DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
“AMES RANCH”
A Residential Planned
Development
COUNTY OF SAN DIEGO,
CALIFORNIA
TABLE OF CONTENTS
1.1. PROPERTY OWNED BY DECLARANT.
1.2. PURPOSE OF DECLARATION; NATURE OF PROJECT.
1.3.1. NUMBER OF RESIDENTIAL LOTS.
1.3.2. ASSOCIATION AREA; THIRD-PARTY EASEMENTS.
1.5. ESTABLISHMENT OF ASSOCIATION.
3.6. ASSOCIATION; HOMEOWNERS ASSOCIATION.
3.24.3. MONUMENT EASEMENT AREA
3.25. ELIGIBLE INSURER, GUARANTOR.
3.26. ELIGIBLE MORTGAGE HOLDER.
3.28. EQUESTRIAN EASEMENT; EQUESTRIAN TRAIL EASEMENT
3.35. MAP(S); SUBDIVISION MAP(S).
3.44. PRIVATE ROAD; PRIVATE STREET.
3.45. PRIVATE ROAD EASEMENT AGREEMENT; PRIVATE ROAD
MAINTENANCE AGREEMENT; ROAD AGREEMENT.
3.51. PUBLIC ROAD(S); PUBLIC STREET(S).
3.52. RECORD; RECORDED; RECORDATION.
3.54. RETAIL BUYER; PURCHASER.
3.56. UTILITY FACILITIES/SYSTEMS.
4.1. OWNERSHIP OF RESIDENTIAL LOTS.
5.1. OWNERS' NON-EXCLUSIVE EASEMENTS.
5.1.1. DEDICATE OR GRANT EASEMENTS.
5.1.2. ADOPT AND ENFORCE ASSOCIATION RULES.
5.3. ESTABLISHMENT OF CERTAIN EASEMENTS.
5.6. OWNERS' RIGHTS, DUTIES AND EASEMENTS FOR
UTILITIES.
5.8. OBSTRUCTION OF VIEW OR LIGHT; NO VIEW OR LIGHT
EASEMENTS; OWNER ACKNOWLEDGMENT.
5.9. DECLARATION SUBJECT TO EASEMENTS
5.10. SUBDIVISION MAPS — EASEMENTS
6.2. COMMENCEMENT OF ASSOCIATION BUSINESS.
7. MEMBERSHIP, VOTING, FIRST MEETING
7.2. CLASSES OF VOTING RIGHTS.
7.3. COMMENCEMENT OF VOTING RIGHTS.
7.4.3. COMBINATION OF VOTES AND WRITING.
7.5. FIRST MEETING OF THE ASSOCIATION.
7.6. CLASS A MEMBERS' SELECTION OF ASSOCIATION
DIRECTORS.
7.7. NO PERSONAL LIABILITY OF BOARD MEMBERS.
8. RIGHTS, POWER AND DUTIES OF ASSOCIA.TION AND BOARD
8.2. ASSOCIATION ACTION: BOARD OF DIRECTORS AND
OFFICERS; MEMBERS' APPROVAL.
8.3.2. RIGHT OF ENFORCEMENT; PENALTIES; NOTICE AND
HEARING.
8.3.4. RIGHT TO ENTER RESIDENTIAL LOT.
8.3.5. CONTRACTS FOR GOODS AND SERVICES.
8.3.8. POWER OF BOARD TO DEFINE AND INTERPRET.
8.4.4. WATER AND OTHER UTILITIES
8.4.5. MAINTENANCE OF PROJECT.
8.4.8. DELEGATION OF POWERS: PROFESSIONAL MANAGEMENT.
8.4.12. MEMBERS' APPROVAL OF CERTAIN ACTIONS
8.4.13. USE OF PROCEEDS TO REPAIR.
8.4.14. LIMITATIONS ON AUTHORITY OF BOARD.
8.4.15. LIMIT ON CAPITAL IMPROVEMENTS.
8.4.16. LIMIT ON SALES OF ASSOCIATION PROPERTY.
8.4.17. LIMIT ON COMPENSATION.
8.4.18. LIMIT ON THIRD PERSON CONTRACTS.
9.2. RIGHT OF ACCESS AND USE OF DWELLING.
10.1. COVENANT FOR ASSESSMENTS.
10.4.1. PAYMENT OF REGULAR ASSESSMENTS.
10.4.3. RESTRICTIONS OF TAX EXEMPTION.
10.5. NON-WAIVER OF ASSESSMENTS.
10.7. CAPITAL IMPROVEMENT ASSESSMENT
10.8. SINGLE BENEFIT ASSESSMENT.
10.9. ENFORCEMENT ASSESSMENTS.
10.10. UNIFORM RATE OF ASSESSMENT.
10.11. EXCESSIVE ASSESSMENTS OR FEES.
10.12. COMMENCEMENT OF ASSESSMENTS; DUE DATES.
10.13. NOTICE AND ASSESSMENT INSTALLMENT DUE DATES.
10.14. FAILURE TO FIX ASSESSMENTS.
10.15. LIMITATIONS ON ASSESSMENTS.
10.16. NOTICE OF ASSESSMENT INCREASE.
10.17. REDUCTION OR ABATEMENT OF REGULAR ASSESSMENTS.
10.19. DELINQUENCIES; LATE PENALTIES; INTEREST ON
ASSESSMENTS.
10.21. ASSOCIATION POLICIES AND PRACTICES RE:
DEFAULTS.
10.21.2. MONETARY PENALTIES AND FEES.
10.22. COLLECTION OF ASSESSMENTS; LIENS.
10.22.1. RIGHT TO ENFORCE ASSESSMENTS.
10.22.2. NOTICE TO OWNER PRIOR TO LIEN OF ASSESSMENT.
10.22.4. NOTICE TO OWNER AFTER LIEN OF ASSESSMENT.
10.22.5. PAYMENTS UNDER PROTEST.
10.22.7. LIEN ENFORCEMENT; FORECLOSURE PROCEEDINGS.
10.26. TAXATION AGAINST THE ASSOCIATION AREA.
10.27. PERSONAL LIABILITY OF OWNER.
10.28. TRANSFER OF RESIDENTIAL LOT.
11.1. USE OF RESIDENTIAL LOTS.
11.2.1. REQUIREMENTS OF ALL LEASES.
11.2.2. FAILURE OF TENANT TO COMPLY WITH PROJECT
DOCUMENTS; OTHER TENANT MATTERS.
11.3. ARCHITECTURAL AND AESTHETIC CONTROL AND
STANDARDS FOR IMPROVEMENTS.
11.3.1. BOARD/ARCHITECTURAL COMMITTEE POWERS.
11.3.2. DISTRIBUTION OF ARCHITECTURAL STANDARDS AND
COVENANTS.
11.6. REASONABLE CONSTRUCTION TIMEFRAME.
11.7. SCREENDOORS; AWNINGS; WINDOWS.
11.13. ANTENNAS, SATELLITE DISHES.
11.15. POLLUTANT AND STORM WATER RUNOFF.
11.16. SLOPE CONTROL, USE AND MAINTENANCE.
11.17. OFFENSIVE ACTIVITIES AND CONDITIONS.
11.18. GARBAGE AND REFUSE DISPOSAL.
11.20. LANDSCAPING; VACANT LOTS.
11.20.1. INITIAL LANDSCAPING OF RESIDENTIAL LOTS WITH
DWELLINGS THEREON.
11.21.4. CONSTRUCTION AND SALES.
11.22. USE OF GARAGES; PARKING.
11.25. LIABILITY FOR DAMAGE TO ASSOCIATION AREA.
11.26. RESTRICTIONS ON FURTHER SUBDIVISION.
12. ARCHITECTURAL AND DESIGN CONTROL
12.1. APPROVAL FOR ARCHITECTURAL AND DESIGN MATTERS.
12.4. MEETINGS; VOTING; WRITTEN CONSENT.
12.6. ARCHITECTURAL STANDARDS & COVENANTS.
12.6.1. ESTABLISHMENT, EXPANSION, MODIFICATION.
12.6.2. DISTRIBUTION OF ARCHITECTURAL STANDARDS AND
COVENANTS.
12.7. APPROVAL OF PLANS & SPECIFICATIONS BY
ARCHITECTURAL COMMITTEE.
12.8.1. TIME PERIODS FOR REVIEW.
12.8.2. EFFECTIVENESS OF APPROVAL.
12.8.4. TIME PERIODS FOR REVIEW.
12.9. APPROVAL OF SOLAR ENERGY SYSTEMS.
12.10. INSPECTION AND CORRECTION OF WORK.
12.13. DILIGENCE IN CONSTRUCTION.
12.19. NON-APPLICABILITY TO DECLARANT.
12.20. GOVERNMENT REQUIREMENTS.
13.1. LIMITATION OF RESTRICTIONS.
13.2. RIGHTS OF ACCESS; COMPLETION; MARKETING.
13.2.2. CONSTRUCTION IMPROVEMENTS.
13.2.5. SIZE AND APPEARANCE OF PROJECT.
13.3. ASSIGNABILITY OF RIGHTS.
13.4. TERMINATION OF ANY RESPONSIBILITY OF DECLARANT.
14. RESPONSIBILITIES OF MAINTENANCE
14.1. MAINTENANCE OBLIGATIONS OF OWNER.
14.1.1. OVERALL MAINTENANCE OF RESIDENTIAL LOTS.
14.1.3. MAINTENANCE OF FENCES OR WALLS.
14.2. OWNER'S FAILURE TO MAINTAIN; WILLFUL OR
NEGLIGENT ACT.
14.3. RESPONSIBILITY OF ASSOCIATION.
14.4. ASSUMPTION OF MAINTENANCE OBLIGATIONS.
15.1. MASTER INSURANCE POLICY.
15.1.3. COVERED CAUSE OF LOSS.
15.1.6. WAIVER OF SUBROGATION.
15.3. TEN (10) DAY CANCELLATION NOTICE.
15.4. TRUSTEE; ADJUSTMENT OF LOSSES.
15.8. PERIODIC REVIEW OF POLICIES.
15.9. DISTRIBUTION TO MORTGAGEES.
15.10. INSPECTION OF POLICIES.
15.11. INSURANCE INFORMATION TO MEMBERS.
16.5. MINOR REPAIR AND RECONSTRUCTION.
17. CONDEMNATION; EMINENT DOMAIN.
17.1. CONDEMNATION OF ASSOCIATION AREAS LOCATED WITHIN RESIDENTIAL LOTS.
17.2. CONDEMNATION OF A RESIDENTIAL LOT.
18.3. LIABILITY FOR UNPAID ASSESSMENTS AND COMMON
EXPENSES.
18.4. PAYMENT OF TAXES AND INSURANCE.
18.5. AGREEMENT FOR MANAGEMENT.
18.6. NOTIFICATION TO ELIGIBLE MORTGAGEE HOLDER.
18.7. NO RIGHT OF FIRST REFUSAL.
18.8. ACTION REQUIRING MORTGAGEE APPROVAL.
18.9. PRIORITY OF PROCEED OR AWARD DISTRIBUTION.
18.10. INSPECTION OF PROJECT DOCUMENTS, BOOKS AND
RECORDS.
18.12. VOTING RIGHTS ON DEFAULT.
18.15. DOCUMENTS TO BE MADE AVAILABLE.
18.16. MORTGAGEES FURNISHING INFORMATION.
18.18. TERMIATION WITHOUT SUBSTANTIAL DESTRUCTION.
19.1. AMENDMENT PRIOR TO FIRST CONVEYANCE.
19.2. AMENDMENTS AFTER FIRST CONVEYANCE.
19.3. AMENDMENTS FOR MANUEST ERRORS, AMBIGUITY
AND/ORCHANGES IN LAW
20. ENFORCEMENT; DISPUTE RESOLUTION
20.2. ALTERNATIVE DISPUTE RESOLUTION.
20.3. EXCEPTIONS TO SECTION 20.2 ALTERNATIVE DISPUTE
RESOLUTIONS.
20.3.2. ESCROW RELATED MATTERS.
20.4. NOTICE OF ACTIONS AGAINST DECLARANT.
20.5. DECLARANT DISPUTE RESOLUTION.
20.5.2. RIGHT TO INSPECT AND RIGHT TO CORRECTIVE
ACTION.
20.5.3. CIVIL CODE SECTIONS 1368.4, 1375, 1375.05 AND
1375.1AND 910 THROUGH 938.
20.5.5. UNRESOLVED DECLARANT DISPUTES.
20.5.6. AGREEMENT TO DISPUTE RESOLUTION; WAIVER OF
JURY TRIAL.
20.5.8. EXCEPTIONS TO MEDIATION AND REFERENCE;
STATUTES OF LIMITATION.
20.5.9. SURVIVAL; SUCCESSORS AND ASSIGNS.
20.10. MEETING AND NOTICE TO MEMBERS PRIOR TO CERTAIN
LEGAL ACTIONS BY THE BOARD.
20.10.1. DEFINITION OF "SIGNIFICANT LEGAL
PROCEEDING.
20.10.2. INAPPLICABILITY OF PROVISIONS; POWER TO TAKE
ACTION.
21.2. EXTENSION OF DECLARATION.
21.5. CIVIL CODE SECTION 1368.
21.6. NOTIFICATION OF SALE OR CONVEYANCE.
21.7. MERGERS OR CONSOLIDATIONS.
21.8. EASEMENTS RESERVED AND GRANTED.
21.10. SINGULAR INCLUDES PLURAL.
The text of this document
has been updated to reflect the contents of both the First and Second Amendments.
Changes from the First Amendment are highlighted in green. Changes from the Second
Amendment are highlighted in red.
THIS DECLARATION is made on
the day and year hereinafter written by STIVERS RANCH, LLC, a California
limited liability company, hereinafter called "Declarant,” with reference
to the following:
1. RECITALS
1.1. PROPERTY
OWNED BY DECLARANT.
Declarant is the owner of
the real property located in the in the County of San Diego, State of
California, more particularly described on Exhibit "A" and Exhibit
"B," both attached hereto and by this reference made a part hereof,
hereafter referred to herein as the "Property."-
1.2. PURPOSE OF DECLARATION;
NATURE OF PROJECT.
This Declaration is
intended: (a) to establish the
Property as a "Common Interest Development" pursuant to the provisions
of the Davis-Stirling Common Interest Development Act (Civil Code §1350 -et
seq.), more particularly described in Business and Professions Code §1104.5(a)
and Civil Code §1351(k) as a planned
development project (the
"Project") in conformance with the provisions of the California
Subdivided Lands Law (Business and Professions Code Section 11000, et seq.);
(b) to subject the Property to certain limitations, covenants, conditions and
restrictions as hereinafter set forth. To that objective, Declarant desires and
intends to impose on the Property mutually beneficial restrictions,
limitations, easements, assessments and liens under a comprehensive plan of
improvement and development for the use and management of the Property as a
community called "AMES RANCH"; and for the purpose of enhancing and
protecting the value, desirability and attractiveness of the Property for the
benefit of all present
and future Owners and occupants thereof.
1.3. DESCRIPTION
OF PROJECT:
1.3.1. NUMBER OF RESIDENTIAL LOTS.
The Project
is intended to ultimately consist of thirty-two (32)"Residential
Lots" shown on the Maps described respectively in Exhibit "A" as
Lots 1 through 20, inclusive, and
Exhibit "B" as Lots 1 through 12, inclusive.
1.3.2. ASSOCIATION AREA; THIRD-PARTY
EASEMENTS.
In
addition to the Residential Lots the Project will include:
(a) Association Area. consisting of: (i) one (1) Association Lot, shown on the
Exhibit "A" Map as Lot 21, portions of which are intended to be used
for recreational purposes, as a water retention basin, and open space; and (ii)
Easement Areas, which include, but are not limited to, one (1) Private Road
Easement, shown on Exhibit "A" Map as 13onita Ranch Court,"
Walkway Easements over Exhibit "A" Residential Lots 10 and 11,
and a Monument Easement over a portions
of Exhibit "A" Residential Lots 1 and 20.
(b) an Equestrian Trail, consisting of: (i) a sixteen foot(16.00')wide non-exclusive
easement over portions of the rear yards of Exhibit "A" Residential
Lots 1 through10, inclusive; and a portion of Association Lot 21; and (ii)
a ten foot(10.00') wide non-exclusive easement over portions of the Central
Avenue-adjacent side yards of Exhibit "B" Residential Lots 1 and 12, for purposes of public pedestrian and equestrian use, the Operation
of which shall be a duty and obligation of the County of San Diego pursuant to
the Exhibit "A" and Exhibit ."B" Maps'
grant of such easements to and acceptance by the County.
(c) Other Easements described and/or shown
on the Maps or otherwise encumbering portions of the Property.
1.4. PLAN OF DEVELOPMENT.
The Property is
or shall be: (a) subject to a plan of development of residential lots and a
Common Area Lot, pursuant to the Project Permits, and, (b) consistent with any
overall development plans submitted to and approved by the DRE.
1.5. ESTABLISHMENT OF ASSOCIATION.
Declarant will cause
or has caused the incorporation of the AMES RANCH OWNERS ASSOCIATION, a
California nonprofit mutual benefit corporation (the "Association"),
organized under the Nonprofit Mutual Benefit Corporation Law (California
Corporations Code Sections 7110 et seq.), for the purpose of exercising the
powers and functions set forth herein. The Association shall act as the
management body for the Community, and shall be responsible for the Operation
of the Association Area. By virtue of owning a Residential
Lot in the Project, each Owner. Shall have a
membership in the Association, which membership shall be appurtenant to and
pass with title to the Residential Lot.
2. DECLARATION
NOW, THEREFORE, Declarant hereby certifies and declares that
all of the Property is, and shall be, held, conveyed, transferred,
hypothecated, encumbered, leased, rented, 'used; occupied and improved, subject
to the limitations, covenants, conditions, restrictions, easements, liens and
charges hereinafter set forth, all of which are for the purpose of uniformly
enhancing, maintaining and protecting the value, attractiveness and
desirability of the Property, in furtherance of a general plan of ownership as
described in California Civil Code Section 1350 et seq., or .any successor
statutes or laws for the subdivision, protection, maintenance, improvement,
sale and lease of the Property, or any portion thereof. All of the limitations,
covenants, conditions, restrictions, easements, liens and charges set forth
herein shall run with the land, shall be binding upon and inure to the benefit
of all parties having or acquiring any right, title or interest in the
Property, or any part thereof, their heirs, successive owners and assigns,
shall be enforceable equitable servitudes and shall binding on and inure to the
benefit of every portion of the Property and any interest therein, including
Declarant, its successive owners and each Owner and his or her respective successors-in-interest,
and may be enforced by any Owner or by the Association.
3. DEFINITIONS
3.1. ANCILLARY
INSTRUMENT
"Ancillary
Instrument" shall mean and refer to any instrument, document, agreement or
warranty, whether Recorded or not Recorded, which (a) encumbers or affects the
use and/or operation of the Association Area, (b) is intended to enable the
establishment or continued operation of the Association Area and any and all
Improvements therein; or (c) creates or involves a duty or obligation on the part of Declarant or the Association to perform or cause to
be performed certain Operations to Improvements within the Property. An
Ancillary Instrument may include, but is not limited to: any declaration (as
defined in Civil Code §1351(h)), supplemental declaration, grant of easement,
development agreement, operating agreement, maintenance agreement, private road
easement agreement, lease, pro forma Operating budget, and management
agreement.
3.2. APPLICABLE
LAW(S)
"Applicable
Law(s)" shall mean and refer to any law, regulation, rule, order or
ordinance of any governmental or quasi-governmental entity, applicable to the
Residential Lots or the Property or any portion thereof, or the use or
occupancy thereof, now in effect or as hereafter promulgated. "
3.3. ARCHITECTURAL COMMITTEE.
"Architectural
Committee" shall mean and refer to the Board, unless the Board specific
delegates its authority to act as the Architectural Committee pursuant to the
Article herein entitled ARCHITECTURAL AND DESIGN CONTROL.
3.4. ARCHITECTURAL STANDARDS.
"Architectural
Standards" shall mean and refer to the design criteria adopted by the
Architectural Committee pursuant to the provisions of Article 12 herein.
3.5. ARTICLES.
"Articles" shall
mean and refer to the Articles of Incorporation,' including such amendments
thereto as may from time to time be made, which are or
shall be filed in the Office of the Secretary of State for the State of
California.
3.6. ASSOCIATION; HOMEOWNERS
ASSOCIATION.
"Association"
or "Homeowners Association" shall Mean and refer to the AMES RANCH
OWNERS ASSOCIATION, a California non-profit, mutual benefit corporation,
incorporated under the Non-Profit Mutual Benefit Laws of the State of
California, its successors and assigns.
3.7. ASSOCIATION AREA.
"Association
Area" shall mean 'and refer to any real property or interests in real
property, which is either owned by the Association or for which the Association
has a duty, obligation and responsibility to Operate, including but not limited
to (a) the Association Lot, and (b) the Easement Areas, all described more
fully herein.
3.8. ASSOCIATION EASEMENT(S).
"Association
Easement(s)" shall mean and refer to any easement encumbering a
Residential Lot and/or any other easement reserved, granted, transferred and/or
assigned to the Association, for which the Association has a duty and/or
obligation pursuant to these CC&RS, the Project Permits, the Maps, by
Ancillary Instrument or as a matter of law, to Operate all or certain Improvements
and property located within each such respective easement.
3.9. ASSOCIATION:
LOT.
"Association
Lot" shall mean and refer to Lot 21, as shown on the Exhibit "A"
Map.
3.10. ASSOCIATION PROPERTY.
"Association
Property" shall mean and refer to any non-real property, improvements,
facilities, betterments and/or personally owned or leased by the Association.
3.11. BOARD.
"Board"
shall mean and refer to the Board of Directors of the Association.
3.12. BONITA
FARMS COURT.
"Bonita Farms
.Court" shall mean and refer to the Public Road shown on the Exhibit
"B" Map, and which provides access to and from the Exhibit
"B" Map Residential Lots.
3.13. BONITA
RANCH COURT.
"Bonita Ranch
Court" shall mean and refer to the Private Road and/or Private Road
Easement, which provides access to and from the Exhibit "A" Map
Residential Lots.
3.14. BYLAWS.
"Bylaws"
shall mean and refer to the Bylaws of the Association, including such
amendments thereto as may from time to time be made.
3.15. CC&RS
"CC&RS" shall
mean and refer to the covenants, conditions and restrictions contained in this
Declaration and the other Project Documents, as they may from time to time be
amended.
3.16. COMMON EXPENSES.
"Common
Expenses" shall mean and refer to the actual and estimated costs and
expenses incurred or to be incurred by the Association, including, but not
limited to:
(a) Costs and expenses for maintenance,
management, operation, repair and replacement of the Association Area„ pursuant
to the terms of this Declaration;
(b) Costs and expenses not paid by the Owner
responsible for payment, when such costs and expenses are paid by the
Association;
(c) Costs and expenses for maintenance by
the Association of areas within the public right-of-way of public streets in
the vicinity of the Community as provided in this Declaration or pursuant to
agreements with the City, if any;
(d) Costs and expense of management and
administration of the Association, including, but not limited to, compensation
paid by the Association to managers, accountants, attorneys and employees;
(e) Costs and expenses of utilities, trash
pickup and disposal, gardening and other services benefiting the Owners and
their property to the extent such services are paid for by the Association;
(f) The costs of fire, casualty, liability,
worker's compensation and other insurance covering the Association Area, to the
extent such insurance and coverage is available;
(g) The costs of any other insurance, bonds
or like coverage obtained by the Association pursuant to the provisions of this
Declaration;
(h) Reasonable reserves as deemed appropriate by
the Board;
(i) The costs of bonding of the Members of
the Board or its delegated committees, any professional managing agent or any
other person handling the funds of the Association;
(j) Taxes paid by the Association;
(k) Amounts paid by the Association for the
discharge of any lien or encumbrance levied against the Association Areas or
portions thereof;
(l) Costs and expenses incurred by the
Board, the Architectural Committee or any committee delegated by the Board;
(m) The costs and expenses of any other item
or items designated by, or in accordance with other expenses incurred by the
Association for any reason whatsoever in connection with the operation or
maintenance of the Association Area or in furtherance of the purposes or the
discharge of any obligation imposed on the Association by this Declaration or other
Project Documents.
3.17. COMMUNITY.
"Community"
shall mean and refer to all of the Property which is, from time to time,
subject to this Declaration.
3.18. COUNTY
"County"
shall mean and refer to the County of San Diego, California.
3.19. COUNTY RECORDER.
"County
Recorder" shall mean and refer to the San Diego County Recorder, San Diego
County, California.
3.20. COUNTY RESOLUTION.
"County
Resolution" shall mean and refer to the County of San Diego County Board
Resolution(s) adopted by the County Board, approving the Project, and the
conditions for such approval.
3.21. DECLARANT.
"Declarant"
shall mean and refer to STIVERS RANCH LLC, a California Limited liability
company, its successors and assigns, if such successors or assigns acquire any
or all of the Declarant’s interest in the Property for the purpose of
development or sale. A successor Declarant shall also be deemed to include the
beneficiary under any deed of trust securing an obligation from a then existing
Declarant encumbering all or any portion of the Property, which beneficiary has
acquired any such property by foreclosure, power of sale or deed in lieu of
such foreclosure or sale.
3.22. DECLARATION.
"Declaration"
shall mean and refer to this Declaration of Covenants, Conditions and
Restrictions for "Ames Ranch," recorded with the Office of the County
Recorder of San Diego County, California, covering the Property, including such
amendments thereto as may from time to time be recorded.
3.23. DWELLING; RESIDENCE.
"Dwelling" or
"Residence" shall mean a residential structure or structures,
including, balconies, patio areas, walkways, driveways and garages located on a
Residential Lot.
3.24. EASEMENT AREA(S).
"Easement
Area(s)" shall mean and refer to the following non-exclusive easements
within the Property:
3.24.1. PRIVATE
ROAD EASEMENT
"Private
Road Easement" shall mean and refer to that certain non-exclusive private
road easement: (a) shown on the Exhibit "A" Map as "Bonita Ranch
Court," (b) located on, over, under and across portions of each Exhibit "A"
Map Residential Lot; and (c) which is intended to be used for ingress, egress
and access to and from: (i) each Residential Lot by, its Owner and Invitees
thereof; and (ii) each Residential Lot and the Association Lot by the
Association and its authorized agents for purposes of Operation of the Easement
Areas, the Association Lot, Association Property and such other portions of the
Property and Improvements therein in accordance with the CC&RS. Anything
herein to the contrary notwithstanding, the Operation of the land and
Improvements within the Private Road shall be conducted in accordance with the
provisions therefor contained in that certain "Private Road Maintenance
Agreement" defined herein.
3.24.2. MONUMENT
EASEMENT
"Monument
Easement" shall mean and refer to those exclusive use easements granted to
the Association on, over and across those respective Monument Easement Areas of
Exhibit "A" Residential Lot 1 and Lot 20, for purposes of
installation and Operation of a Project monument bearing the name of the
Project ("Monument"), together with such Utility Facilities required
for the operation of such Monument, and such access easements necessary to
provide access to and from such Monument for the Operation thereof by the
Association. Monument Easements shall be subject to the CC&RS., Applicable
Law and any Rules or Architectural Standards as are or may be established or
revised by the Board.
3.24.3. MONUMENT
EASEMENT AREA
"Monument
Easement Area" shall mean and refer to those portions of Exhibit
"A" Residential Lot 1 and Lot
20 described in Section 5.3 herein
for which Monument Easements are respectively reserved and granted to the
Association pursuant to the provisions described therein. The Association shall
have a duty and obligation for the Operation of any Monument and any related
Utility System or other Improvement, as determined by the Board.
3.24.4. WALKWAY EASEMENT.
"Walkway
Easement" shall mean and refer to that non-exclusive easements granted to
the Association and each Owner on, over and across that Walkway Easement Areas
located within Exhibit "A" Residential Lot 10 and Residential Lot 11,
for purposes of installation, Operation
and access of a handicap accessible ramp ("Access Ramp"), together
with such Improvements related to such Access Ramp for its proper Operation, to
permit access to and from the cul-de-sac area of the Exhibit "A" Map
Private Road and the Association Lot, subject to the CC&RS, Applicable Law
and any Rules or Architectural Standards as are or may be established or revised
by the Board.
3.24.5. WALKWAY
EASEMENT AREA
"Walkway
Easement Area" shall mean and refer to those portions of Exhibit
"A" Residential Lot 10 and Residential Lot 11 described in Section
.5.3 herein for which Walkway Easements are respectively reserved and granted
to the Association and the Owners pursuant to the provisions described therein.
The Association shall have a duty and obligation for the Operation of the
Access Ramp located within such Walkway Easement Area and any related
Improvements thereto, subject to the reservations of Declaration herein and as
determined by the Board.
3.24.6. OTHER
EASEMENTS
Such
other easements described on the Maps, of which the Operation of the land and
any Improvements within any such easement shall be a duty and obligation of the
Association.
3.25. ELIGIBLE
INSURER, GUARANTOR.
"Eligible
Insurer" and "Eligible Guarantor" shall mean and refer to an
insurer or Governmental guarantor who has provided a written request to the
Association, to be notified of those matters which such holder is entitled to
notice of by reason of this Declaration or the Bylaws of the Association.
3.26. ELIGIBLE MORTGAGE HOLDER.
"Eligible
Mortgage Holder" shall mean and refer to the holder of a first mortgage or
deed of trust on a Residential Lot, who has provided a written request to the
Association, to be notified of those matters which such holder is entitled to
notice of by reason of this Declaration or the Bylaws of the Association. Such
notice must contain the Residential Lot number or the street address of the
secured Residential Lot.
3.27. EMERGENCY.
"Emergency"
shall mean and refer to an unforeseen occurrence or condition calling. For immediate action to avert imminent danger to life, health, or
property.
3.28. EQUESTRIAN
EASEMENT; EQUESTRIAN TRAIL EASEMENT
"Equestrian Easement"
shall mean and refer to: (a) a
sixteen foot (16.00') wide
non-exclusive easement over portions of the rear yards of Exhibit "A"
Map Residential Lots 1 through
10, inclusive, and a portion of
Association Lot 21; and (b) a ten foot (10.00')
wide non-exclusive easement over portions of the Central-Avenue-adjacent side
yards of Exhibit "B" Map Residential Lots 1 and 12, as shown on the
foregoing respective Maps, for purposes of public pedestrian and equestrian
use, subject to County ordinances and other Applicable Law, the Operation of
which shall be a duty and obligation of the County pursuant to the grant and
acceptance of such easements by the terms of the Exhibit "A" and
Exhibit "B" Maps.
3.29. FHA.
"FHA" shall
mean and refer to the Federal Housing Administration of the United States
Department of Housing and Urban Development, including any successors thereto.
3.30. FHLMC.
"FHLMC" shall
mean and refer to the Federal Home Loan Mortgage Corporation.
3.31. FIRST MORTGAGE.
"First
Mortgage" shall mean and refer to a Mortgage which has priority under the
recording statutes of the State of California over all other Mortgages
encumbering a specific Residential Lot in the Project. First Mortgage shall
also mean and refer to a First Deed of Trust as well as a First Mortgage.
3.32. FIRST MORTGAGEE.
"First Mortgagee" shall mean and refer to the
Mortgagee of a First Mortgage. 3.33. FNMA.
"FNMA" shall mean and refer to the Federal National Mortgage
Association.
3.33. IMPROVEMENT(S).
"Improvement"
shall mean and refer to:
(a) all structures and appurtenances thereto
of every type and kind, including, but not limited to, Dwellings, buildings,
accessory buildings; gazebos, windows, window frames, window tinting, paintings
or other surface applications of any exterior surfaces of any building or other
structure visible from the Association Area or public areas outside of the
Project, skylights, stairs, garages, parking spaces, walkways, driveways, road,
fences, screens, screening walls, retaining walls, awnings, decks,
patio/balcony covers, trellises, tents, umbrellas, signs, poles, masts,
antennas, solar or wind powered energy systems or equipment, water softeners,
heating or air-conditioning fixtures or equipment, plumbing, sewer pipes or
lines, exterior wiring and other utility facilities, swimming pools; hot spas.
(b) the demolition
or destruction by voluntary action of any structure or appurtenance thereto of
ever type and kind;
(c) the grading, excavation, filling or similar
disturbance to the surface of the land, including, without limitation, change
of grade, change of ground level, or change of drainage pattern;
(d) landscaping, planting, clearing or removing of
trees, flowers, shrubs, grass or plants, including natural or artificial
plantings, sprinkler pipes, sprinkler pipe heads;
(e) any addition, alteration or modification
to the foregoing, or to the Association Area, Association Property or a
Dwelling, including, without limitation, any change of material exterior
appearance, color or texture, room partitions, structural alterations, or
alterations to a Dwelling.
3.34. INVITEE.
"Invitee"
shall mean and refer to any person whose presence within the Project is
approved by or is at the request of a particular Owner, including, but not
limited to, lessees, tenants and the family, guests, employees, licensees or
invitees of Owners, tenants or lessees.
3.35. MAP(S);
SUBDIVISION MAP(S).
"Map(s)" or
"Subdivision Map(s)" shall mean and refer either individually or collectively,
as the context may indicate, to those certain Subdivision Maps filed with the
County Recorder, as more particularly described in Exhibit "A" and
Exhibit "B" hereto. Each Map may referred to herein in reference to
the Exhibit on which it is described (e.g. Exhibit "A" May, Exhibit
"B"
3.36. MEMBER.
"Member"
shall mean and refer to a. Person who holds a membership in the Association as
provided herein. Membership shall be appurtenant to and may not be separated
from ownership of a Residential Lot.
3.37. MORTGAGE.
"Mortgage"
shall mean and refer to a deed of trust as well as a mortgage.
3.38. MORTGAGEE.
"Mortgagee"
shall mean and refer to a beneficiary or a holder of a deed of trust as well as
a mortgagee.
3.39. MORTGAGOR.
"Mortgagor"
shall mean and refer to the trustor of a Deed of Trust as well as a mortgagor.
3.40. NOTICE AND HEARING.
"Notice and
Hearing" shall mean and refer to the procedure that gives an Owner notice
of an alleged violation of the Project Documents and the opportunity for a
hearing before the Board, as more fully described in the Article herein
entitled RIGHTS OF OWNERS.
3.41. OPERATION
"Operation"
(and its related word forms, which include, but are not limited to:
"Operate") shall mean and refer to the following with respect to
Improvements in the Property:
(a) Periodically inspecting, policing, cleaning,
sweeping, servicing and otherwise maintaining an Improvement in first-class,
safe condition, state of repair and working order, and performing any repairs,
replacements and other work for such purposes;
(b) Keeping, as applicable, the Improvements
well-painted, clean and clear of rubbish, debris, graffiti, unlawful
obstructions, oil, grease and water, as well as removing the same;
(c) Making such additions, alterations,
repairs, replacements and doing such other construction as is permitted under
this Declaration to render the Improvements in compliance in all respects with
the CC&RS, any Ancillary Instrument and Applicable Law;
(d) Periodic inspection, maintenance,
fertilization and replacement of landscaping and related mechanisms and
equipment, as may be' necessary for the proper growth, operation and
functioning thereof;
(e) Reasonable and normal street improvement,
maintenance and replacement work to adequately maintain the street to permit
all weather access, including, but not limited to, filling of chuckholes,
repairing cracks, repairing and resurfacing of the street-bed, repairing and
maintaining drainage structures associated with the streets; removing oil and
other stains, and such other work reasonably necessary or proper to repair and
preserve the driveway and for all weather road purposes;
(f) Performing such other acts and work as are
reasonably incidental to any of the foregoing.
3.42. OWNER.
"Owner"
shall mean and refer to the record Owner, whether one (1) or more Persons, of
fee simple title to a Residential Lot. The term "Owner" shall include
a seller under an executory contract of sale, but shall exclude Mortgagees.
3.43. PERSON.
"Person"
shall mean a natural individual, a corporation or any other entity with the
legal right to hold title to real property, including a leasehold interest.
3.44. PRIVATE ROAD; PRIVATE STREET.
"Private
Road" and/or "Private Street shall mean and refer to the Private Road
Easement shown on the Exhibit "A" Map as "Bonita Ranch
Court." Private Road shall include, but not be limited to: the road
surface, roadbed, adjacent roadside, striping, markers, curbs, gutters, any and
all above and below Utility Facilities, landscaping and sprinkler systems in
the shoulder of any such Private Road, and street lighting, if any, as each of
the foregoing are related to the use and support of the Private Road pursuant
to: (a) the Road Agreement, (b) the
Project Permits, (c) the CC&RS, and (d)
the vote of the Board. In the event of any dispute with respect to what
Improvement within the Property are related to the Private Road, the decision
of the Board therefor by majority vote shall prevail.
3.45. PRIVATE ROAD EASEMENT
AGREEMENT; PRIVATE ROAD MAINTENANCE AGREEMENT; ROAD AGREEMENT.
"Private Road
Easement Agreement" or "Private Road Maintenance Agreement" or
“Road Agreement" shall mean and refer that certain Private Road
Maintenance Agreement Recorded on January 16, 2003 as Document No.
2003-0056604: (a) which encumbers
the Property described in Exhibit "A" hereto, (b) the terms of which
provide for a plan of Operation of the Private Road (Bonita Ranch Court),
including an apportionment of the cost therefor.
3.46. PROJECT.
"Project"
shall mean and refer to (a) all Residential Lots located within the Property,
and (b) the Association Area Upon either its conveyance or assignment as fee or
easement to the Association or upon the assumption of responsibility for
maintenance therefor by the Association pursuant to this Declaration.
3.47. PROJECT DOCUMENTS.
Project
Documents" means and includes this Declaration, the exhibits, if any,
attached thereto, the Articles, the Bylaws, any Rules established by the Board,
as well as any Ancillary Document, other agreements, easements and similar
instruments that encumber the Property or any portion thereof, as relating to
the interests, duties, obligations, conditions, restrictions, covenants between
and/or among the Owner, including the Association. The foregoing shall also
include any amendments to the afore described documents as may
from time to time be made.
3.48. PROJECT
PERMITS.
Project
Permits" shall mean and refer to the County Resolution and any other document
issued by the County or other governmental or quasi-governmental agency,
including public and private utilities, whose authority or authorization as
evidenced by any such document enabled the approval of development of the
Project and established certain conditions therefor.
3.49. PROPERTY.
"Property"
shall mean and refer to that certain real property located in the San Diego
County, California, more particularly described in Exhibit "A" and
Exhibit "B" hereto.
3.50. PUBLIC REPORT.
"Public
Report" shall mean and refer to the Final Subdivision Public Report issued
by the California Department of Real Estate covering the Project, which
provides disclosure of material facts for the Project.
3.51. PUBLIC ROAD(S); PUBLIC
STREET(S).
"Public
Road(s)" or Public Street(s)" shall mean and refer to: Bonita Farms
Court and Central Avenue, as may be shown on the Maps.
3.52. RECORD; RECORDED;
RECORDATION.
"Record,"
"Recorded," and/or "Recordation" shall mean and refer to,
with respect to any document, the recordation or filing of such document with
the County Recorder.
3.53. RESIDENTIAT. LOT; LOT.
"Residential
Lot" or "Lot" means any of the lots located within the Project;
other than an Association Lot, including all improvements now or hereafter
thereon. The foregoing notwithstanding, the term "Lot," when used in
context to the entire Property shall also include the Association Lot.
3.54. RETAIL BUYER; PURCHASER.
"Retail Buyer" or "Purchaser" shall mean
and refer to a Person who purchases a Residential Lot from Declarant for
purposes of owning a Residential Lot and any and all improvements located
thereon, whether such improvements are existing or
proposed.
3.55. RULES.
"Rules"
shall mean and refer to any rules or regulations adopted by the Association or
its Board pursuant to this Declaration.
3.56. UTILITY FACILITIES/SYSTEMS.
"Utility
Facility(ies)" or Utility System(s)" shall mean and refer, but not be
limited to: (a) any electrical, cable, computer, television, telephone and such
other utility conduits; potable and/or irrigation water system, natural gas
system, fire protection water system, which provides or is intended to provide
such respective utility's service and/or such respective utility's access from
a public or quasi-public utility supply or connection-feed (e.g. utility pole,
underground terminus box) into any portion of the Property; and/or (b) such
other types of utility systems and facilities, any of the foregoing of which is
or is intended to provide either a shared or individual-utility service to any
Improvement situated in, on, over and/or under the Property, and/or to any
Resident thereof.
3.57. VA.
"VA"
shall mean and refer to the U.S. Department of Veterans Affairs, including any
successors thereto.
3.58. CLOSE OF ESCROW
"Close of Escrow" shall mean
and refer to the date on which a deed from Declarant is recorded conveying a
Residential Lot pursuant to a transaction requiring the issuance of a Public
Report.
3.59. MAINTENANCE MANUAL
"Maintenance Manual" shall mean and
refer to shall mean and refer to one or more manuals, instruction books, and
similar documents or publications which may be prepared by the Declarant, a
builder, manufacturer, or other party, which provides reasonable
recommendations, standards, specifications and/or commonly accepted maintenance
obligations for maintenance, repair and/or replacement of Improvements in the
Common Area by the Association and within the Residential Lots by the Owners,
including, but not limited to, reasonable recommended maintenance schedules, as
the foregoing may be updated and amended from time to time by Declarant, a
builder, and/or a manufacturer of a particular Improvement.
4. OWNERSHIP
4.1. OWNERSHIP OF RESIDENTIAL
LOTS.
Title to each
Residential Lot in the Project shall be conveyed in fee to an Owner. Ownership
of each Residential Lot within the Project shall include (a) a membership in
the Association, and (b) any exclusive or non-exclusive easement(s) appurtenant
to such Residential Lot over the Association Area as described in this
Declaration, any other Project Document, and/or in the deed or other instrument
conveying title or other interest to or in favor of the Residential Lot.
4.2. ASSOCIATION LOT.
Declarant shall convey
the Association Lot to the Association prior to or concurrent with the first
Close of Escrow, free of all liens and encumbrances except current real
property taxes (which shall be Prorated as of the date of conveyance), any
nonmonetary title exceptions of record, and the covenants, conditions,
reservations, easements and restrictions contained in this Declaration. Upon
such conveyance to the Association, such Association Lot shall be held for the
benefit of Members of the Association as a part of the Association Area.
4.3. NO
SEPARATE CONVEYANCE.
The interest of
each Owner in the use and benefit of the Association Area shall be appurtenant
to such Owner's Residential Lot.
5. EASEMENTS
The ownership interests in the Residential Lots described in
this Article are subject to the easements granted and reserved in this
Declaration. Each of the easements reserved or granted herein shall be deemed
to be established upon the recordation of this Declaration and shall
thenceforth be deemed to be covenants running with the land for the use and
benefit of the Owners and their Residential Lots superior to all other
encumbrances applied against or in favor of any portion of the Project.
Individual grant deeds to Residential Lots may, but shall not be required to
set forth the easements specified in this Article.
5.1. OWNERS' NON-EXCLUSIVE EASEMENTS.
Each Owner shall
have, for himself or herself and such Owner's Invitees, non-exclusive easements
of access, ingress, egress, use and enjoyment of in, to and over the
Association Areas, which easements shall be appurtenant to and shall pass with
title to every Residential Lot in the Project, subject to the CC&RS, the
Project Permits, any other requirements or restrictions of the County, any
Ancillary Instrument, and the following the rights:
5.1.1. DEDICATE
OR GRANT EASEMENTS.
The right of the Association to dedicate and/or grant easements
over all or any portion of the Association Areas.
5.1.2. ADOPT
AND ENFORCE ASSOCIATION RULES.
The
right of the Association to adopt and enforce Association Rules concerning
easements as provided in the CC&RS.
5.1.3. CONTROL
PARI1NG.
The right of the Association to control parking of vehicles within
the Association Area and to promulgate rules and regulations to control parking
in a manner consistent with the CC&RS.
5.2. EASEMENTS
TO DECLARANT
There is hereby
reserved by Declarant for the benefit. of Declarant such non-exclusive
easements on, over, under, across and through the Property, for so long as
Declarant or its authorized agents has a duty or obligation relating to the
Operation of any Improvements within the Property, pursuant to the CC&RS,
the Project Permits, the Maps or any Ancillary Instrument. Subject to a
concomitant obligation to restore, Declarant and its authorized agents shall
also have the easements described in the Article herein entitled DEVELOPMENT
RIGHTS. Declarant's' reservation of such non-exclusive easements is furthermore
granted to the Association and its duly authorized agents, as necessary to
perform its similar duties and obligations as Declarant herein, to the extent,
however, that such duties and obligations to Operate Improvements within the
Property do not conflict.
5.3. ESTABLISHMENT OF CERTAIN
EASEMENTS.
Declarant hereby
reserves and grants the following easements to the Association:
5.3.1. MONUMENT EASEMENTS.
Monument Easements
on, over, under and across those portions of Exhibit "A" Residential
Lot 1 and Lot 20 where a Project identification monument ("Monument")
is installed and located as of the date of Recordation of this Declaration;
such easement shall include all portions of each such Residential Lot extending
from that front portion of each Monument bearing the name of the Project to the
boundary of each such Residential Lot with the adjacent Public Street and
Private Road Easement, and from the rear portion of such Monument a distance of
not less than three feet (3.00'), which area shall be sufficient in size to
permit access to such Monument for purposes of Operation thereof, initially by
Declarant, and thereafter by the Association ("Monument Easement Area").
Declarant hereby reserves an easement over each such Monument Easement Area for
purposes of access to conduct proper. Operation of each
Monument until such time that Declarant shall transfer the duty and obligation
of such Operation to the Association, pursuant to the CC&RS. Each
Monument shall initially be constructed of such material as Declarant may
unilaterally deem appropriate. Upon the transfer of Operation the Monuments
from Declarant to the Association, the Board Shall assume the responsibility,
duty and obligation for the Operation of the Monuments, subject to any
requirements of the
Project Permits,
Architectural Standards and Applicable Law.
5.3.2. WALKWAY EASEMENT.
A
non-exclusive Walkway Easement on over, under and across those portions of: (a)
Exhibit "A" Residential Lot 10. located between the western and
southern boundaries of such Lot 10 and, as shown on Sheet 4 of 7 Sheets of the
Exhibit "A" Map, those eastern boundary lines alpha-numerically
designated L-34 and L-35, and the northern boundary lines designated L-30 and
L-33; and (b) Exhibit "A" Residential Lot 11, consisting of that
rectangular-like area the boundaries of which commence at the southeast corner
of said Lot 11 at its intersection with the boundaries of Lot 10 and Lot 21,
thence a north a distance of fifteen feet (15.00') along the boundary of Lot 11
with Lot 10, thence west a distance of forty feet (40.00'), thence south a
distance of fifteen feet (15.00') to a point along the boundary of Lot 11 and
Lot 21, thence east a distance of forty feet (40.00') to the POINT BEGINNING
(the "Walkway Easement Area"). Within the boundaries of such Walkway
Easement Are Declarant has installed a handicap accessible ramp (the
"Access Ramp") for purposes of access to and from the cul-de-sac area
of the Private Road to and over a portion of Association Lot 21. Declarant
hereby reserves an easement over such Walkway Easement Area for purposes of
access to conduct prof Operation of the Access Ramp and all Improvements
related thereto, until such time that Declarant shall transfer the duty and
obligation of such Operation to the Association; pursuant to the CC&RS. The
Access Ramp shall initially be constructed in compliance with the Project Permits and Applicable Law
of such material as Declarant may unilaterally deem appropriate.
Upon the transfer of Operation of the Access Ramp from Declarant to the
Association, the Board shall assume the responsibility, duty and obligation for
the Operation of such Access Ramp and all Improvements related thereto, subject
to any requirements of the Project Permits, Architectural Standards and
Applicable Law.
5.4. ENTRY
BY ASSOCIATION
Subject to Section
8.3.4 below, the Association and its authorized agents shall have the right to
enter (a) upon a Residential Lot (other than the interior of the Residence
situated thereon) to effect Emergency repairs in accordance with the provisions
of the CC&RS, (b) upon any Easement Area to perform Operation obligations
and/or (c) upon any portion of the Project to inspect any Utility Systems to
ensure their proper Operation.
5.5. DRAINAGE; SLOPES.
(a) Except in an Emergency, the Owner of any
Residential Lot shall not in any way interfere with (i) any portion of an Easement Area located within the
boundaries of such Owner's Residential Lot; (ii) any established slopes 'within
the non-Easement Area areas of such Owner's Residential Lot; and/or (iii) the
established surface drainage pattern over such Owner's Residential Lot from
adjacent or adjoining Residential Lots, or the Easement Area. For the purpose
herein, "established surface drainage" and "established
slopes" are defined as the respective drainage and slopes that existed at
the time of the filing of the Notice of Completion (or similar instrument)
relating to such Residential 'Lot or Dwelling thereon (whichever is later) or
if no such instrument exists, then at the time that the overall grading was
completed for the Project.
(b) Anything herein to the contrary notwithstanding,
subject ,to written approval as may be required by the Board, there are
reserved and granted for the benefit of each Residential Lot, as dominant
tenement, over, under, across and though the Association Area and each other
Residential Lot, as servient tenement, a non-exclusive easement to slopes,
drainage ways and drainage facilities located within such servient tenements,
when such access is essential for the maintenance of slopes, drainage ways
and/or drainage facilities, in order to assure (i) the permanent stabilization
and support of slopes and/or (ii) proper operation of drainage ways and/or
drainage facilities, as such foregoing may be located on the dominant tenement
Residential Lot.
5.6. OWNERS' RIGHTS, DUTIES AND
EASEMENTS FOR UTILITIES.
(a) There are reserved and granted for the
benefit of each Residential Lot, as dominant tenement, over, under, across and
through the Project (including the Association Area and each other Residential
Lot), as the servient tenement, non-exclusive easements for utility services.
"Utility services" shall mean and refer to any utility facilities,
such as electricity, water, gas, cable television, sanitary sewer lines and
facilities and drainage facilities.
(b) Whenever utility services that serve a dominant
tenement Residential Lot are installed within the servient tenement Association
Area or Residential Lots, the Owner of the dominant tenement Residential Lot
served by said utility facilities shall have the right of reasonable access for
themselves or for utility companies or the County to repair, replace and
generally maintain said utility facilities as and when the same may be
necessary.
(c) Whenever utility services are installed within
the Project which serve more than one (1) Residential Lot, the Owner of each
Residential Lot served by the utility facilities shall be entitled to the full
use and enjoyment of such portions of the utility services as service his or
her Residential Lot. In the event of a dispute between Owners with respect to the
repair or rebuilding of the utility facilities, or with respect to the sharing
of the cost thereof, then, upon written request to the Association by one (1)
of such Owners, the matter shall be submitted to the dispute resolution
procedures contained in the Article herein entitled "ENFORCEMENT; 'DISPUTE
RESOLUTION."
5.7. ENCROACHMENT.
There are hereby
reserved and granted for the benefit of each Residential Lot, as dominant
tenement, over, under and across each other Residential Lot and Association
Property, as servient tenements, and for the benefit of the Association
Property, as dominant tenement, over, under and across each .Residential Lot,
as servient tenement, non-exclusive easements for encroachment, support,
occupancy and use or such portions of Residential Lots and Association Area as
are encroached upon, used and occupied by the dominant tenement as a result of
any original construction design, accretion, erosion, addition, deterioration,
decay, errors in original construction, movement, settlement, shifting or
subsidence of any building, structure, or other Improvements or any portion
thereof, or any other cause. In the event any portion of the Project is
partially or totally destroyed, the encroachment easement shall exist for any
replacement structure which is rebuilt pursuant to the original construction
design. The easement for the maintenance of the encroaching improvement shall
exist for as long as the encroachments exists; provided, however, that no valid
easement of encroachment shall be created due to the willful misconduct of the
Association or any Owner. Any easement or encroachment may, but need not be,
cured by repair and restoration of the structure.
5.8. OBSTRUCTION OF VIEW OR
LIGHT; NO VIEW OR LIGHT EASEMENTS; OWNER ACKNOWLEDGMENT.
Each Owner, by
accepting a deed to a Residential Lot or any other portion of the Property,
hereby acknowledges the following: (a) that the view or "line of
sight" from, or any incoming light to any and all locations of such
Owner's Residential Lot and/or Dwelling at the time such Residential Lot was
originally offered for sale to the public or to any Builder prior to sale to
the public (if applicable), or at any time after the conveyance of such
Residential Lot, may be subject to subsequent obstruction as a result of future
construction or plantings by Declarant, other property owners, or, by natural
forces of nature and acts of God, in the vicinity of or otherwise affecting
each such Residential Lot or other portion of the Property; and (b) that there
are no view or light easements granted or reserved in favor of such Owner's
Residential Lot or other portions of the Property being or becoming a
"dominant tenement" thereof.
5.9. DECLARATION
SUBJECT TO EASEMENTS
Notwithstanding
anything herein expressly or impliedly to the contrary, this Declaration shall
be subject to all easements heretofore or hereafter granted by Declarant for
the installation and Operation of Utility Facilities.
5.10. SUBDIVISION
MAPS — EASEMENTS
The Association Lot and
Residential Lots are subject to the Subdivision Maps, including limited access
to open space areas and any other restriction contained therein.
6. THE
ASSOCIATION
6.1. THE ORGANIZATION.
The Association
is a nonprofit mutual benefit corporation formed under the Nonprofit Mutual
Benefit Corporation Law of the State of California. Subject to the provisions
of the Section next following entitled "Commencement of Association
Business," upon the conveyance of the first Residential Lot to a Retail
Buyer; the Association shall be charged with the duties and invested with the
powers set forth in the Articles, the Bylaws and this Declaration.
6.2. COMMENCEMENT OF ASSOCIATION
BUSINESS.
The Association
shall commence business at such time that a Board of Directors has been elected
pursuant to the provisions therefor contained in the Bylaws.
7. MEMBERSHIP,
VOTING, FIRST MEETING
7.1. MEMBERSHIP IN GENERAL.
Every Owner of a
Residential Lot shall be a Member of the Association. Membership shall be
appurtenant to and may not be separated from ownership of any Lot. Membership
in the Association shall not he transferred, pledged or alienated in any way,
except upon the sale of the Residential Lot to which it is appurtenant, and
then only to the purchaser. The transfer of title to a Residential Lot or the
sale of a Lot and transfer of possession thereof to the purchaser shall
automatically transfer the membership appurtenant thereto to the transferee. As
a Member of the Association, each Owner is obligated to promptly, fully and
faithfully comply with and conform to the Articles, this. Declaration, the
Bylaws, the Architectural Standards, and the Rules adopted hereunder from time
to time by the Board and officers of the Association.
7.2. CLASSES OF VOTING RIGHTS.
The Association
shall have two (2) classes of voting membership: CLASS A. Each Member, other
than the Declarant, shall be a Class A member. Class A membership entitles the
holder to one (1) vote for each Residential Lot of which he or she is record
owner. If a Residential Lot is owned by more than one person, each such person
shall be a Member of the Association, but there shall be no more than one (1)
vote for each Residential Lot.
7.2.1. CLASS B.
The
Declarant is a Class B Member. Class B membership entitles the holder to three
(3) votes for each Residential Lot of which the Declarant is record owner. The
Class B membership shall be irreversibly converted to Class A membership on the
first to occur of the following:
(a) When the total outstanding votes held by
the Class A Members are equal to or greater than the total outstanding votes
held by the Class B Member; or
(b) Two (2) years
following the first close of Escrow.
7.3. COMMENCEMENT OF VOTING
RIGHTS.
An Owner's right
to vote, including Declarant, shall not vest until Assessments have been levied
upon such Owner's Residential Lot as provided in this Declaration. All voting
rights shall be subject to the restrictions and limitations provided for herein
and in the Articles and Bylaws.
7.4. APPROVAL OF MEMBERS.
Unless specifically
provided for otherwise, any provision of the Project Documents requiring the
vote or written assent of the Association voting power shall be deemed
satisfied by the following:
7.4.1. VOTE OF MAJORITY.
The vote
of the majority of the voting power of the Members at a meeting duly called and
noticed pursuant to the provisions of the Bylaws dealing with annual or special
meetings of the Members, unless a provision of this .Declaration requires a
special meeting only; provided, however that such majority must include the
specified number of all Members entitled to vote at such meeting and not such a
majority of a quorum of those Members present. Whenever this Declaration
provides for a majority (or greater) vote or consent, such reference will mean
the vote or consent as described in this
Section 7.4 of a majority (or greater,
as applicable) of the voting power of the Members;
7.4.2. WRITING.
A
writing or writings signed by a majority of the voting power; or
7.4.3. COMBINATION OF VOTES AND
WRITING.
A combination
of votes and written assent representing a majority of the voting power of the
Members, provided that Members shall not change their vote or written assent
after it is cast or delivered and provided further that only those written
assents executed within sixty (60) days before or thirty (30) days after a
meeting may be combined with votes cast at such meeting to constitute a
majority.
7.5. FIRST MEETING OF THE
ASSOCIATION.
The first
regular meeting of the Association shall be held no later than six (6) months
after the first Close of Escrow. Thereafter, regular meetings of the
Association shall be held in accordance with provisions of the Bylaws. At the
first meeting, the Members shall elect the Board of Directors. Election to and
removal from the Board shall be by secret written ballot with cumulative
voting, as more particularly described in the Bylaws.
7.6. CLASS
A MEMBERS' SELECTION OF ASSOCIATION DIRECTORS.
In any election
of Directors, commencing on the first regular annual meeting scheduled after
the first Residential Lot is sold to an Owner, other than Declarant, so long as
a majority of the voting power of the Association resides in the Declarant, or
so long as there are two (2) outstanding classes of membership in the
Association, not less than twenty percent (20%) of the Directors shall have
been elected solely by the votes of Class A Members, other than the Declarant.
Such Class A elected representative may be removed prior to the expiration of
his or her term of office only by a vote of at least a simple majority of the
Members, excluding the Declarant.
7.7. NO
PERSONAL LIABILITY OF BOARD MEMBERS.
No member of the
Board, or of any committee of the Association, or any officer of the
Association, or any manager, or Declarant, or any agent of Declarant, shall be
personally liable to any Owner, or to any other party, including the
Association, for any error or omission of the Association, the Board, its
authorized agents or employees or its delegated committee, if such Person has,
on the basis of such information as may be possess by him or it, acted in good
faith without willful or intentional misconduct. In addition to the foregoing,
as more particularly specified in California Civil Code Section 1365.7, or any
successor statute or law, any person who suffers bodily injury, including, but
not limited to, emotional distress or wrongful death as a-result of the
tortious act or omission of a member of the Board who resides in the Project
either as a tenant or as an Owner of no more than two (2) Residential Lots, and
who, at the time of the act or omission, was a "volunteer" as defined
-in California Civil Code Section 1365.7, or any successor statute or law,
shall not recover damages from such Board member, if such Board member
committed the .act or omission within the ,scope of his or her Association
duties, while acting in good faith and without acting in a willful, wanton Or
grossly negligent manner, provided that all of the requirements of California
Civil Code Section 1365.7, or any successor statue or law, have been satisfied.
8. RIGHTS,
POWER AND DUTIES OF ASSOCIA.TION AND BOARD
8.1. THE ORGANIZATION.
The Association
is a non-profit mutual benefit corporation formed under the laws of the State
of California to operate and maintain the Project for the benefit of the
Owners. The Association is charged with the duties and is given the powers set
forth in this Article and its affairs shall be governed by the CC&RS. In
the event that the Association as a corporate entity is dissolved, a non-profit
unincorporated association shall forthwith and without further action or notice
be formed to succeed to all of the rights and duties of said Association
hereunder. The affairs of such unincorporated association shall be governed by
the Bylaws and this Declaration as if they were created for the purpose of
governing the affairs of an unincorporated association. Except for those acts
which are expressly reserved to the vote of the membership of Owners in this
Declaration, any duty, obligation or authority vested or required to be
performed and any power or privilege which may be exercised by the Association
pursuant to this Declaration shall be performed or exercised only by the Board
or its authorized delegates, agents and servants, and any power, duty
obligation or authority vested or conferred on the Board by this Declaration
shall be deemed a power, duty, obligation or authority of the Association. The
Board shall conduct its affairs as provided for in the Bylaws.
8.2. ASSOCIATION
ACTION: BOARD OF DIRECTORS AND OFFICERS; MEMBERS' APPROVAL.
Except as to matters
requiring the approval of Members as set forth in this Declaration, the
Articles, or the Bylaws, the affairs of the Association shall be conducted by
the Board and such officers as the Board may elect or appoint. Such election or
appointment shall be in accordance with this Declaration and the Bylaws.
Except as to matters requiring the
approval of Members as set forth in this Declaration, the Articles, or the
Bylaws, the affairs of the Association shall be conducted by the Board and such
officers as the Board may elect or appoint. Such election or appointment shall
be in accordance with this Declaration and the Bylaws. Except as otherwise
provided in this Declaration, the Articles and the Bylaws, all matters
requiring the approval of Members shall be deemed approved if Members holding a
majority of the total voting rights assent to them by written consent as
provided in the Bylaws or if approved by a majority vote of a quorum of Members
at any regular or special meeting held in accordance with the Bylaws.
8.3. POWERS OF ASSOCIATION.
The Association
shall have all the powers of a nonprofit corporation organized under the
Nonprofit Mutual Benefit Corporation Law of California subject only to such
limitations on the exercise of such powers as are set forth in the Articles,
the Bylaws and this Declaration. It shall have the power to do any lawful thing
that may be authorized, required, or permitted to be done by the Association under
the CC&RS, and to do and perform any act that may be necessary or proper
for or incidental to, the exercise of any of the express powers of the
Association, including, without limitation, the powers set forth below.
8.3.1. PERFORMANCE OF DUTIES.
The Association
shall have the power to undertake all of the express duties required under the
Section below entitled "Duties of the Association" to be done by the
Association.
8.3.2. RIGHT OF ENFORCEMENT;
PENALTIES; NOTICE AND HEARING.
A.
ENFORCEMENT ACTIONS.
The
Association in its own name and on its own behalf, or on behalf of any Owner
who consents, can commence and maintain actions for damages or to restrain and
enjoin any actual or threatened breach of any provision of the Project
Documents or any resolutions of the Board, and to enforce by mandatory
injunction, or otherwise, all of these provisions. In addition, the Association
can temporarily suspend the membership rights and privileges for any violation
of the Project Documents or Board resolutions.
B. PENALTIES AGAINST MEMBERS.
The
Board shall have the right to impose the following penalties against Members:
(1) Suspension of the membership rights and
privileges, together with the voting rights of any Member of the Association,
for any period of time during which the assessment on a Member's Residential
Lot remains unpaid;
(2) Suspension of the membership rights and
privileges, together with the voting rights of any Member of the Association, for
any period not to exceed thirty (30) days for any infraction of the
Association's Rules;
(3) Levying of monetary penalties against an
individual Member as a disciplinary measure for failure of a Member to comply
with provisions of the Project Documents or Board resolutions, or as a means of
causing the Member to reimburse the Association for costs and expenses incurred
by the Association in the repair of damage to the Association Area and
facilities for which the Member was allegedly responsible, or in bringing the
Member and his or her Lot to compliance with the Project Documents or Board
resolutions; provided, however, no such monetary penalty may be characterized
or treated as an assessment which may become a lien against the Owner's
subdivision interest enforceable by a sale of the interest in accordance with
the provisions of Sections 2.924, 2924(b) and 2924(c) of the California Civil
Code.
It is
provided, however, that the provisions of the preceding paragraph expressly do
not apply to charges imposed against a Member consisting of reasonable late
payment penalties for delinquent assessments and/or charges to reimburse the
Association for the loss of interest and for costs reasonably incurred
(including attorneys' fees) in its efforts to collect delinquent assessments as
more fully described in this Declaration.
In the
event legal counsel is retained or legal action is instituted by the Board
pursuant to this Section, any settlement prior to judgment or any judgment
rendered in any such action shall include costs of collection, court costs and
reasonable attorneys' fees.
A
Member shall have the right to Notice and Hearing prior to the Board's
decisions to impose any suspension or monetary penalty, as more fully described
in Section entitled "Notice and Hearing."
8.3.3. RULES AND REGULATIONS.
The
Board of the Association shall have the power to adopt, amend and repeal
uniform rules and regulations ("Association Rules" and/or
"Rules") as it deems reasonable. The Association Rules shall govern
the use of the Association Area and portions of the Residential Lots by all
Owners or their Invitees, and the conduct of Owners and Invitees with respect
to automobile parking, outside storage of bicycles and other objects, disposal
of waste materials, drying of laundry, control of pets and other activities
which, if not so regulated, might detract from the appearance of the Community
or offend or cause inconvenience or danger to persons residing or visiting
therein. Such Rules may also govern issues relating to landscaping and
irrigation, if deemed appropriate by the Board, to protect the Association Area
and the improvements thereon or to reduce maintenance, replacement, and repair
costs. Such Rules may provide that the Owner of a Lot who leaves property (or
whose Invitee leaves property) on the Association Area in violation of the
Rules may be assessed after Notice and Hearing an amount to cover the expense
incurred by the Association in removing such property 'and storing or disposing
thereof, and that any Owner (or Invitee) who violates Rules relating to
landscaping and irrigation may be assessed after Notice and Hearing an amount
to cover the expense incurred by the Association in correcting such violation
or the results of such violation.
8.3.4. RIGHT TO ENTER RESIDENTIAL
LOT.
Except in
the case of an Emergency, in which case no prior notice need be given, the
Board, the Architectural Committee, or any authorized representatives thereof,
shall have the right to enter during reasonable hours upon any Residential Lot
(other than the interior of a Dwelling) or Association Area when necessary to
effect any maintenance obligations of the Association hereunder. Notification
of such entry shall be given at least forty-eight (48) hours in advance. Such entry
shall be made with as little inconvenience to the Owner as possible and any
damage caused thereby shall be repaired by the Association at its own expense.
The Board, the Architectural Committee or such persons entering on behalf of
the Board or Architectural Committee shall not be deemed guilty of trespass by
reason of such entry.
8.3.5. CONTRACTS FOR GOODS AND
SERVICES.
The
Association shall have the power to contract for goods and services for the
benefit of the Association Property and the Project necessary for the
Association to perform its duties
and obligations hereunder, subject to such limitations as set forth in this
Declaration or the Bylaws.
8.3.6. BORROW
FUNDS.
The
Board shall have the right to borrow .money to improve, repair or maintain the
Association Area, provided that, the borrowing of any money or hypothecation of
any real or personal property in excess of five percent (5%) of the budgeted
gross expenses of the Association shall require the consent of fifty-one
percent (51%) of each class of Members.
8.3.7. CLAIMS AND ACTIONS.
Subject to
the provisions of this Declaration, the Association shall have the power, but
not the duty, to initiate, defend, settle or intervene in mediation,
arbitration, judicial or administrative proceedings on behalf of the
Association in matters pertaining to:
(a) the application or enforcement of this Declaration and (b) damage to
the Association Area or Association Property. The Association and not the
individual Members shall have the power to pursue any claims or other actions
using the non-adversarial procedures for construction defects in the
Association Area pursuant to Civil Code Section 895 et seq., and any successor
statutes or laws. The Association shall comply with such non-adversarial
procedures in bringing any such claims or actions. Any recovery by the
Association with respect to any damage to or defect in the Association Area
shall be utilized solely for the purpose of paying for the costs of obtaining
the recovery and for correcting such damage or defect.
8.3.8. POWER OF BOARD TO DEFINE AND
INTERPRET.
Notwithstanding
anything contained in this Declaration or any other Project Document, the Board
shall have the power and the authority to define, interpret and/or construe
certain words and terminologies contained in this Declaration and the Project
Documents which may otherwise be unclear, vague and/or ambiguous, and, which,
if not so defined, interpreted or construed, would be detrimental to the
Board's ability to conduct, manage and control the affairs and business of the
Association, including the enforcement of the covenants, conditions,
restrictions and other provisions of the Project Documents, as well as any
rules and regulations promulgated by the Board and not (a) inconsistent with
law and/or (b) not in contravention to the general plan for the subdivision,
protection, maintenance, improvement, sale and lease of the Project, or any
portion thereof. Such words and terminology shall include, but not be limited
to, "nuisance," "annoyance," "obnoxious,"
"quiet enjoyment," "excessive," "disturb,"
"obstruct," "interfere,"' "minor repair,"
"hazard," "offensive."
8.4. DUTIES OF ASSOCIATION.
8.4.1. ASSESSMENTS.
The
Association shall have the power to establish, fix, and levy assessments
against the Owners and their Residential Lots, and to 'enforce payment of such
assessments in accordance with the provisions of this Declaration.
8.4.2. ASSOCIATION LOT.
The
Association shall accept the Association Lot and improvements situated thereon
conveyed by the Declarant and/or created under this Declaration and shall
Operate all of the improvements situated thereon, as well as any Association
Property acquired by the Association in accordance with the terms and
provisions of the CC&RS, the Project Permits and any other requirements of
the County The Association's obligations to Operate the Association Lot shall
commence on the date Regular Assessments commence on Residential Lots. Until
commencement of Regular Assessments on Residential Lots in the Property, the
Association Lot shall be operated by Declarant. The Association may prepare or
cause to be prepared and implemented, on an annual basis, a comprehensive
Operation program for the Association Lot, which Operation program shall be
subject to review and approval by the Board. The Board shall periodically
review the nature and scope of the Operations of the Association to assure such
Operation is in satisfactory compliance with the requirements of the CC&RS,
Project Permits and any Ancillary Instrument.
8.4.3. TAXES AND ASSESSMENTS.
The
Association shall have the duty to pay all real and personal property taxes and
assessments and all other taxes levied against the Association Lot, Association
Property or against the Association. Such taxes and assessments may be
contested or compromised by the Association; provided that they are paid or
that a bond insuring payment is posted before the sale or the disposition of
any property to satisfy the payment of such taxes.
8.4.4. WATER
AND OTHER UTILITIES
The
Association shall acquire, provide and pay for necessary water and other
utilities for the Association Area and the Operation thereof.
8.4.5. MAINTENANCE OF PROJECT.
The
Association shall have the duty to landscape, maintain and operate the
Association Area and any other portions of the Project required to be
maintained by the Association pursuant to the CC&RS and any Maintenance
Manual. The Association's obligations to Maintain the Association Area shall
commence upon the commencement Regular Assessments on the Residential Lots
affected by such easements or as otherwise provided in a Supplemental
Declaration.
8.4.6. MAINTENANCE MANUAL.
The
Association shall maintain at the offices of the Association a copy of any
Maintenance Manual that Declarant may provide to an Owner and shall make
available to every Owner, upon request, a copy of any such Maintenance Manual.
The Association shall have the right to charge the requesting Owner a fee for
the copying of such Maintenance Manual. The Association shall also comply with
provisions of any Maintenance Manual provided by Declarant to the Association.
The Board may, from time to time, make appropriate revisions to the
Association's Maintenance Manual based on the Board's review thereof, to update
such Manual to provide for maintenance according to future industry practices
so long as such changes do not reduce the useful life or functionality of items
being maintained.
8.4.7. ARCHITECTURAL CONTROL.
The
Association shall have the duty to maintain architectural control over the
Property and promulgate Architectural Standards.
8.4.8. DELEGATION
OF POWERS: PROFESSIONAL MANAGEMENT.
The
Association acting by and through the Board can delegate its powers, duties,
and responsibilities to committees or employees, or to a professional managing
agent ("Manager").
8.4.9. LIENS AND CHARGES.
The
Association shall pay any amount necessary to discharge any lien or encumbrance
.upon the Association Property, or any other property or interest of the
Association. Where
one or more Owners are jointly responsible for the existence of such lien, they
shall be jointly and severally liable for the cost of discharging it, and any
costs incurred by the Association by reason of said lien or liens shall be
specially assessed to said Owner(s).
8.4.10. RESERVES.
The
Association shall establish, and maintain a reserve fund
as required under the CC&RS.
8.4.11. INSURANCE.
The
Association shall obtain, from reputable insurance companies and maintain the
insurance described in the Article hereof entitled INSURANCE.
8.4.12. MEMBERS'
APPROVAL OF CERTAIN ACTIONS
In the
event that any claim or other actions brought by the Association against
Declarant, including, but not limited to claims brought under California Civil
Code Section 895 et seq., and any successor statutes or laws, involving
allegations of construction defects relating to Improvements within the
Association Area is not resolved pursuant to non-adversarial procedures set
forth in California Civil Code Sections 910 through 938 and any successor
statutes or laws, the Association shall not initiate a further action or
procedure against Declarant under Article 20 herein or otherwise without first
obtaining the consent of the Owners other than Declarant, constituting a quorum
of more than fifty percent (50%) of the Owners of the Association casting a
majority of the votes at a meeting or election of the Association conducted in
accordance with the provisions of California Corporations Code Sections 7510
et. seq. and 7613 and any successor statutes or laws.
8.4.13. USE OF PROCEEDS TO REPAIR.
In the
event the Association receives, on its own behalf or for the benefit of the
Owners, any proceeds as a result of any construction defect or other claims
brought by the Association relating to the Operation obligations of the
Association, then the Association shall apply such proceeds first for the
purpose of repairing such defects or replacing reserve fields previously
utilized by the Association to cause such repairs and then to the costs of such
litigation.
8.4.14. LIMITATIONS ON AUTHORITY OF
BOARD.
The
Board shall not take any of the actions 'listed below except with the vote or
approval by written ballot of: (a) a majority of the Members of each of Class A
and Class B during the time the two-class voting structure set forth in this
Declaration is in effect; or (b) except with the vote at a meeting of the
Association or by written ballot without a meeting pursuant to Corporations
Code Section 7513 of at least fifty-one percent (51%). of the Members of the
Association including at least a majority of Association Members other than
Declarant after conversion to a single Cass A voting membership.
8.4.15. LIMIT
ON CAPITAL IMPROVEMENTS.
The
Board shall not, without obtaining the consent of the Members as set forth
above, incur aggregate expenditures for capital improvements to the Association
Property in any fiscal year in excess of five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year.
8.4.16. LIMIT
ON SALES OF ASSOCIATION PROPERTY.
The
Board shall not, without obtaining the consent of the Members as set forth
above, sell during any fiscal year property of the Association having an
aggregate fair market value greater than five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year.
8.4.17. LIMIT
ON COMPENSATION.
The
Board shall not, without obtaining the consent of the Members as set forth
above, pay compensation to members of the Board for services performed in the
conduct of the Association's business. However, the Board may cause a member of
the Board to be reimbursed for expenses incurred in carrying on the business of
the Association. Nothing contained herein shall limit the Association from
paying compensation to any members of any committees appointed by the Board or
consultants to such committees, including any Architectural Committee.
8.4.18. LIMIT
ON THIRD PERSON CONTRACTS.
The
Board shall not, without obtaining the consent of the Members as set forth
above, enter into a contract with a third person wherein the third person will
furnish goods or services for the Association Property or the Association for
-a term longer than one year with the following exceptions.:
(a) A management contract, the terms of
which have been approved by the Federal Housing Administration or VA;
(b) A contract with public utility company
if the rates charged for the materials or services are regulated by the Public
'Utilities Commission; provided; however, that the term of the contract shall
not exceed the shortest term for which the supplier will contract at the
regulated rate;
(c) A prepaid casualty and/or liability
insurance policy not to exceed three (3) years duration; provided that the
policy permits for short-rate cancellation by the insured;
(d) A contract for a term not to exceed three (3) years that is terminable by the
Association after no longer than one year without cause, penalty or other
obligations upon ninety (90) days written notice of termination to the other
party; and
(e) A
contract approved by the DRE.
9. RIGHTS
OF OWNERS
9.1. RIGHTS OF OWNERS.
Owners, and, to the
extent permitted by such Owner, such Owner's Invitees, and contract purchasers
who reside in such Owner's Dwelling, shall have the following rights and
limitations:
9.2. RIGHT OF ACCESS AND USE OF
DWELLING.
The right of
access over the Association Area for ingress to and egress from such Owner's
Residential Lot and Dwelling thereon, and of enjoyment and full use of such
Residential Lot and Dwelling, which right shall be appurtenant to and shall
pass with title to the Owner's Residential Lot, subject to the limitations
contained herein. This right cannot be forfeited or abridged by the failure by
an Owner to comply with provisions of the Project Documents or duly-enacted
Rules, except by judgment of a court or a decision arising out of arbitration
or on account of a foreclosure or sale under a power of sale for failure of the
Owner to pay assessments levied by the Association.
9.3. NOTICE AND HEARING.
The right to
receive at least fifteen (15) days' written notice prior to a decision by the
Board to impose monetary penalties, a temporary suspension of an Owner's right
as a Member of the Association, or other appropriate discipline for failure of
the Member to comply with the Project Documents as 'described more fully in the
Section entitled "Penalties Against Members" hereinabove, or any such
longer period as may be required under Section 7341 of the California
Corporations Code (or any successor statute or law). Additionally, before the
Board decides to impose a suspension of privileges or impose a monetary
penalty, the aggrieved Owner shall be provided with an opportunity to be heard
by the Board, orally or in writing, not less than five (5) days before the date
of the suspension of privileges or imposition of a monetary penalty is to take
effect. For purposes of this Section, notice shall be given by any method
reasonably calculated to provide actual notice. Notice may be hand-delivered to
the Owner, or sent by first class registered or certified mail, return receipt
requested, or overnight delivery and addressed to the Owner at the last address
of the Owner shown on the Association's records, or any other method deemed
reasonable by the Board for delivering notices. Each suspended or fined Owner
or other person can appeal a suspension or monetary penalty imposed by the
Board, including any claim alleging defective notice, within one (1) year of
the date of action taken by the Board, by filing written notice of his or her
intention to appeal with the Board. The action imposing the fine or suspension
shall then become ineffective until the fine or suspension is unanimously
approved by all directors of the Board at a regular or special meeting of the
Board at which all directors are present. The Owner or any other person to be
fined or suspended can appear, be represented by legal counsel and be heard-at
the meeting before the Board, either orally or in writing:
10. ASSESSMENTS
10.1. COVENANT
FOR ASSESSMENTS.
Subsequent to the first
Close of Escrow Declarant, for each Residential Lot owned within the Property,
hereby covenants, and each Owner of a Residential 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 all assessments levied pursuant to
the provisions of this Declaration. All assessments, together with interest,
costs, late charges and reasonable attorneys' fees, shall be a charge on and a
continuing lien upon the Residential Lot against which each such assessment is
made, the lien to become effective upon recordation of a Notice of Delinquent
Assessment, as provided in this Article. Each such assessment, together with
interest, costs, late charges and reasonable attorneys' fees, shall also be the
personal obligation of the Person who was the Owner of such Residential Lot at
the time when the assessment fell due and shall bind his or her heirs,
devisees, personal representatives and assigns. Unlike the lien for delinquent
assessments, the personal obligation for non-delinquent assessments shall not
pass to successive Owners, unless expressly assumed by each such successive
Owner. No such assumption of personal liability by a successive Owner
(including a contract purchaser under an installment land contract) shall
relieve any Owner from personal liability for delinquent assessments. If more
than one Person was the Owner of a Residential Lot, the personal obligation to
pay such assessment or installment respecting such Residential Lot shall be
both joint and several.
10.2. FUNDS
HELD IN TRUST.
The assessments
collected by the Association shall be held by the Association for and on behalf
of each Owner and shall be used solely for the operation, care and maintenance
of the Project as provided in -this Declaration. Upon the sale or transfer of a
Residential Lot, the Owner's interest in the funds shall be deemed
automatically transferred to the successor in interest of such Owner.
10.3. PURPOSE OF ASSESSMENTS.
The assessments
levied by the Association shall be used exclusively to promote the recreation,
health, safety and welfare of all the residents in the Project and for the
improvement and maintenance of the Association Area and for any other
maintenance responsibilities of the Association, and to reimburse the
Association for costs incurred in bringing an Owner into compliance with the
Project Documents.
10.4. REGULAR ASSESSMENTS.
10.4.1. PAYMENT OF REGULAR
ASSESSMENTS.
Regular
Assessments for each fiscal year of the Association shall be established when
the Board approves the Budget for that fiscal year, which Budget shall be
prepared in accordance with the provisions of this Declaration. Regular
Assessments shall be levied on a fiscal year basis. Unless otherwise specified
by the Board, Regular Assessments shall be due and payable in monthly
installments on the first day of each month during the term of this
Declaration.
10.4.2. BUDGETING.
Regardless of
the number of Members or the amount of assets of the Association, each year the
Board shall prepare, approve and make available to each Member a Budget as
described in the Bylaws. Increases in Regular Assessments shall be subject to
the limitations set forth in Section 10.15 below. For the first fiscal year,
the Budget upon which Regular Assessments shall be based shall be the Budget
accepted by the DRE and shall be approved by the Board no later than the date
on which Regular Assessments are scheduled to commence. Thereafter, the Board
shall annually prepare and approve the Budget and distribute a copy thereof to
each Member (or a summary thereof as provided in the Bylaws), together with
written notice of the amount of the Regular Assessment to be levied against the
Owner's Residential Lot, not less than forty-five (45) days nor more than sixty
(60) days prior to the beginning of the fiscal year.
10.4.3. RESTRICTIONS OF TAX
EXEMPTION.
As long
as the Association seeks to qualify and be considered as an organization exempt
from federal and state income taxes pursuant to Internal Revenue Code Section
528 and California Revenue and Taxation Code Section 2370 it and any amendments
thereto, then the Board shall prepare its annual budget and otherwise conduct
the business of the Association in such manner consistent with federal and
state requirements to qualify for such status.
10.5. NON-WAIVER OF ASSESSMENTS.
If before the
expiration of any fiscal year the Association fails to fix Regular Assessments
for the next fiscal year, the Regular Assessment established for the preceding
year shall continue until a new Regular Assessment is fixed.
10.6. SPECIAL ASSESSMENTS.
If the Board
determines that the estimated total amount of funds necessary to defray the
Common Expenses of the Association for a given fiscal year is or will become
inadequate to meet expenses for any reason, including, but not limited to,
unanticipated delinquencies, costs of construction, unexpected repairs,
replacement of or new capital improvements on, damage and destruction or
condemnation of the Association Area, the Board shall determine the approximate
amount necessary to defray such expenses and, if the amount is approved by a
majority vote of the Board and does not exceed five percent (5%) of the
budgeted gross , expenses of the Association, it shall become a Special
Assessment; provided, however that such limitation shall not apply to Special
Assessments levied by the Board to replenish the Association's reserve account
as provided in the Bylaws Section entitled ."USE OF RESERVE FUNDS" Except
for a Special Assessment levied pursuant to the Bylaws Section entitled
"USE OF RESERVE FUNDS," any Special Assessment in excess of five
percent (5%) of the budgeted gross expenses of the Association shall be subject
to the limitation set forth in the Section below entitled "Limitations on
Assessments." The Board may, in its discretion, prorate such Special
Assessment over the remaining months of the fiscal year or levy the assessment
immediately against each Residential. Lot. Unless
exempt from federal or state income taxation, all proceeds from any. Special
Assessment shall be segregated and deposited into a Financial Account and shall
be used solely for the purpose or purposes of which it was levied or it shall
be otherwise handled and used in a manner authorized by law or regulations of
the Internal Revenue Service or the California Franchise Tax Board in order to
avoid, if possible, its taxation as income of the Association.
10.7. CAPITAL
IMPROVEMENT ASSESSMENT
In addition to
any other assessments provided for hereunder, the Association may levy a
Capital Improvement Assessment for the purpose of defraying, in whole or in
part, the cost of any construction or replacement of a capital improvement in
accordance with the provisions of the Bylaws Section entitled "Capital
Improvements." Capital Improvement Assessments shall be due and payable by
all Owners in such installments and during such period or periods as the Board
shall designate. Increase in Capital Improvement Assessments shall be subject
to the limitations set forth in the Section below entitled "Limitations on
Assessments."
10.8. SINGLE BENEFIT ASSESSMENT.
The Board may
establish a Single Benefit Assessment for reconstruction, capital improvements,
extraordinary maintenance, or any other cost or expense not otherwise provided
for in this Declaration which will benefit less than all of the Owners, and
which will be assessed only against the Lots of those Owners so benefiting.
(a) Except as provided in the paragraph
immediately below, such Single Benefit assessments may be imposed only by a
vote of at least fifty-one percent (51%) of the Owners of the Residential Lots
benefited by the Single Benefit Assessment.
(b) Whenever the Association performs any service
or accomplishes any item • of repair or maintenance which is the duty of an
Owner to accomplish, but which has not been accomplished by such Owner, or
whenever the Association either (i) is responsible pursuant to the provisions
of this Declaration and/or (ii) determines to preempt the performance of a
specific Owner, for or of a given act of maintenance, repair or replacement of
Improvements within the Project which is either located on such Owner's Lot or
for which such Owner is responsible, the Association shall specifically. charge
the cost thereof, together with any financing costs and administrative costs
incurred by the Association, to the Owner for whom such work was done, and
shall include such additional cost as a Single Benefit • Assessment for such
Owner(s).
Each Single
Benefit Assessment shall be segregated in the Financial Accounts solely to the
Residential Lots which derive the benefit therefrom. In the event that the
Association obtains income directly related to an item which has been assessed
as a Single Benefit Assessment, such income shall be allocated so as to reduce
or offset such Single Benefit Assessment.
10.9. ENFORCEMENT ASSESSMENTS.
The Association
may levy an Enforcement Assessment against any Owner who causes damage to the
Association Area or for bringing an Owner or his or her Residential Lot into
compliance with the provisions of the Project Documents or any other charge
designated an Enforcement Assessment in the Project Documents, together with
attorneys' fees, interest and other charges related thereto as provided in this
Declaration. The Board shall have the authority to adopt a reasonable schedule
of Enforcement Assessments for any violation of the Project Documents. If,
after Notice and Hearing as required by this Declaration and which satisfies
Section 7341 of the California Corporations Code, the Owner fails to cure or
continues such violation, the Association may impose an additional fine each
time the violation is repeated, and may assess such Owner and enforce the
Enforcement Assessment as herein provided for nonpayment of an assessment. A
hearing committee may be established by the Board to administer the foregoing.
Notwithstanding any other provision in this Declaration to the contrary,
Enforcement Assessments are assessments, but they may not become a lien against
the Owner's Residential Lot that is enforceable by a power of sale under Civil
Code Sections 2924, 2924b and 2924c or any successor statute or laws. This
restriction on enforcement is not applicable to late payment penalties for
delinquent assessments or charges imposed to reimburse the Association for loss
of interest or for collection costs, including reasonable attorneys' fees, for
delinquent assessments.
10.10. UNIFORM RATE OF ASSESSMENT.
Regular
Assessments, Special Assessments and Capital Improvement Assessments shall be
levied at a uniform rate for all Residential Lots and may be collected on a
.monthly basis, or otherwise, as determined by the Board. Enforcement
Assessments and Single Benefit Assessments shall be levied directly to the
individual Residential Lots and/or their respective Owners, depending upon
whether the assessment may become a lien against the Residential Lot, as
provided in this Declaration.
10.11. EXCESSIVE ASSESSMENTS OR
FEES.
The Board may
not impose or collect an assessment or fee that exceeds the amount necessary to
defray the costs for which it is levied.
10.12. COMMENCEMENT OF ASSESSMENTS;
DUE DATES.
The monthly
installments for Regular Assessments provided for herein shall commence as to
all Residential Lots in the Project on the first day of the month following the
first Close of Escrow. The annual assessment shall be adjusted according to the
number of months remaining in the fiscal year.
10.13. NOTICE AND ASSESSMENT
INSTALLMENT DUE DATES.
A single ten
(10) day prior written notice of each Special Assessment and Capital
Improvement Assessment shall be given to each Owner. The first fiscal year's
Regular Assessment shall be equal to the amount shown in the Budget accepted by
the DRE as stated in the Public Report for the Project. Written notice of the
amount of the Regular Assessment for each fiscal year after the first fiscal
year shall be distributed to each Owner not less than forty-five (45) days nor
more than sixty (60) days prior to the beginning of the fiscal year, together
with a copy of the approved Budget for that fiscal year, as more fully
described in Section 10.4.2 above entitled "Budgeting." The foregoing
notwithstanding, the failure of the Board to comply with the foregoing notice
provisions shall not affect the validity of any assessment levied by the Board.
The due dates
for the payment of assessments shall normally be established as monthly
installments due on the first day of each month unless some other due date and/or
payment schedule is established by the Board.
10.14. FAILURE TO FIX ASSESSMENTS.
The omission by
the Board to fix the assessments hereunder before the expiration of any fiscal
year, for that or the next year, shall not be deemed either a waiver or modification
in any respect of the provisions of this Declaration or a release of the Owner
from the obligation to pay the assessments or any installment thereof for that
or any subsequent year, but the assessment fixed for the preceding year shall
continue until a new assessment is fixed.
10.15. LIMITATIONS ON ASSESSMENTS.
(a) The Board of Directors of the
Association shall not impose or collect an assessment, penalty, or fee that
exceeds the amount necessary for the purpose or purposes for which it is
levied. Annual increases in Regular Assessments for any fiscal year, as
authorized by subsection (b) immediately hereinafter, shall not be imposed
unless the Board has prepared and distributed the budget described in Section
10.4.2 above, and in the "Financial" Section of the Bylaws, in
accordance with the provisions of Civil Code Section 1365 (a) as it may from
time to time be amended, with respect to that fiscal year, or has obtained the
approval of Owners constituting a quorum, casting a Majority of the votes at a meeting
or election of the Association conducted in accordance with Chapter 5
(commencing with Section 7510) of
Part 3 of Division 2 of Title 1 of the Corporations Code and Section
7613 of the Corporations Code, or any successor statute.
(b) From and after January 1st of the year
immediately following the conveyance of the first Residential Lot to an Owner,
the Board of Directors of the Association may not impose, except as provided
herein, a Regular Assessment that is more than twenty percent (20%) greater
than the Regular Assessment for the Association's preceding fiscal year or
impose special assessments which in the aggregate exceed five percent (5%) of
the budgeted gross expenses of the Association for that fiscal year without the
approval of Owners constituting a quorum casting a majority of the votes at a
meeting or election of the Association conducted in accordance with Chapter 5
(commencing with Section 7510) of Part 3 of Division 2 of Title 1 of the
Corporations Code and Section 7613 of the Corporations Code. These provisions,
however, shall not limit assessment increases necessary for the following
"emergency situations:"
(1) An extraordinary expense required by an
order of a court;
(2) An extraordinary expense necessary to
repair or maintain those portions of the Project or the Association Area for
which the Association is responsible where a threat to personal safety is
discovered;
(3) An extraordinary expense necessary to
repair or maintain those portions of the Project or the Association Area for
which the Association is responsible that could not have been reasonably
foreseen by the Board in preparing and distributing the budget under this
Declaration and the Bylaws, in accordance with Civil Code Section 1365, or any
amendment thereto; provided, however, that prior to the imposition or
collection of an assessment under this paragraph, the Board shall pass a
resolution containing written findings as to the necessity of the extraordinary
expense involved and why the expense was not or could not have been reasonably
foreseen in the 'budgeting process, and the resolution shall be distributed to
the Members with the "Notice of Regular Assessment";
(4) An extraordinary expense in making the
first payment of the earthquake insurance surcharge pursuant to Section 5003 of
the California Insurance Code.
(c) Any increases authorized under this
Section shall not be imposed unless the Board has complied with the budgetary
requirements set forth in the Bylaws with respect to the fiscal year for -which
an assessment is levied. For the purpose of calculating whether an increase to
Regular Assessments exceeds twenty percent (20%), the term "Regular
Assessments " shall be deemed to include the amount assessed against each
Residential Lot by the Association as a Regular Assessment plus any amount paid
by Declarant as a subsidy pursuant to any subsidy agreements, to the extent
such subsidy payments offset any amount which would otherwise be paid by Owners
as Regular Assessments.
(d) For purposes of this Declaration,
"quorum" is defined as more than fifty percent (50%) of the Owners
(including the Declarant) of the Association; provided, however, for purposes
hereof, if there is more than one Owner of a particular Residential Lot, such
Owners will be treated as a single Owner for purposes of determining whether a
quorum is present
(e) Any action authorized under this Section
shall be taken at a meeting called for that purpose, written notice of which
shall be sent to all Members not less than ten (10) days nor
more than ninety (90) days in advance of the meeting.
10.16. NOTICE OF ASSESSMENT
INCREASE.
The Board shall
provide notice by first-class mail to the Owners of any increase in the Regular
Assessment or Special Assessments or Capital Improvement Assessments of the
Association, • not less than thirty (30) nor more than sixty (60) days prior to
the increased assessment becoming due and payable.
10.17. REDUCTION OR ABATEMENT OF
REGULAR ASSESSMENTS.
In the event the
amount budgeted to meet Common Expenses for a particular fiscal year proves to
be excessive in light of the actual Common Expenses, the Board in its
discretion may either reduce the amount of the Regular Assessments or may abate
collection of Regular Assessments as it deems appropriate. Nothing in this
Section shall require the Board either to abate or reduce the Regular
Assessments. The foregoing notwithstanding, neither an abatement nor a
reduction in Regular Assessments shall be permitted so long as Declarant is
possessed with or controls a majority of the total voting power of the
Association or the Board.
10.18. NO OFFSETS
All assessments
shall be payable in the amount specified by the Board and no offsets against
such amount shall be permitted for any reason, including, without. limitation
(a) a claim that the Association is not properly exercising its duties and
powers as provided in this Declaration;(b) a Member has made or elects to make
no use of the Association Area or any improvements located therein; or, (c) any
construction or maintenance performed pursuant to Section 14.4 entitled
"Assumption of Maintenance Obligations" shall in any way postpone
assessments or entitle a Member to claim any such offset or reduction.
10.19. DELINQUENCIES; LATE PENALTIES;
INTEREST ON ASSESSMENTS.
Any assessment
not paid within fifteen (15) days after the due date shall be delinquent and
shall be .subject to a reasonable late penalty not exceeding ten percent (10%)
of the delinquent assessment or ten dollars ($10.00), whichever is greater, and
shall bear interest on all sums including the delinquent assessment, reasonable
costs for collection and late penalties at an annual percentage not exceeding
twelve percent (12%) commencing thirty (30) days after the assessment becomes
due, or at the maximum legal rate as defined in the California Civil Code
Section 1366, or any successor statute or law.
10.20. DEBT OF THE OWNER.
Any assessment made in
accordance with this Declaration and any late charges, reasonable costs of
collection and interest, shall be a debt of the Owner of a Residential Lot from
the time the assessment and other sums are levied.
10.21. ASSOCIATION
POLICIES AND PRACTICES RE: DEFAULTS.
10.21.1. ASSESSMENT DEFAULTS.
The
Board shall annually distribute during the sixty (60) day period immediately preceding the beginning of the
Association's fiscal year, a statement of the Association's policies and
practices in enforcing its remedies against Members for defaults in the payment
of Regular and Special Assessments, including the recording and foreclosing of
liens against Members' Residential Lots.
10.21.2. MONETARY PENALTIES AND FEES.
If the
Association adopts or has adopted a policy imposing any monetary penalty,
including any fee, on any Member for a violation of the Project Documents,
including any monetary penalty relating to the activities of an Invitee, the
Board shall adopt and distribute to each Member, by personal delivery or
first-class mail, a schedule of the monetary penalties that may be assessed for
those violations, which shall be in accordance with authorization for Member
discipline contained in Section 8.3.2.A entitled "Enforcement
Actions" and Section 9.3 entitled "Notice And Hearing" herein;
provided, however, no such monetary penalty may be characterized or treated as
an assessment which may become a lien against the Owner's subdivision interest
enforceable by a sale of the interest in accordance with the provisions of
Sections 2024, 2024(b) and 2024(c) of the California Civil Code. The Board,
however, shall not be required to distribute any additional schedules of
monetary penalties unless there are changes from the schedule that was
previously adopted and distributed to the Members.
10.22. COLLECTION OF ASSESSMENTS;
LIENS.
10.22.1. RIGHT TO ENFORCE ASSESSMENTS.
The
right to collect and enforce assessments is vested in the Board acting for and
on behalf of the Association. The Board or its authorized representative can
enforce the obligations of the Owners to pay assessments provided for in this
Declaration by commencement and maintenance of a suit at law or in equity, or
the Board may foreclose judicially or through the exercise of the power of sale
pursuant to Section 10.22.7 below, enforce the lien rights created. Suit to
recover a money judgment for unpaid assessments together with all other
Additional Charges described in Section 10.23 hereafter shall be maintainable
without foreclosing or waiving the lien rights. Notwithstanding anything else
to the contrary herein, except for monetary penalties imposed by the
Association to reimburse the Association for costs incurred by the Association
in the repair of damage to the Association Area for which the Member or the
Member's Invitees were responsible, which may become a lien on the Owner's
Residential Lot, a monetary penalty imposed by the Association as a
disciplinary measure for failure of a Member to comply with the Project
Documents or in bringing the Member and his or her Residential Lot into
compliance with the governing instruments of the Association may not be
characterized nor treated as an assessment which may become a lien against the
Member's Residential Lot enforceable by a sale of the interest hereunder. The
limitation in the preceding sentence however, does not apply to any Additional
Charges.
10.22.2. NOTICE
TO OWNER PRIOR TO LIEN OF ASSESSMENT.
Before the
Association may place a lien upon an Owner's Residential Lot to collect any
assessment which is past due, the Association shall provide written notice
("Itemized Debt Notice") to the Owner by certified mail .of the
following:
(a) Fee and penalty procedures of the
Association as described in Section 10.21
above;
(b) An itemized statement of the charges
owed by the Owner, including items on the statement which indicate (i) the
principal owed, (ii) any late
charges and the method of calculation,
(iii) any attorney's fees, and (iv) the collection practices used by the
Association, including the right of the Association to recover the reasonable
costs of collection.
10.22.3. LIEN OF ASSESSMENT.
At any time
after (a) any assessments levied by the Association affecting any Residential Lot have become delinquent,
and (b) the Itemized Debt Notice thereof has been mailed to the Owner of such
Residential Lot, the Board may file for recording in the Office of the San
Diego County Recorder a "Notice of Delinquent Assessment" as to such
Residential Lot, which notice shall state all amounts which have become
delinquent with respect to such Residential Lot and the costs (including
attorneys' fees); late penalties and interest which have accrued thereon, the
amount of any assessments relating to such Residential Lot which is due and
payable although not delinquent; a legal description of the Residential Lot
with the name of the record or reputed record Owner of such Residential Lot,
and the name and address of the trustee authorized by the Association to
enforce the lien, if by nonjudicial foreclosure as provided below. Such notice
shall be signed by the President, Vice President, Secretary, or Chief Financial
Officer of the Association, or by an authorized agent (as designated by
resolution of the Board) of the Association. Immediately upon recording of any
Notice of Delinquent Assessment pursuant to the foregoing provisions of this
Section, the amounts delinquent, as set forth in such Notice, together with the
costs (including attorneys' fees), late penalties and interest accruing
thereon, shall be and become a lien upon the Lot described therein, which lien
shall also secure all costs (including attorney's fees), late penalties and
interest accruing thereon. The lien may be enforced as provided in Section
10.22.7 below, entitled
10.22.4. NOTICE
TO OWNER AFTER LIEN OF ASSESSMENT.
Not
later than ten (10) calendar days after recordation of the Notice of Delinquent
Assessment in the Office of the San Diego County Recorder, California, a copy
of the Notice of Delinquent Assessment and the recording date thereof shall be
mailed to all record Owners of the Residential Lot by certified or registered
mailed, in accordance with the manner set forth in Civil Code Section 2924b, or
any successor statute or law.
10.22.5. PAYMENTS UNDER PROTEST.
An Owner
who disputes an assessment imposed by the Association against such Owner and/or
such Owner's Residential Lot shall have the right to resolve such dispute
through (i) civil action or (ii) any other dispute resolution procedure that
may be available pursuant to Civil Code Section 1366.3, or any successor
statutes or laws.
10.22.6. RELEASE OF LIEN.
In the
event the delinquent assessments and all other assessments which have become
due and payable with respect to the same Residential Lot together with all
costs (including attorneys' fees), late charges and interest which have accrued
on such amounts are fully paid or otherwise satisfied prior to the completion
of any sale held to foreclose the lien provided for in this Article, the Board
shall record a further notice, similarly signed, stating the satisfaction and
release of such lien.
10.22.7. LIEN ENFORCEMENT; FORECLOSURE
PROCEEDINGS.
After
the expiration of thirty (30) days following the recording of the Notice of
Delinquent Assessment in the Office of the San Diego County Recorder,
California, the lien created by such recording may be foreclosed in any manner
permitted by law, including sale by the court, sale by the trustee designated
in the Notice of Delinquent Assessment, or sale by a trustee substituted
pursuant to Civil Code Section 2934a. Any sale by the trustee shall be
conducted in accordance with the provisions of Civil Code Sections 2924, 2924(b),
2924(c) and 1367, or any successor statute or law. The Association, acting on
behalf of the Owners, shall have the power to bid for the Residential Lot at a
foreclosure sale, and to acquire and hold, lease, mortgage and convey the same.
Suit to recover a money judgment for unpaid assessments, costs, late penalties
and attorneys' fees shall be maintainable without foreclosing or waiving the
lien securing the same.
10.23. ADDITIONAL CHARGES.
In addition to
any other amounts due or any other relief or remedy obtained against an Owner
who is delinquent in the payment of any assessments, each Owner agrees to pay
Additional Charges incurred or levied by the Board including such additional
costs, fees, charges and expenditures as the Association may incur or levy in
the process of collecting from that Owner monies due and delinquent. Additional
Charges shall include, but not be limited to, the following:
10.23.1. ATTORNEY'S
FEES.
Reasonable
attorneys' fees and costs incurred in the event an attorney(s) is employed to
collect any assessment or sum due, whether by suit or otherwise;
10.23.2. LATE CHARGES.
A late
charge in an amount to be fixed by the Board in accordance with Civil Code
Section 1366, or any successor statute or law, to compensate the Association
for additional collection costs incurred in the event any assessment or other
sum is not paid when due or within any "grace" period established by
law;
10.23.3. COSTS OF SUIT.
Costs of
suit and court costs incurred as are allowed by the court;
10.23.4. INTEREST.
Interest to
the extent permitted by law; and
10.23.5. OTHER.
Any such
other additional costs that the Association may incur in the process of
collecting delinquent assessments or sums.
10.24. PRIORITY OF THE LIEN.
The lien of
assessment herein shall be subordinate to the lien of any First Mortgage now or
hereafter placed upon any Residential Lot subject to assessment, and the sale
or transfer of any Residential Lot pursuant to judicial or non-judicial
foreclosure transfer (excluding a transfer by deed in lieu of foreclosure) of a
First Mortgage shall extinguish the lien of such assessments as to payments
which became due prior to such sale or transfer. No sale or transfer shall
relieve such Residential Lot from lien rights for any assessments thereafter
becoming due now from the lien of any subsequent assessment. Where the First
Mortgagee or other purchaser of a Residential Lot obtains title to the same as
a result of foreclosure (excluding a transfer by deed in lieu of foreclosure), such
acquirer of title, his or her successors and assigns, shall not be liable for
the share of common expenses or assessments by the Association chargeable to
such Residential Lot which became due prior to the acquisition of title to such
Residential Lot by such acquirer, exempt except for a share of such charges or
assessments resulting from a reallocation of such charges or assessments which
are made against all Residential Lots.
10.25. WAIVER OF EXEMPTIONS.
Each Owner, to
the extent permitted by law, waives, to the extent 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.
10.26. TAXATION AGAINST THE
ASSOCIATION AREA.
In the event
that any taxes are assessed against the Association Area or any portion
thereof, or Association Property, rather than against the individual
Residential Lots, said taxes shall be added to the Regular Assessments, and, if
necessary, a Special Assessment may be levied against the Residential Lots in
an amount equal to said taxes, to be paid in two (2) installments, thirty (30)
days prior to the due date of each tax installment, or as otherwise may be
established by the Board.
10.27. PERSONAL LIABILITY OF OWNER.
No Owner may
exempt himself from personal liability for assessments levied by the
Association, nor release the Residential Lot owned by him from the liens and
charges hereof by waiver of the use or enjoyment of any of the Association Area
or by abandonment of his or her Residential Lot. .
10.28. TRANSFER OF RESIDENTIAL LOT.
After transfer
or sale of a Residential Lot within the Project, the selling Owner or Owners
shall not be liable for any assessment levied on such Owner or Owner's
Residential Lot after the date of such transfer of ownership and written notice
of such transfer is delivered to the Association. The selling Owner shall still
be personally responsible for all assessments and charges levied on his or her
Residential Lot prior to any such transfer.
10.29. FINANCIAL ACCOUNTS.
The Board shall
establish financial accounts ("Financial Accounts"), into which shall
be deposited all monies paid to the Association and from which disbursements
shall be made, as provided herein, in the performance of functions by the
Association under this Declaration and the Bylaws. The Financial Accounts shall
be established in accounts at any banking, savings, brokerage or similar
institution ("Institution"), provided such funds are fully insured
(i) by the Federal Deposit Insurance
Corporation or similar Federal insuring agency, or (ii) by a comparable account insurer.
Aggregate deposits held in any single Institution shall not exceed the limit of
deposit insurance coverage available. The Financial Accounts shall include:
(a)
An Operating Account for current Common Expenses of the Association;
(b) A Reserve Account for capital
improvements, replacements, painting and repairs of the Association Area; and
(c) Any Other Accounts that the Board may
establish to the extent necessary under the provisions of this Declaration.
Except for purposes of transfer of funds upon receipt or disbursement thereof,
the Board shall not commingle any amounts deposited into any of the Financial
Accounts with one another. Nothing contained herein shall limit, preclude or
impair the establishment of additional Financial Accounts by the Declarant so
long as the amounts assessed to, deposited into, and disbursed from any such
Account are earmarked for specified purposes authorized by this Declaration or
the Bylaws.
10.30. USE OF RESERVE FUNDS.
Any reserve fund
accounts maintained by the Association (including any capital accounts.
maintained pursuant to the above Section entitled "Financial
Accounts") shall be used for the purposes and in the manner described in
California Civil Code Section 1365.5, as it may from time to time be amended.
11. USE
RESTRICTIONS
11.1. USE OF RESIDENTIAL LOTS.
Residential Lots shall
be occupied and used for residential purposes only by the Owners and their
Invitees; provided, however, any Residential Lot May be used as a combined
residence and executive or professional office, or occupations relating to arts
and crafts, so long as such occupations (a) are operated solely within the
Residential Lot, (1)) are conducted in conformance with all applicable
governmental ordinances, (c) are merely incidental to the use of the
Residential Lot as a residence, (d) the patrons or clientele of such occupation
do not regularly visit or conduct business on the Residential Lot, (e) the
business is operated by the Owner of the Residential Lot whose principal
residence is the Residential Lot, by a tenant whose principal residence is the
Residential Lot, or by a member of such Owner's or tenant's family whose
principal residence is the Residential Lot, (f) the operation of the business
does not result in (i) the violation of any of the other provisions of this
Declaration, (ii) any unreasonable increase in the flow of traffic,
or the creation of parking problems within the Project, or (iii) any odor,
noise, or vibration outside of the Residential that interferes with the quiet
enjoyment by other Owners or their Invitees. No other use shall be allowed
except as specifically permitted by local ordinance, or is otherwise authorized
by such California statutory or common law that may take precedence over County
requirements and/or this Declaration.
No tent, shack,
trailer, garage or structure of a temporary character shall be used on any
Residential Lot at any time as a residence, either temporarily or permanently. The foregoing notwithstanding, Declarant
may use any of the Residential Lots owned or leased by Declarant as model homes
and sales offices during that time period described in Section 13.2
hereinafter.
11.2. LEASE OF DWELLING.
11.2.1. REQUIREMENTS
OF ALL LEASES.
Any
Owner who wishes to lease his or her Residential Lot and the Dwelling thereon
must meet each and every one of the following requirements, and the lease will
be subject to these requirements whether they are included within a lease or
not:
(a) All leases must be in writing;
(b) Unless the Owner remains in occupancy,
the lease must be for the entire Residential Lot, and not merely parts thereof,
and shall include the Dwelling and its garage, and no such lease shall allow
the tenant to forfeit the use of such garage;
(c) No lease shall be for a period of less
than thirty (30) days;
(d) All leases shall be subject in all
respects be the provisions of this Declaration and the other Project Documents;
11.2.2. FAILURE
OF TENANT TO COMPLY WITH PROJECT DOCUMENTS; OTHER TENANT MATTERS.
(a) Any failure of a tenant to comply with
the Project Documents shall be a default under the lease, regardless of whether
the lease so provides. In the event of any such default, the Owner immediately
shall take all actions to cure the default including, if necessary, eviction of
the tenant;
(b) Each Owner shall provide a copy of the
Project Documents to each tenant of his or her Residential Lot. By becoming a
tenant, each tenant agrees to be bound by the Declaration, the Bylaws, the
Rules of the Association and any other Project Document. Anything herein to the
contrary notwithstanding, each Owner is responsible and liable to the
Association for the acts or omissions of its tenant, including reasonable
attorneys' fees.
11.3. ARCHITECTURAL
AND AESTHETIC CONTROL AND STANDARDS FOR IMPROVEMENTS.
11.3.1. BOARD/ARCHITECTURAL
COMMITTEE POWERS.
The
nature, shape, height, color, color schemes, exterior finishes, exterior
lighting, materials, architectural, engineering and aesthetic design and
control of any and all Improvements (and their placement) to be commenced,
erected, placed or altered within any Residential Lot or Association Lots,
including topography, grade level and/or drainage, and the landscaping an
irrigation installed on any Residential Lot or the Association Lot, shall be
subject to the review, approval and/or disapproval of the Board or its
delegated Architectural Committee pursuant to the powers granted to the Board
or its Architectural Committee, as more fully described in Article 12 entitled
"Architectural and Design Control" herein. Such powers shall include
the right of the Board or an Architectural Committee to: (i) establish, expand,
limit, and/or modify such architectural standards, criteria, specifications,
guidelines and protocols (collectively, "Architectural Standards and
Covenants" or "Architectural Standards") as it may deem
appropriate and/or necessary to enhance, maintain and protect the value,
attractiveness and desirability of the Project as a Common Interest
Development, and (ii) perform its responsibilities and obligations.
11.3.2. DISTRIBUTION
OF ARCHITECTURAL STANDARDS AND COVENANTS.
Upon
written request from an Owner or Owner's authorized representative, the
Association shall, in accordance with the procedures and provisions contained
in Civil Code Section 1368(b), or any successor statute, provide the Owner a
copy of the most current Architectural Standards and Covenants. The foregoing
notwithstanding, the Association shall distribute to the Members a copy of any
amendment to the Architectural Standards and Covenants made during the
Association's fiscal year either in conjunction with its annual distribution of
the Budget described in Section 10.4.2 entitled "Budgeting", or such
other time as the Board may deem appropriate, by mail or delivery to each
Residential Lot, or by newsletter or similar means of communication.
11.4. EXTERIOR
COLORS.
Any changes to
the exterior colors of Improvements shall be approved by the Board or its
Architectural Committee, provided, however, no permission or approval shall be
required to recolor (paint, stucco color coating, etc.) the exterior of a
Dwelling or any accessory building in the same color scheme as it had been. The
provisions of this Section, however, shall not apply to any Improvements owned
by the Declarant or any affiliate or agent of Declarant and neither the Board
nor its Architectural Committee shall have any rights of review or approval
with respect thereto.
11.5. ACCESSORY
BUILDINGS.
No accessory
structures or buildings shall be constructed, placed or maintained on a
Residential-Lot except for a detached servant, recreation or guest room
structure, and a private garage; provided, however, no garage shall be
constructed prior to the construction of the main Dwelling. Any accessory
building constructed on a Residential Lot shall conform generally in
architectural design, exterior materials and color and roof pitch to the main
Dwelling.
11.6. REASONABLE
CONSTRUCTION TIMEFRAME.
All work of
construction being performed on a Residential Lot shall be prosecuted
diligently and continually from the time of commencement of construction until
the same shall be fully completed, excepting therefrom causes beyond the
control of the Lot Owner, such as strikes, Acts of God, etc. The Owner of a Lot
where a building structure has been damaged or destroyed by fire or other
calamity shall cause such structure to be repaired or restored within a
reasonable time, commencing within six (6) months after the damage occurs and
be completed within one year (1) thereafter, unless prevented by causes
beyond his or her reasonable control. This obligation shall not extend to the
installation of furniture or the like, but shall be for the purpose of
preventing unsightliness caused by such damage or destruction and any resultant
health or safety problems to other Owners or occupants within the Property or
neighborhood.
11.7. SCREENDOORS;
AWNINGS; WINDOWS.
No screen door
on the front or main entrance door or doors, or any aluminum or metal awnings,
covers, sunshades or ornamental screens shall be erected or maintained on or
around any portion of a Dwelling or accessory building or elsewhere within the
Project except those that are installed with the original construction of the
Project or as authorized and approved by the Board or its delegated committee.
11.8. WINDOW
COVEMNGS.
Temporary window
coverings ("Temporary Window Coverings") in a design and color that
does not conflict with surrounding Improvements shall be permitted for a
maximum period of sixty (60) days from
the date that a Dwelling is first occupied; provided, 'however, no window shall
ever be covered with paint, aluminum foil, newspapers or any other contrasting
material). Non-reflective solar films, however, may be used.
11.9. PETS.
Except as
otherwise provided more stringently in the zoning ordinances of the County, an
Owner may keep and maintain on his or her Residential Lot domesticated pets
such as dogs, cats or other usual and ordinary household pets as may be allowed
by the Association Rules, if any; provided, however, any pet which may have
already been allowed prior to the adoption of a Rule that would preclude such
pet, shall be exempt from such Rule for the lifetime of such pet or pets;
further provided, that the above pets shall not be kept, maintained or bred for
any commercial purposes. Under no circumstances shall poultry, birds of prey,
goats, bovine or swine be permitted. The foregoing notwithstanding, no pets may
be kept on the Property which result in an annoyance or are obnoxious to other
Owners or occupants; provided, however, that the Association Rules may further
limit or restrict the keeping of such pets. No pets shall be permitted in any
area designated in the Association Rules as being restricted to pets. No dog
whose prolonged barking (or other. prolonged noise-producing pet) unreasonably
disturbs other Owners or occupants shall be permitted to remain in the Project.
Persons bringing or keeping a pet within the Project shall prevent their pets
from soiling all portions of the Project where other persons customarily walk
or otherwise occupy from time to time and shall promptly clean up any mess left
by their pets. Each person bringing or keeping a pet within the Project shall
be absolutely liable to the Association and other Owners and their invitees for
any damage to persons or property caused by any pet brought upon or kept upon
the Project by such person or such Owner's Invitees.
11.10. SIGNS.
No signs,
placards, decals or other similar objects, visible from neighboring property or
streets, shall be erected or displayed on any Residential Lot or the
Association Area, which are not in conformance with governmental ordinances: or
the Architectural Standards.
Anything contained in
this Declaration to the contrary notwithstanding, Declarant and its authorized
agents shall have the right, during the time period described in the Article
12.1 entitled DEVELOPMENT RIGHTS, to install and maintain such Construction and
Marketing Improvements as provided in such Article.
11.11. EXTERIOR
LIGHTING.
Any exterior
landscape lighting or exterior lighting installed on a Dwelling shall either be
indirect, shielded or of such controlled focus and intensity as to prevent
glare on surrounding properties and unreasonable disturbance to occupants of
other Dwellings in the neighborhood.
11.12. SOLAR
ACCESS.
Subject to the
provisions for Architectural Committee approval contained in Section 12.9
entitled "Approval of Solar Energy Systems," all Residential Lots
within the Community shall have a right to a minimum of one hundred (100)
square feet of solar access. No vegetation shall be planted or improvement
maintained on any Lot in such a location or at such a height as to unreasonably
obstruct the rays of the sun from a solar collector installed on another Lot in
the Community. The foregoing notwithstanding, should solar collectors be
installed at a later date, the cost of removing or modifying the established
landscaping upon an adjoining Lot shall be the responsibility of the Owner
benefiting .rom the solar access. The Owner installing the solar collectors
shall place the solar collectors in a location as to minimize any impact upon
adjoining Lots.
11.13. ANTENNAS,
SATELLITE DISHES.
There shall be
no outside television or radio antennas, masts, satellite dishes, transmitter
tower or facility installed or maintained in the Project for any purposes
whatsoever without approval of the Board. However, in considering whether to
approve an antenna or to impose requirements on such approval, the Board shall
not violate any applicable law or regulation, including, but not limited to,
any Applicable Law, including regulations of the Federal Communications Commission.
All fees for the use of any cable television system shall be borne by the
respective Owners, and not by the Association or Declarant.
11.14. POST
TENSION SLABS.
The Dwellings on
some or all of the Lots may have been constructed with post-tensioned concrete
slabs ("System"). The System involves placing steel cables under high
tension in the concrete slab located beneath the Dwelling. Each Owner shall be
responsible for determining whether the Dwelling on his or her Lot has been
constructed with a System. Any • attempt by an Owner or other person to alter
or pierce the foundation (e.g., saw cutting or drilling) could damage the
integrity of the System and/or cause serious injury or damage to persons and
property. No Owner shall cut into or otherwise disturb the System upon which
the Dwelling on his or her Lot is constructed. The Owner of each Lot on which
the residence has been constructed with a System agrees, by acceptance of a
Deed to the Lot, that neither Declarant nor any contractor of Declarant shall
be responsible for any damage or injury resulting from or arising in connection
with the alteration or piercing by the Owner or Invitee thereof of the slab or
the foundation or the Dwelling c.., Lot. Each Owner shall hold Declarant
harmless from and indemnify Declarant against all claims, demands, losses,
costs (including attorney's fees), obligations and liability arising out of or
in connection with the failure of the Owner to comply with the provisions of
this Section.
11.15. POLLUTANT
AND STORM WATER RUNOFF.
The Association
and each of the Owners shall comply with plans for the regulation and control
of pollutant and storm water runoff and erosion by using "Best Management
Practices" in accordance with the residential provisions of the California
Storm Water Best Management Practices Handbook. All Owners and their Invitees
including, without limitation, tenants of any Residences shall coordinate
efforts to establish or work with established disposal programs to remove and
properly dispose of toxic and hazardous waste products. Toxic chemicals or
hydrocarbon compounds.; such as gasoline, motor oil, antifreeze, solvents,
paints, paint thinners, wood preservatives, and such other fluids shall not be
discharged into any street, public or private, or into any storm drain or storm
water conveyance systems. Vehicle maintenance is prohibited on the Private
Roads or in the Association Area. Use and disposal of pesticides, fungicides,
herbicides, insecticides, fertilizers and other such chemical treatment shall
meet federal, state, county and city requirements as prescribed in their
respective containers. "Best Management Practices" shall also be used
to eliminate or reduce surface pollutants or sediment discharges into the
waters of the state when planning any changes to the landscaping and any other
surface Improvements. Some of the Best Management Practices in place at the
.Project for storm. water runoff include, but are not limited to, retention
basins, concrete swales, slope stabilization, vegetation and a storm water
system infrastructure. Each Owner shall be liable to the remaining Owners for
any drainage to the erosion and storm water runoff control measures which are
in place.
11.16. SLOPE
CONTROL, USE AND MAINTENANCE.
Except for
Easement Areas located on a Residential Lot, each Owner shall keep, maintain,
water, plant and replant all slopes located on such Owner's Residential Lot, so
as to prevent erosion and to create an attractive appearance. It shall be the
duty of all Owners to conduct all construction and installation of improvements
on the slopes in accordance with any guidelines or rules adopted by the Board
for maintenance of the slopes. Thereafter each Owner shall keep, maintain,
water, and replant all slopes in such a manner as to protect the integrity of
such Owner's Residential Lot and all adjoining Residential Lots and the
structural improvements thereon. No structure, planting or other material shall
be placed or permitted to remain or other activities undertaken on the slopes
that may damage or interfere with established slope ratios, create erosion or
sliding problems, or that may change the direction of flow of drainage Utility
Systems or obstruct or retard the flow- of water through such Systems. The
Association, acting through its Board of Directors, shall have the right, after
providing an Owner with reasonable notice and an opportunity to be heard before
the Board, to perform slope maintenance and repairs with respect to any
Residential Lot to be maintained by the Owner thereof after a determination by
the Board that such action is necessary in order to protect the integrity of
any Residential Lot or structural Improvement within the Project. The Board may
only initiate such action after providing an affected Owner with reasonable
notice together with an opportunity to be heard by the Board. The costs of any
such remedial work performed by the Association on behalf of an. affected Owner
may be collected by the Association as a reimbursement assessment as provided
in this Declaration,
11.17. OFFENSIVE
ACTIVITIES AND CONDITIONS.
No noxious or
offensive activity shall be carried on upon any Lot, or on the Association
Area. No odor shall be permitted to arise from a Lot which renders the Lot or
any portion thereof unsanitary, unsightly or offensive to any portion of the
Project or to its occupants. No noise or other nuisance shall be permitted to
exist or operate upon any portion of a Lot so as to be unreasonably offensive
or detrimental to any other part of the Project or to its occupants. No
exterior speakers, horns, whistles, bells or other sound devices (other than
security devices used exclusively for security purposes) which unreasonably
disturb other Owner or their tenants shall be located, used or placed on any
Lot. Alarm devices used exclusively to protect the security of a Dwelling and
its contents shall be permitted, provided that the devices do not produce
annoying sound or conditions as a result of frequently occurring false alarms.
11.18. GARBAGE
AND REFUSE DISPOSAL.
All rubbish,
trash and garbage shall be regularly removed from Residential Lots and
Association Area, and shall not be allowed to accumulate thereon. Trash,
garbage and other waste shall not be kept except in sanitary containers
designed for such purpose. The Board may require, pursuant to its Rules, that
all garbage and other wastes be segregated and such segregated elements be
separately packaged (for example, all cans, glass, paper products and other
items of trash be segregated from each other and separate packaged for pickup
and disposal by a garbage and waste disposal company or a department of any
governmental agency having jurisdiction over the Project). All equipment for'
storage or disposal of such materials shall be kept in a clean and sanitary
condition. All equipment, trash bins or cans shall be kept screened and
concealed from view of other Lots and the Association Area.
11.19. CLOTHES
LINES.
Except with
written permission from the Board, outside clotheslines or other outside
clothes dryi.ng or airing facilities shall be prohibited.
11.20. LANDSCAPING;
VACANT LOTS.
11.20.1. INITIAL
LANDSCAPING OF RESIDENTIAL LOTS WITH DWELLINGS THEREON.
(a) Unless Declarant has installed the
landscaping for a Residential Lot, within six (6) months after the Close of
Escrow of such Residential Lot on which a Dwelling is constructed, the Retail
Owner of such Residential shall prepare and submit in accordance with the
provisions of the Article entitled "ARCHITECTURAL AND DESIGN CONTROL"
hereafter, a landscaping and irrigation plan for those portions of such Owner's
Residential Lot which are visible from the Private Road which provides access
to and: from such Residential Lot. If such plan is disapproved, a revised
plan(s) shall be submitted fourteen (14) days after such disapproval, until a
plan has been approved in accordance with the provisions of the
"ARCHITECTURAL AND DESIGN CONTROL" Article.
(b) No landscaping shall be installed on a
Residential Lot such that it would which interfere with Established Drainage
Patterns in the Project.
(c) Residential Lot Landscaping shall: at all times
be Operated in an attractive and well-maintained condition, subject to (i) any conditions or restrictions
imposed by the Board through the
Association Rules or Architectural Standards: or, (ii) any water conversation restrictions, which may from time to
time be imposed by a local water district or other governmental or
quasi-governmental jurisdiction.
11.20.2. VACANTLOTS.
Each
Owner of a vacant Residential Lot shall have a duty and obligation to maintain
such Lot in a condition reasonably free of ire hazards, litter, debris and any
personal property, to the extent required by Applicable Law, Association Rules
or Architectural Standards, whichever is more stringent.
11.21. VEHICLE
RESTRICTIONS.
11.21.1. PROHIBITED
VEHICLES.
No house
trailer, bus, trucks over 1 ton, commercial vehicles (except as described in
"Permitted Vehicles" below), permanent tent or similar equipment
shall be permitted •to remain upon any area within the Community other than
parked temporarily for purposes of loading, unloading. "Temporary
parking" shall mean parking of vehicles belonging to Invitees or Owners,
delivery trucks, service vehicles and other commercial vehicles being used in
the furnishing of services to the Association or the Owner and parking of
vehicles belonging to or being used by Owners for loading and unloading
purposes only. No noisy or smoky vehicles shall be operated in the Community.
11.21.2. RESTRICTED
VEHICLES.
No truck
camper (excepting a pick-up truck with a camper shell), camper trailer,
recreational vehicle or camper, recreational motor home, horse trailer, boat,
golf cat, all-terrain vehicle (ATV), inoperable or unlicensed vehicle shall be
permitted to remain upon any area within the Community in such a manner that it
is visible from other Residential Lots, neighboring property or adjacent
streets. Motorcycles and motorbikes shall be permitted, provided they are
operated at noise levels not exceeding 45 decibels. The storing, placing or
parking of any vehicle, or any part thereof, which is disabled, unlicensed,
unregistered, inoperative, or from which an essential or legally required
operating part is removed, shall be prohibited unless conducted within a
garage.
11.21.3. PERMITTED
VEHICLES.
Automobiles,
standard-sized vans and pickup trucks (including pickup trucks with a camper
shell) shall be permitted vehicles within the Community. Permitted commercial
vehicles shall include automobiles or standard sized vans and pickup trucks
which are used both for business and personal use, provided that any signs or
markings of a commercial nature on such vehicles shall be unobtrusive and
inoffensive as determined by the Board.
11.21.4. CONSTRUCTION
AND SALES.
Declarant, or
Declarant's successor in interest, may maintain such trailers or temporary
construction shelters or facilities within the Property which are related to
the construction or sale of Residential Lots and improvements thereon and
within the Property, in accordance with the provisions therefor contained in
ARTICLE 12.1 herein.
11.22. USE
OF GARAGES; PARKING.
When garages are
not in use, garage doors shall be closed. Garages shall be used only for. the
purpose of parking automobiles and other vehicles and storing equipment and
household goods; provided, however, that all such uses shall be accomplished so
that garage doors can be closed. Garages shall not be physically converted into
any other configuration (such as recreational room) that would prevent its use
as parking space for the number of vehicles the garage was designed to contain.
Owners are to use their garages and driveways 'for parking of their vehicles.
Parking of vehicles on Residential Lots shall be conducted on paved surfaces
only; there shall be no parking of vehicles on unpaved surfaces, such as lawns
or dirt surfaces.
11.23. TOWING.
(a) Any vehicle within the Community parked
in violation of this Declaration or the Association Rules may be removed as
provided for in accordance with the provisions of California Vehicle Code Section
22658.2 and any amendments thereto, or in accordance with County Ordinances.
(b) Notwithstanding the foregoing, the Association
may cause the removal, without notice, of any vehicle parked in a marked fire
lane, within fifteen (15) feet of a fire hydrant, or in a manner which
interferes with any entrance to or exit from the Project or any Residential
Lot, parking space, garage or driveway located thereon.
(c) The Association shall not be liable for
any damages incurred by the vehicle
owner because of the removal
in compliance with this Section or for any damage to the vehicle caused by the
removal; unless such damage resulted from the intentional or negligent act of
the Association or any person causing the removal of or removing the vehicle.
If requested by the owner of the vehicle, the Association shall state the
grounds for the removal of the vehicle.
11.24. WELLS;
SEPTIC TANKS.
No well or
septic tank shall be located and constructed in the Project.
11.25. LIABILITY
FOR DAMAGE TO ASSOCIATION AREA.
Each Owner shall
be liable to the Association and to the remaining Owners for any damage to the
Association Area that may be sustained by reasons of the negligence of that
Owner, his or her Invitees or any occupant of such Owner's Dwelling; as such
liability may be determined under California law. Each Owner shall be
responsible for compliance with the provisions of the Declaration, Articles,
Bylaws and Rules of the Board by his or her Invitees, and shall, after written
notice and an appointment for a hearing, pay the fines and penalties assessed
pursuant hereto, the Bylaws or Board rules for any violation by his or her
Invitees.
11.26. RESTRICTIONS
ON FURTHER SUBDIVISION.
No Residential Lot shall be further subdivided nor shall less
than all of any such Residential Lot be conveyed by an Owner thereof; provided,
however, that nothing in this Section shall be deemed to prevent an Owner,
including Declarant, from adjusting the boundary of a Lot by boundary
adjustment or parcel map.
11.27. INDEMNIFICATION.
Each Owner shall
be liable to the remaining Owners for any damage to the Association Area or to
any other Residential Lot that may be sustained by reason of the negligence or
willful misconduct of that Owner, or the Owner's Invitees, but only to the
extent that any such damage is not covered by insurance of the Association.
Each .Owner, by acceptance of his or her deed, agrees for himself or herself
and for the Owner's Invitees, to indemnify each and every other Owner, and to
hold each Owner harmless from, and to defend each Owner against, any claim of
any person for personal injury or property damage caused by the negligence or
willful misconduct of such Owner, occurring within the Residential-Lot of that
particular Owner unless the injury or damage occurred by reason of the
negligence or willful misconduct of any other Owner or the Association or is
fully covered by insurance covered by the Association.
12. ARCHITECTURAL
AND DESIGN CONTROL
12.1. APPROVAL
FOR ARCHITECTURAL AND DESIGN MATTERS.
Each Owner,
other than Declarant, shall obtain the approval of the Board for any
modification or installation of Improvements, including landscaping or
irrigation systems, in accordance with the provisions set forth below.
12.2. GENERAL.
The powers and
duties set forth in this Article shall be vested in, and exercised by the Board
of Directors of the Association; provided, however; the Board may, upon
unanimous approval thereof, delegate its powers and duties to an Architectural
Committee consisting of not less than three (3) nor more than five (5) members,
in which case all references to the "Board" herein, where
appropriate, shall be construed thereafter to refer to the "Architectural
Committee." In the event the Board elects to delegate such powers, to an
Architectural Committee, prior to conversion of the Class B membership in the
Association to Class A membership, Declarant may appoint all of the original
members of the Committee and all replacements until the first(1st) anniversary
of the first Close of Escrow; additionally, Declarant reserves to itself the
power to appoint a majority of the members to the Committee until ninety
percent (90%) of all the Lots in the Project have been sold or until the fifth
(5th) anniversary of the first Close of Escrow, whichever first occurs.
Thereafter, the Board shall have the power to appoint and remove all of the
members of the Architectural Committee. Members appointed to the Architectural
Committee by the Board shall be from the membership of the Association. Members
appointed to the Architectural Committee by the Declarant need not be Members
of the Association. A majority of the Architectural Committee may designate a
representative to act for it. In the event of death or resignation of any
member of the Architectural Committee, the successor shall be appointed by the
person, entity or group which appointed such member until Declarant no longer
has the right to appoint any members to the Architectural Committee, and
thereafter the Board shall appoint such a successor.
12.3. DUTIES.
The Board shall
consider and act upon such proposals or plans submitted to it as described
herein and pursuant to the terms hereof and to the extent it may otherwise be
granted such additional authorities and delegation of responsibilities.
12.4. MEETINGS;
VOTING; WRITTEN CONSENT.
The Board shall
meet from time to time as necessary to properly perform its duties hereunder.
The vote or written consent of at least a fifty-one percent (51%) majority of
the members of the Board shall constitute an act by the Board for purposes of
architectural matters herein, unless the unanimous decision of its members is
otherwise required by this Declaration. The Board shall keep and maintain a
record of all actions taken by it at such meeting or otherwise.
12.5. SCOPE.
No Improvements
of any kind whatsoever shall be commenced, erected, placed or altered upon or
around any Residential Lot until the location and the complete plans and
specifications showing the nature, kind, shape, height and materials, including
the color ("Plans and Specifications"), have been submitted to and
approved in writing as to harmony of external design and location to
surrounding structures and topography by the Board. In addition, the grade,
level or drainage characteristics of the Residential Lot or any portion thereof
shall not be altered without the prior written consent of the Board.
12.6. ARCHITECTURAL
STANDARDS & COVENANTS.
12.6.1. ESTABLISHMENT,
EXPANSION, MODIFICATION.
The
Board may, from time to time and in its sole discretion, adopt, amend and
repeal such covenants, conditions and restrictions to be known as
"Architectural Standards and Covenants" and/or "Architectural
Standards," as it deems necessary in order to (a) to enhance maintain and
protect the value, attractiveness and desirability of the Project as a Planned
Development, and (b) to perform its responsibilities and obligations. Such
Architectural Standards may include a broad range of regulations, including
those that provide for "minimum standards" together with sufficient
artistic and esthetic latitude that offer discretionary leeway, and, time
frames for review, approval, and appeal of any Architectural Activity;
provided, however, such Architectural Standards shall not be in derogation of
the standards required by this Declaration. Architectural Standards may
include; but not be limited to specific or general criteria, specifications and
protocols for the architectural, landscape; placement or other form of design,
color scheme; exterior finish, materials and similar features of all
Improvements, and as well as restrictions, conditions and other criteria
relating to the use of Improvements that are visible to Owners and their
Invitees. The foregoing notwithstanding, the Architectural Standards shall
include the following restrictions and limitations:
(a) Time limitations for the completion of
the Improvements for which approval is required pursuant to the Architectural
Standards; and
(b) Conformity of completed improvements to Plans
and Specifications approved by the Board.
The
Architectural Standards may •provide for the pre-approval or exemption from
approval of certain specified types or categories of improvements, provided
that such preapproved or exempted construction activities are implemented by the
affected Owner in conformance with the standards for design, materials and
other criteria established in the Architectural Standards for such preapproved
or exempted construction activities. _The Board may from time to time adopt,
supplement or amend the Architectural Standards to establish, expand, limit or
otherwise modify the categories and criteria for any pre-approved or exempted
construction activities.
12.6.2. DISTRIBUTION
OF ARCHITECTURAL STANDARDS AND COVENANTS.
For
distribution and other availability of Architectural Standards and Covenants,
see Section 11.3.2 above entitled "Distribution of Architectural Standards
and Covenants."
12.7. APPROVAL
OF PLANS & SPECIFICATIONS BY ARCHITECTURAL COMMITTEE.
Any Owner
proposing to construct Improvements or to take any other actions requiring the
prior approval of the Board pursuant to this Declaration shall first apply to
the Board for preliminary approval by submission of preliminary drawings of the
proposed Improvements in accordance with the Architectural Standards, if any.
The purpose of the preliminary approval procedure is to allow an Owner
proposing to construct Improvements an opportunity to obtain guidance
concerning design considerations before expending substantial sums for plans
and other exhibits required to apply for final approval. Applications for
preliminary approval shall be considered and disposed of as set forth below.
12.8. PRELIMINARY
APPROVAL.
12.8.1. TIME
PERIODS FOR REVIEW.
Within
thirty (30) days after proper application for preliminary approval, the Board
shall consider and act upon such request. The Board shall grant such approval
only if the proposed Improvements; to the extent its nature and characteristics
are shown by the application, would be entitled to a final approval on the
basis of a full and complete application. In the event the Board fails to
approve or disapprove any such preliminary plans within thirty (30) days after
all documents and information requested by the Board have been received by it,
the Owner requesting said approval may submit a written notice to the Board
advising the same of its failure to act. If the Board fails to approve or disapprove any such preliminary plans within
fifteen (15) days after the receipt of said notice from such Owner, said
preliminary plans shall be deemed approved, provided that any Improvements
conform to all conditions and restrictions contained in this Article and are in
harmony with similar structures erected within the Project. In granting or
denying approval, the Board may give the applicant such directions concerning
the form and substance of the final application for approval as it may deem
proper or desirable for the guidance of the applicant. The giving of any
preliminary approval shall not affect the right of the Board to deny approval
of any final Plans and Specifications which are in substantial conformance with
the approved preliminary Plans and Specifications.
12.8.2. EFFECTIVENESS
OF APPROVAL.
Any
preliminary approval granted by the Board as provided above shall be effective
for a period of ninety (90) days from the date of the issuance thereof. In
no event shall any preliminary approval be deemed to be an approval authorizing
construction of the subject Improvements.
12.8.3. FINAL
APPROVAL
During the
ninety (90) day preliminary approval period described above, any application
for final approval which consists of proposed Improvements in accordance with
the provisions of the preliminary approval, and is otherwise acceptable under
the terms of this Declaration and the Architectural Standards, shall be
approved by the Board as set forth below.
12.8.4. TIME
PERIODS FOR REVIEW.
Within
thirty (30) days after proper application for final approval, the Board shall
consider and act upon such application. In the event the Board fails to approve
or disapprove any such final plans within thirty (30) days after all documents
and information requested by the Board have been received by it, the Owner
requesting said approval may submit .a written notice to the Board advising the
same of its failure to act: If the Board fails to approve or disapprove any
such final plans within thirty (30) days after the receipt of said notice -rom
such Owner, said final plans shall be deemed approved, provided that the
proposed Improvements conform to all conditions and restrictions contained in
this Article and are in harmony with similar structures erected within the
Project.
12.9. APPROVAL
OF SOLAR ENERGY SYSTEMS.
Any Owner
proposing to install or use a solar energy system, as defined in Civil Code
Section 801.5, shall be subject to
the same review and approval process as any Owner proposing to construct any Improvements or to take any
other actions requiring the approval of the Board pursuant to this Declaration.
However, only reasonable restrictions on the installation and use of a solar
energy system shall be permitted. Reasonable restrictions on a solar energy
system are those restrictions which do not significantly increase the cost of the system
or significantly impact its sufficiency or specified
performance, or which allow for an alternative system of comparable costs,
efficiency, and energy conservation benefits.
12.10. INSPECTION
AND CORRECTION OF WORK.
The Board, or
its duly authorized representative, shall have the right to enter onto the
exterior of the Residential Lot (but not into the Dwelling) to inspect such
Improvement to determine whether it was constructed, reconstructed, altered or
refinished to substantial compliance with the approved Plans and
Specifications. If the Board finds that such construction, reconstruction,
alteration or refinishing was not done in substantial compliance with the
approved Plans and Specifications, it shall notify the Owner in writing of such
non-compliance within such thirty (30)
day period, specifying particulars of non-compliance, and shall require the
Owner to remedy such non-compliance. If such Owner fails to comply with the
written directive from the Board, the Board shall have the right and authority
to enforce, pursuant to the "Enforcement" Article hereinafter, the
performance of the subject matter of such directive, including, if necessary,
the right to enter onto the Residential Lot where a violation of these
restrictions exists and perform remedial work, and the cost of such performance
shall be charged to the Owner of the Residential Lot in question. Such costs
shall be due within five (5) days after receipt of written demand therefor, and
shall bear interest at a rate equal to five percent (5%) over the Wall Street
Journal "prime rate" (or comparable rate selected by the Board), but
not in excess of the maximum rate allowed by law. If such costs are not
promptly repaid by the Owner to the Association, the Board shall levy an
Enforcement Assessment against such Owner for reimbursement.
12.11. FAILURE
TO NOTIFY.
If for any
reason the Board fails to notify the Owner of any non-compliance within sixty
(60) days after receipt of said notice of completion from the Owner, the
Improvement shall be deemed to be in accordance with said approved Plans and
Specifications.
12.12. ENTRY
INTO DWELLING.
Notwithstanding
anything to - the contrary set forth herein, nothing contained in this Article
shall give to the Association the right to enter into the interior of any
Dwelling.
12.13. DILIGENCE
IN CONSTRUCTION.
Upon final
approval of any Plans and Specifications, the Owner(s) shall promptly commence
construction and diligently pursue the same to completion.
12.14. FEE
FOR REVIEW.
The Board shall
have the right to establish a reasonable fee for the review and approval of
Plans and Specifications which must be submitted to it pursuant to the
provisions of this Article Or the Bylaws, which shall be reasonably related to
the duties performed and to cover any expense incurred in obtaining
professional review assistance from licensed engineers, architects or
contractors.
12.15. INTERPRETATION.
All questions of
interpretation or construction of any of the terms or conditions herein shall
be resolved by the Board and its decision shall be final, binding and
conclusive on all of the parties affected.
12.16. WAIVER.
The approval by
the Board of any plans, drawings or specifications for any work done or
proposed, or for any other matter requiring the approval of the Board under
this Declaration, shall not be deemed to constitute a waiver of any right to
withhold approval of any similar plan, drawing, specification or matter
subsequently submitted for approval.
12.17. ESTOPPEL
CERTIFICATE.
Within thirty (30) days after written demand is delivered to
the Board by any Owner, and upon payment to the Association of a reasonable fee
(as fixed from time to time by the Association), the Board shall record an
estoppel certificate, executed by any two (2)
of its members, certifying (with
respect to any Residential Lot of said Owner) that as of the date thereof,
either; (a) all Improvements made and other work completed by said Owner comply
with this Declaration, or (b) such Improvements or work do not so comply, in
which event the certificate shall also identify the non-complying Improvements
or work and set forth with particularity the basis of such non-compliance. Any
purchaser from the Owner, or from anyone deriving any interest in said
Residential Lot through such Owner, shall be entitled to rely on said
certificate with respect to the matters therein set forth, such matters being
.conclusive as between the Association, Declarant and all Owners and such
persons deriving any interest through them.
12.18. LIABILITY.
The Board shall
not be liable to the Association or to any Owner for any damage, loss or
prejudice suffered or claimed on account of: (a) the approval or disapproval of
any plans, drawings and specifications, whether or not defective; (b).the
construction or performance of any work, whether or not pursuant to approved
plans, drawings, and specifications; (c) the Project of any property within the
Project; or (d) the execution and filing of an estoppel certificate pursuant to
Section 12.17, whether or not the facts therein are correct; provided, however,
that such Board member has acted in good faith on the basis of such information
as may be possessed by him. Without in any way limiting the generality of the
foregoing, the Board or any member thereof may, but is not required to, consult
with or hear the views of the Association or any Owner with respect to any
plans, drawings, specifications or any other proposal submitted to the Board.
12.19. NON-APPLICABILITY
TO DECLARANT.
Any provisions
of this Article, this Declaration or any other Project Document shall not apply
to any Improvements installed or to be installed by the Declarant, or any
affiliate or agent of Declarant, and neither the Board, its delegated
Architectural Committee, nor any Member shall have any rights of review,
approval or denial with respect thereto.
12.20. GOVERNMENT
REQUIREMENTS.
The application
to and the review and approval by the Board of any proposals, plans or other
submittals shall in no way be deemed to be satisfaction of or compliance with
any building permit process or any other governmental requirements, the
responsibility for which shall lie solely with the respective Owner.
12.21. AMENDMENTS.
Notwithstanding Article
19 hereof entitled AMENDMENTS, no amendment, verification or rescission of this
Article may be had, nor shall Declarant, or any successor to Declarant, be prohibited
from completing the construction of the Project prior to the conveyance by
Declarant, or its successor, of the last
Residential Lot in the Property without (a) Written consent. of Declarant, and
(b) the Recording of such consent. Such written consent shall not be required
after the conveyance by Declarant (or its successors) of all the Residential
Lots in the Property to Retail Buyers.
12.22. VARIANCES.
The Board may
authorize variances from compliance with any of the architectural provisions of
this Declaration. Such variances must be in writing, and must be signed and
acknowledge by at least a majority of the members of the Board. The granting of
a variance shall not operate to waive any of the terms and provisions of this
Declaration for any purpose except as to the particular property and particular
Residential Lot and the particular provision hereof covered by the
variance, nor shall the granting of a variance affect in any way
affect the Owner's obligation to comply with all governmental laws and
regulations affecting the Owner’s use of the Residential Lot,
including, but not limited to, zoning' ordinances and lot setback lines or
requirements imposed by the County or any other governmental authority.
13. DEVELOPMENT
RIGHTS
13.1. LIMITATION
OF RESTRICTIONS.
Declarant is
undertaking the work of developing Residential Lots and other Improvements
within the Property. The completion of that work and the marketing, sale,
rental and other disposition of the Residential Lots is essential to the
establishment and welfare of the Property as a residential community. In order
that said work may be completed and said Project be established as a fully
occupied residential community as rapidly as possible, nothing in this.
Declaration shall be interpreted to deny Declarant the rights set forth in this
Article.
13.2. RIGHTS
OF ACCESS; COMPLETION; MARKETING.
Until (a) all
the Residential Lots in the Project are sold and conveyed by Declarant to
Retail Buyers or other Persons, or, (b)
the third. (3rd) anniversary of the first Close of Escrow, whichever shall
first occur, Declarant, its contractors and subcontractors shall have the
rights set forth below.
13.2.1. ACCESS.
Declarant, its
contractors and subcontractors shall have the -right
to obtain reasonable access over and across the roadways and access ways within
the Community and Association Areas, or do within any Residential Lot owned by
it whatever is reasonably necessary or advisable in connection with the
completion of the Project and the marketing and maintenance thereof.
13.2.2. CONSTRUCTION
IMPROVEMENTS.
Declarant, its
contractors and subcontractors shall have an easement and right to erect,
construct and maintain on the Association Area of- the Project or within any
Residential Lot owned by it, such structures or improvements, including, but
not limited to, sales offices, lags, balloons, banners and signs, as may be
reasonably necessary for the conduct of its business to complete the work,
establish the Project as a residential community and dispose of the Residential
Lots by sale, lease or otherwise, as determined by Declarant in its sole
discretion and to perform or complete any work to improvements required for
Declarant to obtain a release of any bonds posted by Declarant with the County.
13.2.3. GRANT
EASEMENTS.
Declarant, its
contractors and subcontractors shall have the right to establish and/or grant
over and across the Association Area such rights of way on, over, under or
across all or any part thereof to or for the benefit of the State of
California, the County, or any other political subdivision or public
organization, any public utility entity, cable or other television signal
provider, or any online computer access provider, for the purpose of
constructing, erecting, operating and maintaining facilities and improvements
thereon, therein or thereunder at that time or at any time in the future,
including: (a) poles, wires and conduits for transmission of electricity,
providing telephone, television or online computer services and for the
necessary attachments in connection therewith, and (b) public. and private
sewers, sewage disposal systems, storm water drains, land drains and pipes,
water systems, sprinkling systems, water, heating and gas lines or pipes and
any and all equipment in connection therewith. The Association Area shall be
subject to any dedication stated in the Subdivision Map for the Project of an
easement for public use for installation, maintenance and operation of
facilities for public utilities over all or any part of the Association Area. Said
public utilities easement over the Association Area shall inure and run to all
franchised utility companies and to the County and shall include the right of
ingress and egress over the Association Area by vehicles of the County and such
utility companies to properly install, maintain, repair, replace and otherwise
service such utility facilities. The grant of said public utility easement
shall not be interpreted.to imply any obligation or responsibility of any such
utility company or the County for maintenance or operation of any of the
Association Area or the facilities located thereon or the repair, replacement
or reconstruction thereof except as occasioned by such utility companies, the
County of the utility facilities for which they are responsible. The
Association Area shall also be subject to any easements granted by Declarant to
any public or private entity for cellular, cable, computer or other similar
transmission lines. Except for lawful and proper fences, structures and
facilities placed upon the Association Area by utility companies, the
Association Area subject to the public utility easement shall be kept open and
free from buildings and structures. The County, furthermore, are granted an
easement across the Association Area for ingress and egress for use by
emergency vehicles of the County.
13.2.4. MARKETING
RIGHTS.
A. GENERAL RIGHTS.
Subject to
the limitations of this Declaration, Declarant shall have the right to:
(1) Maintain model homes, sales offices,
trailers, temporary construction shelters, storage areas and related facilities
in any unsold Residential Lot or portion of the Association Areas, as are
necessary or reasonable in the opinion of Declarant for the construction, sale,
or disposition of the Residential Lots, Dwellings or other Improvements with
the Property;
(2) Make reasonable use of the Association
Areas and facilities for the sale of Residential Lots;
(3) Post signs, flags, balloon and banners
within the Association Areas and unsold Residential Lots in connection with its
marketing of Residential Lots; and
(4) Conduct its business of disposing of
Residential Lots by sale, lease or otherwise.
B. AGREEMENT FOR EXTENDED USE.
If,
following the third (3rd)
anniversary of the first Close of Escrow, or, upon the conveyance of the last
Close of Escrow, whichever first occurs, Declarant requires use of any portion
of the Association Area for marketing and/or construction purposes, Declarant
may use the Association Area only if an agreement is entered into between
Declarant and the Association, subject to any limitations as may exist with
respect to the use of an Association Easement as described in this Declaration,
other instrument recorded with the County Recorder, or as by an agreement
between the Association and the servient tenement of an Association Easement.
The Association shall not unreasonably withhold entering into such agreement,
on such terms and conditions as may be mutually agreed upon, or, if an terms
and conditions cannot be agreed upon, then upon such terms and conditions as
may be prevalent in similar projects in the County. In the event no action is
taken, Declarant shall be required to terminate and remove all marketing and
construction-related facilities upon thirty (30) days written notice from the
Association to Declarant.
13.2.5. SIZE
AND APPEARANCE OF PROJECT.
Declarant
shall not be prevented from increasing or decreasing the number of Residential
Lots that may, pursuant to the provisions of this Declaration, be annexed to
the Project or from changing the exterior appearance of the Residential Lot
Dwellings or any other Improvements structures, the landscaping or any other
improvement or matter directly or indirectly *connected with the Project in any
manner deemed desirable by Declarant, if Declarant obtains such governmental
consents therefor as may be required by law.
13.3. ASSIGNABILITY
OF RIGHTS.
The rights of
Declarant under this Declaration may be assigned to any successor(s) by an
express assignment in a recorded instrument, including without limitation a
deed, option or lease. This Declaration shall not be construed to limit the
right of Declarant at any time prior to such assignment to establish additional
licenses, reservations and rights-of-way to itself, to • utility companies or
to others as may be reasonably necessary to the proper development and disposal
of property owned by Declarant.
13.4. TERMINATION
OF ANY RESPONSIBILITY OF DECLARANT.
In the event
Declarant shall convey all of its rights, title and interest in and to the
Property to any partnership, individual or individuals, corporation or
corporations, then and in such event, Declarant shall be relieved of the
performance of any further duty or obligation hereunder, and, such partnership,
individual or individuals, corporation or corporations, shall be obligated to
perform all such duties and obligations of the Declarant.
13.5. AMENDMENT.
The provisions
of this Article may not be amended without the consent of Declarant (or its
duly authorized successor in interests) until such time that all of the
Residential Lots in the Project owned by Declarant have been conveyed to Retail
Buyers.
14. RESPONSIBILITIES
OF MAINTENANCE
14.1. MAINTENANCE
OBLIGATIONS OF OWNER.
14.1.1. OVERALL
MAINTENANCE OF RESIDENTIAL LOTS.
Except for
the Association Areas, the Operation of which shall be the responsibility of
the Association, each Owner shall operate his or her Residential Lot and all
Improvements situated therein.
14.1.2. DRAINAGE;
IRRIGATION.
Each
Owner shall periodically inspect and perform such reasonable and normal
maintenance as necessary to keep any drainage systems located on or under, to
the extent accessible, such Owner's Residential Lot in proper working order and
free from debris and obstructions which may change the direction or retard the
flow of water. Each Owner shall additionally periodically inspect and perform
such reasonable and normal maintenance as necessary to keep any irrigation
systems located on or under his or her Residential Lot in proper working order,
such that runoff is minimized and such system is operating in a manner which
will not increase wear and tear on any Association improvements.
14.1.3. MAINTENANCE
OF FENCES OR WALLS.
A. OWNER MAINTENANCE OBLIGATIONS.
Each
Owner shall have the obligation to maintain in a good condition of maintenance
and repair the interior and exterior of any fencing located 'exclusively within
the boundaries of such Owner's Residential Lot and not shared with an adjacent
Owner or with an Association Area for which the Association is responsible;
B.
BETWEEN TWO RESIDENTIAL LOTS.
For any
fence or wall which separates two (2) Residential Lots, each Owner shall have
the obligation to maintain the interior of the fence or wall; however, both
Owners shall share, on an equitable basis, the cost of replacing such fence or
wall. The Owner of each affected portion of the Residential Lots on which a
party wall or fence is located shall have a reciprocal nonexclusive easement to
the Residential Lot immediately adjacent to the party wall or fence or wall
for the limited purpose and only to the extent necessary to maintain the party
wall or
fence;
C. RESIDENTIAL LOT AND ASSOCIATION AREA.
For any
fence or wall which separates a portion of a Residential Lot and the
Association Area, the Owner of such Residential Lot shall have the obligation
to paint, stain and otherwise maintain the fence of wall, with the exception of
the street-facing surface of any fence or wall located on that Residential Lot,
the responsibility of which shall belong to the Association. However, the cost
of replacing any fence or wall that is on a Residential Lot shall be the
responsibility of the Residential Lot Owner, subject to such approvals of the
Board or its delegated Architectural Committee, as may be required by this
Declaration.
14.1.4. LANDSCAPING;
SLOPES.
All
landscaping and slopes on his or her Residential Lot (except for those areas
located within the Association Area for which the obligation of its Operation
is that of the Association pursuant to this Declaration or other Project
Document, or within Public Easements for which the obligation of its Operation
is that of the County or
governmental agency or public or private utility company), including without
limitation, the regular irrigation, fertilization and cleaning thereof to
prevent rubbish or debris of any kind from being either placed or permitted to
remain or accumulate .upon or adjacent to such Lot, so as to render such Lot or
portion thereof unsanitary, unsightly, offensive or detrimental to other
residents. In order to assure proper fire safety conditions within unimproved
areas of a Residential Lot, each Owner shall, maintain brush clearance on his
or her Lot according to specifications as may be required by the
County, or in the absence thereof, in conformance with fire 'prevention
standards that may be recommended by local firefighting agencies.
14.2. OWNER'S
FAILURE TO MAINTAIN; WILLFUL OR NEGLIGENT ACT.
In the event an
.Owner fails to maintain the areas described herein pursuant to the standards
set by the Board, or if an Owner, or his or her Invitees or pets, cause the
willful or negligent act or neglect of the same or any other area within the
Project, the Board may give written notice to the Owner of the work required
and request that the same be done within a reasonable time under the specific
circumstances, provided, however, that Board shall have the right to approve
the person or company who shall perform the maintenance or repairs and the
method of repair. In the event the Owner fails to carry out such work of
maintenance or repair within said time period, the Board may, following a
Notice and Hearing as provided in the Article herein entitled RIGHTS OF OWNERS,
BOARD AND ASSOCIATION, cause such work to be completed and shall assess the
cost thereof to such Owner as an Enforcement Assessment in accordance with the
procedures set forth in this Declaration.
14.3. RESPONSIBILITY
OF ASSOCIATION.
The Association
shall be responsible for the Operation of the Association Area, the cost of
which shall be a Common Expense; provided, however, any such cost is not
intended to be a Common Expense when due to the negligent act of an Owner or
such Owner's Invitee(s), unless reimbursement for any such cost rom the
negligent Owner or Invitee thereof is not paid to the Association.
14.4. ASSUMPTION
OF MAINTENANCE OBLIGATIONS.
Declarant and its
subcontractors, and the agents and employees of the same, shall have the right
to come upon the Association Areas to conduct and/or complete the construction
of any Improvement thereupon. In the event that Declarant or any of Declarant's
subcontractors are contractually obligated to operate any Improvement on any
portion of the Association Area, such Operation shall not be assumed by the
Association until the termination of such contractual obligation. If there is
any excess of assessments collected over actual Common Expenses incurred by the
Association, caused by reason of this Section, or otherwise, such excess shall
be placed in reserve to offset the future expenses of the Association in any
manner 'designated by the Board.
14.5. PROPERTY
MANAGEMENT.
The Board may,
at its option, employ a professional management company ("Managing
Agent) to handle the day to day management and operation of the Project
upon making a
determination to employ a Managing Agent,
the Board shall obtain from the prospective Managing
Agent a written statement to the Board which shall contain the information
concerning the prospective Managing Agent required to comply with California Civil
Code Section 1363.1, or any succeeding statute.
15. INSURANCE
15.1. MASTER
INSURANCE POLICY.
The Association
shall obtain and continue in effect the following insurance:
15.1.1. LIABILITY
INSURANCE.
A comprehensive,
general liability insurance policy insuring the Association, the Board, the
Architectural Committee, any Managing Agent, the Declarant and the Owner
and occupants of the Residential Lots and their respective Invitees against any
liability incident to ownership or use of the Association Area or any other
Association owned or maintained real or personal property, and the performance
by the Association of its duties under this Declaration, arising out of any
single occurrence. The
amount of general liability insurance which the Association shall carry at all
times shall be not less than Two Million Dollars ($2,000,000), or such amount
as the Board may otherwise deem appropriate to protect the interests of the
Members. Liability insurance coverage shall include coverage against water
damage liability, damage to property of others and any other
liabilities
or risk as are customarily covered with respect to similar real estate
developments in the area of the Project. The general liability policy shall
also include such provisions as may be required by the provisions of California
Civil Code Section 1365.7, or any successor statute, to limit the monetary
liability of volunteer directors and officers of the Association.
15.1.2. PROPERTY
INSURANCE.
A policy
insuring (a) any Improvements within the Association Area against loss by fire
and the risks covered by a "Standard All-Risk of Loss or Perils"
insurance policy under an extended coverage casualty .policy in the amount of
the maximum insurable replacement value thereof, and (b) all personally owned
by the Association in the maximum insurable fair market value of such
personally as determined annually by an insurance carrier selected by the
Association. Insurance proceeds for Improvements in the Association Area and
personal property owned by the Association shall be payable to the Association.
In the event of any loss, damage or destruction to the Association Area (that
is, excluding Residential Lots), the Association shall cause the same to be replaced,
repaired or rebuilt in accordance with the provisions of this Declaration.
15.1.3. COVERED
CAUSE OF LOSS.
The policy
referenced in Section 15.1.2 above shall provide coverage against losses caused
by fire and all other hazards normally covered by a "special form"
policy or its equivalent.
15.1.4. PRIMARY.
The
policies referenced above shall be primary and noncontributing with any other
insurance policy covering the same loss.
15.1.5. ENDORSEMENTS.
The
policies referenced above shall contain such endorsements as the Board in its
discretion shall elect.
15.1.6. WAIVER
OF SUBROGATION.
Except as
provided in Section 11.27 entitled
"Indemnification," the Association waives all rights of subrogation
against the Owners and their Invitees. All insurance policies obtained by the
Association shall include a waiver of all subrogation rights against any Owner
and their Invitees; provided, however, that a failure or inability of the
Association to obtain such waiver shall not defeat or impair the waiver of
subrogation rights between the Association and the Owners and their Invitees
set forth herein. Insurance proceeds for Improvements in the Association Area
and personally owned by the Association shall be payable to the Association.
15.1.7. OTHER
INSURANCE.
Such
other insurance as the Board in its discretion considers necessary or advisable
to fully protect the interests of the Association and the Owners.
15.2. FNMA;
FHLMC.
The amount, term
and coverage of any policy required hereunder shall satisfy the minimum
requirements imposed for this type of project by the FNMA and the FHLMC or any
successor thereto and any First Mortgagee. If the FNMA, FHLMC or First
Mortgagee requirements conflict, the more stringent requirement shall be met.
If FNMA, FHLMC and any First Mortgagee (on a Residential Lot) do not impose
requirements on any policy required hereunder, the term, amount and coverage of
such policy shall be no less than that which is reasonable for the nature of
the Project and its insurable assets.
15.3. TEN
(10) DAY CANCELLATION NOTICE.
All insurance
policies shall provide that they shall not be cancelable by the insurer without
first giving at least ten (10) days' prior notice in writing to the
Association.
15.4. TRUSTEE;
ADJUSTMENT OF LOSSES.
Each Owner, by
acceptance of a deed or other conveyance to his or her Residential Lot, hereby
agrees:
15.4.1. TRUSTEE.
That all
insurance proceeds payable under Sections 15.1.1,
and 15.1.2 above., may be paid to a
trustee (the "Trustee"), to be held and expended for the benefit of
the Association, the Owners, Mortgagees
and others, as their respective interests shall appear. The Trustee shall be a
commercial bank or other institution with trust powers in the County that
agrees in writing to accept such trust.
15.4.2. ADJUSTMENT
OF LOSSES.
That the
Board may act as attorney-in-fact on behalf of each Owner to negotiate and
agree on the value and extent of any loss under any policy carried pursuant
Section 15.1 above and shall have full right and authority to compromise and
settle any claims or enforce any claim by legal action or otherwise and to
execute releases in favor of any insured.
15.5. DUTY
TO CONTRACT.
If repair or
reconstruction is authorized as a result of damage or destruction, the Board
and any the duly appointed Trustee shall have the duty to contract for such
work in
accordance with the provisions set forth in Section 16.4 below.
15.6. OWNERS'
INSURANCE.
Each Owner may
obtain and maintain, at no expense to the Association or other Owners, such
ire, casualty and liability coverage as may be desired or as may be required by
any Mortgagee of the Owner's Residential Lot.
15.7. FAILURE
TO ACQUIRE.
The Association,
and its directors and officers, shall have no liability to any Owner or
Mortgagee if, after a good faith effort, the Association is unable to obtain the
liability insurance required here under, because (i) the insurance is no
longer available or, if available, can be obtained only at a cost that the
Board in its sole discretion determines is unreasonable under the
circumstances, or (ii) the Members' fail to approve any
assessment increase necessary to fund the insurance premiums. In
such event, the Board immediately shall notify each Member and any First
Mortgagee .entitled to notice that the liability insurance will not be obtained
or renewed.
15.8. PERIODIC
REVIEW OF POLICIES.
The Board shall
review the adequacy of all insurance as least once every year. The review shall
include a replacement cost appraisal of all insurable Association Area and
Association owned Improvements without respect to depreciation. The Board shall
adjust and modify the policies to provide coverage and protection that is
customarily carried by and reasonably available to prudent owners of similar
property in the .area in which the Project is situated.
15.9. DISTRIBUTION
TO MORTGAGEES.
Any Mortgagee
has the option to apply insurance proceeds payable directly to an Owner on
account of a Residential Lot as provided in this Declaration in reduction of
the obligation secured by the Mortgage of such Mortgagee.
15.10. INSPECTION
OF POLICIES.
Copies of all
Association insurance policies (or certificates thereof showing the premiums
thereon to have been paid) shall be retained by the Association and be open for
inspection by Owners at any reasonable times.
15.11. INSURANCE
INFORMATION TO MEMBERS.
The Board shall
annually prepare and distribute to the Members or caused to be prepared and
distributed to
the Members, within sixty (60) days preceding the beginning of the
Association's fiscal year, a summary of the Association's insurance policies in accordance
with to the requirements of Civil Code Section 1365(e), as it
may be amended from time to time; provided however to the extent that any of the
information required to be disclosed pursuant to said Civil Code Section 1365(e)
is specified in the insurance policy declaration page(s), the Board may meet the requirements
of Civil Code Section 1365(e) thereof by making copies of the declaration
page(s) and distributing such copies to all Members. Any Association Member may, upon written
request and provision of reasonable notice to the Association, review the
Association's actual insurance policies and, upon request and payment of
reasonable duplication charges, obtain copies of such policies.
16. DAMAGE.
OR DESTRUCTION
16.1. RESTORATION
DEFINED.
As defined in
this Article, the term "restore" shall mean repairing, rebuilding or
reconstructing damaged Improvements located within the Property, the Operation
of which is the responsibility of the Association, to substantially the same
condition and appearance in which it existed prior to ire or other casualty
damage.
16.2. INSURED
CASUALTY.
If any
Improvement is damaged or destroyed from a risk covered by the insurance
required to be maintained by the Association, then the Association shall, to
the extent permitted under existing laws, restore the Improvement to the same condition as it was in
immediately prior to the destruction. If such damage or destruction occurs
prior to the date of completion of construction the Project by Declarant,
then, such restoration
shall be completed in coordination with any construction required or deemed
necessary to be completed by Declarant. If fire or other casualty damage
extends to any Improvement which is so insured, the Association shall proceed
with the filing and adjustment of all claims arising under the existing
insurance policies. The insurance proceeds shall be paid to and held by the
Association or its Trustee.
16.3. RESTORATION
PROCEEDS.
The costs of
restoration of damaged Improvements shall be funded first by any insurance
proceeds paid to the Association under existing insurance policies. If the
insurance proceeds exceed the costs of restoration, the excess proceeds shall
be paid to the reserve accounts of the Association and held for the benefit of
the Association. If the insurance proceeds are insufficient to restore the
damaged Improvement, the Board shall then add to the insurance proceeds all
reserve account funds designated for the repair or replacement of the
Improvement(s) which have been damaged. If the total funds then available are
sufficient to restore the damaged Improvement, the damaged Improvement shall be
restored. If the aggregate amount of insurance proceeds and such reserve
account funds are still insufficient to pay the total costs of restoration, a
Special Assessment against all Owners shall be levied by the Board (but without
the consent or approval of Members, despite any contrary provisions in this
Declaration or other Project Documents) for the cost of repairing and
reconstructing Improvements to the extent insurance proceeds are unavailable.
16.4. REBUILDING
CONTRACT.
The Board or its
authorized representative shall obtain bids from at least two (2) licensed and
reputable contractors and shall accept the repair and reconstruction work from
whoever the Board determines to be in the best interests of the Members. The
Board shall have the authority to enter into a written contract with the
contractor for such repair and reconstruction, and the insurance proceeds held
by the Trustee shall be disbursed to the contractor according to the terms of
the contract. It shall be the obligation and duty of the Board to take all
steps necessary to contract for and assure the commencement and completion of
authorized repair and reconstruction at the earliest possible date. Such
construction shall return the Project to substantially the same condition it
was in prior to such damage or destruction and shall be carried out pursuant to
all applicable laws and ordinances.
16.5. MINOR
REPAIR AND RECONSTRUCTION.
The Board shall
have the duty to repair and reconstruct.' Improvements, without the consent of
the Members and irrespective of the amount of available insurance proceeds, in
all cases of partial destruction when the estimated cost of repair and
reconstruction does not exceed One-Hundred-Thousand Dollars ($100,000.00),
which amount shall be increased three percent (3%) per annum on a compounded
basis commencing on the anniversary date of the Recordation of this Declaration
and each anniversary date thereafter. The Board is expressly empowered to levy
a Special Assessment for the cost of repairing and reconstructing such
improvements to the extent insurance proceeds is unavailable (but without the
consent or approval of Members, despite any contrary provisions in this
Declaration or other Project Documents).
16.6. BOARD'S
ACTION.
The Board shall
have the exclusive right to participate in and represent the interests of all
Owners in any proceedings affecting the Project relating to the rebuilding of
any portion of the Project, including, without limitation, proceedings with any
governmental or quasi-governmental agency to obtain permits or approvals for
any rebuilding. No Owner shall
have the right to directly participate therein, except that, prior to the
conversion of the Class B membership in the Association to Class A membership,
Declarant shall have the right to directly participate therein.
16.7. DAMAGE
TO DWELLINGS.
Restoration and repair
of any damage to the Dwelling on a Residential Lot, or of any damage to any other
Improvements thereon shall be made by and at the individual expense of the
Owner of such Residential Lot. If an owner determines not to rebuild the
Dwelling, or
other improvements, the Residential Lot
shall be landscaped and maintained in an attractive and well-kept condition by
the Owner thereof. All such repair and restoration shall be completed as
promptly as practical and in a lawful and workmanlike manner, in accordance
with plans approve by the Board as provided herein.
17. CONDEMNATION;
EMINENT DOMAIN.
17.1. CONDEMNATION
OF ASSOCIATION AREAS LOCATED WITHIN RESIDENTIAL
LOTS.
If at any time all or any portion of the Association Area portion
of a Residential Lot or any interest therein, is taken for any public or
quasi-public use, under any statute, by right of eminent domain or by private
purchase in lieu of eminent domain, the entire award in condemnation, shall be
paid to the Association and shall be used for restoring the balance of the
Project. To the extent the Association is not permitted by the governmental
agency to rebuild, then such award shall be apportioned among the Owners by
court judgment or by agreement between the condemning authority and each of the
affected Owners in the Project, the Association and their respective Mortgagee
to such area as their interests may appear according to the fair market values
of each Residential Lot at the time of destruction, as determined by
independent appraisal. Said appraisal shall be made by a qualified real estate
appraiser with an MAI certificate or the equivalent, which appraiser shall be
selected by the Board. Any such award to the Association shall be deposited into
the maintenance and operation account of the Association. The Association shall
represent the interests of all Owners in any proceeding relating to such
condemnation.
17.2. CONDEMNATION
OF A RESIDENTIAL LOT.
In the event of
any taking of a Residential Lot, other than that portion which may lie within
the boundaries of the Association Area, the Owner (and such Owner's Mortgagees as their interests may appear)
of the Residential Lot shall be entitled to receive the award for such taking
and, after acceptance thereof, such Owner and such Owner's Mortgagee(s) shall
be divested of all further interest in the Residential Lot and membership in
the Association, if such Owner shall vacate such Owner's Residential Lot as a
result of such taking. In such event said Owner shall grant his or her
remaining interest as a Member in the Association appurtenant to the
Residential Lot so taken to the other Members.
18. RIGHTS
OF MORTGAGEES
18.1. CONFLICT.
Notwithstanding any
contrary provision contained elsewhere in the Project Documents, the provisions
of this Article shall control with respect to the rights and obligations of
Mortgagees as specified herein.
18.2. MORTGAGEE
PROTECTION.
A breach of any
of the conditions contained in this Declaration shall not defeat nor render
invalid the lien of any First Mortgage made in good faith and for value as to
any Residential Lot in the Project; provided, however, that the conditions
contained in this Declaration shall be binding upon and effective against
any Owner of a Residential Lot if the Residential Lot is acquired by
foreclosure, trustee's sale or otherwise.
18.3. LIABILITY
FOR UNPAID ASSESSMENTS AND COMMON EXPENSES.
Any First
Mortgagee who obtains title to a Residential Lot pursuant to the remedies
provided in the First Mortgage (but excluding a voluntary conveyance to the
First Mortgagee) or as a result of judicial or power-of-sale foreclosure of the
First Mortgage, shall take title to the Residential Lot free of any claims for
unpaid assessments or charges for Common Expenses against the Residential Lot
that became due prior to the acquisition of title to such Residential Lot by
the First Mortgagee. Such unpaid assessment or charges for Common Expenses,
however, shall be deemed to be a Common Expenses collectible from the Owners
of all the Residential Lots including such First Mortgagee and
its successors and assigns, and subject to the provisions for the collection of
assessments contained in this Declaration; as such provisions may be
amended by statute.
18.4. PAYMENT
OF TAXES AND INSURANCE.
First Mortgagees
may, jointly, singly or severally: (a) pay taxes or other charges which are in
default and which may or have become a charge against any Residential Lot or
the Association Area or improvements situated thereon, unless the taxes or charges
are separately assessed against the Owners, in which case, the rights of First
Mortgagees shall be governed by the provisions of their Mortgages; (b) pay
overdue premiums on hazard insurance policies, or secure new hazard insurance
coverage on the lapse of a policy for the Association Area. First Mortgagees
making such payments shall be owed immediate reimbursement from the Owner of
the Residential Lot for payments that are solely attributable to charges
against such Owner's Residential Lot, or from the Association as to payments
that are solely attributable to the Association Area or other Improvements
owned by the Association. This provision shall constitute an
agreement by the Association for the express benefit of all First Mortgagees,
and upon the request of any First Mortgagee, the Association shall execute and
deliver to such First Mortgagee a separate written agreement embodying this
provision.
18.5. AGREEMENT
FOR MANAGEMENT.
Any management
agreement relating
to the Project or to any portion of the Project, and any other
contact providing for services by the Declarant, shall be terminable for cause
upon thirty (30) days’ prior written notice, and shall be terminable
without cause or payment of a termination fee upon ninety (90) days’ prior
written notice. Any such management agreement or contract
shall have a term of not more than one (1) year, renewable upon the mutual consent of
the Board
and the management agent. The Board shall not terminate professional management
of the
Project and assume self-management, when professional management has
been required previously by an Eligible Mortgage Holder, without the prior
written approval of Mortgagees holding seventy-five percent (75%) or more of
the First Mortgages on Dwellings.
18.6. NOTIFICATION
TO ELIGIBLE MORTGAGEE HOLDER.
Upon written
request to the Association, identifying the name and address of the holder,
insurer or guarantor and the Residential Lot number or address, any Eligible
Mortgage Holder or Eligible Insurer will be entitled to timely written notice
of:
(a) Any condemnation loss or any casualty
loss which affects a material portion of the Project or the Residential Lot
insured or guaranteed by such Eligible Mortgage Holder or Eligible Insurer;
(b) Any default in the performance by an
Owner of any obligation under the Project Documents not cured within sixty (60)
days;
(c) Any lapse, cancellation or material
modification of any insurance policy or fidelity bond maintained by the
Association; and
(d) Any proposed action which would require
the consent of a specified percentage of Eligible Mortgage Holders as required
by the Project Documents.
18.7. NO
RIGHT OF FIRST REFUSAL.
This Declaration neither contains nor shall be amended to
contain any provision creating a "right of first refusal" to the
Association before a Residential Lot can be sold. Should any such rights
nevertheless be created in the future, such rights shall not impair the rights
of any First Mortgagee to: (a) foreclose or take title to a Residential Lot
pursuant to the remedies provided in the First Mortgage, (b) accept a deed (or
assignment) in lieu of foreclosure in the event of a default by a Mortgagor, or
(c) sell or lease a Residential Lot acquired by the Mortgagee.
18.8. ACTION
REQUIRING MORTGAGEE APPROVAL.
Unless at least
sixty-seven percent (67%) of the Eligible Mortgage Holders (based upon one (1)
vote for each Mortgage owned), or sixty-seven percent (67%) of the Owners (other
than Declarant) have given their prior written approval, the Association and/or
the Owners shall not be entitled to:
(a) By act or omission seek to abandon
encumber or transfer the Association Area, or any property owned, directly or
indirectly, by the Association for the benefit of the Residential Lots and the
Owners (the granting of rights of way for public utilities or other public
purposes consistent with the intended use of the Association Area by the
Association and Owners shall not be deemed a transfer in the meaning of this
clause);
(b) By act or omission change' the method of
determining the obligations, assessments, dues or other charges which may be
levied against an Owner;
(c) By act or omission, change, waive or
abandon any scheme of regulations, or enforcement thereof, pertaining to the architectural
design or the exterior appearance or exterior maintenance of the
Residential Lots or the maintenance of the Association Area; or
(d) Fail to maintain ire and extended
coverage on insurable Association Area on a current replacement cost basis in
an amount not less than one hundred percent (100%) of the insurable value
(based on current replacement costs); or
(e) Use hazard insurance proceeds for losses
to any property or Improvements owned by the Association other than for the
repair, replacement or reconstruction of such property and Improvements.
18.9. PRIORITY
OF PROCEED OR AWARD DISTRIBUTION.
Any other provision herein contained to the contrary
notwithstanding, no provision of this Declaration or any other Project Document
shall give a Residential Lot Owner, or any other party, priority over any
rights of the First Mortgagee of a Residential Lot pursuant to its mortgage in
the case of a distribution to such Lot Owner of insurance proceeds or
condemnation awards for losses to or a taking of the Association Area.
18.10. INSPECTION
OF PROJECT DOCUMENTS, BOOKS AND RECORDS.
The Association
shall make available to Eligible Mortgage Holders, current copies of the
Project Documents and the books, records and financial statements of the Association.
"Available" means available for inspection, upon request, during
normal business hours or under other reasonable circumstances.
18.11. SELF-MANAGEMENT.
The vote or
written consent of sixty-seven percent (67%) of the total voting power of the
Association and fifty-one percent (51%) of the Eligible Mortgage Holders shall
be required to assume self-management of the Project if professional management
of the Project has been required by an Eligible Mortgage Holder at any time.
Notwithstanding the foregoing, the Association shall not be permitted to elect
to self-manage the Project for a period of three (3) years after the first
conveyance of a Residential Lot to a Retail Buyer under the authority of a
Public Report.
18.12. VOTING
RIGHTS ON DEFAULT.
In case of
default by any Owner in any payment under the terms of any First Mortgage
encumbering such Owner's Residential Lot, or the promissory noted secured by
the Mortgage, the Mortgagee or its representative, on giving written notice to
such defaulting Owner or Owners, and placing of record a "Notice of
Default," is hereby granted a proxy and can exercise the voting rights of
such defaulting Owner attributable to such Residential Lot at
any regular or special meetings of the Members held during such time as such
default may continue.
18.13. NON-CURABLE
BREACH.
Any Mortgagee
who acquires title to a Residential Lot by foreclosure or by deed-in-lieu of
foreclosure or assignment-in-lieu of foreclosure shall not be obligated to cure
any breach of this Declaration that is non-curable or of a type that is not
practical or feasible to cure. A "breach", as used herein, shall not
apply to any lien of or obligation for assessments owed to the Association
which became due prior to the acquisition of title by deed or assignment in
lieu of foreclosure.
18.14. LOAN
TO FACILITATE.
Any First
Mortgage given to secure a loan to facilitate the resale of a Residential Lot
after acquisition by foreclosure or by a deed-in-lieu of foreclosure or by an
assignment-in-lieu of foreclosure shall be deemed to be a loan made in good
faith and for value and entitled to all of the rights and protections of this
Article.
18.15. DOCUMENTS
TO BE MADE AVAILABLE.
(a) The Association shall make available to
First Mortgagees and to holders, insurers or guarantors of any First Mortgage,
current copies of the Project Documents, and the books, records and financial
statements of the Association. "Available" means available for
inspection, upon request, during normal business hours or under other reasonable
circumstances. Eligible Mortgage Holders who represent at least fifty-one
percent (51%) or more of the Residential Lots subject to a Mortgage shall be
entitled to have an audited statement for the immediately preceding fiscal year
prepared at their own expense, if one is not otherwise available. Any financial
statement so requested shall be furnished within a reasonable time following
the request.
In the event
that fifty (50) or more Lets have been made subject to this Declaration, then
the Association shall make available to the holder, insurer or guarantor of any
First Mortgage, an audited financial statement on submission of a written
request for the same. The audited financial statement must be made available
within one hundred twenty (120) days of the Association's fiscal yearend.
(b) In the event fewer than fifty (50) Lots have been made subject to this
Declaration, then a First Mortgagee shall be entitled to have an audited
financial statement, provided the same is prepared at the Mortgagee's sole expense.
18.16. MORTGAGEES
FURNISHING INFORMATION.
Any Mortgagee
can furnish information to the Board concerning the status of any Mortgage.
18.17. FINANCIAL
STATEMENT.
Any First
Mortgagee shall be entitled, on written request therefor, to have an audited
'financial statement for the immediately preceding fiscal year prepared at its
own expense if one is not otherwise available. Such statement shall be
furnished within a reasonable time following such request.
18.18. TERMIATION
WITHOUT SUBSTANTIAL DESTRUCTION.
Neither the
Association nor Owners may elect to terminate the legal status of the Project
for reasons other than substantial destruction or condemnation of the Project
without the written consent of Eligible Mortgage Holders who represent at least
sixty-seven percent (67%) of the votes of the mortgaged Residential Lots.
19. AMENDMENTS
19.1. AMENDMENT
PRIOR TO FIRST CONVEYANCE.
Prior to the
first conveyance of a Residential Lot to a Person other than Declarant,
this Declaration and any amendments to
it may be amended in any respect or revoked by the execution by Declarant and
any Mortgagee of record, of an instrument amending or revoking this
Declaration. The amending or revoking instrument shall make appropriate
reference to this Declaration and its amendments, be acknowledged, and recorded
in the Office of the County Recorder.
19.2. AMENDMENTS
AFTER FIRST CONVEYANCE.
Except as may be
in accordance with the provisions of California Civil Code Sections 1355 and
1368 or any amendment or successor statute thereto, during the period of time
after the conveyance of the first Residential Lot to a Person other than
Declarant, and prior to conversion of the Class B membership in the Association
to Class A membership, this Declaration may be amended at any time and from
time to time by the vote or written assent of sixty-seven percent (67%) of the
total voting power of each class of Members of the Association. After
conversion of the Class B membership in the Association to Class A membership,
this Declaration may be amended at any time and from time to time by the vote
or written assent of N sixty-seven percent (67%) of the total voting power of
the Association, and (ii) sixty-seven percent (67%) of the voting power of the
Members of the Association other than Declarant. However, the percentage of
voting power necessary to amend a specific clause or provision shall not be
less than the prescribed percentage of affirmative votes required for action to
be taken under that clause. Any such amendment shall become effective upon the
recording with the Office of the County Recorder of either a Certificate of
Amendment or Declaration of Amendment signed and acknowledged by the President
or Vice President of the Association and the Secretary or Assistant Secretary
of the Association, or by the incorporator of the Association, in the event
that no Board of Directors has yet been elected to establish officers of the
Association, certifying that such votes
or written consent have been obtained. For the purposes of recording
such instrument, the President or Vice-President and Secretary or Assistant
Secretary, or incorporator of the Association are hereby granted an irrevocable
power of attorney to act for and on 'behalf of each and every owner in
certifying and executing and recording said amendment _with the Office of the
County Recorder. No material amendment may be made to this Declaration without
the additional prior written consent of Eligible Mortgage Holders who represent
at least fifty-one percent (51%) of the votes of Residential Lots which are
subject to mortgages held by such Eligible Mortgage Holders. "Material
amendment" shall mean any amendments' to provisions of this Declaration
which establish, provide for, govern or regulate any of the following:
(a) Voting rights;
(b) Increases in assessments that raise the
previously assessed amount by more than 25%, assessment liens, or the priority
of assessment liens;
(c) Reduction in reserves for maintenance, repair,
and replacement of the Association Area;
(d) Responsibility for maintenance and repairs;
(e) Reallocation of interests in the Project, or
rights to their use; Redefinition of the boundaries of any Residential Lot;
(g) Convertibility of Residential Lots into
Association Area or vice versa;
(h) Expansion or contraction of the Project, or the
addition, annexation or withdrawal of property to or from the Project;
(i) Insurance or fidelity bond coverage;
(j) Leasing of Dwellings;
(k) Imposition of any restrictions on an Owner's right
to sell or transfer his or her dwelling;
(1) Any decision by the Board to establish
self-management when professional management had been required previously by
the Project Documents or by an Eligible Mortgage Holder;
(m) The restoration or repair of the Project (after hazard damage or partial
condemnation) in a manner other than that specified in the Project Documents;
(n) Any action to terminate the legal status
of the Project after substantial destruction or condemnation occurs; or
(o) Any provisions that expressly benefit
Mortgage Holders, insurers or guarantors.
With the
exception of the VA and PHA, any Eligible Mortgage Holder or Eligible Insurer
who receives a written request to consent to additions or amendments requiring
consent under this provision who does not deliver or post to the requesting
party a negative response within thirty (30) days after such receipt shall be
deemed to have consented to such request, provided that notice was delivered by
certified or registered mail, with a "return receipt" requested.
19.3. AMENDMENTS
FOR MANUEST ERRORS, AMBIGUITY AND/ORCHANGES IN LAW
Each Owner by
acceptance of conveyance of title to a Residential Lot and each Mortgagee by acceptance of a Mortgage or Deed
of Trust secured by a Residential Lot, hereby agrees and consents to the
amendment of this Declaration and, in the case of Mortgagees, the subordination
of their respective interests in the Property for the purpose(s) of correcting
manifest and technical errors or for curing or correcting any ambiguity or
defective or inconsistent provisions or clerical omission or mistake, and/or to
effect compliance of one or more provisions of this Declaration with such
amendments., repeals and/or additions made to statutory law, whereby the
provisions contained in this Declaration are in conflict therewith. The
foregoing notwithstanding, to the extent that the provisions set forth in this
Declaration are intended to comply with the provisions of the Common Interest
Development Act as set forth at Civil Code Section 1350 et seq. ("CID Act"), and any other
statutory law, upon any changes to the CID Act or other statutory law relating
to such provisions of this Declaration, the Board shall comply with such
provisions of the CID Act and statutory law and the Board shall have the right
to amend, this Declaration as a result of the changes to the CID Act and
statutory without any vote of the Members. Any such amendment may be executed
by the President or Vice-President and Secretary or Assistant Secretary, or the
incorporator of the Association, each of whom is hereby granted an irrevocable
power of attorney to act for and on behalf of each and every Owner and
Mortgagee in certifying and executing and Recording any such correctional,
clarification addition or statutory law compliance amendment instrument, each
of which such amendments shall become effective upon its Recordation.
19.4. APPROVAL
BY FHA AND VA.
Notwithstanding
anything herein to the contrary, so long as there is a Class B membership, and
provided that the Project has been approved by the FHA and/or VA, the following
shall require the prior approval of FHA and/or VA: annexation of additional
properties, de-annexation, mergers and consolidations, any special assessments and
any amendment of this Declaration. A draft of any amendment to this Declaration
should be submitted to the FHA and/or VA for its approval prior to submitting such
amendment for approval by the membership of the Association.
19.5. RELIANCE
ON AMENDMENTS.
Any amendments made in
accordance with the terms of this Declaration shall be presumed valid by anyone
relying on them in good faith.
20. ENFORCEMENT;
DISPUTE RESOLUTION
20.1. Except
for:
(a) An
"Exigent Matter," an 'Escrow Related Matter," or other matters such
which are addressed in Section 20.3 herein, or
(b) any
"Declarant Dispute," which is addressed in Section 20.5 herein, any
claim, controversy, dispute, or cause of action which arises out of, or relate
to this Declaration and/or the Property, or any tort cause of action related
thereto, including any breach, interpretation, or enforcement thereof
(collectively or individually referred to herein as a "Dispute"),
which Dispute cannot be settled through direct informal discussions between the
Parties, such Dispute shall be subject to Alternative Dispute Resolution
described in Section 20.2 below.
20.2. ALTERNATIVE
DISPUTE RESOLUTION.
Except as provided
in Section 20.3 below, Disputes shall be submitted first to mediation as
described in Section 20.2.1 below. If any such Dispute(s) remains unresolved
through mediation, then, second, through submission of such unresolved
Dispute(s) to general judicial reference as described in Section 20.2.2 below.
20.2.1. MEDIATION.
The
Owner(s) who desires to initiate resolution of a Dispute (the" Claiming Party") shall give written notice to
the other Owner (the "Responding Party") pursuant to Section 21.3
herein entitled "Service of Notice," of the claim of Dispute, which
writing shall describe the nature of the claim, the facts giving rise to the
claim; the proposed remedy of the claim and the Claiming Party's desire to
mediate (the "Mediation. Notice'). Both the Claiming Party and the
Responding Party (collectively, the "Parties") must make a good faith
attempt to mediate the Dispute pursuant to this
Section as follows: •
(a) The Mediation Notice shall name a
mediator. The Claiming Party shall be obligated to pay any fee to initiate
mediation, but the cost and expense of the mediation, including any required
traveling and other expenses of the mediator, and the expenses of any witnesses
or the cost of any proofs or expert advice produced at the direct request of
the mediator, shall be borne equally by the Parties unless they agree
otherwise. The cost and expense of witnesses for the respective Parties shall
be paid by the Party producing such witnesses.
(b). The Responding Party shall have ten (10)
days from the date that Notice is deemed
served to object to the Claiming Party's choice of a mediator; such objection shall
be made in writing and given to the Claiming Party pursuant to the Service of
Notice provisions contained in Section 21.3 herein, whereupon the Parties shall
request that either the American Arbitration Association or the then President
of the San Diego County Bar Association pick a mediator from its panel within
ten (10) days from the date of the Claiming Party's receipt of the Responding
Party's objection.
(c) No person shall serve as a mediator in
any dispute in which the person has any financial or personal interest in the
result of the mediation, except by the written consent of all Parties. Prior to
accepting any appointment, the prospective mediator shall disclose any
circumstances likely to create a presumption of bias or prevent a prompt
commencement of the mediation process.
(d) Within ten (10) days after the selection
of the mediator, any Party who has not already done so shall submit a brief
memorandum setting forth its position with regard to the issues that need to be
resolved. The mediator shall have the right to .schedule a pre-mediation
conference, and all Parties shall attend unless otherwise agreed. The mediation
shall be • commenced within ten (10) to thirty (30) days following the
submittal of the memoranda and shall be concluded within fifteen (15) days from
the commencement of the mediation unless the Parties mutually agree to extend
the mediation period. The mediation shall be held in San Diego County or such
other place as is mutually acceptable by the Parties.
(e) The mediator has discretion to conduct
the mediation in the manner in which the mediator believes is most appropriate
for reaching a settlement of the dispute. The mediator is authorized to conduct
joint and separate meetings with the Parties and to make oral and written
recommendations for settlement, whenever necessary, the mediator may also
obtain expert advice concerning technical aspects of the dispute, provided the
Parties agree and assume the expenses of obtaining such advice. The mediator
does not have the authority to impose a settlement on the Parties.
(f) Persons other than the Parties, their
representatives and the mediator may attend mediation sessions only with the
permission of the Parties and the consent of the mediator. Confidential
information disclosed to a mediator by the Parties or by witnesses in the
course of the mediation shall not be divulged by the mediator. All records,
reports or other documents received by the mediator while serving in such capacity
shall be confidential. There shall be no stenographic record of the mediation
process.
(g) If there are any unresolved Disputes
between the Parties through mediation,
or if there are certain portions of a Dispute that remain unresolved, such unresolved
Dispute or portion thereof, as the case may be, shall be submitted to and
conclusively determined by general judicial reference described in Section
20.2.2 below.
20.2.2. UNRESOLVED
DISPUTES.
Any
unresolved disputes under Section 20.2.1 above, shall be submitted to general
judicial reference, pursuant to Section 20.6 herein.
20.3. EXCEPTIONS
TO SECTION 20.2 ALTERNATIVE DISPUTE RESOLUTIONS.
The resolution or
determination of the following issues and matters are exempt from the
requirements of Alternative Dispute Resolution described in Section 20.2 above
or Declarant Dispute Resolution described in Section 20.4 below:
20.3.1. SPECIFIC
PROCEDURE.
An alternative or required enforcement
procedure described by a particular clause or section within this Declaration.
20.3.2. ESCROW
RELATED MATTERS.
Any dispute arising with a, prospective
purchaser which concerns or affects the close of escrow or matters concerning
the close of escrow for the purchase of any Lot.
20.3.3. EXIGENT
MATTERS.
A. TYPES
OF EXIGENT MATTERS.
An
"Exigent Matter," which shall mean and refer to only the following:
(1) an Emergency
(2) any matter relating to the
abatement of a nuisance
(3) any enforcement procedure
contained in a particular clause or section within this Declaration which is
declared to be an Exigent Matter; or
(4) an Owner's breach of payment of
Assessments.
B. REMEDY OR RESOLUTION OF A
NON-EMERGENCY EXIGENT MATTER.
An Owner
(the "Claiming Party") who seeks to make a claim with respect to any non-Emergency Exigent
Matter shall following not less than ten (10) days' prior written notice to the
Owner (the `Responding Party") against whom such Claiming Owner alleges a
breach or default constituting an Exigent Matter have the right to:
(1) Seek injunctive relief to require the
Defaulting Owner to perform a specific Exigent Matter (e.g. duty or
obligation);
(2). Seek compensation for damages arising or
resulting from the failure of the Defaulting Owner to perform Exigent Matter;
C.
REMEDY OR RESOLUTION OF AN EMERGENCY EXIGENT MATTER.
In the
case of an Emergency, the Owner (the "Claiming Party") who seeks to
remedy an Emergency shall have the right to:
(1) Cause such action to be performed as may
be deemed necessary to abate or remedy any such Emergency, in which event all
sums expended by the Claiming Owner in causing such abatement or remedy to be
performed shall become a demand obligation owed by the other Owner (the
"Responding Party") to the Claiming Owner, shall bear interest at the
lesser of ten percent (10%) per annum or the maximum non-usurious rate
permitted by law from the date expended by the Claiming Owner until repaid by
the Responding Owner, and shall be subject to collection by suit in any court
of competent jurisdiction; or
(2) Exercise all rights or remedies otherwise
available at law, in equity or by statute. All rights and remedies shall be
cumulative and not exclusive. In any legal or equitable proceeding for the
enforcement of any of the duties or obligations of this Section, or for damages
of the breach of any such duties or obligations, the losing party shall pay the
attorneys' fees, and courts costs of the prevailing party.
20.4. NOTICE
OF ACTIONS AGAINST DECLARANT.
Subject to the
provisions of Section 20.5 hereof the Association shall comply with the
provisions of Civil Code Section 1368.4, Civil Code Sections 910 through 938
and any successor statutes or laws, prior to the filing of any civil action by
the Association against the Declarant or other developer of the Project for
either alleged damage to the Association Area or other property within the
Project that the Association is obligated to maintain or repair, or alleged
damage to any other portion of the Project that arises out of or is integrally
related to, such damage to the Association Area or other property within the
Project that the Association is obligated to maintain or repair. Such notice
shall specify all of the matters set forth in Section 1368.4 and/or Civil Code
Sections 910 through 938, as applicable, and any successor statutes or laws
20.5. DECLARANT
DISPUTE RESOLUTION.
From and after
the Close of Escrow, any action, claim or dispute by, between or among:
(a) Declarant, as the owner / seller of the Project,
or any director, officer, partner, member, employee or agent of the Declarant,
or any contractor, subcontractor, design professional, engineer or supplier who
provided labor, services or materials to the Project and who is bound or has
agreed to be bound to the following dispute notification and resolution
professional (collectively, the "Declarant Parties"), and either or
both:
(b) The Association, or
(c) Purchaser/Owner
(Individually, a
“Party”; collectively, the “Parties”) relating to or arising out of the
Project, this Declaration or other Project Document. for the Association or any
other document or agreement between Declarant Parties (or any one of them) and
Purchaser/Owner (unless any such agreement specifies another form of dispute resolution),
the sale of the Property, the use or condition of the Property or the design or
construction of or any condition on or affecting the Project, including, but
not limited to construction defects, surveys, soils conditions, grading,
specifications, installation of improvements or disputes which allege fraud,
misrepresentation or breach of implied or express warranties as to the
condition of the Property or Project Where the amount in controversy is greater
than $25,000 or in which non-monetary relief is sought that could not have been
granted by a Municipal Court in the State of California as of January 1, 1998,
except for claims and actions set forth in Section 20.5.8 (collectively,
"Declarant Dispute(s)"), shall be subject to the provisions set forth
below. Notwithstanding the foregoing,
any claims or disputes pursuant to California Civil Code Sections 895 et seq.
shall be subject to the non-adversarial procedures set forth in Civil Code
Sections 910 through 938 in lieu of the procedures set forth in this Section
20.5, With the exception of any claims brought under the warranty delivered by
Declarant under Civil Code Section 900. The judicial reference procedure set
forth in Section 20.5...5 shall apply to such claims or disputes if the
statutory non-adversarial procedure fails to resolve the dispute or claim.
20.5.1. NOTICE.
Any
person with a claim denied as a Dispute above ("Claimant") shall
notify each applicable Declarant Party in writing of such claim, which writing
shall describe the nature of such claim and any proposed remedy ("Claim
Notice").
20.5.2. RIGHT
TO INSPECT AND RIGHT TO CORRECTIVE ACTION.
Within a
reasonable period after receipt of the Claim Notice, which period shall not
exceed sixty (60) days, Declarant (and any applicable Declarant Parties)
and the Claimant(s) shall meet at a mutually-acceptable place within or near
the Project to discuss the Dispute claim. At such meeting or at such other
mutually-agreeable time, Declarant (and any applicable Seller Parties) and
their respective representatives shall have full access to any property that is
subject to the Dispute claim and shall have ,the right to conduct inspections,
testing and/or destructive or invasive testing of the same in a manner deemed
appropriate by Declarant (and any applicable Declarant Parties), which rights
shall continue until such time as the Dispute is resolved as provided in this
Section 20.5. The parties to the Dispute shall negotiate in good faith in an
attempt to resolve the claim. If Declarant (and any applicable Declarant
Parties) elects to take any corrective action, Declarant (and any applicable
Declarant Parties) and their respective representatives and agents shall be
provided full access to the Project to take and complete corrective action
20.5.3. CIVIL
CODE SECTIONS 1368.4, 1375, 1375.05 AND 1375.1AND 910 THROUGH 938.
Nothing
contained herein shall be deemed a waiver or limitation of the provisions of
California Civil Code Sections 1368.4 referenced in Section 20.4 hereinabove. If the Dispute is
subject to the provisions of California Civil Code Sections 1375, 1375.05
and 1375.1 and/or Civil Code Sections
910 through 938, compliance with the provisions of these Sections shall satisfy
the requirements of Section 20.5.1, 20.5.2 and 20.5.4, as applicable. With
respect to any suit that would be governed by California Civil Code Section
1375 or Civil Code Sections 910 through 938, if the parties had not agreed to
judicial reference hereunder, the Association or any other party required to
proceed under Civil Code Section 1375 or Sections 910 through 938 as a
condition to filing a complaint must do so as a condition to commencing a
judicial reference proceeding. Compliance with Civil Code Section 1368.4 is a
condition to the Association's commencing a judicial reference proceeding.
20.5.4. MEDIATION.
If the
Parties to the Dispute that is not subject to California Civil Code Section
1375 cannot resolve the claim pursuant to the procedures described in Section
20.5.2 above, the matter shall be submitted to mediation pursuant to the
mediation procedures adopted by the American Arbitration Association (except as
such procedures are modified by the provisions of this Section 20.5.4) or any
successor thereto or to any other entity offering mediation services that is
mutually acceptable to such parties. No person shall serve as a mediator in any
Dispute in which the person has any financial or personal interest in the
result of the mediation, except by the written consent of all Parties to the
Dispute participating in the mediation. Prior to accepting any appointment, the
prospective mediator shall disclose any circumstances likely to create a
presumption of bias or to prevent a prompt commencement of the mediation
process. Except as provided in Section 20.5.8 below, Purchaser/Owner covenants
that Purchaser/Owner shall not commence any litigation against the Declarant
Parties without complying with the procedures described in this Section 20.5.4.
A. POSITION MEMORANDA; PRE-MEDIATION CONFERENCE.
Within ten
(10) days of the selection of the mediator, each Party to the Dispute
participating M the mediation shall submit a brief memorandum setting forth its
position with regard to the issues that need to be resolved. The mediator shall
have the right to schedule a pre-mediation conference and all parties to the
Dispute participating in the mediation shall attend unless otherwise agreed.
The mediation shall be commenced within ten (10) days following the submittal
of the memoranda and shall be concluded within fifteen (15) days from the
commencement of the mediation unless the parties to the Dispute participating
in the mediation mutually agree to extend the mediation period. The mediation
shall be held in the county in which the Project is located or such other place
as is mutually acceptable to the parties to the Dispute participating in the
mediation.
B. CONDUCT OF MEDIATION.
The
mediator has discretion to conduct the mediation in the manner in which the
mediator believes is most appropriate for reaching a settlement of the Dispute.
The mediator is authorized to conduct joint and separate meetings with the
Parties to the Dispute participating in the mediation and to make oral and
written recommendations for settlement. Whenever necessary, the mediator may
also obtain expert advice concerning technical aspects of the Dispute, provided
the Parties to the Dispute participating in the mediation agree and assume the
expenses of obtaining such advice. The mediator does not have the authority to
impose a settlement on the Parties to the Dispute participating in the
mediation.
C. EXCLUSION AGREEMENT.
Prior
to the commencement of the mediation session, the mediator and all Parties to
the Dispute participating in the mediation shall execute an agreement pursuant
to California Evidence Code Section 1115 et seq. and any successor statute or
laws in order to exclude the use of any testimony or evidence produced at the
mediation in any subsequent dispute resolution forum, including, but not
limited to, court proceedings, reference proceedings or arbitration hearings.
Pursuant to California Evidence Code Section 1115 et seq., the agreement shall
specifically state that evidence of anything said or of any admission made in
the course of the mediation is not admissible evidence, and disclosure of any
such evidence shall not be compelled in any civil action in which, pursuant to
law, testimony can be compelled to be given. Unless the-document provides
otherwise, no document prepared for the purpose of, or in the course of, or
pursuant to, the mediation, or copy thereof, is admissible in evidence; and
disclosure of any such document shall not be compelled in any civil action in,
which, pursuant to law, testimony can be compelled to be given. The provisions
of California Evidence Code Sections 1115 through 1128 shall also be applicable
to such mediation process.
D. PERSONS PERMITTED AT SESSIONS.
Persons
other than the Parties to the Dispute participating in the mediation, their
representatives and the mediator may attend mediation sessions only with the
permission of the Parties to the Dispute participating in the mediation and the
consent of the mediator; provided, however, that such permission and consent
shall not be required to allow participation of such Parties' insurer in the
mediation to the_ extent required under such Parties' liability insurance
policy. Confidential information disclosed to a mediator by such Parties or by
witnesses in the course of the mediation while serving in such capacity shall
be confidential. There shall be no stenographic record of the mediation
process.
E. EXPENSES.
All
expenses of the mediation, including, but not limited to, the fees and costs
charged by the mediator and the expenses of any witnesses or the cost of any
proof or expert advice produced at the direct request of the mediator, shall be
borne equally by the Parties to the Dispute participating in the mediation
unless they agree otherwise. Each Party to the Dispute participating the
mediation shall bear its own attorneys' fees and other costs in connection with
such mediation.
20.5.5. UNRESOLVED
DECLARANT DISPUTES.
Should
either proceeding governed by California Civil Code Section 1375, or mediation
pursuant to Section 20.5.4 above, not be successful in resolving any Declarant
Dispute or should the non-adversarial procedures provided by Statute in Civil
Code Sections 910 through 938, fail to resolve any claim of construction
defect, such Dispute shall be resolved by general judicial reference pursuant
to Section 20.6 herein.
20.5.6. AGREEMENT
TO DISPUTE RESOLUTION; WAIVER OF JURY TRIAL.
DECLARANT, AND
BY ACCEPTING A DEED FOR THE ASSOCIATION AREA OR A RESIDENTIAL LOT, AS THE CASE
MAY BE, THE ASSOCIATION AND EACH OWNER AGREE TO HAVE ANY DISPUTE RESOLVED
ACCORDING TO THE PROVISIONS OF THIS SECTION 16.4 AND WAIVE THEIR RESPECTIVE
RIGHTS TO PURSUE ANY DISPUTE IN ANY MANNER OTHER THAN AS PROVIDED IN THIS
SECTION 20.5. SUCH PARTIES ACKNOWLEDGE THAT BY AGREEING TO RESOLVE ALL DISPUTES
AS PROVIDED IN THIS SECTION 20.5, THEY ARE GIVING UP THEIR RESPECTIVE RIGHTS TO
HAVE SUCH DISPUTES TRIED BEFORE A JURY, THEREBY GIVING UP ANY RIGHTS SUCH
PARTIES MAY POSSESS TO A JURY. THIS SECTION 20.5 SHALL NOT BE AMENDED WITHOUT
DECLARANT'S PRIOR WRITTEN CONSENT.
20.5.7. APPLICATION
OF AWARD.
Any
proceeds arising from any Dispute by settlement award or otherwise shall be applied in
accordance with Section 8.3.7 hereinabove
20.5.8. EXCEPTIONS
TO MEDIATION AND REFERENCE; STATUTES OF LIMITATION.
The procedures
set forth in this Section 20.5 shall apply only to Declarant Disputes and shall
not apply to any action by, between or among the Parties relating to (a) any
Exigent Matter of other matter or issue described in Section 20.3 above, (b)
any Dispute described in Section 20.2
herein, or (c) any bond covered by the provisions of the Article in the Bylaws
entitled "BOND.". Furthermore, subject to the terms of Civil Code
§895 et seq., nothing in this Section 20.5 shall be considered to toll, stay,
reduce or extend any applicable statute of limitations; provided, however, that
the Parties shall be entitled to commence a legal action which in the good
faith determination of any Party is necessary to preserve the Parties'
respective rights under any applicable statute of limitations, provided that a
Party shall take no further steps in prosecuting the action until it has
complied with the procedures described in Sections 20.5.4 or 20.5.5 above.
20.5.9. SURVIVAL;
SUCCESSORS AND ASSIGNS.
The
rights and obligations of the Parties pursuant to this Section 20.5shall survive the Close of Escrow. This
Section 20.5 and the rights, duties and obligations of the Parties shall be
binding upon and shall inure to the benefit of the heirs, executors,
administrators, successors, and assigns of the respective Parties.
20.6. JUDICIAL
REFERENCE
Any unresolved
Disputes described in Sections 20.2.2
and 20.5.5 above shall be submitted
to general judicial reference pursuant to California Code of Civil Procedure
Sections 638 and 641 through 645.1 or any successor statutes thereto, and as
modified or as otherwise provided in this Section 20.6. Subject to. the
limitations set forth in this Section 20.6, the judicial referee shall have the
authority to try all issues, whether of fact or law, and to report a statement
of decision to the court: The judicial referee, shall be the only trier of fact
or law in the reference proceeding and shall have no authority to further refer
any issues of fact or law to any other party, without the mutual consent of all
parties to the judicial reference proceeding.
(a) Participation
by Parties. The Parties to the Dispute shall cooperate in good faith to
ensure that all necessary and appropriate parties are included in the judicial
reference proceeding. A Party in a particular judicial reference proceeding
shall not be required to participate in the judicial reference proceeding if
(i) all parties against whom the applicable Party would have cross-claims or
counterclaims necessary to afford complete relief to such Party cannot be
joined in the judicial reference proceeding, including, but not limited to, any
Declarant Party (collectively, a "Necessary Party"), or (ii) the
enforcement of the provisions of this Section 20.6 would impair the insurance
coverage of a Party or a Declarant Party for any claim arising out of the
Dispute that would otherwise provide coverage for such claim. If a Patty
determines that it cannot join all Necessary Parties or that its insurance
coverage would be impaired with respect to the Dispute, or if Declarant is
advised by a Declarant Party that it contends its insurance coverage will be
impaired by enforcement of this Section 20.6, such Party may elect not to
participate in the judicial reference proceeding. If a Party so elects not to
participate in the judicial reference proceeding, such Party will provide
notice to Claimant(s) and the other Parties to the judicial reference
proceeding that the Dispute will not be resolved by judicial reference. In such
circumstances, the other Parties may seek determination of the Party's right
not to participate by way of-a Motion under California Code of Civil Procedure
Sections 638 and 641 through .645.1, or any successor statutes thereto if a
determination is made as a result of such a motion that a Party is not required
to participate in the judicial reference proceeding, unless the remaining
Parties agree otherwise, the Dispute shall not be resolved by judicial
reference and the Claimant(s) may proceed with an action with respect to the
subject Dispute in an appropriate court of law. In the event that Claimant(s)
are permitted to pursue legal proceedings as provided herein, Subsections (b)
through (m) of this Section 20.6 will not apply in such legal proceeding,
provided that the legal proceeding shall be tried by a judge and not a jury and
Claimant(s) and all parties shall waive their rights to a jury (unless all
Parties to such proceeding mutually consent otherwise).
(b) Venue.
The proceedings shall be heard in the county in which the Project is located;
(c) Referee.
The referee shall.be an attorney or retired judge with at least ten (10) years’
experience in common interest development real estate matters. The referee
shall not have any relationship to the parties to the Dispute or interest in
the Project. The parties to the Dispute participating in the judicial reference
proceeding shall meet to select the referee within ten (10) days after service
of the initial complaint on all defendants named therein. Any dispute regarding
the selection of the referee shall be promptly resolved by the judge to whom
the matter is assigned, or if there is none, to the presiding judge of the
Superior Court of the County in which the Project is located, who shall select
the referee;
(d) Commencement
and Timing of Proceeding. The referee shall promptly commence the
proceeding at the earliest convenient date in light of all of the facts and
circumstances and shall conduct the proceeding without undue delay.
(e) Pre-Hearing
Conferences. The referee may require one or more pre-hearing
conferences;
(f) Motions.
The referee shall have the power to hear and dispose of motions, including
motions relating to provisional remedies, demurrers, motions to dismiss, motions
for judgment on the pleadings and summary adjudication motions, in the same
manner as a trial court judge, except the referee shall also have the power to
adjudicate summarily issues of fact or law including the availability of
remedies, whether or not the issue adjudicated could dispose of an entire cause
of action or defense Notwithstanding the foregoing, if prior to the selection
of the referee as provided herein, any provisional remedies are sought by the
parties to the Dispute, such relief may be sought in the Superior Court of the
County in which the Project is located.
(g) Rules
of Law. The referee shall apply the laws of the State of California
except as expressly provided herein, including the rules of evidence, unless
expressly waived by all Parties to the judicial reference proceeding.
(h) Record.
A stenographic record of the hearing shall be made, provided, that the record
shall remain confidential except as may be necessary for post-hearing motions
and any appeals;
(i) Statement
of Decision. The referee's statement of decision shall contain findings
of fact and conclusions of law to the extent require by law if the case were
tried to a judge. The decision of the referee shall stand as the decision of
the court, and upon filing of the statement of decision with the clerk of the
court, judgment may be entered there in the same manner as if the Dispute had
been tried by the court.
(j) Post-hearing
Motions. The referee shall have the authority to rule on all
post-hearing motions in the same mariner as a trial judge.
(k) Appeals.
The decision of the referee shall be subject to appeal in the same manner as if
the Dispute had been tried by the court.
(l) Expenses.
Except as otherwise agreed by the parties or as required by applicable law,
neither the Association nor any Owner shall be required to pay any fee of the
judicial reference proceeding or the referee except to the extent of the costs
that would be imposed upon the disputant if the Dispute had been filed as a
suit in court. The referee may not award against the Association or any Owner
any expenses in excess of those that would be recoverable as costs if the
Dispute had been litigated to final judgment in court. Each party to the
judicial reference proceeding shall bear its own attorneys' fees and costs in
connection with such proceeding.
(m) Severability.
In addition to and without limiting the effect of general severability
provisions of this Declaration, if the referee or any court determines that any
provision of this Section 20.6 is unenforceable for any reason, that provision
shall be severed, and judicial reference shall be conducted under the remaining
enforceable terms of this Section 20.6.
20.7. FAILURE
TO ENFORCE.
Failure by any
Owner, including Declarant, to enforce any provisions of this Declaration shall
in no event be deemed a waiver of the tight to do so thereafter.
20.8. VIOLATION
OF LAW.
Any violation of
any Applicable Law pertaining to the ownership, occupation or use of any Lot
within the Project is hereby declared to be a violation of this Declaration and
subject to the enforcement procedures herein set forth.
20.9. GOVERNING
LAW.
This Declaration
shall be governed by and construed under the laws of the State of California,
County of San Diego.
20.10. MEETING
AND NOTICE TO MEMBERS PRIOR TO CERTAIN LEGAL ACTIONS BY THE BOARD.
Notwithstanding
anything contained in this Declaration to the contrary, the Board shall not
institute any significant legal proceeding, including any mediation, or judicial
reference proceeding, against any person without (i) conducting a Special
Meeting of Members to discuss the nature of the proposed proceeding, and (ii)
providing the Members written notice of such Special Meeting, which notice
shall be sent not less than thirty (30) days [Civil
Code Section 1368.4]and not more than ninety (90) days before such Special
Meeting. The notice shall describe the following:
(a) The purpose of the proceeding;
(b) The parties to the proceeding;
(c) The anticipated cost to the Association
(including attorneys' fees) in processing the proceeding;
(d) The source of funds to process the
proceeding (reserves or special or
regular assessments);
(e) The options, including civil action,
that are available to address the purpose of the proceeding;
(f) The place, day and hour of the meeting;
(g) All such notices shall be delivered in
accordance with the provisions therefor contain in Section 21.3 entitled
"Notice" in the Article hereafter entitled GENERAL PROVISIONS.
20.10.1. DEFINITION OF
"SIGNIFICANT LEGAL PROCEEDING.
For
purposes herein, "significant legal proceeding" shall mean and refer
to any legal proceeding in which it reasonably could be anticipated that any of
the following events could occur:
(a) The levy of a Special Assessment to fund
all or any portion of the costs of the proceeding;
(b) The expenditure of funds from the
Association's reserves in connection with the proceeding in an amount in excess
of five percent (5%) of the then current reserves;
(c) The expenditure of funds from the
Association's Regular Assessment operating account in connection with the
proceeding in an amount in excess of five percent
(5%) of the then current
fiscal year's budgeted gross expenses;
(d) The amount at issue is in excess of
$25,000;
(e) The proceeding could have a material
adverse effect on the ability to sell and/or refinance any Residential Lot
during the period in which the proceeding is being prosecuted; or
(f) The
matter relates to the filing of any civil action by the Association against the
Declarant or other person for alleged damage to the Association Areas, alleged
damage to the Residential Lots or portions thereof that the Association is
obligated to maintain or repair, or alleged damage to the Residential Lots or
portions thereof that arises out of, or is integrally related to, damage to the
Association Areas or Residential Lots or portions thereof that the Association
is obligated to maintain or repair.
20.10.2. INAPPLICABILITY
OF PROVISIONS; POWER TO TAKE ACTION.
Notwithstanding
the foregoing, the notice to Members shall not apply:
(a) To the filing or foreclosure of a lien
levied by the Association for nonpayment of assessments and/or to the filing of
an action in a court of competent jurisdiction to enforce such lien and/or
collect such assessments;
(b) To an action or proceeding to abate a
nuisance and/or to effect the repair or maintenance of any element of the
Association Area, or a Residential Lot where an immediate threat to personal
safety or of further property damage is involved;
(c) To any dispute arising with a
prospective purchaser which concerns or affects the close of escrow or matters
concerning the close of escrow for the purchase of any Residential Lot;
(d) To enforce any completion bond as
described in the Bylaws;
(e) If the Board determines that an
Association's claim or act with regard to an Action will be barred by an
applicable statute of limitation or other exigency by reason of a delay in
giving the notice, in which case the Board may take the .necessary steps to
commence the proceeding to preserve the rights of the Association; provided,
however, that as soon as is reasonably practical thereafter, and not later than
thirty (30) days following the commencement of the proceeding, the Board shall
provide the • Owners with notice as required herein and conduct the meeting
therefor within ninety (90) days of such notice being given.
21. GENERAL
PROVISIONS
21.1. SEVERABILITY.
Should any
provision in this Declaration be void or become invalid or unenforceable in law
or equity by judgment of court order, the remaining provisions hereof shall be
and remain in full force and effect.
21.2. EXTENSION
OF DECLARATION.
Each and all of
these covenants, conditions and restrictions shall terminate on December 31, 2065, after which date they shall
automatically be extended for successive periods of ten (10) years, unless the
Owners have executed and recorded at any time within six (6) months prior to
December 31, 2065, or within six (6) months prior to the end of any such ten
(10) year period, in the manner required for the conveyance of real property, a
writing in which it is agreed that said restrictions shall terminate on December
31, 2065, or at the end of any such ten (10) year period.
21.3. ANNEXATION.
Upon approval in
writing of the Association, pursuant to sixty-seven .percent (67%) majority of the voting power of
its Members, excluding the voting power of the Declarant, the Owner of any
property who desires that it be added to the scheme of this Declaration and be
subjected to the jurisdiction of the Association, may file of record a
Declaration of Annexation, which shall extend the scheme of this Declaration to
such property. After conversion of the Class B membership in the Association to
Class A membership, the action herein requiring membership approval shall
require the vote or written consent of (i) sixty-seven percent (67%) of the
voting power of Members of the Association, and (ii) sixty-seven percent
(67%) or more of the voting power of Members of the Association other
than Declarant.
21.4. SERVICE
OF NOTICE.
In each instance
in which notice is to be given to the Owner of a Residential Lot, the same
shall be in writing and may be hand-delivered to the Owner, in which case
personal delivery of such notice to one or two or more co-Owners of the Lot, or
to any general partner of a partnership owning such Lot, shall be deemed
delivered to all of the co-Owners or to the Partnership, as the. case may be,
and personal delivery of the notice to any officer or agent for the service of
process of a corporation owning such Lot shall be deemed delivered to the
corporation, or such notice may be delivered by United States Mail certified,
or registered, postage prepaid, return receipt requested, addressed to the
Owner of such Lot at the most recent address furnished by such Owner to the
Secretary of the Board, or, if no such address shall have been furnished then
to the street (or Post Office Box) address of such Lot, and any notice so
deposited in the mail within San Diego County, California, shall be deemed
delivered seventy-two (72) hours after such deposit.
21.5. CIVIL
CODE SECTION 1368.
The Owner of a
Residential Lot shall, as soon as practicable before transfer of title or
execution of a real property sales contract therefor, as defined in California
Civil Code Section 2985, provide copies of the Project Documents and such
disclosures and certificates as may be required by Civil Code Section 1368, or
any successor statute or law. The Association shall, if requested by said
Owner, provide copies of the same to such Owner within ten (10) days of the
mailing or delivery of the request.
21.6. NOTIFICATION
OF SALE OR CONVEYANCE.
Concurrently with the
consummation of the sale or other conveyance of any Residential Lot where the
transferee becomes an Owner of the Lot, or within five (5) business days
thereafter, the transferee shall notify the Association in writing of such sale
or conveyance. Such notification shall set forth the name of the transferee and
his or her Mortgagee and transferor, the .common address of the Lot purchased
by the transferee, the transferee's and the Mortgagees mailing address, and the
date of sale or conveyance. Before the receipt of such notification, any and
all communications required or permitted to be given by the Association, the
Board, the Board's delegated committee or the Association's manager shall be
deemed to be duly made and given to the transferee if duly and timely made and
given to the transferee's transferor. Mailing addresses may be changed at any
time upon written notification to the Association. Notices shall be deemed
given and given in accordance with the provisions of the Section herein
entitled "Notice".
21.7. MERGERS
OR CONSOLIDATIONS.
Upon a merger or
consolidation of the Association with another association, the Association's
Property, rights and obligations may, by operation of law, be transferred to
the surviving or consolidated association, or, alternatively, the properties,
rights and obligations of another association may, by operation of law, be
added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association
may administer the covenants, conditions and restrictions established by this
Declaration within the Project, together with the covenants and restrictions
established upon any other property as one plan.
21.8. EASEMENTS
RESERVED AND GRANTED.
Any easements
referred to in this Declaration shall be deemed reserved or granted, or both
reserved and granted, by reference to this Declaration in a deed to any
Residential Lot.
21.9. GOVERNING
DOCUMENTS.
Except as may,
otherwise be provided in a specific Section herein, in the event of a conflict
between this Declaration and any other Project Document, the provisions of this
Declaration shall control.
21.10. SINGULAR
INCLUDES PLURAL.
Whenever the context of
this Declaration requires same, the singular shall include the plural and the
masculine shall include the feminine.
21.11. LIBERAL
CONSTRUCTION.
The provisions
of this Declaration shall be liberally construed to effectuate its purpose of
creating a uniform plan for the development of a residential community and for
the maintenance of the Project. The titles or headings of the Articles or
Sections of this Declaration have been inserted for convenience only and shall
not be considered or referred to in resolving questions or interpretation or
construction.
IN WITNESS WHEREOF, the
undersigned, being Declarant herein, has executed this instrument on 2003.
DECLARANT:
STIVERS RANCH, LLC,
a California limited
liability company
By: BONITA ASSOCIATES
a California general
partnership
(Please Attach Proper Notary Certificate(s) of
Acknowledgment)
EXHIBIT "A" -
LEGAL DESCRIPTION
LOTS I THROUGH 21 INCLUSIVE, of COUNTY OF SAN DIEGO
TRACT No. 5205-1, in the County of San Diego, State of California,
according to Map thereof No. 14535, filed in the Office of the San Diego
County Recorder, January 31, 2003.
EXHIBIT "B" -
LEGAL DESCRIPTION
LOTS 1 THROUGH 12, INCLUSIVE, of COUNTY OF SAN DIEGO
TRACT No. 4927-1, in the County of San Diego, State of California,
according to Map thereof No. 14528, filed in the Office of the San Diego
County Recorder, January 16, 2003
SUBORDINATION AGREEMENT
CITY NATIONAL BANK, a national banking
association, being the beneficiary under that certain Deed of Trust:
recorded November 2, 2002, as Document No.
2002-0996735
of Official Records in the
Office of the County Recorder of San Diego County, California, hereby declares
that the lien and charge of said Deed of Trust is and shall be subordinate to
that certain "DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS for
"AMES RANCH," to which this Subordination Agreement is attached.
DATE: February 20, 2003
CITY NATIONAL BANK,
a national banking
association,
(Please Attach Proper Notary
Certificate)
22.
FIRST
AMENDMENT
Index as "AMENDMENT TO
CC&R'S" and "SUBORDINATION AGREEMENT"
FIRST AMENDMENT TO
DECLARATION
OF
COVENANTS, CONDITIONS AND
RESTRICTIONS
FOR
"AMES RANCH"
A Residential Planned
Development
COUNTY OF SAN DIEGO,
CALIFORNIA
TIIIS FIRST AMENDMENT TO
DECLARATION OF COVENANTS,
CONDITIONS, AND RESTRICTIONS
FOR "AMES RANCH" (hereafter
"First Amended
Declaration" or
"First Amendment") is made on the day and year hereinafter written by
STIVERS RANCH, LLC, a California limited liability company,
("Declarant"), with reference to the facts set forth in Article 1
below.
1. RECITALS
1.1. PROPERTY OWNED BY
DECLARANT.
Declarant is the owner of the real property located in the County
of San. Diego, State of
California, more
particularly described in Exhibit "A" and Exhibit "B" both
attached hereto and by this reference made a part hereof (the
"Property").
1.2. ORIGINAL
DECLARATION.
Declarant has caused to be filed for record on February 21, 2003 in
the Official Records
of San Diego County,
California, as Document No. 2003-0197113
that certain Declaration of Covenants, Conditions and Restrictions for
"Ames Ranch" (the "Original Declaration") covering the
Property. Collectively, the Original Declaration, this First Amendment and any
subsequent amendment thereto may be referred to as the "Declaration."
1.3. DEFINITIONS.
Each definition set forth in the Original Declaration Article
entitled "DEFINITIONS"
shall have the same meaning
within this First Amendment, except as amended hereby, and each such definition
is by this reference incorporated herein.
1.4. PROJECT STATUS.
As of the date of recordation of this First Amendment in the
Official Records of San Diego County, California: (a) Declarant has not conveyed any Residential Lots to
individual Owners; (b) the Association has not commenced business; and (c) a
Board of directors has not been elected.
1.5. INTENDED PURPOSES
OF FIRST AMENDMENT.
Declarant is amending the Original Declaration for the following
purposes:
(a) Definitions for "Close of Escrow" and
"Maintenance Manual": To add definitions for the terms "Close of
Escrow" and 'Maintenance Manual."
(b) Access ramp: To add language specifying
the access ramp is to be constructed by the Declarant to the same standards
that the Association will be obligated to meet once such Association becomes
responsible for the Operation (as defined in the Original Declaration) of the
access ramp.
(c) Member approval of Articles and Bylaws: To
delete certain language pertaining to Member voting rights.
(d) Typographical errors: To correct single word
typographical errors in Sections 8.3.5 and 8.4.10.
(e) Contracts approved by the DRE: To delete
Section 8.4.18(e) authorizing the Board's acceptance of a contract longer than 1 year if that contract had been approved by
the California Department of Real Estate (DRE) -- in Section 8.4.18(e).
(f) Correct a typographical omission: To
complete the sentence in Section 20.5.7, wherein there was a typographical
omission of a portion of that Section.
2. DECLARATION
NOW THEREFORE, Declarant
hereby declares the ORIGINAL DECLARATION to be amended in the mariner set forth
below.
3. FIRST AMENDMENT
3.1. AMENDMENT OF
ARTICLE 3 — "DEFINITIONS"
The following
new definitions are hereby added to the Original Declaration as Sections 3.59
and 3.60, respectively, immediately after Section 3.58 — VA:
3.59 CLOSE OF ESCROW
"Close of Escrow" shall mean
and refer to the date on which a deed from Declarant is recorded conveying a
Residential Lot pursuant to a transaction requiring the issuance of a Public
Report.
3.60 MAINTENANCE MANUAL
"Maintenance Manual" shall mean and
refer to shall mean and refer to one or more manuals, instruction books, and
similar documents or publications which may be prepared by the Declarant, a
builder, manufacturer, or other party, which provides reasonable
recommendations, standards, specifications and/or commonly accepted maintenance
obligations for maintenance, repair and/or replacement of Improvements in the
Common Area by the Association and within the Residential Lots by the Owners,
including, but not limited to, reasonable recommended maintenance schedules, as
the foregoing may be updated and amended from time to time by Declarant, a
builder, and/or a manufacturer of a particular Improvement.
3.2. AMENDMENT TO
SECTION 5.3.2
The second to
the last sentence of Section 5.3.2 of the Original Declaration is hereby
amended to read as follows (amended text underlined):
5.3.2 WALKWAY EASEMENT
The Access Ramp
shall initially be constructed in
compliance with the Project Permits and Applicable Law of such material as
Declarant may unilaterally deem appropriate. Upon the transfer of Operation of
the Access Ramp from Declarant to the Association, the Board shall assume the
responsibility, duty and obligation for the Operation of such Access Ramp and
all Improvements related thereto, subject to any requirements of the Project
Permits, Architectural Standards and Applicable Law.
3.3. AMENDMENT TO
SECTION 8.2
Section 8.2 of the Original Declaration is
hereby deleted in its entirety and replaced with the following new Section 8.2:
8.2 ASSOCIATION ACTION: BOARD OF DIRECTORS AND
OFFICERS.
Except as to matters requiring the
approval of Members as set forth in this Declaration, the Articles, or the
Bylaws, the affairs of the Association shall be conducted by the Board and such
officers as the Board may elect or appoint. Such election or appointment shall
be in accordance with this Declaration and the Bylaws.
8.2 BOARD OF DIRECTORS AND OFFICERS
Except as to matters requiring the
approval of Members as set forth in this Declaration, the Articles, or the
Bylaws, the affairs of the Association shall be conducted by the Board and such
officers as the Board may elect or appoint. Such election or appointment shall
be in accordance with this Declaration and the Bylaws. Except as otherwise
provided in this Declaration, the Articles and the Bylaws, all matters
requiring the approval of Members shall be deemed approved if Members holding a
majority of the total voting rights assent to them by written consent as
provided in the Bylaws or if approved by a majority vote of a quorum of Members
at any regular or special meeting held in accordance with the Bylaws.
3.4. AMENDMENT TO
SECTION 8.3.5
Section 8.3.5 of the Original Declaration is hereby amended to
correct the typographical misspelling of the word "duties" therein
(vs. incorrect "dune") as follows:
8.3.5 CONTRACT FOR GOODS
AND SERVICES.
The Association
shall have the power to contract for goods and services for the benefit of the
Association Property and the Project necessary for the Association to perform
its duties and obligations hereunder,
subject to such limitations as set forth in this Declaration or the Bylaws.
3.5. AMENDMENT TO
SECTION 8.4.10
Section 8.4.10 of the Original Declaration is
hereby amended to correct the typographical misspelling of the word
"fund" therein (vs. incorrect 'ind") as follows:
8.4.10 RESERVES.
The Association
shall establish and maintain a reserve fund as required under the CC&RS.
3.6. AMENDENT TO SECTION
8.4.18(e)
Section 8.4.18(e)
of the Original Declaration is hereby deleted in its entirety:
8.4.18 LIMIT ON THIRD PERSON CONTRACTS.
(e) A contract approved by the DRE.
3.7. AMENDMENT TO
SECTION 20.5.7
Section 20.5.7 of
the Original Declaration is hereby amended to correct the typographical omission
of the underlined portion of its text, which shall now read as follows:
20.5.7 APPLICATION OF AWARD.
Any
proceeds arising from any Dispute by
settlement award or otherwise shall be applied in accordance with Section 8.3.7
hereinabove
3.8. REMAINING
PROVISIONS OF ORIGINAL DECLARATION.
Except as
expressly amended herein, the provisions of the Original Declaration shall
remain in full force and effect.
DECLARANT:
STIVERS RANCH, LLC,
a California limited
liability company
(Please Attach Proper Notary Certificate(s) of
Acknowledgment)
EXHIBIT "A" -
LEGAL DESCRIPTION
LOTS I THROUGH 21 INCLUSIVE, of COUNTY OF SAN DIEGO
TRACT No. 5205-1, in the County of San Diego, State of California,
according to Map thereof No. 14535, filed in the Office of the San Diego
County Recorder, January 31, 2003.
EXHIBIT "B" -
LEGAL DESCRIPTION
LOTS 1 THROUGH 12, INCLUSIVE, of COUNTY OF SAN DIEGO
TRACT No. 4927-1, in the County of San Diego, State of California,
according to Map thereof No. 14528, filed in the Office of the San Diego
County Recorder, January 16, 2003
SUBORDINATION AGREEMENT
CITY NATIONAL BANK, a national banking
association, being the beneficiary under that certain Deed of Trust:
recorded November 2, 2002, as Document No.
2002-0996735 of Official Records in the Office of the County Recorder of
San Diego County, California, hereby declares that the lien and charge of said
Deed of Trust is and shall be subordinate to that certain "FIRST AMENDMENT
TO DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS for "AMES
RANCH," to which this Subordination Agreement is attached.
(Please Attach Proper Notary Certificate)
SUBORDINATION AGREEMENT
23.
SECOND AMENDMENT
SECOND AMENDMENT TO DECLARATION
OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
“AMES RANCH"
A Residential Planned Development
THIS SECOND AMMENDMENT TO
DECLARATION OF CONVENTS, CONDITIONS, AND RESTRICTIONS FOR AMES RANCH
(“Second Amendment”) is made as of this 25th day of September, 2008, by the
AMES RANCH OWNERS ASSICATION, a California nonprofit mutual benefit
corporation (the “Association”), as follows:
I. RECITALS
1.1. ORIGINAL
DECLARATION.
Stivers Ranch, LLC, a California limited liability company ("Declarant") caused to be filed a Declaration of
Covenants, Conditions and Restrictions for "Ames Ranch" (the "Declaration"), which was recorded in the office of the San Diego
County Recorder, State of
California, on February 21, 2003, as Document No. 2003-0197113.
1.2. FIRST
AMENDMENT.
Declarant caused to be filed a First Amendment to Declaration of Covenants, Conditions and Restrictions for "Ames Ranch" (the "First Amendment"), which was recorded in the office of the San Diego County Recorder, State of
California, on April 22, 2003, as Document No. 2003- 0461180.
1.3. DEFINITIONS.
Each definition set forth in the Declaration Article entitled "DEFINITIONS" as amended by the First Amendment, shall have the same meaning within this Second Amendment, except
as amended hereby, and each such definition is hereby
incorporated herein by this reference.
1.4. INTENDED
PURPOSES OF SECOND AMENDMENT.
(a) The
Declaration has a number of manifest clerical
omissions and mistakes, technical errors, ambiguities and defective and inconsistent provisions;
(b) Article 19, Section 19.3 of the Declaration provides, in relevant part:
Each Owner by
acceptance of conveyance of title to a Residential Lot and each Mortgagee by acceptance of a Mortgage
or Deed of Trust secured by a Residential Lot, hereby agrees and consents to the amendment of this Declaration and, in the case of Mortgagees, the subordination of their
respective interests in the Property for the purpose(s) of correcting
manifest and technical errors or for curing or correcting any ambiguity or defective or inconsistent provisions or clerical omission or mistake ... Any such amendment may be executed by the President or Vice-President and Secretary or Assistant
Secretary . . . each of whom is
hereby granted an
irrevocable power of attorney to act for and on behalf of each and every Owner and
Mortgagee in certifying and executing and Recording any such correctional, clarification, amendment instrument, each of which such amendments shall become effective upon its
Recordation.
(c) The Board of Directors of the Association ("Board") has determined that it is in the best interests of the Members and Mortgagees to correct the manifest clerical omissions and mistakes, technical errors, ambiguities and defective and inconsistent provisions in the Declaration; and
(d) By this Second Amendment, the Board intends to, and hereby does, exercise its authority to
correct the manifest clerical omissions and mistakes, technical errors,
ambiguities and defective and inconsistent provisions in the Declaration.
II, AMENDMENTS
2.1. The Declaration is hereby amended
as follows:
(a) Article
3, Section 3.42(f) of the Declaration is hereby amended as follows (amended
text underlined):
(f) Performing
such other acts and work as are reasonably incidental to
any of the foregoing.
(b) The
Article 8, Section 8.4.9 of the Declaration is hereby amended as follows
(amended text underlined):
8.4.9. LIENS
AND CHARGES.
The Association shall pay any amount
necessary to discharge any lien or encumbrance upon the Association Property,
or any other property or interest of the Association. Where one or more Owners are jointly responsible for
the existence of such lien, they shall be jointly and severally liable for the
cost of discharging it, and any costs incurred by the Association by reason of
said lien or liens shall be specially assessed to said Owner(s).
(c) The
second sentence of Article 11, Section 11.6 of the Declaration is hereby
amended as follows (amended text underlined):
The Owner of a Lot where a
building structure has been damaged or destroyed by fire or other calamity
shall cause such structure to be repaired or restored within a reasonable time,
commencing within six (6) months after the damage occurs, and be completed within
one (1) year thereafter, unless
prevented by causes beyond his or her reasonable control.
(d) The
first sentence of Article 12, Section 12.7 of the Declaration is hereby amended
as follows (amended text underlined):
Any Owner proposing to construct Improvements or to take any other actions requiring the
prior approval of the Board pursuant to this Declaration shall first apply to
the Board for preliminary approval by submission of preliminary drawings of the
proposed Improvements in accordance with the Architectural Standards, if any.
(e) The
last sentence of Article 12, Section 12.7 of the Declaration is hereby amended
as follows (amended text underlined):
Applications for preliminary approval shall be
considered and disposed of as set forth below.
(f) Article
12, Section 12.8.2 of the Declaration is hereby amended as follows (amended
text underlined):
12.8.2. EFFECTIVENESS OF APPROVAL.
Any
preliminary approval granted by the Board as provided above shall be effective
for a period of ninety (90) days from the date of the issuance thereof. In no event shall any
preliminary approval be deemed to be an approval authorizing construction of
the subject Improvements.
(g) Article
12, Section 12.9 of the Declaration is hereby amended as follows ended text
underlined)
12.9. APPROVAL OF SOLAR ENERGY SYSTEMS.
Any Owner
proposing to install or use a solar energy system, as defined in Civil Code
Section 801.5, shall be subject to the same review and approval process as any Owner
proposing to construct any Improvements or to take any other actions requiring the
approval of the Board pursuant to this Declaration. However, only reasonable
restrictions on the installation and use of a solar energy system shall be
permitted. Reasonable restrictions on a solar energy system are those
restrictions which do not significantly increase the cost of the
system or significantly impact its sufficiency or specified
performance, or which allow for an alternative system of comparable costs, efficiency
and energy conservation benefits.
(h) The
last sentence of Article 12, Section 12.17 of the Declaration is hereby amended
as follows (amended text underlined):
Any purchaser from the
Owner, or from anyone deriving any interest in said Residential Lot through such Owner, shall be entitled to rely on said
certificate with respect to the matters therein set forth, such matters being
conclusive as between the Association, Declarant and all Owners and such
persons deriving any interest through them.
(i) Article
12, Section 12.20 of the Declaration is hereby amended as follows (amended text
underlined):
12.20. GOVERNMENTAL REQUIREMENTS.
The application to and the review and approval by the Board
of any proposals, plans or other submittals shall in no way be deemed to be
satisfaction of or compliance with any building permit process or any other
governmental requirements, the responsibility for which shall lie solely
with the respective Owner.
(j) The
last sentence of Article 12, Section 12.22 of the Declaration is hereby amended
as follows (amended text underlined):
The granting of a variance
shall not operate to waive any of the terms and provisions of this Declaration
for any purpose except as to the particular property and particular
Residential Lot and the particular provision hereof covered by the variance,
nor shall the granting
of a variance affect in any way the Owner's obligation to comply with
all governmental laws and regulations affecting the Owner's use of the Residential Lot,
including, but not limited to, zoning ordinances and lot setback lines or
requirements imposed by the County or any other governmental authority.
(k) The
last sentence of Article 14, Section 14.1.38 of the Declaration is hereby
amended as follows (amended text underlined):
The Owner of each affected
portion of the Residential Lots on which a party wall or fence is located shall
have a reciprocal non-exclusive easement to the Residential Lot immediately
adjacent to the party wall or fence for the limited
purpose and only to the extent necessary to maintain the party wall or fence.
(i) The
last sentence of Article 14, Section 14.1.4 of the Declaration is hereby
amended as follows (amended text underlined):
In order to assure proper
fire safety conditions within unimproved areas of a Residential Lot, each Owner
shall maintain brush clearance on his or her Lot according to specifications as may be required by the County or,
in the absence thereof, in conformance with fire prevention standards that may
be recommended by local firefighting agencies.
(m) Article
14, Section 14.5 of the Declaration is hereby amended as follows (amended text
underlined):
14.5. PROPERTY MANAGEMENT.
The Board may,
at its option, employ a professional management company (“Managing Agent”) to handle the day to day management and
operation of the Project. Upon making a determination to employ a Managing
Agent,
the Board shall obtain from the prospective Managing Agent a written
statement to the Board which shall contain the information concerning the prospective Managing Agent required to comply with
California Civil Code Section 1363.1, or any succeeding statute.
(n) Article
15, Section 15.1.1 of the Declaration is hereby amended as follows (amended
text underlined):
15.1.1.
LIABILITY INSURANCE.
A
comprehensive, general liability insurance policy insuring the Association, the
Board, the Architectural Committee, any Managing Agent, the Declarant and the
Owners and occupants of the Residential Lots and their respective Invitees
against any liability incident to ownership or use of the Association Area or
any other Association owned or maintained real or personal property, and the
performance by the Association of its duties under this Declaration, arising
out of any single occurrence the amount of general liability insurance which
the Association shall carry at all times shall be not less than Two Million
Dollars ($2,000,000), or such amount as the Board may otherwise deem
appropriate to protect the interests of the Members. Liability insurance
coverage shall include coverage against water damage liability, damage to property of others and any
other liabilities or risks as are customarily
covered with respect to similar real estate developments in the area of the
Project. The general liability policy shall also include such provisions as may
be required by the provisions of California Civil Code Section 1365.7, or any
successor statute, to limit the monetary liability of volunteer directors and
officers of the Association.
(o) Article
15, Section 15.5 of the Declaration is hereby amended as follows (amended text
underlined):
15.5. DUTY TO CONTRACT.
If repair or
reconstruction is authorized as a result of damage or destruction, the Board
and any-duly appointed Trustee shall have the duty to contract for such work in accordance with the provisions set forth
in Section 16.4 below.
(p) The
first sentence of Article 15, Section 15.7 of the Declaration is hereby amended
as follows (amended text underlined):
The Association and its
directors and officers shall have no liability to any Owner or Mortgagee if,
after a good faith effort, the
Association is unable to obtain the liability insurance required hereunder because
(i) the insurance is no longer available or, if available, can be obtained only
at a cost that the Board, in its sole discretion, determines is unreasonable
under the circumstances, or (ii) the Members fail to approve any assessment
increase necessary to fund the insurance
premiums.
(q) Article
15, Section 15.11 of the Declaration is hereby amended as follows (amended text
underlined):
15.11. INSURANCE INFORMATION TO MEMBERS.
The
Board shall annually prepare and distribute to the Members, or cause to be prepared and distributed to the Members, within sixty (60) days
preceding the beginning of the Association's fiscal year, a summary of the
Association's insurance policies in
accordance with the requirements of Civil
Code Section 1365( e), as it may be amended from time to time; provided, however, to the extent that any of the
information required to be disclosed pursuant to Civil Code Section 1365( e) is
specified in the insurance policy declaration page(s), the Board may
meet the requirements of Civil Code Section 1365(e) by making copies of the
declaration page(s) and distributing such
copies to all Members. Any Association
Member may, upon written request and provision of
reasonable notice to the
Association, review the Association's actual insurance policies and, upon request
and payment of reasonable duplication charges, obtain copies of such policies.
(r) The
second sentence of Article 16, Section 16.2 of the Declaration is hereby
amended as follows (amended text underlined):
If such damage or
destruction occurs prior to the date of completion of construction of the
Project by Declarant, then such restoration shall be completed in
cooperation with any construction required or deemed necessary to be completed
by Declarant.
(s) The
first sentence of Article 16, Section 16.3 of the Declaration is hereby amended
as follows (amended text underlined):
The costs of restoration of
damaged Improvements shall .be funded first by any
insurance proceeds paid to the Association under existing insurance policies.
(t) The
third sentence of Article 16, Section 16.4 of the Declaration is hereby amended
as follows (amended text underlined):
It shall be the obligation
and duty of the Board to take all steps necessary to contract for and assure the commencement and completion of
authorized repair and reconstruction at the earliest possible date.
(u) Article 16, Section 16.6 of the
Declaration is hereby amended as follows (amended text underlined):
16.6. BOARD'S ACTION.
The Board shall
have the exclusive right to participate in and represent the interests of all
Owners in any proceedings affecting the Project relating to the rebuilding of any portion of the Project, including, without
limitation, proceedings with any governmental or quasi-governmental agency to
obtain permits or approvals for any rebuilding. No Owner shall have the right to directly participate therein, except
that, prior to the conversion of the Class B membership in the Association to a
Class A membership, Declarant shall have the right to directly participate
therein.
(v) The
first and second sentences of Article 16, Section16.7 of the Declaration are
hereby amended as follows (amended text underlined):
Restoration and repair of
any damage to the Dwelling on a Residential Lot, or of any damage to any other Improvements thereon, shall be made by
and at the individual expense of the Owner of such Residential Lot. If an Owner determines not to rebuild the Dwelling or other Improvements, the Residential Lot shall
be landscaped and maintained in an attractive and well-kept condition by the
Owner thereof.
(w) Article
17, Section 17.1 of the Declaration is hereby amended as follows (amended text
underlined):
17.1. CONDEMNATION OF ASSOCATION AREAS LOCATED
WITHIN RESIDENTIAL LOTS.
If at any time
all or any portion of the
Association Area located within a Residential Lot or any interest therein, is
taken for any public or quasi- public use under any statute, by right of
eminent domain or by private purchase in lieu of eminent domain, the entire
award in condemnation shall be paid to the Association and shall be used for
restoring the balance of the Project To the extent the Association is not
permitted by the governmental agency to rebuild, then such award shall be
apportioned among the Owners by court judgment or by agreement between the
condemning authority and each of the affected Owners in the Project, the
Association and their respective Mortgagee
to such area as their interests may appear according to the fair market
values of each Residential Lot at the time of destruction, as determined by
independent appraisal. Said appraisal shall be made by a qualified real estate
appraiser with a MAl certificate or the equivalent, which appraiser shall be
selected by the Board. Any such award to the Association shall be deposited
into the maintenance and operation account of the Association. The Association
shall represent the interests of all Owners in any proceeding relating to such condemnation.
(x) Article 18, Section 18.2 of the
Declaration is hereby amended as follows (amended text underlined):
18.2. MORTGAGEE PROTECTION.
A breach of any
of the conditions contained in this Declaration shall not defeat or render
invalid the lien of any First Mortgage made in good faith and for value as to
any Residential Lot in the Project; provided, however, that the conditions
contained in this Declaration shall be binding upon and effective against any
Owner of a Residential Lot if the Residential Lot is acquired by foreclosure,
trustee's sale or otherwise.
(y) Article
18, Section 18.3 of the Declaration is hereby amended as follows (amended text
underlined):
18.3. LIABILITY FOR UNPAID ASSESSMENTS AND
COMMON EXPENSES.
Any First
Mortgagee who obtains title to a Residential Lot pursuant to the remedies
provided in the First Mortgage (but
excluding
a voluntary conveyance to the First Mortgagee) or as a result of judicial or
power-of-sale foreclosure of the First Mortgage, shall take title to the Residential Lot free of any claims for
unpaid assessments or charges for Common Expenses against the Residential Lot
that became due prior to the acquisition of title to such Residential Lot by the First Mortgagee. Such unpaid
assessments or charges for Common Expenses, however, shall be deemed to be
Common Expenses collectible from the Owners of all of the Residential
Lots, including such First Mortgagee and its successors and assigns, and
subject to the provisions for the collection of assessments contained in this
Declaration; as such provisions may be amended by statute.
(z) Article
18.5 of the Declaration is hereby amended as follows (amended text underlined):
18.5. AGREEMENT FOR MANAGEMENT.
Any management
agreement relating to the Project or to
any portion of the Project, and any other contract providing for
services by the Declarant, shall be terminable for cause upon thirty (30) days'
prior written notice, and shall be
terminable
without cause or payment of a termination fee upon ninety (90) days' prior
written notice. Any such
management agreement or
contract shall
have a term of not more than one (1) year, renewable upon the mutual consent of the Board and the management agent. The Board shall
not terminate professional management of the Project and assume self-management, when professional management has been required previously by an Eligible
Mortgage Holder, without the prior written approval of Mortgagees holding
seventy-five percent (75%) or more of the First Mortgages on Dwellings.
(aa) Article
18, Section 18.8(c) of the Declaration is hereby amended as follows (amended
text underlined):
(c) By act or
omission, change, waive or abandon any scheme of regulations, enforcement
thereof, pertaining to the architectural desiqn, exterior appearance or exterior maintenance of the Residential Lots the
maintenance of the Association Area;
(bb) Article
18, Section 18.8(e) of the Declaration is hereby amended as follows (amended
text underlined):
(e) Use hazard
insurance proceeds for losses to any property or Improvements owned by the
Association other than for the repair, replacement or reconstruction of such
property and Improvements.
(cc) The
last sentence of Article 19, Section 19.4 of the Declaration is hereby amended
as follows (amended text underlined):
A draft of any amendment to
this Declaration should be submitted to the FHA and/or VA for approval
prior to submitting
such amendment for approval by the membership
of the Association.
2.2. In all other respects, the Declaration,
as amended by the First Amendment, shall remain unmodified and in full force
and effect.
IN
WITNESS WHEREOF, the Association has executed this Second Amendment as of the
day and year first hereinabove written.
