Area. In the event that the Association fails to
maintain the Common Area as required in this Declaration,
the City shall have the right, but not the duty, to
perform the necessary maintenance. If the City elects to
perform such maintenance, the City shall give written
notice to the Association, with a copy thereof to the
Owners in the Project, setting forth with particularity
the maintenance which the City finds to be required and
requesting the same be carried out by the Association
within a period of thirty (30) days from the giving of
such notice. In the event that the Association fails to
carry out such maintenance of the Common Area with 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.
(2) Special Assessments Levied by the City.
In the event the City has performed the necessary
maintenance to the Common Area, the City shall submit a
written invoice to the Association for all costs incurred
by the City to perform such maintenance of the Common
Area. 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 collec-
tion against the Owners in the Project pursuant to the
provisions of this Section. Said invoice shall be due
and payable by the Association within twenty (20) days of
receipt by the Association.
Section 2. Severability. Invalidation of any one of
these Protective Covenants by judgment or court order shall in no
way affect any other provisions hereof, which shall remain in full
force and effect.
Section 3. Term. The Protective Covenants set forth
in this Declaration shall run with and bind the Project, and shall
inure to the benefit of the Association and be enforceable by the
Board or the Owner of any land subject to this Declaration, their
respective legal representatives, heirs, successors and assigns,
for a term of sixty (60) years from the date this Declaration is
recorded, after which time said Protective Covenants shall be
automatically extended for successive periods of ten (10) years,
unless an instrument, signed by a majority of the then Owners
agreeing to terminate said Protective Covenants, in whole or in
part, has been recorded within one (1) year prior to the termina-
18324.283-14780.FCM 091307 -113-
• 0
tion of the initial sixty (60) year term, or within one (1) year
prior to the termination of any successive ten (10) year period.
Section 4. Construction. The provisions of this Dec-
laration shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development and maintenance of the
Project. The Article and Section headings have been inserted for
convenience only and shall not be considered or referred to in
resolving questions of interpretation or construction.
Section 5. Singular Includes Plural. Whenever the
context of this Declaration may so require, the singular shall in-
clude the plural, and the masculine shall include the feminine and
neuter.
Section 6. Covenants Running With the Land. Each of
the Protective Covenants provided for in this Declaration shall be
deemed to be established upon the recordation of this Declaration,
and shall henceforth be deemed to be covenants running with the
land for the use and benefit of the Lots, and superior to all other
encumbrances applied against or in favor of any portion of the
Project which are the subject of this Declaration. In furtherance
of the easements provided for in this Declaration, the individual
grant deeds to the Lots shall set forth said easements; provided
however, in the event such deed does not set forth said easements,
such will not impact the effectiveness thereof to convey said
easements.
Section 7. Amendments.
(a) Amendments by Declarant. Prior to the close of
escrow for the sale of a Lot to a member of the public, in
accordance with a Final Subdivision Public Report issued by
the DRE, this Declaration may be amended, restated or ter-
minated by an instrument executed by Declarant. Notwithstand-
ing any other provisions of this Declaration, for so long as
Declarant owns any portion of Tract No. 35060 and/or the
Annexation Property, Declarant may unilaterally amend this
Declaration to (i) conform this Declaration to the require-
ments of VA, DRE, FNMA, FHLMC, GNMA, the County, City or any
other governmental agency or entity then in effect; (ii)
correct typographical or inadvertent errors in the Declaration
and/or Exhibits attached thereto; (iii) supplement provisions
which pertain to rights or obligations of Declarant, the
Association or Owners arising under Division 2, Part 2, Title
7 (commencing with Section 895) of the California Civil Code;
and/or (iv) record maintenance recommendations/schedules for
any Improvements on the Lots and/or Common Area.
(b) Amendments by Association. Except as otherwise
provided herein and all applicable provisions of law (e.g.,
the provisions of California Civil Code Section 1363.03
18329.283-19780.FCM 091307 - 114 -
regarding secret ballots), this Declaration may be amended
only by an affirmative vote of Owners representing not less
than sixty-seven percent (67%) of the Class A voting power and
the Class B voting power of the Association. At such time when
the Class B membership shall cease and be converted to Class
A membership, any and all amendments to this Declaration shall
be enacted by requiring the vote or written assent of Owners
representing both: (a) sixty-seven percent (67%) of the total
voting power of the Association, and (b) sixty-seven percent
(67%) of the votes of Members, other than the Declarant;
provided, however, that the percentage of the voting power
necessary to amend a specific provision shall not be less than
the percentage of affirmative votes prescribed for action to
be taken under said provision, and no amendment of a provision
of this Declaration which affects the rights, interests, or
obligations of Declarant or requires the approval or consent
of Declarant be made without the written approval of Declarant
(e.g., reservation of easements and construction rights,
Declarant' s voting rights and powers to appoint members of the
Board and Architectural Review Committee, provisions
pertaining to the resolution of Disputes, Maintenance
Guidelines, Maintenance Manual, Maintenance Recommendations,
etc.). Any Owner or the Association may petition the Superior
Court of the County for an order reducing the necessary
percentage required under this Section to amend this
Declaration; provided, however, that under no circumstance
shall any provision requiring the consent of the Declarant be
amended without such consent. The procedure for effecting
this petition is set forth in Section 1356 of the California
Civil Code, as the same may be amended, from time to time.
(c) Approval of Mortgagees. In addition to the
rights of first Mortgagees, as set forth in the Article herein
entitled "Mortgagee Protection," in the event that FNMA
participates in the financing of Lots in the Project, the
written consent of not less than fifty-one percent (51%) of
the first Mortgagees shall be required for any amendment of a
"material" nature. An amendment which affects or purports to
affect any of the following is considered material:
(1) The legal status of the Project as a
planned development;
(2) Voting rights;
(3) Increases in Assessments that raise the
previously assessed amount by more than twenty-five
percent (25%), assessment liens or the priority of
assessment liens, including the levy and collection
thereof, enforcement provisions for nonpayment and
subordination of liens for nonpayment;
18324.283-14780.FCM 091307 - 115 -
(4) Reduction in reserves for maintenance,
repair and replacement of Common Area;
(5) Responsibility for Common Area maintenance
and repair;
(6) Reallocation of interests in the Common
Area or rights to use the Common Area;
(7) Boundaries of any Lot;
(8) Convertibility of Common Area into Lots or
Lots into Common Area;
(9) Expansion or contraction of the Project,
or addition, annexation or de -annexation of additional
property to or from the Project;
(10) Insurance or fidelity bonds requirements;
(11) Restrictions on the leasing of Lots;
(12) Restrictions on alienation, including, but
not limited to, rights of first refusal;
(13) Any decision by the Association to es-
tablish self-management, if professional management was
previously required by an eligible first Mortgagee or
legal documents governing the Project;
(14) Restoration or repair of the Project in a
manner other than as specified in this Declaration;
(15) Any action to terminate the legal status
of the Project after substantial destruction or condem-
nation occurs; and
(16) Mortgagee protection provisions as set
forth in that Article hereinabove entitled "Mortgagee
Protection," and such other provisions in this Declara-
tion for which the consent of Mortgagees shall be re-
quired or which are expressly for the benefit of Mort-
gagees, insurers or guarantors of Mortgages.
An addition or amendment to this Declaration shall not be
considered material if it is for the purpose of correcting
technical errors or for clarification only. In the event the
Association is considering termination of the legal status of
the Project for reasons other than the substantial destruction
or condemnation of the Project, then sixty-seven percent (670)
of the first Mortgagees must agree to said termination.
Notwithstanding the foregoing, in the event any first Mort-
18324.283-14780.FCM 091307 -116-
•
•
gagee receives a written request, delivered by certified or
registered mail with return receipt requested, from the Board
to approve any amendment to this Declaration, and such first
Mortgagee does not deliver a negative response in writing to
the Board within sixty (60) days of the mailing of such
request by the Board, such first Mortgagee shall be deemed to
have approved such proposed amendment.
(d) Recordation of Amendments. An amendment made in
accordance with the provisions set forth hereinabove, except any
amendment pursuant to paragraph (a), shall be effective when
executed by the President and Secretary of the Association, who
shall certify that the amendment has been approved by the member-
ship and, where appropriate, by the first Mortgages, in the
percentages set forth hereinabove, and recorded in the Office of
the County Recorder. Upon such recordation, the amendment shall be
effective and binding upon all Owners and all Mortgagees, regard-
less of whether such Owner or such Mortgagee consented to such
amendment.
Section 8. Encroachments. None of the rights and ob-
ligations of the Owners created herein or by the deed shall be al-
tered in any way by encroachments due to settlement or shifting of
structures or any other cause. There shall be valid easements for
the maintenance of said encroachments so long as they shall exist;
provided, however, that in no event shall a valid easement for
encroachment be created in favor of an Owner if said encroachment
occurred due to the willful conduct of said Owner.
Section 9. Notices. Any notice permitted or required
to be delivered as provided herein shall be in writing and may be
delivered either personally or by mail. If delivery is made by
first-class, registered or certified mail, it shall be deemed to
have been delivered forty-eight (48) hours after a copy of the same
has been deposited in the United States mail, postage prepaid, ad-
dressed to any person at the address given by such person to the
Association for the purpose of service of such notice, or to the
Lot of such person if no address has been given to the Association.
If such notice is not sent by first-class, registered or certified
mail, it shall be deemed to have been delivered when received. Such
address may be changed, from time to time, by notice in writing to
the Association.
Section 10. Attorneys' Fees. Except as otherwise
provided herein (e.g., resolution of Disputes whereby each party is
responsible for payment of his attorney fees, without the right to
reimbursement from the other party and notwithstanding which party
may be the "prevailing party"), or in the Express Limited Warranty,
applicable to claims covered thereby, in the event the Board,
Association, or any Owner of a Lot shall commence legal proceedings
against the Owner of any other Lot to enforce the covenants of this
Declaration, or to declare rights hereunder as the result of any
18324.283-14780.FCM 091307 -117-
•
breach, or claim of breach, of said covenants, the prevailing party
shall recover the cost of the suit, arbitration, or alternative
dispute resolution, in addition to its costs of suit, including
reasonable attorneys' fees, as may be fixed by the court. In
addition, if any Owner defaults in making a payment of Assessments
or in the performance or observance of any provision of this
Declaration, and the Association and/or an Owner has obtained the
services of an attorney in connection therewith, the Owner
covenants and agrees to pay any costs or fees incurred, including
reasonable attorneys' fees, regardless of whether dispute
proceedings are instituted.
Section 11. Mergers or Consolidations. Upon a merger
or consolidation of the Association with another association, the
Association's properties, rights and obligations may, by operation
of law, be transferred to another surviving or consolidated
association or, alternatively, the properties, rights and obliga-
tions 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 Protective
Covenants established by this Declaration governing the Project,
together with the covenants and restrictions established upon any
other property as one plan.
Section 12. 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 Project, or any portion thereof, its physical
condition, zoning, compliance with applicable laws, fitness for
intended use, or in connection with the subdivision, sale,
operation, maintenance, cost of maintenance, taxes or regulation
thereof as a planned development, except as specifically and
expressly set forth in this Declaration, and except as may be filed
by Declarant from time to time, with the DRE.
Section 13. Proiect Disclosures. Each initial Owner
may receive from the Declarant a more extensive list of
disclosures. The items provided below are general in nature and
not all-inclusive of issues impacting the Project. Each Owner is
responsible for investigating all matters of concern to such Owner
prior to completing the purchase of a Lot in the Project.
(a) Conditions of Approval. The Project is subject
to all terms and conditions set forth in the City's conditions
for the approval of the tentative tract map and development
permits for the Project (e.g., Entitlements from City).
Neither this Declaration nor any contract of sale, lease, or
other written document or any means or method shall be estab-
lished, or shall attempt to establish, any requirement,
restriction, or limitation on the Declarant, or any person,
individual or entity, which would operate, directly or
18324.283-14780.FCM 091307 -118-
indirectly, to prevent or preclude any other developers of the
Property or Project, or any person, individual, or entity, in
complying with all applicable provisions of the tentative map
and/or development permits approved by the City and other City
ordinances, rules, policies, or regulations.
(b) Church. A church is located immediately to the
north of the Project. The members of the church, as well as
their guests and invitees, have the right to use the private
street providing access to the church's property and the
northern entrance to the Project from Washington Street (as
depicted on Exhibit "I" attached hereto and incorporated by
this reference. The Association shall be responsible for the
maintenance of the entirety of the private street and wall
depicted on Exhibit "I" hereto. It is anticipated that the
buildings and other Improvements on the church property will
be expanded in the near future. Owners and other residents of
the Project may experience, and/or be exposed to, significant
noise (e.g., from construction equipment, bells, singing,
etc.), traffic congestion, and other adverse impacts arising
out of or relating to the use and maintenance of the church.
Declarant makes no representations or warranties of any kind
or nature, express or implied, concerning the church or the
church property. Each Owner is responsible for investigating
these matters to the Owner's full and complete satisfaction
prior to completing the purchase of a Lot in the Project.
(c) Santa Rosa Mountains. The Santa Rosa mountains
are located immediately to the west of the Project. Owners
and other residents of the Project may experience, and/or be
exposed to, falling rock, blowing sand, wildlife, and other
adverse impacts arising out of or relating to the mountains.
Declarant makes no representations or warranties of any kind
or nature, express or implied, concerning the mountains. Each
Owner is responsible for investigating these matters to the
Owner's full and complete satisfaction prior to completing the
purchase of a Lot in the Project.
(d) Storm Water Retention Basins. If the Project
is completed as planned, two storm water retention basins will
be located along the eastern border of the Project (e.g., on
Lots H and I of Tract 30560). The Association is responsible
for maintaining such retention basins. Owners and other
residents of the Project may experience, and/or be exposed to,
potential flooding, unpleasant odors, noise, bright lights,
wildlife (e.g., skunks, possums, etc.), birds and insects
(including, without limitation, birds and insects that carry
communicable diseases such as West Nile Virus and Avian Flu),
and other adverse impacts relating to the maintenance and
operation of the storm water retention basins. Declarant
makes no warranties or representations of any kind or nature,
express or implied, concerning the retention basins. Each
18324.283-14780.FCM 091307 -119-
Owner is responsible for investigating these matters to the
Owner's full and complete satisfaction prior to completing the
purchase of a Lot in the Project.
(e) NOTICE OF AIRPORT IN VICINITY. The Project is
presently located in the vicinity of an airport (e.g., Desert
Resorts Regional Airport, Palm Springs International Airport,
etc.), within an area in which current or future airport -
related noise, overflight, safety, or airspace protection
factors may significantly affect land uses or necessitate
restrictions on those uses as determined by an airport land
use commission). For that reason, the Project may be subject
to some of the annoyances or inconveniences associated with
proximity to airport operations (for example: noise,
vibration, or odors). Individual sensitivities to those
annoyances can vary from person to person. Each Owner may
wish to, and should consider what airport annoyances, if any,
are associated with the Project before an Owner completes
his/her purchase of a Lot in the Project and determine whether
such a location and airport annoyances are acceptable.
Declarant makes no representations or warranties of
any kind or nature regarding the type of aircraft that may be
permitted at any airport, the flight paths of any aircraft, or
the potential expansion, change in use, or hours of operation
of any airport. Each Owner is responsible for investigating
these matters to the Owner's full and complete satisfaction
prior to completing the purchase of a Lot in the Project.
(f) Waiver. Each Owner, for and on behalf of
himself and the members of his family, his tenants, lessees,
guests and invitees, expressly approve all of the foregoing
conditions and risks, and waives all causes of action and
covenants not to sue the City, the Declarant, and their
respective directors, officers, members, employees, agents and
consultants for any damages or injuries which may arise from
or relate to any of such conditions and/or risks.
Section 14. Conflicts in Management Documents For the
Project. In the event of any conflict between and/or among the
provisions of any of the management documents for the Project, the
Declaration shall be deemed to supersede the provisions of any
conflicting management documents, including, without limitation,
the By -Laws, architectural standards, if any, and the Rules and
Regulations, if any.
Section 15. Davis -Stirling Act. Notwithstanding the
provisions set forth in this Declaration, various laws (including,
but not limited to, the Davis -Stirling Common Interest Development
Act, Sections 1350, et seg., of the California Civil Code, and the
Federal Fair Housing Act, Title 42 United States Code, Sections
3601, et sea. , as such laws may be amended, from time to time) , may
18329.283-14780.FCM 091307 -120-
supplement or override the provisions of this Declaration. This
Declaration shall be interpreted and construed to be consistent
with such applicable laws, as same may be amended, from time to
time, and, accordingly, in addition to the provisions set forth
above, Declarant makes no representations or warranties regarding
the future enforceability of the provisions of this Declaration.
Section 16. Notices Provided Pursuant to Right to
Repair Law. Declarant's notices pursuant to Division 2, Part 2,
Section 895 et seg. of the California Civil Code ("Right to Repair
Law") are set forth in Exhibit "J" attached hereto and incorporated
by reference.
Section 17. Declarant's Representative. Commencing on
the date on which Declarant no longer has an elected representative
on the Board, and continuing until the date that is ten (10) years
after the date of the last close of escrow in the Project, the
Declarant shall be entitled to have a representative ("Declarant's
Representative") present at all meetings of the Members and the
Board. For so long as Declarant's Representative is entitled to
attend such meetings, the Association and/or Members, as appropri-
ate, shall provide Declarant with written notice of all meetings of
the Board as if Declarant were an Owner/Member, and the Association
shall provide Declarant's Representative with the minutes for the
meetings of Owners, the Board and committees. The Declarant's
Representative shall be present in an advisory capacity only and
shall not be a Board member or have any right to vote on matters
coming before the Board or any liability as a Board member. This
Section may not be amended without the prior written approval of
the Declarant, which approval may be withheld in Declarant's sole
and absolute discretion.
Section 18. Exhibits. Except as otherwise provided
herein, each and every Exhibit referenced herein and attached to
this Declaration is incorporated herein by this reference as if set
forth herein in full. All depictions in such Exhibits are for
illustrative purposes only, and the "as -built" condition by
Declarant shall be controlling. Notwithstanding anything herein to
the contrary, the Exhibits attached hereto may depict Improvements
associated with portions of the Project other than Phase 1; however
the Association shall be responsible for the maintenance of those
other Improvements only at such time as the Improvements are
completed and Assessments have commenced for the applicable Phase
in which the Improvements are located.
(signatures to follow)
18329.283-19780.FCM 091307 -121-
IN WITNESS WHEREOF, Declarant has executed this instru-
ment on the day and year first above written.
"DECLARANT"
WL CANYON RIDGE ASSOCIATES, LLC,
a Delaware limited liability
company
BY: WL HOMES LLC, a Delaware
limited liability company,
ITS: Managing Member
By.
Name:
Title:
STATE OF CALIFORNIA )
COUNTY OF )
On , 200_, before me, ,
a Notary Public in and for said State, personally appeared
known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is
subscribed to the within instrument and acknowledged to me that
s/he executed the same in his/her authorized capacity, and that by
his/her signature on the instrument, the persons or the entities
upon behalf of which the person acted executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
(SEAL)
18324.283-14780.FCM 091307 -122-
EXHIBIT "A"
FRONT YARD AREAS, PARKWAYS, MEDIANS, AND OTHER LANDSCAPED
AREAS TO BE MAINTAINED BY ASSOCIATION
[to be attached]
18324.283-14780.FCM 091307 Page 1 of 1 Page
EXHIBIT "B"
Shared Driveways
18329.283-19780.FCM 091307 Page 1 of 1 Page
•
EXHIBIT "C"
ANNEXATION PROPER
The Annexation Property is more particularly described as that
certain real property located in the City of La Quinta, County of
Riverside, State of California, more generally described as:
All of Tract No. 35060 in the City of La Quinta,
County of Riverside, as per Map recorded in Book
, Pages through , inclusive, of
Maps filed in the Office of the County Recorder of
said County, except Phase 1.
18324.283-14780.FCM 091307 Page 1 of 1 Page
EXHIBIT "D"
WALLS
[to be attached]
18324.283-14780.FCM 091307 Page 1 of 1 Page
EXHIBIT "E"
DISPUTE NOTIFICATION AND RESOLUTION PROCEDURE
Arbitration of Disputes. Unless otherwise required by
the Home Builder's Limited Warranty provided by Declarant to an
Owner upon the Close of Escrow for a Lot ("Express Limited
Warranty," of sample draft copy of which is attached hereto as
Exhibit "D-1" for informational purposes only and is not
incorporated herein by reference) for "Disputes" (defined below)
covered thereunder, any and all claims, controversies, breaches or
disputes (each a "Dispute") between or among the Declarant, or any
director, officer, partner, attorney, member, employee or agent of
Declarant, or any contractor, subcontractor, design professional,
engineer or supplier who provided labor, services or materials to
the Project (collectively, the "Declarant Parties"), the
Association, and/or any Owner, relating to or arising out of the
Project, this Declaration, sale of a Lot by Declarant, or any other
agreements between the Declarant Parties, the Association, and/or
an Owner, whether such Dispute is based on contract, tort, or
statute, including, without limitation, any Dispute over (1) breach
of contract, (2) negligent or intentional misrepresentation or
fraud, (3) nondisclosure, (4) breach of any alleged duty of good
faith and fair dealing, (5) allegations of latent or patent
construction defects, or (6) any other matter arising from or
related to the interpretation of any term or provision of this
Declaration, or any defense going to the validity of this Declara-
tion, or any provision of this Declaration, including without
limitation, allegations of unconscionability, fraud in the
inducement, or fraud in the execution, to the extent applicable,
shall be resolved amicably and without the necessity of time
consuming and costly litigation through arbitration pursuant to the
Federal Arbitration Act and only to the extent not inconsistent
with the Federal Arbitration Act, the California Arbitration Act,
and subject to the procedures set forth in this Exhibit. Any
Dispute concerning the interpretation or the enforceability of this
Exhibit, including, without limitation, its revocability or
voidability for any cause, any challenges to the enforcement or the
validity of this Declaration, or this Exhibit, or the scope of
arbitrable issues under this Exhibit, and any defense relating to
the enforcement of this Exhibit, including, without limitation,
waiver, estoppel, or laches, or any Dispute concerning an
arbitration award made pursuant to this Exhibit, shall be decided
by an arbitrator in accordance with this Exhibit and not by a court
of law. Unless otherwise provided or adopted by the Declarant, the
following nonadversarial procedure [e.g., subparagraphs (a) and (b)
below] shall apply to Disputes.
(a) Nonadversarial Procedures.
(1) Notice. Any person with a Dispute shall
notify the Declarant in writing of the claim, which
writing (i.e., by personal or mail service as authorized
by Code of Civil Procedure Sections 415.10, 415.20,
18324.283-14780.FCM 091307 Page 1 of 10 Pages
415.21, 415.30 or 415.40 to the party to whom the Dispute
is directed) shall describe the nature of the claim and
any proposed remedy (the "Claim Notice").
(2) Right to Inspect and Right to Corrective
Action. If at any time during Owner's ownership of a Lot
or the Association's ownership of Common Area in the
Project, said Owner or Association (as the case may be)
discovers a condition that the Owner or Association
believes may be the responsibility of Declarant whether
or not the Owner or Association believes it may be
covered under the Express Limited Warranty, the Owner or
Association shall notify Declarant (as applicable) in
writing. Such notice shall include: (a) a description
of the condition, (b) the date upon which the condition
was discovered, (c) any reports, studies or other
documents/materials prepared by or at the request of
Owner or Association regarding the condition, and (d)
dates and time when Owner or Owner's agent, or the
Association or Association's agent, will be home or
available during ordinary business hours so service calls
or inspection by Declarant can be scheduled. Commencing
on the date the Claim Notice is delivered and continuing
until the Dispute (which includes the condition refer-
enced above) is resolved, the Declarant and its represen-
tatives shall have the right to (i) meet with the party
alleging the Dispute at a reasonable time and place to
discuss the Dispute, (ii) enter the Project to inspect
any areas that are subject to the Dispute, and (iii)
conduct inspections and testing (including destructive or
invasive testing) in a manner deemed appropriate by the
Declarant. Within a reasonable period after receipt of
the Claim Notice, which period shall not exceed ninety
(90) days, the Declarant and the claimant shall meet at
a mutually acceptable place within or near the Project to
discuss the Dispute. At such meeting or at such other
mutually agreeable time, the Declarant and their
respective representatives, as noted above, shall have
full access to the property that is subject to the
Dispute and shall have the right to conduct inspections,
testing and/or destructive or invasive testing of the
same in a manner deemed appropriate by Declarant, which
rights shall continue until such time as the Dispute is
resolved as set forth herein. The parties to the Dispute
shall negotiate in good faith in an attempt to resolve
the claim. If the Declarant elects to take any corrective
action, Declarant and its representatives and agents
shall be provided full access to the Project to take and
complete corrective action. Nothing set forth in this
Exhibit imposes any obligation on Declarant to inspect,
repair or replace any items or alleged defects for which
Declarant is not otherwise obligated under applicable
State and federal law or the Express Limited Warranty in
connection with the sale of the Lot, or increase Declar-
18324.283-14780.FCM 091307 Page 2 of 10 Pages
0 •
ant's legal obligations to Owner. No Owner shall pursue
any other remedies available to it, until Declarant has
had the reasonable opportunity to inspect and cure the
alleged Dispute. Declarant shall be entitled to a stay
of any litigation brought by Owner in violation of this
provision. During the period of such inspection and cure
(but not to exceed the earlier to occur of ( i ) ninety
(90) days after the date Declarant receives Owner's
notice described above, or (ii) Declarant's delivery of
written notice to Owner or the Association of Declarant's
determination not to proceed with such cure), all
applicable statutes of limitation shall be tolled.
During the term of the Express Limited Warranty, any
conflict between the provisions of this paragraph and the
Express Limited Warranty shall be resolved in favor of
the Express Limited Warranty. Declarant is not liable for
any general, special or consequential damage, cost,
diminution in value or other loss Owner may suffer as a
result of any Dispute, which reasonably might have been
avoided had Owner given to Declarant the notice and
opportunity to cure described above.
(b) Adversarial Procedures.
(1) Binding Arbitration. In the event that a
Dispute is raised and not resolved pursuant to the
nonadversarial procedures set forth above or, with
respect to Disputes subject to the Express Limited
Warranty, the procedures set forth in the Express Limited
Warranty, such Dispute shall be submitted to binding
Arbitration.
If the Dispute is not subject to the Express
Limited Warranty, the Dispute shall be submitted to
binding arbitration by and pursuant to the rules of a
neutral, independent arbitration service agreed upon by
the parties to the arbitration. If the parties to the
Dispute are unable to agree upon a neutral, independent
arbitration service, then any party may, pursuant to the
provisions of the Federal Arbitration Act (9 U.S.C. §1 et
sect.) apply to a court of competent jurisdiction to
designate an arbitration service, which designation shall
be binding on the parties.
If the Dispute is subject to the Express
Limited Warranty, the Dispute shall be submitted to
binding arbitration by and pursuant to the rules of the
arbitration service named in the Express Limited Warranty
or such other neutral, independent arbitration service
that the Express Limited Warranty administrator may
appoint, in its sole discretion, at the time a request
for arbitration is submitted. If the Owner or
Association (if the Association is a party to the
Dispute), objects to the arbitration service named in the
18324.283-14780.FCM 091307 Page 3 of 10 Pages .
Express Limited Warranty or appointed by the Express
Limited Warranty administrator, the Owner or Association
(as applicable) must submit a written objection to the
Express Limited Warranty administrator within the time
period and according to the procedures set forth in the
Express Limited Warranty. Upon receipt of such
objection, the Express Limited Warranty administrator
shall then appoint an alternative neutral arbitration
service provider. If the Owner or Association (as
applicable) objects to such alternative neutral
arbitration service provider, and if the Owner or the
Association (as applicable) and Declarant are unable to
agree on another alternative, then any party may,
pursuant to the provisions of the Federal Arbitration Act
(9 U.S.C. §1 et sec.) apply to a court of competent
jurisdiction to designate an arbitration service, which
designation shall be binding on the parties.
The rules and procedures of the designated
arbitration service in effect at the time the request for
arbitration is submitted shall be followed; otherwise,
the parties agree to the following arbitration
provisions:
(2) General Arbitration Provisions.
i) Declarant, each Owner (by acceptance
of a deed to a Lot), and the Association (by accep-
tance of a deed to the Common Area) acknowledges
that this Declaration involves and concerns
interstate commerce and is governed by the
provisions of the Federal Arbitration Act (9 U.S.C.
§1, et sec.) now in effect and as the same may from
time to time be amended, to the exclusion of any
different or inconsistent state or local law,
ordinance, regulation, or judicial rule. Accord-
ingly, any and all disputes shall be arbitrated -
which arbitration shall be mandatory and binding -
pursuant to the Federal Arbitration Act and the
California Arbitration Act, to the extent the
California Arbitration Act is consistent with the
Federal Arbitration Act. As a result, each Owner,
the Association, and Declarant acknowledge that
there will be no court or jury trial of any
Dispute.
ii) This Exhibit shall inure to the
benefit of, and be enforceable by, Declarant's
subcontractors, agents, vendors, suppliers, design
professionals, warranty administrator, insurers and
any other persons whom any Owner or the Association
contends is responsible for any Dispute (e.g., any
alleged defect in or to the Project, the Common
18324.283-14780.FCM 091307 Page 4 of 10 Pages
E
Area, such Owner's Lot or any Improvement or
appurtenance thereto).
iii) Each party shall bear its own
attorneys' fees and costs (including expert costs)
for the arbitration.
iv) Except as otherwise provided in the
Express Limited Warranty with respect to Disputes
subject thereto, the parties shall be entitled to
conduct all discovery as otherwise provided in the
California Code of Civil Procedure, and the
arbitrator shall oversee discovery and may enforce
all discovery orders in the same manner as any
trial court judge, with rights to regulate
discovery and to issue and/or enforce subpoenas,
protective orders or other limitations on discovery
available under California law. In the context of
construction defect disputes, all parties shall be
entitled to reasonable site inspections, visual
inspections, destructive testing, and other discov-
ery mechanisms commonly employed in such disputes.
V) The arbitrator shall decide all
issues of fact and law, and the decision of the
arbitrator shall be final and binding. Declarant,
each Owner (by acceptance of a deed to a Lot), and
the Association (by acceptance of a deed to the
Common Area), acknowledges that an application to
confirm, vacate, modify or correct an award
rendered by the arbitrator shall be filed in any
court of competent jurisdiction in the County.
vi) The participation by any party in
any judicial proceeding concerning this Exhibit or
any matter arbitrable hereunder shall not be deemed
a waiver of the right to enforce this Exhibit
notwithstanding any provision of law to the con-
trary, and shall not be asserted or accepted as a
reason to delay, to refuse to participate in, or to
refuse to enforce this Exhibit.
vii) Except as otherwise provided by the
Express Limited Warranty for Disputes subject
thereto, or as required by applicable law, the fees
to initiate the arbitration shall be advanced by
the Declarant and subsequent fees and costs of the
arbitrator and/or the arbitration service shall be
borne equally by the parties to the arbitration;
provided, however, the administration and
arbitration fees and any other fees and costs of
the arbitration ultimately shall be borne as
determined by the arbitrator (including, but not
limited to, the fee to initiate arbitration).
18324.283-14780.FCM 091307 Page 5 of 10 Pages
viii) The arbitrator appointed to
serve shall be a neutral and impartial individual
and shall be authorized to provide all recognized
remedies available in law or equity for any cause
or action that is the basis for arbitration.
ix) No Arbitration proceeding shall
involve more than one Lot.
X) The venue of the arbitration shall
be in the County unless the parties to the
arbitration agree in writing to another location.
xi) If any provision of this Exhibit
shall be determined to be unenforceable or to have
been waived, the remaining provisions shall be
deemed to be severable therefrom and enforceable
according to their terms.
xii) Declarant, each Owner, by acceptance
of a deed to a Lot, and the Association, by accep-
tance of a deed to the Common Area, are giving up
their respective judicial rights to discovery and
appeal, unless those rights are specifically
included in this Exhibit. If Declarant, the
Association or any Owner refuses to submit to
arbitration, the Association, such Owner, Declar-
ant, may be compelled to arbitrate under the
Federal Arbitration Act and the California Arbitra-
tion Act, to the extent the California Arbitration
Act is consistent with the Federal Arbitration Act.
(3) Judicial Reference. In the event the
foregoing arbitration provision is held not to apply or
is held invalid, void or unenforceable in its entirety
for any reason, Declarant, each Owner, by acceptance of
a deed to a Lot, and the Association, by acceptance of a
deed to the Common Area, agree that all Disputes shall be
tried before a judge in a court of competent jurisdic-
tion; provided that such lawsuit must be resolved by
general judicial reference pursuant to California Code of
Civil Procedure Sections 638 and 641 through 645, or any
successor statutes thereto, and as modified by this
paragraph. Declarant, each Owner (by acceptance of a deed
to the Lot), and the Association (by acceptance of a deed
to the Common Area) acknowledge, understand and agree
that both the arbitration and judicial reference
procedures noted herein, as applicable, involve a process
whereby resolution of the Dispute does not involve a jury
trial and specifically excludes a jury from any
involvement in resolution of the Dispute. The parties to
the Dispute shall cooperate in the judicial reference
proceeding. Declarant, each Owner (by acceptance of a
deed to a Lot), and the Association (by acceptance of a
18324.283-14780.FCM 091307 Page 6 of 10 Pages
0 •
deed to the Common Area) grant the general referee
authority to decide all issues, whether of fact or law,
including without limitation, the validity, scope and
enforceability of this dispute resolution provision, and
to report a statement of decision to the court. All
parties shall use the procedures adopted by any entity
offering judicial reference dispute resolution procedures
as may be mutually acceptable to the parties, provided
that the following rules and procedures shall apply in
all cases unless the parties agree otherwise in writing:
i) The general referee must be a
neutral and impartial retired judge with sub-
stantial experience in real estate development and
residential construction matters. Any Dispute
regarding the selection of the referee shall be
resolved by the entity providing the reference
services, or, if no entity is involved, by the
court with appropriate jurisdiction;
ii) The general reference proceeding
shall proceed without a jury. Declarant, each
Owner (by acceptance of a deed to a Lot), and the
Association (by acceptance of a deed to the Common
Area) each hereby acknowledge, understand, and
agree that this procedure does not involve a jury
trial and that this procedure and the lack of a
jury trial shall be binding upon their respective
successors and assigns and upon all persons or
entities asserting rights or claims or otherwise
acting on behalf of them or their successors and
assigns.
iii) The parties shall be entitled to
conduct all discovery as otherwise provided in the
California Code of Civil Procedure, and the general
referee shall oversee discovery and may enforce all
discovery orders in the same manner as any trial
court judge, with rights to regulate discovery and
to issue and/or enforce subpoenas, protective
orders or other limitations on discovery available
under California law. In the context of
construction defect disputes, all parties shall be
entitled to reasonable site inspections, visual
inspections, destructive testing, and other
discovery mechanisms commonly employed in such
disputes;
iv) The judicial reference proceeding
shall be conducted in accordance with California
law (including the rules of evidence), and in all
regards the general referee shall follow California
law as applicable at the time of the judicial
reference proceeding. The general referee may
18324.283-14780.FCM 091307 Page 7 of 10 Pages
0 •
issue any remedy or relief which the courts of the
State of California could issue if presented the
same circumstances, and the general referee shall
follow and otherwise employ the standards for
issuing such relief as defined by California law.
The general referee may require one or more pre -
hearing conferences. A stenographic record of the
trial shall be made, provided that the record shall
remain confidential except as may be necessary for
post -hearing motions and any appeals. The general
referee's statement of decision shall contain
findings of fact and conclusions of law to the
extent applicable. The general referee shall have
the authority to rule on all post -hearing motions
in the same manner as a trial judge. The statement
of decision of the general referee upon all of the
issues considered by the general referee shall be
binding upon the parties, and upon filing the
statement of decision with the clerk of any court
of the State of California having the jurisdiction
thereof, or with the judge if there is no clerk,
judgment may be entered thereon. The judgment and
decision of the general referee shall be appealable
in the same manner and subject to the same rules as
if rendered by the court.
V) Any dispute involving third parties
(i.e., a person or entity other than Declarant or
Owner or the Association) shall be included in the
judicial reference procedure prescribed herein to
the extent permitted by law. All parties shall
cooperate in good faith to ensure that all
necessary and appropriate parties are included in
the judicial reference proceeding.
vi) The exclusive venue for all general
reference proceedings shall be in the County where
the Project is located;
vii) Except where attorneys' fees are
awarded as an element of sanctions, the parties
shall bear their own attorneys' fees in any
proceeding conducted under this paragraph.
Declarant shall initially advance all fees and
costs necessary to initiate the general reference
proceeding; however, the general referee may, in
his or her discretion, reallocate such fees and
costs among the parties as the interests of justice
dictate. The general referee may award litigation
costs to the prevailing party. This provision does
not modify any provision of a contract between
Declarant and any other entity other than an Owner
requiring indemnification or establishing a
18324.283-14780.FCM 091307 Page 8 of 10 Pages
0
•
different allocation of costs between Declarant and
such entity.
viii) If any provision of this paragraph
shall be determined to be unenforceable or to have
been waived, the remaining provisions shall be
deemed to be severable therefrom and enforceable
according to their terms.
(c) Inspection Easements. The Declarant reserves
easements to enter any Lot, including the interior of the
residence and the yard, and the Common Area to inspect those
areas and to conduct destructive testing referred to in
California Civil Code § 1375(d). However, the Declarant shall
notify the Owner of the Lot and/or the Association of at least
three (3) alternative dates and times when such inspection can
take place (the earliest of which shall not be less than ten
(10) days after the notification is given) and the Declarant
shall give the Owner and/or Association (if the Common Area is
to be inspected) the opportunity to specify which date and
time is acceptable to the Owner and/or Association. Should
the Owner and/or Association (as the case may be) not respond
affirmatively with respect to one of the dates and times
within five (5) days, then the Declarant may decide which of
the dates and times the inspection and testing shall take
place and so notify the Owner and/or Association. Alterna-
tively, the Declarant may seek a judicial order allowing such
inspection and testing to take place. Declarant shall be
entitled to its reasonably incurred attorneys' fees and be
deemed the "prevailing party" should such a court order be
sought and obtained. Declarant shall be obligated to fully
repair any damage caused by any such destructive testing.
(d) Miscellaneous. Any and all communications by
and between the parties, whether written or oral, which are
delivered by the parties or their attorneys or other represen-
tatives in an effort to settle the matter shall be considered
communications undertaken in the course of effecting a settle-
ment or compromise, as such shall not be admissible as an
admission on the part of any party or any representative or
agent of that party to be utilized for any such purpose in any
action or proceeding.
Nothing herein shall be considered to reduce or
extend any applicable statute of limitation. If at any time
an action would be barred by a statute of limitation if not
filed within sixty (60) days, then such action may be filed
notwithstanding any other provision of this Exhibit.
(e) Manufactured Products Maintenance and Express
Limited Warranty Information. Each Owner, as to his
respective Lot, and the Association, as to the Common Area,
acknowledge that Declarant has provided such Owner and the
Association with manufactured product maintenance, preventa-
18324.283-14780.FCM 091307 Page 9 of 10 Pages
tive maintenance and limited warranty information pertaining
to such Owner's Residence and Lot and to the Common Area.
Notwithstanding the foregoing, Declarant reserves the right,
by written notice to each Owner and/or to the Association, to
supplement and/or amend such manufactured product maintenance,
preventative maintenance and limited warranty information from
time to time. Each Owner and the Association also acknowledge
that by law, such Owner and such Association is obligated to
follow all reasonable maintenance and preventative maintenance
schedules and obligations communicated in writing from
Declarant, as well as commonly accepted maintenance practices.
Each Owner and the Association covenant to faithfully follow
all such maintenance and preventative maintenance schedules
and obligations contained in all such manufactured product
maintenance, preventative maintenance and limited warranty
information (and each Owner shall require and cause any tenant
or lessee of such Owner's Lot to follow all such schedules and
obligations).
(f) Indemnification. Each Owner of a Lot in the
Project and the Association covenant to indemnify, defend and
hold Declarant harmless from any loss, costs or damages
arising from such Owner's or such Association's failure or
refusal to perform its respective obligations.
DECLARANT, THE ASSOCIATION AND EACH OWNER SHALL USE THE
PROCEDURES ESTABLISHED IN THIS EXHIBIT TO RESOLVE ALL DISPUTES AND
SHALL BE DEEMED TO WAIVE THEIR RIGHTS TO RESOLVE DISPUTES IN ANY
OTHER MANNER. PURSUANT TO THIS EXHIBIT, DECLARANT, THE ASSOCIATION
(BY ACCEPTANCE OF A DEED TO THE COMMON AREA), AND EACH OWNER (BY
ACCEPTANCE OF A DEED TO A LOT) ACKNOWLEDGE, UNDERSTAND, AND AGREE
THAT THEY SHALL HAVE NO RIGHT TO HAVE ANY DISPUTE TRIED BEFORE A
JURY.
THIS EXHIBIT MAY NOT BE AMENDED WITHOUT DECLARANT'S PRIOR
WRITTEN CONSENT, WHICH CONSENT MAY BE WITHHELD IN DECLARANT'S SOLE
AND ABSOLUTE DISCRETION.
18324.283-14780.FCM 091307 Page 10 of 10 Pages
• i
Exhibit "F"
Landscape Height Restrictions
(line of sight)
18324.283-14780.FCM 091307 Page 1 of 1
i
Exhibit "G"
Prohibited Plants
18324.283-14780.FCM 091307 Page 1 of 1
E
Exhibit "H"
Sideyard Easements
18329.283-19780.FCM 091307 Page 1 of 1
• 0
Exhibit "I"
Church Easement Depiction
18329.283-19780.FCM 091307 Page 1 of 1
0 •
EXHIBIT "J"
NOTICES PROVIDED BY DECLARANT
PURSUANT TO RIGHT TO REPAIR LAW
Declarant hereby gives notice to all Owners of the following
matters:
(1) Notice of Procedures. On September 20, 2002,
the Governor of the State of California signed into law the
construction dispute reform bill known as Senate Bill No. 800,
which added Section 43.99 and Title 7 (commencing with Section
895) to Part 2 of Division 2 of the California Civil Code (the
"Right to Repair Law"). The Right to Repair Law contains
various procedures which may impact an Owner' s legal rights as
a homeowner. Each Owner may wish to consult with an attorney
or other legal advisor to ascertain the requirements of the
Right to Repair Law and its impact upon his or her legal
rights.
(2) Declarant's Election to be Subject to Enhanced
Protection Agreement. Each original Owner of a Lot shall
receive, at the time of purchase of the Lot from Declarant
several documents constituting an "Enhanced Protection Agree-
ment" within the meaning of Section 901 of the California
Civil Code (including, without limitation, the Express Limited
Warranty and Maintenance Recommendations). Declarant has
elected to be subject to an Enhanced Protection Agreement in
lieu of the standards set forth in the Right to Repair Law.
As a consequence, in any legal action seeking recovery of
damages arising out of, or related to deficiencies in the
residential construction, design, specifications, surveying,
planning, supervision, testing, or observation of construc-
tion, the liability of Declarant, and its respective trade
contractors, material suppliers, individual product
manufacturers, and design professionals, shall be limited to
violation of the Enhanced Protection Standards set forth in
the Enhanced Protection Agreement, except as otherwise set
forth in California Civil Code Section 945.5. By accepting a
deed to a Lot, each Owner covenants and agrees to provide any
subsequent purchaser of the Lot from him with copies of the
documents comprising the Enhanced Protection Agreement. No
provisions within this Declaration constitute, or shall be
interpreted to constitute, an "enhanced protection agreement,"
as defined in Section 901 of the California Civil Code.
(3) Declarant's Election not to Engage in the
Nonadversarial Procedure Provided by Right to Repair Law.
Declarant has elected not to engage in the nonadversarial
procedure for the resolution of disputes set forth in Chapter
4 of the "Right to Repair Law" (defined above). Instead,
Declarant intends to seek to enforce the John Laing Homes'
Alternative Non -Adversarial Procedures (e.g., located in the
18324.283-14780.FCM 091307 Page 1 of 3 Pages
• 0
Declaration, the Purchase Agreement and Escrow Instructions
between Declarant and Owner, John Laing Homes' Customer Care
Service Processing Procedures, and John Laing Homes' Customer
Care Service Processing Procedures), as same may be amended
from time to time following approval by Declarant and the
Express Limited Warranty in the applicable homeowners manual
provided by Declarant to Owner. EACH OWNER, ON BEHALF OF
ITSELF AND ITS SUCCESSORS IN INTEREST, AGREES TO PROVIDE
COPIES OF THE DOCUMENTS MAKING UP JOHN LAING HOMES'
ALTERNATIVE NON -ADVERSARIAL PROCEDURES TO ANY SUBSEQUENT
PURCHASER OF SAID OWNER'S LOT. Notwithstanding the foregoing,
nothing in this election shall be deemed to constitute a
waiver of Declarant's rights, if any, to require any Owner to
comply with the procedures of the Express Limited Warranty, if
any, or the Calderon Act (set forth at Civil Code Section
1375) or to enforce any provision of law relating to the
resolution of disputes other than the nonadversarial procedure
for the resolution of disputes set forth in Chapter 4 of The
Right to Repair Law. Each Owner, on behalf of itself and its
successors in interest, agrees to provide copies of the
documents making up John Laing Homes' Alternative Non -Ad-
versarial procedures to any subsequent purchaser of said
Owner's Lot.
(4) The Association and each Owner shall maintain
everything he/she/it/they is/are obligated to maintain in a
manner consistent with the provisions herein and in the
Declaration and in conformance with any "Maintenance Recommen-
dations/Schedules" (i.e., procedures, standards, and/or
schedules for the maintenance and operation which may be
provided to said Owner and/or the Association by Declarant, as
such procedures, standards, and/or schedules may be updated
and revised as appropriate), product manufacturers' guidelines
and recommendations, and commonly accepted maintenance
standards. Unless otherwise provided in such Maintenance
Recommendations/Schedules, or in this Declaration, each Owner
and the Association, as applicable, shall determine the level
and frequency of maintenance.
(5) Notwithstanding any provision to the contrary
in the Declaration regarding resolution of disputes regarding
the Common Area, at such time as an Owner is elected or
appointed to the Board, the Declarant shall be deemed to have
relinquished control over the Association's ability to
initiate claims regarding the Common Area.
(6) The following individual ("Agent") is currently
Declarant's agent for notice of claims pursuant to the
nonadversarial dispute resolution procedures adopted by
18324.283-14780.FCM 091307 Page 2 of 3 Pages
0 0
Declarant (notice to Declarant or Laing does not constitute
notice of a claim, or any other notice, under California Civil
Code Sections 895 et seg.):
Name: General Counsel
Address: WL Homes LLC
895 Dove Street, Suite 200
Newport Beach, CA 92660
18329.283-19780.FCM 091307 Page 3 of 3 Pages
EXHIBIT "F"
SIGHT TRIANGLE RESTRICTIONS
(to be attached)
18324.283-14780.FCM 091307 Page 1 of 1
M
EXHIBIT "G"
PROHIBITED PLANTS
(to be attached)
18329.283-19780.FCM 091307 Page 1 of 1
11
•
EXHIBIT "H"
PORTIONS OF PRIVATE STREET PROVIDING ACCESS
FROM WASHINGTON STREET TO PROJECT AND CHURCH
PROPERTY AND WALL TO BE MAINTAINED BY ASSOCIATION
(to be attached)
18324.283-14780.FCM 091307 Page 1 of 1
Cl
-1 L
CONSENT OF LIENHOLDER AND
SUBORDINATION OF LIEN
•
The undersigned beneficiary under that certain Deed of
Trust recorded on I as Instrument No.
, in the Official Records of Riverside County,
California, agrees that the lien of the Deed of Trust shall be
junior and subordinate and subject to the attached "Declaration of
Covenants, Conditions and Restrictions, and Reservation of
Easements For The Estates at La Quinta" ("Declaration"), to any
Notice of Annexation recorded pursuant to the Article herein
entitled "Annexation of Additional Property" ("Notice of Annex-
ation") and to any easements to be conveyed to The Estates at La
Quinta Community Association in accordance with the terms of the
Declaration and any Notice of Annexation.
DATED: "LIENHOLDER"
a
BY:
Its:
BY:
Its:
• 0
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , 200_, before me,
a Notary Public in and for said State, personally appeared
and
personally known to me (or proved to me on the basis of satisfacto-
ry evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the
same in their authorized capacity, and that by their signatures on
the instrument the persons or the entities upon behalf of which the
persons acted executed the instrument.
WITNESS my hand and official seal.
Signature of Notary Public
(SEAL)
18329.283-19780.FCM 091307