HomeMy WebLinkAboutT-6099 - Agreement/Covenant - DCC&Rs - 10/5/2017 RECORDING REQUESTED BY:
II IN I III 1111111111 IN 111111111
FRESNO County Recorder
WHEN RECORDED MAIL TO: Paul D1ctos l C.P.A.
DDC— 2017-0128643
Las Brisas Builders, Inc. Acct 8002-Old Republic Title CONCORD
Thursday, OCT 05, 2017 08:00:00
1396 W. Herndon Ave., Ste. 101 Ttl Pd $345,00 Rcpt # 0004859982
Fresno, CA 93711 RGR/R5/3-97
Attn: Steven G. Rau
DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
FOR
CANVAS AT COPPER
(TRACT 6099)
NOTICE OF ARBITRATION AND WAIVER OF RIGHT TO HAVE
DISPUTES LITIGATED IN A COURT OR JURY TRIAL:
ARTICLE XIX of this Declaration of Covenants, Conditions and
Restrictions requires binding arbitration of, among other things, any dispute
arising out of or relating to the planning, design, engineering, grading,
construction or other development of the Project. Please refer to ARTICLE
XIX for additional details regarding binding arbitration.
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DECLARATION OF COVENANTS, CONDITIONS & RESTRICTIONS
FOR CANVAS AT COPPER (TRACT 6099)
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS ........................................................................................................2
Section 1.1 "Annexable Property" ......................................................................................2
Section 1.2 "Architectural Committee"...............................................................................2
Section 1.3 "Articles of Incorporation"...............................................................................2
Section 1.4 "Assessment"....................................................................................................2
Section 1.4.1 "Capital Improvement Assessment".........................................................2
Section 1.4.2 "Reconstruction Assessment"...................................................................2
Section 1.4.3 "Regular Assessment" ..............................................................................2
Section 1.4.4 "Reimbursement Assessment"..................................................................2
Section 1.4.5 "Remedial Assessment"............................................................................2
Section 1.4.6 "Special Assessment" ...............................................................................3
Section1.5 "Assets"............................................................................................................3
Section1.6 "Association"....................................................................................................3
Section 1.7 "Association Maintenance Areas"....................................................................3
Section1.8 "Board".............................................................................................................3
Section1.9 "Bylaws" ..........................................................................................................3
Section 1.10 "Ca1BRE".........................................................................................................3
Section 1.1 l "Ca1BRE Accepted Budget" ............................................................................3
Section1.12 "City"................................................................................................................3
Section 1.13 "Common Area(s)"...........................................................................................4
Section 1.14 "Common Expenses" .......................................................................................4
Section1.15 "Contract''.........................................................................................................4
Section 1.16 "Conversion Date" ...........................................................................................5
Section1.17 "County"...........................................................................................................5
Section1.18 "Declarant".......................................................................................................5
Section 1.19 "Declaration".....................................................................................................5
Section 1.20 "Declaration of Annexation"............................................................................5
Section1.21 "Exhibit"...........................................................................................................5
Section 1.22 "Federal Agencies"...........................................................................................5
Section 1.23 "Final Subdivision Public Report"...................................................................5
Section 1.24 `'Initial Sale Date" ............................................................................................5
Section 1.25 "Institutional Mortgagee".................................................................................5
Section1.26 "Lot".................................................................................................................6
Section 1.27 "Management Documents" ...........
Section1.28 "Manager"........................................................................................................6
Section1.29 "Member".........................................................................................................6
Section1.30 "Mortgage".......................................................................................................6
Section1.31 "Mortgagee".....................................................................................................6
Section1.32 "Owner"............................................................................................................6
Section 1.33 "Perimeter Wall"..............................................................................................6
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Section1.34 "Person"............................................................................................................6
Section 1.35 "Phase of Development"..................................................................................6
Section1.36 "Project.............................................................................................................7
Section 1.37 "Resident Owner".............................................................................................7
Section 1.38 "Rules and Regulations" ..................................................................................7
ARTICLE II. MEMBERSHIP .....................................................................................................7
Section2.1 Membership......................................................................................................7
Section2.2 Transfer ............................................................................................................7
Section2.3 Voting Rights ...................................................................................................7
Section 2.4 Classes of Voting Membership ........................................................................7
Section 2.5 Special Class A Voting Rights......................................... ..............................8
Section 2.6 Approval of Members ......................................................................................8
ARTICLE III. COVENANT FOR MAINTENANCE ASSESSMENTS..................................8
Section 3.1 Creation of the Lien and Personal Obligation of Assessments........................8
Section 3.2 Purpose of Assessments ...................................................................................9
Section 3.3 Regular Assessments........................................................................................9
Section 3.4 Capital Improvement Assessments 10
Section 3.5 Uniform Assessment ......................................................................................11
Section 3.6 Certificate of Payment....................................................................................1 l
Section 3.7 Exempt Property..............................................................................:..............1 l
Section 3.8 Special Assessment ........................................................................................11
Section 3.9 Remedial Assessment.....................................................................................1 1
Section 3.10 Reimbursement Assessment...........................................................................12
Section 3.11 Date of Commencement of Regular Assessments .........................................12
Section3.12 No Offsets.......................................................................................................12
Section 3.13 Homestead Waiver....................................................................:....................12
Section3.14 Reserves..........................................................................................................12
Section 3.15 Maintenance of Adequate Reserves...............................................................13
Section 3.16 Automatic Assessment Increases ...................................................................14
ARTICLE IV. NONPAYMENT OF ASSESSMENTS.............................................................15
Section 4.1 Effect of Nonpayment of Assessments; Remedies of the Association ..........15.
Section 4.2 Assignment of Rents ......................................................................................20'
ARTICLE V. ARCHITECTURAL CONTROL.......................................................................20
Section 5.1 Appointment of Architectural Committee.......................................................20
Section 5.2 General Provisions .........................................................................................21
Section 5.3 Approval and Conformity of Plans ................................................................22
Section 5.4 Non-Liability for Approval of Plans.......................:......................................22
Section5.5 Appeal ............................................................................................................23
Section 5.6 Inspection and Recording of Approval ..........................................................23
Section 5.7 Notice Regarding Physical Changes ..............................................................23
ARTICLE V1. DUTIES AND POWERS OF THE ASSOCIATION......................................24
Section 6.1 General Duties and Powers ............................................................................24
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Section 6.2 General Duties of the Association..................................................................24
Section 6.3 Budgets and Financial Statements..................................................................25
Section 6.4 General Powers of the Association ................................................................28
Section 6.5 General Limitations and Restrictions on the Powers of the Board ................30
Section 6.6 Rules and Regulations....................................................................................32
Section 6.7 Delegation of Powers .....................................................................................33
Section 6.8 Pledge of Security for Obligations; Notice to Obligees.................................33
Section 6.9 Emergency Powers.........................................................................................33
Section 6.10 Conveyance of Common Area.......................................................................33
ARTICLE VII. REPAIR AND MAINTENANCE....................................................................33
Section 7.1 Repair and Maintenance by Association........................................................33
Section 7.2 Repair and Maintenance by Owner................................................................34.
Section 7.3 Right of Association to Maintain and Install..................................................35
Section 7.4 Standards for Maintenance and Installation...................................................36
Section7.5 Right of Entry.................................................................................................36
Section 7.6 Maintenance of Public Utilities......................................................................36
Section 7.7 Assumption of Maintenance Obligations.......................................................36
Section 7.8 Common Areas and Association Maintenance Areas within
AnnexableProperty........................................................................................37
ARTICLE VIII. INSURANCE...................................................................................................37
Section8.1 Types......:.......................................................................................................37
Section 8.2 Waiver by Members.......................................................................................38
Section 8.3 Other Insurance ..............................................................................................38
Section 8.4 Premiums, Proceeds and Settlement ..............................................................38
Section 8.5 Annual Insurance Review .....................................................................:........38
Section 8.6 Abandonment of Replacement Cost Insurance..............................................38
Section 8.7 Notice of Expiration Requirements................................................................38
Section 8.8 Federal Requirements.....................................................................................39
ARTICLE IX. DESTRUCTION OF IMPROVEMENTS .......................................................39
Section 9.1 Duty of Association........................................................................................39
Section 9.2 Automatic Reconstruction......................................:.......................................39
Section 9.3 Vote of Members............................................................................................39
Section 9.4 Excess Insurance Proceeds.............................................................................40
Section 9.5 Use of Reconstruction Assessments...............................................................40
ARTICLE X. EMINENT DOMAIN........................................................................:..................40
Section 10.1 Definition of Taking.......................................................................................40
Section 10.2 Representation by Board in Condemnation Proceedings................................40
Section 10.3 Inverse Condemnation.....................................................................................40
Section 10.4 Award for Taking 40
ARTICLE XI. USE RESTRICTIONS.......................................................................................41
Section IL I Single-Family Residential Use.......................................................................41
Section11.3 Signs...............................................................................................................41 .
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Section11.4 Nuisance.........................................................................................................42
Section 11.5 Temporary Structures.....................................................................................42
Section11.6 Vehicles..........................................................................................................42
Section11.7 Animals ..........................................................................................................44
Section 11.8 Oil and Mineral Rights...................................................................................45
Section11.9 Unsightly Items ..............................................................................................45
Section H.10 Antennae and Other Roof Structures..............................................................45
Section1 LI Drainage .........................................................................................................46
Section11.12 Garages...........................................................................................................46
Section11.13 Windows.........................................................................................................46
Section11.14 Backboards.....................................................................................................46
Section 11.15 Maintenance by Owner..................................................................................46
Section 11.16 Solar and Other Energy Saving Devices........................................................47
Section11.17 No Views........................................................................................................47
Section 11.18 Limited Use Areas..........................................................................................47
Section 11.19 Compliance with Law ....................................................................................47
Section11.20 Exceptions......................................................................................................47
ARTICLE XII. RIGHTS OF ENJOYMENT............................................................................48
Section 12.1 Members' Right of Enjoyment.....................
Section12.2 Delegation of Use...........................................................................................49
Section12.3 Waiver of Use.................................................................................................49
ARTICLEXlll. EASEMENTS..................................................................................................49
Section 13.1 Amendment to Eliminate Easements .............................................................49 .
Section 13.2 Nature of Easements.......................................................................................49
Section 13.3 Certain Rights and Easements Reserved to Declarant. ..................................49
Section 13.4 Certain Easements for Owners.......................................................................51
Section 13.5 Certain Easements for Association.................................................................52
Section 13.6 Support, Settlement and Encroachment.........................................................52
ARTICLE XIV. INTEGRATED NATURE OF THE PROJECT ..........................................53
Section 14.1 Development of the Project............................................................................53
Section 14.2 Declarations of Annexation............................................................................53
Section 14.3 Annexation Without Approval and Pursuant to General Plan .......................54
Section 14.4 Annexation Pursuant to Approval..................................................................54
Section14.5 De-Annexation ...............................................................................................54
ARTICLE XV. RIGHTS OF LENDERS ..................................................................................55
Section 15.1 Filing Notice; Notices and Approvals............................................................55
Section 15.2 Priority of Mortgage Lien........................................................
Section15.3 Curing Defaults ..............................................................................................55
Section15.4 Resale .............................................................................................................56.
Section 15.5 Relationship with Assessment Liens..............................................................56
Section 15.6 Vote of Eligible Mortgagees ....................................................:. ................56
Section 15.7 Other Rights of Institutional Mortgagees.......................................................58.
Section 15.8 Mortgagees Furnishing Infonnation...............................................................58
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Section 15.9 Right of First Refusal .....................................................................................58
Section15.10 Conflicts .........................................................................................................58
Section 15.11 Voting Rights of Institutional Mortgagees.....................................................58
Section 15.12 Notice of Destruction or Taking.....................................................................59
Section 15.13 Payment of Taxes or Premiums by Institutional Mortgagees ........................59
ARTICLE XVI. ANNUAL INSPECTION................................................................................59
Section 16.1 Duty to Inspect 59 .
Section 16.2 Purpose of Inspection.....................................................................................59
Section 16.3 Scope of Inspection........................................................................................59
Section 16.4 Experts and Consultants.................................................................................60
Section16.5 Inspectors........................................................................................................60
Section 16.6 Report of Results 60
ARTICLE XVII. RIGHTS OF THE CITY OF FRESNO.......................................................61
Section 17.1 City's Rights...................................................................................................61
Section 17.2 Access Easements...........................................................................................61
Section 17.3 Sewer, Water and Storm Drainage Lines.......................................................61
Section17.4 Utilities....................:......................................................................................61
Section17.5 Party Walls.....................................................................................................61
Section 17.6 Fire Insurance61
.................................................................................................
Section 17.7 Public Easement and Common Area Maintenance.........................................61
Section 17.8 City Easements; Repair of Street Improvements Due to Repair of
PublicFacilities..............................................................................................62
Section 17.9 Indemnification ..............................................................................................62
Section 17.10 Special Amendment Rights............................................................................62
ARTICLE XVIII. GENERAL PROVISIONS..........................................................................63
Section18.1 Enforcement ...................................................................................................63.
Section18.2 No Waiver.......................................................................................................63
Section 18.3 Cumulative Remedies.....................................................................................63
Section18.4 Severability.....................................................................................................63
Section 18.5 Covenants to Run with the Land; Term .........................................................63
Section 18.6 No Dedication.................................................................................................63
Section 18.7 Sale or Title Transfer......................................................................................64
Section18.8 Construction ...................................................................................................64
Section 18.9 Singular Includes Plural ..................................................................................64
Section18.10 Nuisance.........................................................................................................64
Section 18.11 Attorneys' Fees...............................................................................................65
Section18.12 Notices............................................................................................................65
Section 18.13 Obligations of Declarant ................................................................................65
Section 18.14 Effect of Declaration ......................................................................................65
Section 18.15 Personal Covenant................:.........................................................................66
Section 18.16 Non-Liability of Officials...............................................................................66
Section 18.17 Enforcement of Bonded Obligations..............................................................66
Section18.18 Leases.............................................................................................................67
Section 18.19 Construction by Declarant..............................................................................67
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Section18.20 Amendments...................................................................................................68
ARTICLE XIX. DISPUTE RESOLUTION..............................................................................69
Section 19.1 Consensus for Association Action .................................................................69
Section 19.2 Election to Opt Out of Civil Code Sections 910-938; Alternative
Method for Resolving Disputes................................
Section19.3 Disputes..........................................................................................................70
Section 19.4 Notice and Right to Cure...:............................................................................71
Section19.5 Mediation........................................................................................................74
Section 19.6 ARBITRATION OF DISPUTES.......................................:...:.......................75
Section 19.7 Civil Code Provisions.....................................................................................78
Section 19.8 Amendment of Article..........................:.........................................................78
Exhibits
Exhibit "A" Initial Property
Exhibit "B" Annexable Property
Exhibit "C" Common Area
Exhibit"D" Association Maintenance Areas
Exhibit "E" No Parking Area.
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DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
CANVAS AT COPPER
(Tract No. 6099)
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS FOR
CANVAS AT COPPER (Tract No. 6099) is made this 31.st day of August, 2017, by Las Brisas
Builders, Inc., a California corporation. Las Brisas Builders, Inc. and its successors and assigns
shall hereafter be referred to as "Declarant."
RECITALS
A. Declarant is the fee owner of certain real property located in the City of Fresno,
County of Fresno, State of California, and legally described as set forth in Exhibit "A" attached
hereto and incorporated herein by this reference (the "Initial Property"). Declarant intends to
develop the Project (as hereinafter defined) as a "Planned Development," as defined in California
Civil Code Section 6562. In particular, Declarant contemplates that the Property will be
developed as a residential housing tract, and in the course of such development, Declarant
contemplates that portions of the Property will be conveyed to the Canvas at Copper
Homeowners Association, a California nonprofit mutual benefit corporation (the "Association"),
as "Common Area" (as hereinafter defined), or maintained by the Association as "Association
Maintenance Areas" (as hereinafter defined).
B. Declarant contemplates that certain real property adjacent to or in the vicinity of
the Initial Property and more particularly described in Exhibit "B" attached hereto and
incorporated herein by reference (the "Annexable Property") will be annexed under the plan of
this Declaration from time to time in accordance with the provisions of Article 14 of this
Declaration. The Initial Property and such Annexable Property as shall be annexed hereunder
pursuant to such ARTICLE XIV of this Declaration shall hereinafter be referred to as the
"Property.",
C. Declarant deems it desirable to establish covenants, conditions and restrictions
upon the Property, and each and every portion thereof, which will constitute a general scheme
for the management of the Property and for the use, occupancy and enjoyment thereof, all for the
purpose of enhancing and protecting the value, desirability and attractiveness of the Property and
enhancing the quality of life within the Project.
NOW, THEREFORE, in furtherance of such intent, Declarant hereby declares that the
Property and each part thereof shall be held, conveyed, hypothecated, mortgaged, encumbered,
leased, rented, used, occupied and improved subject to the following easements, covenants,
conditions and restrictions set forth in this Declaration, as this Declaration may be amended from
time to time, and subject to the Rules and Regulations (as hereinafter defined) and all of which
easements, covenants, conditions and restrictions and the Rules and Regulations are declared to
be in furtherance of a plan established for the purpose of enhancing and perfecting the value,
desirability and enjoyment of the Property, and the interest or interests therein to be conveyed or
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reserved. All such easements, covenants, conditions and restrictions and Rules and Regulations
shall constitute covenants running with the land and equitable servitudes and liens, and shall be
binding upon and for the benefit of Declarant and shall be binding upon and for the benefit of all
parties having or acquiring any right, title, interest or estate in the Property, including, but not
limited to, the heirs, executors, administrators and assigns of any such parties and all subsequent
owners and lessees of all or any part of the Property.
ARTICLE 1.
DEFINITIONS
Unless the context clearly indicates otherwise, the following terms used in this
Declaration are defined as follows:
Section 1.1 "Annexable Property" shall mean all of the real property described in
Exhibit"B" to this Declaration.
Section 1.2 "Architectural Committee" shall mean the architectural committee of
the Association as provided for in ARTICLE V of this Declaration.
Section 1.3 "Articles of Incorporation" shall mean the Articles of Incorporation of
the Association as the same may from time to time be duly amended.
Section 1.4 "Assessment" shall mean any of the following types of Assessment:
Section 1.4.1 "Capital Improvement Assessment" shall mean a charge
against each Owner and that Owner's Lot, representing a portion of the cost to the Association
for installation or construction of any capital improvements on any of the Common Areas or
Association Maintenance Areas which the Association may from time to time authorize pursuant
to the provisions of this Declaration.
Section 1.4.2 "Reconstruction Assessment" shall mean a charge against each
Owner and his or her Lot representing a portion of the cost to the Association for reconstruction
of any portion or portions of the Common Areas pursuant to the provisions of this Declaration.
Section 1.4.3 "Regular Assessment" shall mean the amount which is to be paid
by each Member to the Association for Common Expenses.
Section 1.4.4 "Reimbursement Assessment" shall mean any charge designated
as a Reimbursement Assessment in this Declaration, the Articles of Incorporation, Bylaws or
Rules and Regulations.
Section 1.4.5 "Remedial Assessment" shall mean any charges and/or fines
levied by the Association against a particular Owner who fails to comply with this Declaration,
the Articles of Incorporation, Bylaws or Rules and Regulations, together with attorneys' fees and
other charges payable by such Owner, pursuant to the provisions of this Declaration, plus interest
thereon as provided for in this Declaration.
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Section 1.4.6 "Special Assessment" shall mean any charge designated as a
Special Assessment in this Declaration, the Articles of Incorporation, Bylaws or Rules and
Regulations.
Section 1.5 "Assets" shall mean the Association bank deposits, accounts receivable,
assessment powers and contingent assets (including, without limitation, future Assessments,
potential recoveries under a lawsuit and potential condemnation proceeds).
Section 1.6 "Association" shall mean Canvas at Copper Homeowners Association, a
California non-profit mutual benefit corporation, its successors and assigns.
Section 1.7 "Association Maintenance Areas" shall mean and refer to those areas
(and any improvements constructed thereon) that are not owned by the Association but that will
be maintained by the Association, the cost and expense of which maintenance shall be included
in the Common Expenses of the Association, including, without limitation, the following:
(a) Real property (and any improvements thereon [e.g., irrigation
systems]) located outside the boundaries of the Project (including, but not limited to, parkways
and/or medians located within the right-of-way of a public street within or adjoining the Project)
designated by and which the Association is obligated to maintain pursuant to a condition of
approval, agreement or other arrangement imposed by the City or other public agency in
connection with the development of the Project; and
(b) Portions of a Lot (together with any improvements therein
[including, without limitation, landscaping {e.g., turf, shrubs, vines, etc.) and related irrigation
systems, hardscape and lighting]) that are designated by Declarant in this Declaration or in a
Declaration of Annexation or other supplementary declaration to this Declaration as Association
Maintenance Area.
Upon the Initial Sale Date, the Association Maintenance Area shall comprise those areas
identified as "Association Maintenance Area" on Exhibit "D" attached hereto. In the event of a
conflict between the depiction of an Association Maintenance Area on Exhibit "D" and the
actual as-built condition, the as-built condition shall control.
Section 1.8 "Board" shall mean the Board of Directors of the Association.
Section 1.9 "Bylaws" shall mean the Bylaws of the Association as the same may from
time to time be duly amended.
Section 1.10 "Ca1BRE" shall mean the Bureau of Real Estate of the State of
California.
Section 1.11 "Ca1BRE Accepted Budget" shall mean that certain budget or budgets
which have been or will be submitted by Declarant to, and accepted by, the Ca1BRE.
Section 1.12 "City" shall mean the City of Fresno, State of California.
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Section 1.13 "Common Area(s)" shall mean all real property, and the improvements
thereon, owned or leased from time to time by the Association. Upon the Initial Sale Date, the
Common Areas shall be that certain property described on Exhibit "C", attached hereto and
incorporated herein by this reference.
Section 1.14 "Common Expenses" shall mean the actual and estimated costs of:
(a) maintenance, management, operation, repair and replacement of
the Common Areas, Association Maintenance Areas and any improvements located therein or
therein, if any;
(b) unpaid Assessments;
(c) costs of management and administration of the Association,
including, but not limited to, compensation paid by the Association to managers, accountants,
attorneys and employees;
(d) the costs of utilities, trash pickup and disposal (to the extent not
paid by the City), gardening and other services which generally benefit and enhance the value
and desirability of the Common Areas and the Association Maintenance Areas;
(e) the costs of fire, casualty, liability,'worker's compensation and
other insurance covering the Common Areas and the Association Maintenance Areas;
(f) the costs of any other insurance, including, without limitation,
directors' and officers' liability insurance, obtained by the Association;
(g) reasonable reserves as deemed appropriate by the Board;
(h) the costs of bonding of the members of the Board, any professional
managing agent or any other person handling the funds of the Association;
(i) taxes paid by the Association;
0) amounts paid by the Association for discharge of any lien or
encumbrance levied against the Common Areas or portions thereof;
(k) costs incurred by the Architectural Committee or other committee
established by the Board; and
(1) other expenses incurred by the Association for any reason
whatsoever in connection with the Common Areas, Association Maintenance Areas, or the costs
of any other item or items designated by this Declaration, the Articles of Incorporation, Bylaws
or Rules and Regulations, or in furtherance of the purposes of the Association or in the discharge
of any duties or powers of the Association.
Section 1.15 "Contract" shall mean any agreement between the Association and a
third party wherein the third party will furnish goods or services, including accounting, legal or
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management services, for the Common Areas, Association Maintenance Areas or to the
Association or its Members.
Section 1.16 "Conversion Date" shall have the meaning ascribed thereto in Section 2.4
below.
Section 1.17 "County" shall mean the County of Fresno, State of California.
Section 1.18 "Declarant" shall mean Las Brisas Builders, Inc., a California
corporation, its successors and assigns by merger, consolidation or by purchase of all or
substantially all of its assets, and any Person to which it shall have assigned or delegated any of
its rights or duties hereunder by an express written assignment. Any such assignment may be to
all or any portion of the Project or Annexable Property, may include only certain specific rights
and/or duties of the Declarant, and may be subject to such conditions as Declarant may impose in
its sole and absolute discretion.
Section 1.19 "Declaration" shall mean this Declaration of Covenants, Conditions and
Restrictions for Canvas at Copper (Tract 6099), as the same may be amended, changed or
modified from time to time and recorded in the Office of the Fresno County Recorder.
Section 1.20 "Declaration of Annexation" shall mean those certain declarations of
covenants, conditions and restrictions or similar instruments, annexing additional property and
extending the plan of this Declaration to such additional property as provided in ARTICLE XIV
of this Declaration.
Section 1.21 "Exhibit" shall mean those documents so designated herein and attached
hereto (as such Exhibits may be amended or supplemented pursuant to Section 18.20, below) and
each such Exhibit is by this reference incorporated in this Declaration. As additional property is
annexed pursuant to ARTICLE XIV of this Declaration, exhibits similar to the Exhibits attached
to this Declaration may be attached to such Declarations of Annexation pertaining to the annexed
property,'and each such Exhibit shall thereby be incorporated in this Declaration.
Section 1.22 "Federal Agencies" shall mean collectively one or more of the following
agencies and the following letter designation of such agencies shall mean respectively the agency
specified within the parentheses following such letter designation: VA (Department of Veterans
Affairs), FHLMC (Federal Home Loan Mortgage Corporation), FNMA (Federal National
Mortgage Association), and GNMA (Government National Mortgage Association).
Section 1.23 "Final Subdivision Public Report" shall mean that report issued by
Ca1BRE pursuant to Section 11018.2 of the California Business and Professions Code or any
similar statute hereafter enacted.
Section 1.24 "Initial Sale Date" shall mean the date of the close of escrow of the first
Lot in the Initial Property to a Resident Owner.
Section 1.25 "Institutional Mortgagee" shall mean a First Mortgagee which is a bank,
savings and loan association, established. mortgage company, or other entity chartered under
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federal or state laws, any corporation or insurance company, any federal or state agency, or any
other institution regulated by federal or state law.
Section 1.26 "Lot" shall mean a lot shown on any final map filed for record or a parcel
shown on any parcel map filed for record to the extent such lots or parcels are part of the Project,
and any improvements thereon.
. Section 1.27 "Management Documents" shall mean the Articles of Incorporation,
Bylaws, Declaration, the Rules and Regulations, and any amendments, modifications and/or
supplements to any of the foregoing.
Section 1.28 "Manager" shall mean the managing agent, if any, whether individual or
corporate, retained by Declarant, or by the Board, under contract, and charged with the
maintenance and upkeep of the Project.
Section 1.29 "Member" shall mean every Person qualifying for membership pursuant
to ARTICLE I1 of this Declaration, including Declarant so long as any such Person qualifies for
membership pursuant to said Article.
Section 1.30 "Mortgage" shall mean any duly recorded mortgage or deed of trust
encumbering a Lot. A "First Mortgage" shall.refer to a Mortgage which has priority over all
other Mortgages encumbering a specific Lot.
Section 1.31 "Mortgagee" shall mean the mortgagee or beneficiary under any
Mortgage. A "First Mortgagee" shall mean the holder of a First Mortgage.
Section 1.32 "Owner" shall mean one or more Persons who are alone or collectively
the record owner of fee simple title to a Lot, including Declarant or the vendee under an
installment land sales contract, but excluding those having any such interest merely as security
for the performance of an obligation. If a Lot is leased by Declarant for a term in excess of
twenty (20) years and the lease or memorandum thereof is recorded, the lessee or transferee of
the leasehold interest and not the Declarant shall be deemed to be the Owner. If fee title to a Lot
is owned other than by Declarant, the Owner of the fee title and not the lessee of such Lot shall
be deemed the Owner regardless of the term of the lease.
Section 1.33 "Perimeter Wall" shall mean the perimeter walls or fences located on the
perimeter of the Property and adjacent to public streets and/or open space, except to the extent
any such perimeter walls or fences have been conveyed to or otherwise accepted by a special tax
assessment district formed for the perfonnance of all or a portion of the maintenance thereof.
Section 1.34 "Person" shall mean any individual, trust, estate, partnership, limited
liability company, corporation, or any other incorporated or unincorporated organization, as the
context permits or requires, regardless of whether such term is capitalized.
Section 1.35 "Phase of Development" shall mean (a) the Initial Property and (b) any
portion of the Annexable Property subject to a Final Subdivision Public Report issued by
CalBRE and annexed to this Declaration.
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Section 1.36 "Project" shall mean the Initial Property and such other real property
annexed pursuant to the provisions of this Declaration, including, without limitation, the Lots,
the Common Areas, the Association Maintenance Areas and any and all improvements located
thereon.
Section 1.37 "Resident Owner" shall mean any Owner of a Lot other than Declarant.
Section 1.38 "Rules and Regulations" shall mean the Rules and Regulations adopted
by the Association pursuant to ARTICLE VI of this Declaration.
ARTICLE 11.
MEMBERSHIP
Section 2.1 Membership. Every Owner shall be a Member. The terms and
provisions set forth in this Declaration, which are binding upon all Owners are not exclusive as
Owners shall, in addition, be subject to the terms and provisions of the Articles of Incorporation,
Bylaws and Rules and Regulations to the extent the provisions thereof are not in conflict with
this Declaration. Membership of Owners shall be appurtenant to and may not be separated from
the interest of such Owner in any Lot. Ownership of a Lot shall be the sole qualification for
membership; provided, however, a Member's voting rights or privileges may be regulated or
suspended as provided in this Declaration, the Bylaws, or the Rules and Regulations. Except for
the Class B Member, not more than one (1) membership shall exist based upon ownership of a
single Lot.
Section 2.2 Transfer. The membership held by any Owner shall not be transferred,
pledged or alienated in any way except that such membership shall automatically be transferred
to the Owner of any interest in a Lot. Any attempt to snake a prohibited transfer is void and will
not be reflected upon the books and records of the Association. The Association shall have the
right to record the transfer upon the books of the Association without any further action or
consent by the transferring Owner.
Section 2.3 Voting Rights. Except for Declarant, an Owner's right to vote shall not
vest until the date Regular Assessments upon such Owner's Lot have been levied as provided in
this Declaration. All voting rights shall be subject to the restrictions and limitations provided
herein and in the Articles of Incorporation, Bylaws, and Rules and Regulations.
Section 2.4 Classes of Voting Membership. The Association shall have two classes
of voting membership:
Class A. Class A Members shall be all Owners except Declarant. Each
Class A Member shall be entitled to one (1) vote for each Lot owned. When more than one (1)
person owns a Lot required for membership, each such person shall be a Member and the vote
for such Lot shall be exercised as they among themselves determine, but in no event shall more
than one (1) vote be cast with respect to any Lot.
070802\8587958v5 7
Class B. The Class B Members shall be Declarant. Declarant shall be
entitled to three (3) votes for each Lot which it owns in the Project. Class B membership shall
cease and be converted to Class A membership on the earlier of the following dates (the
"Conversion Date"):
(l) Two (2) years after the date of the first conveyance of a Lot in the
most recent Phase of Development; or
(2) Four (4) years after the date of the first conveyance of a Lot in the
first Phase of Development.
Whenever this Declaration, the Bylaws or the Articles of Incorporation require the
vote, assent or presence of a stated number of Owners or Members entitled to vote on a matter or
at a meeting with regard to the taking of any action or any other matter whatsoever, the
provisions of this ARTICLE I1 and Section 2.4 shall govern as to the total number of available
votes, the number of votes an Owner is entitled to cast at the meeting, and the manner in which
the vote attributable to a Lot having more than one (1) Owner shall be cast.
Section 2.5 Special Class A Voting Rights. Notwithstanding the provisions of this
Article, if the Class A Members do not have sufficient voting power pursuant to the voting rights
set forth in this Declaration and the Bylaws to elect at least twenty percent (20%) of the total
number of Directors on the Board at any meeting of Members at which Directors are to be
elected, then such Class A Members shall, by majority vote among themselves, elect the number
of Directors required to equal twenty percent (20%) of the total number of Directors on the
Board. In the event twenty percent (20%) of the total number of Directors is equal to any
fractional number, the number of Directors to be elected pursuant to the special Class A voting
right shall be rounded to the next higher whole number.
Section 2.6 Approval of Members. Unless otherwise specifically provided in this
Declaration or the Bylaws, any provision of this Declaration or the Bylaws which requires the
vote or written assent of the voting power of the Association or any class or classes of
membership shall be deemed satisfied by either of the following:
(a) the vote, in person or by proxy, of the Owners constituting a
quorum, of each class of Members if voting by class is applicable, casting a majority of the votes
at a meeting duly called and noticed pursuant to the provisions of the Bylaws dealing with annual
or special meetings of the Members; or
(b) written consents signed by the Owners. constituting a quorum
casting a majority of the votes.
ARTICLE III.
COVENANT FOR MAINTENANCE ASSESSMENTS
Section 3.1 Creation of the Lien and Personal Obligation of Assessments. Each
Owner, including the Declarant, of any Lot by acceptance of a deed or other conveyance creating
070802\8587958v5 8
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in such Owner the interest required to be deemed an Owner, whether or not it shall be so
expressed in any such deed or other conveyance, is deemed to covenant and agree to pay to the
Association the following: Regular Assessments, Special Assessments, Reimbursement
Assessments, Capital Improvement Assessments, Remedial Assessments and Reconstruction
Assessments. Such Assessments shall be fixed, established and collected from time to time as
provided in this Declaration. Each Assessment (other than Reimbursement Assessments and
Remedial Assessments), together with interest thereon, late payment charges, attorneys' fees,
court costs, and other costs of collection thereof, as hereinafter provided, shall be a charge upon
the Lot against which each such Assessment is made. Notwithstanding the foregoing,
Reimbursement Assessments and Remedial Assessments imposed against an Owner consisting
of reasonable late payment charges 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, shall be a charge upon the Lot against which
such Assessment is made. Each Assessment, together with interest thereon, late payment
charges, attorneys' fees, court costs and other costs of collection thereof, shall be the personal
obligation of the Owner of such Lot at the time when the Assessment becomes due. The
personal obligation for delinquent Assessments shall not pass to the successors in title of an
Owner unless expressly assumed by such successors. No Owner may waive or otherwise escape
liability for Assessments by nonuse of the Common Areas or the Association Maintenance Areas
or, any part thereof, or nonuse or abandonment of such Owner's Lot.
Section 3.2 Purpose of Assessments. The Assessments levied by the Association
shall be used exclusively for the purposes of promoting the recreation, health, safety and welfare
of the Members, managing the Project, enhancing the quality of life in the Project, assuring the
continued maintenance and upkeep of the Common Area and Association Maintenance Areas,
protecting the value of the Project including, without limitation, the improvement and
maintenance of the properties, services and facilities devoted to this purpose and related to the
use and enjoyment of the Common Areas and the Association Maintenance Areas or in
furtherance of any other duty or power of the Association. 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.
Section 3.3 Regular Assessments. The Board shall, at the time of the Distribution
Date (defined in Section 6.3, below) determine the amount of the Regular Assessment to be paid
by each Member. Each Member shall thereafter pay to the Association his or her Regular
Assessment in installments as established by the Board. Each such installment shall be due and
payable on a date established by the Board in the written notice sent to Members. In the event
the Board shall determine that the estimate of total charges for the current year is or will become
inadequate to meet all actual Common Expenses for any reason, it shall then immediately
determine the approximate amount of such inadequacy and issue a supplemental estimate of the
Common Expenses and determine the revised amount of Regular Assessment against each
Member and the date or dates when due. After the Association's first fiscal year of operation,
the Association shall not impose a Regular Assessment which is increased more than twenty
percent (20%) over the amount of the Regular Assessment for the immediately preceding fiscal
year without the approval of a majority of a quorum of the Members of the Association, in
accordance with Civil Code Section 5605. For purposes of this Article, a quorum shall be
defined as more than fifty percent (50%) of the Members of the Association. The Association
070802\8587958x5 9
shall provide notice by first-class mail to the Owners of any increase in the Regular Assessments
not less than thirty(30) nor more than sixty(60) days prior to the increased assessment becoming
due. In the event the amount budgeted to meet Common Expenses for the then current 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 Assessment or may abate collection of Regular
Assessments as it deems appropriate. Until such time as the Class B Membership has ceased and
been converted into Class A Membership, Regular Assessments may not be reduced if such
reduction would diminish the quantity or quality of services provided by the Association.
Notwithstanding the foregoing, as provided in Civil Code Section 5610 (which is incorporated
herein by reference), Regular Assessment increases. shall not be limited in the case of
"emergency situations" which include any of the following:
(a) an extraordinary expense required by court order;
(b) an extraordinary expense for repair or maintenance of the Common
Areas or Association Maintenance Areas where a threat to safety of persons is discovered;
(c) an extraordinary expense for repair or maintenance of the Common
Areas or Association Maintenance Areas which expense could not have been reasonably
foreseen in preparing the budget; provided, however, that prior to imposition of such an
assessment, the Board shall make written findings as to the necessity of the expense and why
such expense could not have been reasonably foreseen and such findings shall be distributed to
the Members with the notice of assessment.
Notwithstanding any other provisions of this Declaration, until the earlier to occur
of (1) the recordation of a notice of completion (or functional equivalent thereof) of an
improvement on the Common Areas or the Association Maintenance Areas, or (2) the placement
of such improvement into use, each Owner (including Declarant) shall be exempt from paying
that portion of any Regular Assessment which is for the purpose of defraying expenses and
reserves directly attributable to the existence and use of such improvement.
Section 3.4 Capital Improvement Assessments. In addition to the Regular
Assessments, the Association may levy in any calendar year, a Capital Improvement Assessment
applicable to that year only, for the purpose of defraying, in whole or in part, the cost of any
construction or replacement (other than due to destruction) of a described capital improvement
upon the Common Areas or the Association Maintenance Areas to the extent the same is not
covered by the provisions affecting Reconstruction Assessments in ARTICLE IX of this
Declaration, including thenecessary fixtures and personal property related thereto. The
Association shall not impose a Capital Improvement Assessment the total amount of which,
when aggregated with all Capital Improvement Assessments and Special Assessments already
levied during such fiscal year, exceeds five percent (5%) of the budgeted gross expenses of the
Association for such fiscal year, without the approval of a majority of a quorum of the Members
of the Association, in accordance with Civil Code Section 5606. Any reserves collected by the
Association for the future maintenance and repair of the Common Areas or Association
Maintenance Areas or any portion thereof, shall not be included in determining said annual
Capital Improvement Assessment limitation. All amounts collected as Capital Improvement
Assessments may only be used for capital improvements and shall be deposited by the Board in a
070802\8587958v5 10
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separate bank account to be held in trust for such purposes. Said funds shall not be commingled
with any other funds of the Association and shall be deemed a contribution to the capital account
of the Association by the Members. The Association shall provide notice to all Owners by first-
class mail of any decision by the Association to levy a Capital Improvement Assessment not less
than thirty (30) nor more than sixty (60) days prior to the due date for such Capital Improvement
Assessment.
Section 3.5 Uniform Assessment. Regular Assessments, Reconstruction Assessments
and Capital Improvement Assessments shall be fixed at an equal amount for each Lot and may
be collected at intervals selected by the Board.
Section 3.6 Certificate of Payment. The Association shall, upon demand, furnish to
any Member liable for Assessments a certificate in writing signed by an officer or authorized
agent of the Association setting forth whether the Assessments on a specified Lot have been paid
and the amount of delinquency, if any. A reasonable charge not to exceed twenty percent (20%)
of the monthly Regular Assessment inay be collected by the Board for the issuance of such
certificates. Such certificates shall be conclusive evidence of payment of any Assessment therein
stated to have been paid.,
Section 3.7 Exempt Property. All properties dedicated to and accepted by, or
otherwise owned or acquired by, a public authority shall be exempt from the Assessments
created herein.
Section 3.8 Special Assessment. Special Assessments may be levied by the
Association to fund any budgetary shortfall or to restore any funds transferred from the
Association's reserve account pursuant to Section 3.14, below. Special Assessments shall also
be levied by the Board against an Owner and his or her Lot to reimburse the Association for any
other charge designated as a Special Assessment in this Declaration, the Articles of
Incorporation, Bylaws, or Rules and Regulations. Notwithstanding the foregoing, in any fiscal
year of the Association, the Board shall not impose Special Assessments which, when
aggregated with all Special Assessments and Capital Improvement Assessments already levied
during such fiscal year, exceeds five percent (5%) of the budgeted gross expenses for such fiscal
year without first obtaining the approval of the majority of a quorum of the Members of the
Association. The foregoing limitation shall be subject to the exception carved out for
"emergency situations" set forth in Section 3.3, above. The Association shall provide notice by
first-class mail to the Owners subject to a Special Assessment of any decision to levy such
Special Assessment not less than thirty (30) nor more than sixty (60) days prior to the Special
Assessment becoming due.
Section 3.9 Remedial Assessment. In the event the Board levies any fines or charges
against an Owner who fails to comply with this Declaration, the Articles of Incorporation,
Bylaws, or the Rules and Regulations, such fines or charges shall be Remedial Assessments.
Without limiting the generality of the foregoing statement, any fine or charge levied by the
Association for the failure of any Owner to comply with the provisions of Section 7.2, below,
shall be a Remedial Assessment.
070802\8587958v5 ]]
Section 3.10 Reimbursement Assessment. Reimbursement Assessments may be
levied by the Association to reimburse the Association for materials or services provided by the
Association which benefit individual Lots. Reimbursement Assessments shall also be levied by
the Board against an Owner (and his or her Lot) to reimburse the Association for any other
charge designated as a Reimbursement Assessment in this Declaration, the Articles of
Incorporation, Bylaws, or Rules and Regulations. The Association shall provide notice by first-
class mail to the Owners subject to a Reimbursement Assessment of any decision to levy such
Reimbursement Assessment not less than thirty (30) nor more than sixty (60) days prior to the
Reimbursement Assessment becoming due.
Section 3.11 Date of Commencement of Regular Assessments. Subject to any
assessment maintenance or subsidy program established by the Declarant, the Regular
Assessments for a particular Phase of Development shall commence on the date (the
"Assessment Commencement Date") of the first day of the month following the month of the
close of escrow for the sale of a Lot by Declarant to a Resident Owner within such Phase of
Development. In the event the amount budgeted to meet Common Expenses for the then current
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 Assessment or may abate collection of Regular
Assessments as it deems appropriate. Until such time as the Class B Membership has ceased and
been converted into Class A Membership, in no event shall a reduction in the amount or the
abatement in the collection of Regular Assessments pursuant to this Section result in a
diminishing of the quantity or quality of services upon which the Common Expense budget for
the year in question is based.
Section 3.12 No Offsets. All Assessments shall be payable in the amount specified by
the Assessment and no offsets against such amount shall be permitted for any reason, including,
without limitation, a claim that (i) the Association is not properly exercising its duties and
powers as provided in this Declaration; (ii) a Member has made.or elects to make no use of the
Common Areas or the Association Maintenance Areas; or (iii) any construction or maintenance
performed or not performed pursuant to ARTICLE VII, below, shall in any way postpone
Assessments or entitle a Member to claim any such offset or reduction.
Section 3.13 Homestead Waiver. Each Owner to the extent permitted by law does
hereby waive, to the extent of any liens created pursuant to this Declaration and whether such
liens are now in existence or are created at any time in the future, the benefit of any homestead or
exemption laws of the State of California now in effect or in effect from time to time hereafter.
Section 3.14 Reserves. The Regular Assessments shall include reasonable amounts as
determined by the Board, taking into consideration the Reserve Account Study (defined in
Section 3.15(a), below), collected as reserves for the future periodic maintenance, repair or
replacement of all or a portion of the Common Areas or the Association Maintenance Areas, or
any other purpose as determined by the Board. All amounts collected as reserves, whether
pursuant to this Section or otherwise, shall be deposited by the Board in a separate bank
account(s) or certificate(s) of deposit to be held in trust for the purposes for which they are
collected and are to be segregated from and not commingled with any other funds of the
Association. Such reserves shall be deemed a contribution to the capital account of the
Association by the Members.
070802\8587958x5 12
M
(a) The Board shall not expend funds designated as reserve funds for
any purpose other than:
(i) the repair, restoration, replacement or maintenance of the
Common Areas or Association Maintenance Areas for which the reserve fund was established;
or
(ii) litigation involving use of reserve funds for the purposes
set forth in subparagraph (i) above.
(b) Notwithstanding the provisions of (a)(i) and (a)(ii) above, the
Board:
(i) may authorize the temporary transfer of money from the
reserve account to meet short term cash flow requirements or other expenses of the Association
if the Board has provided notice of the intent to consider the transfer in a notice of meeting,
which shall be provided pursuant to the provisions of the Bylaws dealing with Board meetings,
and which notice shall include the reasons the transfer is needed, some of the options for
repayment, and whether a Special Assessment may be considered, and if the Board authorizes
the transfer, the Board shall issue a written finding, recorded in the Board's minutes, explaining
the reasons that the transfer is needed, and describing when and how the moneys will be repaid
to the reserve account;
(ii) shall cause the transferred funds to be restored to the
reserve account within one (1) year of the date of the initial transfer; however, the Board may,
upon making a documented finding that a delay of restoration of the funds to the reserve account
would be in the best interests of the Association, delay the restoration until such time it
reasonably determines to be necessary; and
(iii) shall exercise prudent . fiscal management in delaying
restoration of the transferred funds to the reserve account and shall, if necessary, levy a Special
Assessment to recover the full amount of the expended funds within the time limits specified in
subparagraph (b)(ii) above. Any such Special Assessments shall not be subject to the five
percent (5%) limitation specified in Section 3.8, above.
Withdrawal of funds from the Association's reserve account shall require the
signatures of either(a) two (2) members of the Board; or(b) one (1) member of the Board and an
officer of the Association who is not also a member of the Board. In addition, the minutes of the
meeting at which any such withdrawal of funds was authorized shall reflect such authorization
and the reasons therefor.
Section 3.15 Maintenance of Adequate Reserves. In order to assure that the
Association maintains adequate reserves,
(a) The Board shall, at least once every three (3) years, cause a study
to be conducted of the reserve account requirements by an authorized reserve study specialist
(the "Reserve Account Study") if the current replacement value of the major components of the
Common Areas and the Association Maintenance Areas which the Association is obligated to
070802\8587958x5 13
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repair, replace, restore or maintain is equal to or greater than one-half(1/2) of the gross budget
for any fiscal year;
(b) The Board shall annually review the Reserve Account Study and
consider and implement necessary adjustments to its analysis of the reserve account requirements
as a result of that review;
(c) The Board shall cause the Reserve Account Study to include at a
minimum:
(i) identification of the major components of the Common
Areas and the Association Maintenance Areas which the Association is obligated to repair,
replace, restore or maintain which, as of the date of the Reserve Account Study, have a
remaining useful life of less than thirty(30) years;
(ii) identification of the probable remaining useful life of the
components identified in subparagraph (i) above as of the date of the Reserve Account Study;
(iii) an estimate of the cost of repair, replacement, restoration or
maintenance of each major component identified in subparagraph (i) during and at the end of its
useful life; and
(iv) an estimate of the total annual contribution necessary to
defray the cost to repair, replace, restore or maintain each major component during and at the end
of its useful life, after subtracting total reserve funds as of the date of the Reserve Account
Study; and
(d) The Board shall not authorize the expenditure of reserve funds for
uses other than the repair, restoration, replacement or maintenance of the Common Areas or the
Association Maintenance Areas for which the reserve fund was established which cumulatively
exceeds five percent (5%) of the budgeted gross expenses for the, current fiscal year without
concurrently authorizing a Special Assessment as provided in Section 3.8, above, which will
restore reserves to adequate levels as determined by the Reserve Account Study.
Section 3.16 Automatic Assessment Increases. Notwithstanding any other provisions
of this Declaration, upon the annexation of additional Phases of Development, the Regular
Assessments shall be automatically increased by the amount, if any, necessary to maintain the
Common Areas and the Association Maintenance Areas located within such additional Phases of
Development in accordance with the standards prescribed by the then current Ca1BRE Operating
Cost Manual or,.if the Operating Cost Manual is no longer maintained by the CaIBRE, pursuant
to standards prescribed by comparable maintenance cost guidelines prepared in accordance with
prudent property management practices for "common interest developments" (as defined in
Section 4100 of the California Civil Code) consistently applied throughout the geographic region
in which the Project is located; provided, however, that in the event the Board determines that
the Operating Cost Manual is not applicable because of a particular physical characteristic of the
Project, then the Board, upon making a written finding of such inapplicability because of a
particular physical characteristic of the Project (which finding shall specifically describe the
particular physical characteristic of the Project), may change the amount of the Regular
070802\8587958v5 14
21
Assessment to an amount determined to be appropriate by the Board when taking into
consideration the particular physical characteristics of the Project. Automatic increases shall
occur only if(i) the annexation of such additional Phases of Development is permitted by the
Ca1BRE, and (ii) the amount of such increase is within the range of assessments approved by the
CalBRE pursuant to the Ca1BRE Approved Budgets, increased at a rate of twenty percent (20%)
compounded annually. If annexation of Common Areas and Association Maintenance Areas
results in an increase in the Regular Assessments which is permissible under the requirements of
the preceding sentence, then the Association shall be obligated to collect such increased Regular
Assessment. To facilitate the orderly payment of Regular Assessments during the development
of the Project, the Board may dstablish and levy a median monthly Regular Assessment at an
amount sufficient to defray the Common Expenses of the Association during the development of
the Project. By accepting title to a Lot, each Owner consents to the Regular Assessment
increases specified in this Section. Notwithstanding anything in this Article 3 to the contrary, the
Board may elect to establish assessments at an amount which will result in level Regular
Assessments as additional Phases of Development are annexed hereto provided that such level
Regular Assessments are established in accordance with the standards prescribed by the then
current Ca1BRE Operating Cost Manual or, if the Operating Cost Manual is no longer
maintained by the Ca1BRE, pursuant to standards prescribed by comparable maintenance cost
guidelines prepared in accordance with prudent property management practices for "common
interest developments" (as defined in Section 4100 of the California Civil Code) consistently
applied throughout the geographic region in which the Project is located.
ARTICLE IV.
NONPAYMENT OF ASSESSMENTS
Section 4.1 Effect of Nonpayment of Assessments; Remedies of the Association.
In the event any Assessment is not paid when due, such Assessment shall be deemed to be
delinquent and in default. Each Owner vests in the Association or its assigns the right and power
to bring all actions at law and in equity and exercise such other remedies provided herein against
such Owner for the collection of delinquent Assessments. In the event an attorney or attorneys
are employed for collection of any Assessment, whether by suit or otherwise, each Owner agrees
to pay reasonable attorneys' fees and costs thereby incurred in addition to any other amounts due
or any other relief or remedy obtained against such Owner as set forth in the Management
Documents. In addition to any other remedies herein or by law provided, the Association may
enforce the obligations of the Owners to pay the Assessments in any manner provided by law or
in equity, and, without any limitation of the foregoing, by any or all of the following procedures:
(a) Suspension of Rights; Monetary Penalties. The Board shall notify
the delinquent Owner in writing, by either personal delivery or first-class mail, at least ten (10)
days prior to a meeting of the Board to consider suspension of an Owner's rights and/or
imposition of monetary penalties. The notification shall contain, at a minimum, the date, time
and place of the meeting, the reasons for the proposed suspension and/or imposition of monetary
penalties, and a statement that the delinquent Owner has the right to attend the Board meeting
and may address the Board at the meeting. The Board shall meet in executive session if so
requested by the delinquent Owner. Upon compliance with the foregoing procedure, the Board
070802\8587958v5 15
22
may (a) suspend the voting rights of such Owner, (b) impose reasonable monetary penalties
pursuant to a monetary penalty schedule established and posted by the Board bearing interest at a
rate not to exceed the maximum limit imposed by law, and/or (c) suspend such Owner's right to
use the Common Area for any period during which any Assessment against such Owner's Lot
remains unpaid; provided, however, that these provisions shall not operate or be construed to
deny or restrict ingress or egress of any Owner to and from such Owner's Lot. The Board shall
provide the delinquent Owner with written notification of the suspension or imposition of
monetary penalties by either personal delivery or first-class mail within fifteen (15) days
following Board action to impose such suspension or imposition of monetary penalties.
(b) Enforcement by Suit. By commencement and maintenance of a
suit at law or equity against any Owner or prior Owner to enforce the Assessment obligation,
such suit to be maintained in the name of the Association. Any judgment rendered in any such
action may include the amount of the delinquency, interest.thereon at the maximum legal rate per
annum from the date of the delinquency, court costs and reasonable attorneys' fees in such
amount as the court may adjudge against the delinquent Owner.
(c) Enforcement by
(i) There is hereby created a "Claim of Lien", with power of
sale, on each and every Lot to secure payment to the Association of any and all Assessments
which may be charged against any and all Lots pursuant to this Declaration (except
Reimbursement Assessments and Remedial Assessments), together with interest thereon at the
maximum legal rate per annum from the date of delinquency, and all costs of collection which
may. be paid or incurred by the Association in connection therewith, including reasonable
attorneys' fees. At least thirty (30) days prior to recording a lien upon a delinquent Owner's Lot
to collect delinquent Assessments, personal charges and any related charges, fees and costs of
collection, reasonable attorneys' fees and interest, the Association shall provide a notification (a
"Notice of Delinquency") to the Owner in writing by certified mail of the following:
(1) A general description of the collection and lien
enforcement procedures of the Association and the method of calculation of the amount, a
statement that the Owner has the right to inspect the Association's records, and the f6llowing
statement in 14-point boldface type, if printed, or in capital letters, if typed (or such statement as
may be required by any amendment or successor statute to California Civil Code Section
5660(a)): "IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN
FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE
SOLD WITHOUT COURT ACTION."
(2) An itemized statement of the Assessments, personal
charges and charges, fees and costs of collection, reasonable attorneys' fees and interest owed by
the Owner.
(3) A statement that the Owner shall not be liable to
pay the charges, interest and costs of collection if it is determined that the Assessment was paid
on time to the Association.
070802\8587958x5 16
(4) The right to request a meeting with the Board as
provided in Civil Code Section 5665 and Section 4.1(c)(iv).
(5) The right to dispute the assessment debt by
submitting a written request for dispute resolution to the Association pursuant to Section 19.4.
(6) The right to request alternative dispute resolution
with a neutral third party pursuant to Section 19.5 and Section 19.6.
(ii) Upon receipt of a written request by an Owner identifying a
secondary address for purposes of collection notices, the Association shall send additional copies
of the Notice of Delinquency to the secondary address provided. The Association shall notify
Owners of their right to submit secondary addresses to the Association at the time the
Association distributes the pro forma operating Budget pursuant to Section 6.3. The Owner's
request shall be in writing and shall be mailed to the Association in a manner that shall indicate
the Association.has received it. The Owner may identify or change a secondary address at any
time, provided that if a secondary address is identified or changed during the collection process,
the Association shall only be required to send notice to the indicated secondary address from the
point in time when the Association receives the request.
(iii) Any payments made by the delinquent Owner toward the
debt set forth in the Notice of Delinquency shall first be applied to the Assessments owed by that
Owner and, only after the Assessments owed are paid in full shall the payments be applied to the
fees and costs of collection, attorney's fees, late charges or interest. When a delinquent Owner
makes a payment, that Owner may request a receipt, which the Association then shall provide to
the Owner. The receipt shall indicate the date of payment and the.person who received it. The
Association shall provide a mailing address for overnight payment of Assessments.
(iv) The delinquent Owner may submit a written request (a
"Request for Payment Plan") to meet with the Board to discuss a payment plan for the debt
noticed in the Notice of Delinquency. The Association shall provide its Members with the
standards for payment plans, if any exist. The Board shall meet with the requesting Owner in
executive session within forty-five (45) days after the postmark of the Owner's Request for
Payment Plan, if the Request for Payment Plan is mailed by the Owner within fifteen (15) days
after the date of the postmark of the Notice of Delinquency, unless there is no regularly
scheduled Board meeting within that period, in which case the Board may designate a committee
of one or more Board members to meet with that Owner. Payment plans may incorporate any
Assessments that accrue during the payment plan period. Payment plans shall not impede the
Association's ability to record a lien of the delinquent Owner's Lot to secure payment of the
delinquent Assessments. Additional late fees shall not accrue during the payment plan period if
the Owner is in compliance with the terms of the payment plan. In the event of a default on any
payment plan, the Association may resume its efforts to collect the delinquent Assessments from
the time prior to entering into the payment plan.
(v) Prior to recording a lien for delinquent Assessments, the
Association shall offer the Owner and, if so requested by the Owner, participate in dispute
resolution pursuant to Section 19.4, and prior to initiating a foreclosure for delinquent
070802\8587958v5 17
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Assessments, the Association shall offer the delinquent Owner, and if so requested by that
Owner, shall participate in dispute resolution pursuant to Section 19.4 or alternative dispute
resolution with a neutral third party pursuant to Section 19.5 and Section 19.6. The decision to
pursue dispute resolution pursuant to Section 19.4 or alternative dispute resolution with a neutral
third party pursuant to Section 19.5 and Section 19.6 shall be the choice of the delinquent
Owner.
(vi) At any time after the thirty (30) day period following
delivery of the Notice of Delinquency to the delinquent Owner, the Association may elect to file
and record in the Office of the Fresno County Recorder a notice of delinquent assessment (a
"Notice of Delinquent Assessment") against the Lot of the defaulting Owner. The decision to
record a Notice of Delinquent Assessment shall be made only the Board of Directors and may
not be delegated to an agent of the Association. The Board shall approve the decision by a
majority vote of the Board members in an open meeting. The Board shall record the vote in the
minutes of that meeting. The Notice of Delinquent Assessment shall be executed and
acknowledged by any officer of the Association and shall contain substantially the following
information:
(1) the name of the delinquent Owner;
(2) the legal description of the Lot against which the
delinquent Assessment is made;
(3) the total amount of the delinquency, interest
thereon, collection costs and reasonable attorneys' fees if then known (with any proper offset
allowed);
(4) a statement that the Claim of Lien is made by the
Association pursuant to this Declaration and that a lien is claimed against said Lot in an amount
equal to the amount stated; and
(5) the name and address of the trustee authorized by
the Association to enforce the Claim of Lien by sale.
(vii) The itemized statement described in Section 4.1(c)(i)(2)
shall be recorded together with the Notice of Delinquent Assessment.
(viii) No later than ten (10) calendar days after recordation of the
Notice of Delinquent Assessment, the Association shall mail, by certified mail, a copy of the
recorded Notice of Delinquent Assessment to every Person whose name is shown in the
Association's records as an Owner of the Lot against which the delinquent Assessment is made.
(ix) Upon recordation of a duly executed original or copy of
such Notice of Delinquent Assessment and mailing a copy thereof to the delinquent Owner, the
lien claimed therein shall immediately attach and become effective. After the expiration of thirty
(30) days after the recordation of the Notice of Delinquent Assessment, the lien may be
foreclosed by appropriate action in court or in the manner provided by law for the foreclosure of
a deed of trust by exercise of a power of sale contained therein or in the manner provided by law
070802\8587958v5 18
25
for the enforcement of a judgment as the laws of the State of California may from time to time be
changed or amended.
(x) The decision to initiate foreclosure of a lien for delinquent
Assessments shall be made only by the Board and may not be delegated to an agent of the
Association. The Board shall approve the decision by.a majority vote of the Board in an
executive session. The Board shall record the vote in the minutes of the next meeting of the
Board open to Members. The Board shall maintain the confidentiality of the delinquent Owner
by identifying the matter in the minutes by the lot number of the delinquent Owner's Lot rather
than by the name of the delinquent Owner. The Board vote to approve foreclosure of a lien shall
take place at least thirty (30) days prior to any public sale. If the delinquent Owner occupies the
Lot, the Board shall provide notice by personal service to the delinquent Owner or to the
Owner's legal representative. If the delinquent Owner does not occupy the Lot, the Board shall
provide notice by first-class mail, postage prepaid, at the most current address shown on the
books of the Association. In the absence of written notification by the delinquent Owner to the
Association of a mailing address, the address of the delinquent Owner's Lot may be treated as
the delinquent Owner's mailing address.
(xi) A nonjudicial foreclosure by the Association to collect
upon a debt for delinquent Assessments shall be subject to a right of redemption as set forth in
Civil Code Section 5715(b) (or any successor statute thereto).
(xii) The Association shall have the power to bid in at any
foreclosure sale, trustee's sale or judgment sale and to purchase, acquire, lease, hold, mortgage
and convey any Lot. Reasonable attorneys' fees, court costs, title search fees, interest and all
other costs and expenses shall be allowed to the extent permitted by law.
(xiii) Notwithstanding the foregoing, if the amount of the
delinquent Assessments is less than One Thousand Eight Hundred Dollars ($1,800.00), exclusive
of any accelerated Assessments, late charges, fees and costs of collection, reasonable attorneys'
fees and interest, the lien claimed in a Notice of Delinquency may not be foreclosed by judicial
or nonjudicial foreclosure until the "Permissible Foreclosure Date", which shall be the earlier
of (i) the date on which the amount of the delinquent payments is equal to or exceeds One
Thousand Eight Hundred Dollars ($1,800.00), exclusive of any accelerated Assessments, late
charges, fees and costs of collection, reasonable attorneys' fees and interest, or (ii) the date on
which such delinquent Assessments are more than twelve (12) months delinquent. Until the
Permissible Foreclosure Date, the Association may attempt to collect or secure the debt of the
delinquent Owner in either of the following ways: (1) file a civil action in small claims court
pursuant to Chapter 5.5 (commencing with Section 116.110) of Title I of the California Code of
Civil Procedure, (2) record a lien on the Owner's Lot in accordance with the procedure set forth
above in this Section 4.1(c) which the Association may not foreclose upon until the Permissible
Foreclosure Date, or (3) attempt to collect or secure the delinquent payments by any other
manner provided by law, except for judicial or nonjudicial foreclosure.
(xiv) The proceeds of any foreclosure, trustee's or judgment sale
provided for in this Declaration shall first be paid to discharge court costs, court reporter charges,
reasonable attorneys' fees, title costs, costs of the sale, and all other expenses of the proceedings
070802\8587958v5 19
U
and sale, and the balance of the unpaid sales proceeds after satisfaction of such charges and
unpaid assessments hereunder or any liens, shall be paid to the defaulting Owner. Any purchaser
at such.sale shall thereupon be entitled to a deed to the Lot and immediate possession of the Lot.
and shall have the right to apply to a court of competent jurisdiction for such orders as may be
reasonable for the purpose of acquiring and possessing the Lot. It shall be a condition of such
sale, and the deed so made shall provide, that the purchaser shall take the interest in the sold Lot
subject to this Declaration.
(xv) Within twenty-one (21) days after the timely curing of any
default for which a Notice of Delinquent Assessment was filed by the Association, the officers of
the Association are hereby authorized and directed to record an appropriate release of such lien
in the Office of the Fresno County Recorder.
Section 4.2 Assignment of Rents. As security for the payment of all such liens, each
Owner hereby gives to and confers upon the Association the right, power and authority, during
the continuance of such ownership, to collect the rents, issues and profits of the Owner's Lot,
reserving unto the Owner the right, prior to any default by such Owner in performance of such
Owner's obligation under this Declaration, the Articles of Incorporation, Bylaws or Rules and
Regulations, to collect and retain such rents, issues and profits as they become due and payable.
Upon any such default, the Association may, at any time, upon ten (10) days written notice to
such Owner, either in person, by agent or by a receiver to be appointed by a court of competent
jurisdiction, and without regard to the adequacy of any security for such indebtedness, enter upon
and take possession of such Owner's Lot or any part thereof, in its own name sue for or
otherwise collect such rents, issues and profits, including those past due and unpaid, and apply
the same, less costs and expenses of operation and collection, including reasonable attorneys'
fees, in payment of any indebtedness to the Association or in performance of any agreement
hereunder, and in such order as the Association may determine. The entering upon and taking
possession of said property, the collection of such rents, issues and profits and the application
thereof as aforesaid, shall not cure nor waive any default hereunder or invalidate any act done
pursuant to this Declaration.
The assignment of rents and powers described in the foregoing paragraph shall
not affect, and shall in all respects be subordinate to, the rights and powers of the holder or
beneficiary of any first Mortgage or deed of trust on any Lot or second Mortgage or deed of trust
on any Lot if the holder or beneficiary of such second Mortgage or deed of trust is Declarant, to
do the same or similar acts.
ARTICLE V.
ARCHITECTURAL CONTROL
Section 5.1 Appointment of Architectural Committee. The Architectural
Committee shall consist of not less than three (3) nor more than five (5) persons as fixed from
time to time by resolution of the Board. Declarant shall initially appoint the Architectural
Committee. The Declarant shall retain the right to appoint, augment or replace all members of
the Architectural Committee until the first anniversary of the issuance of the original Final
070802\8587958v5 20
2'i
Subdivision Public Report issued by the CalBRE for the Initial Property. Thereafter, Declarant
shall retain the right to appoint, augment or replace a majority of the members of the
Architectural Committee until five (5) years after the first anniversary of the issuance of the
original Final Subdivision Public Report by the CalBRE for the Initial Property, or until ninety
percent (90%) of the Lots within the Initial Property and the Annexable Property have been
conveyed to Resident Owners, whichever shall first occur. Notwithstanding the foregoing,
commencing upon the first anniversary of the issuance of the original Final Subdivision Public
Report by the CalBRE for the initial Phase of Development, the Board shall have the right but
not the obligation to appoint the remaining members of the Architectural Committee. Five (5)
years after the first anniversary of the issuance of the original Final Subdivision Public Report by
the CalBRE for the Initial Property, or when ninety percent (90%) of the Lots within the Initial
Property and Annexable Property have been conveyed to Resident Owners, whichever shall first
occur, the right to appoint, augment or replace all members of the Architectural Committee shall
automatically be transferred to the Board. Persons appointed by the Board to the Architectural
Committee must be Members; however, persons appointed by Declarant to the Architectural
Committee need not be Members.
Section 5.2 General Provisions. The Architectural Committee may establish
reasonable procedural rules in connection with the review of plans and specifications including,
without limitation, the number of sets of plans to be submitted and fees for the review of such
plans; however, the Architectural Committee may delegate its plan review responsibilities to one
(1) or more members of such Architectural Committee. Upon such delegation, the approval or
disapproval of plans and specifications by such persons shall be equivalent to approval or
disapproval by the entire Architectural Committee. Unless any such rules are complied with,
such plans and specifications shall be deemed not submitted.
(a) The address of the Architectural Committee shall be the address
established for giving notice to the Association. Such address shall be the place for the submittal
of plans and specifications and the place where the current Architectural Standards (as that term
is defined below) shall be kept.
(b) The establishment of the Architectural Committee and the systems
herein for architectural approval shall not be construed as changing any rights or restrictions
upon Owners to maintain, repair, alter or modify or otherwise have control over the Lots as may
otherwise be specified in this Declaration, the Bylaws, or the Rules and Regulations.
(c) In the event the Architectural Committee disapproves such plans
and specifications, such disapproval shall be in writing and shall include both an explanation of
the reasons for such disapproval and a description of the procedure for reconsideration of the
Architectural Committee's decision by the Board.
(d) In the event the Architectural Committee fails to approve or
disapprove such plans and specifications within sixty (60) days after the same have been duly
submitted in accordance with any rules regarding such submission adopted by the Architectural
Committee, such plans and specifications will be deemed to have been approved; provided,
however, no Owner may modify any Association Maintenance Area located on his or her Lot
without the express written approval of the Architectural Committee.
070802\8587958v5 21
Section 5.3 Approval and Conformity of Plans. No building, fence, wall, structure,
landscaping, change of Lot grading or drainage, or other improvements, including without
limitation pools, waterfalls, gazebos, sports equipment and facilities,jacuzzis, spas, patio covers,
tree houses or playhouses, .shall be commenced, erected, maintained upon or removed from the
Project, nor shall there be any addition to or change in the exterior of any building, fence, wall,
structure, the painting (other than painting with the same color of paint as previously existed) of
exterior walls, doors, trim, patio covers and solar and other energy saving devices, except in
compliance with plans and specifications therefor which have been submitted to and approved by
the Architectural Committee as to harmony of external design and location in relation to
surrounding structures and topography. The Board may, from time to time, adopt and
promulgate architectural and landscaping standards (the "Architectural Standards") to be
administered through the Architectural Committee. The Architectural Standards may include
among other things those restrictions and limitations upon the Owners set forth below:
(a) time limitations for the completion of the architectural and
landscaping improvements for which approval is required pursuant to the Architectural
Standards;
(b) conformity of completed architectural and landscaping
improvements to plans and specifications approved by the Architectural Committee; provided,
however, as to purchasers and encumbrances in good faith and for value, unless notice of
noncompletion or nonconformance identifying the violating Lot and its Owner and specifying
the reason for the notice, executed by the Architectural Committee, shall be filed of record in the
Office of the County Recorder of the County, and given to such Owner within one (1) year of the
expiration of the time limitation described in Section 5.3(a), above, or unless legal proceedings
shall have been instituted to enforce compliance or completion within said one (1) year period,
the completed architectural and landscaping improvements shall be deemed to be in compliance
with plans and specifications approved by the Architectural Committee and in compliance with
the Architectural Standards of the Association, but only with respect to purchasers and
encumbrances in good faith and for value;
(c) such other limitations and restrictions as the Board in its
reasonable discretion shall adopt, including, without limitation, the regulation of the following:
construction, reconstruction, exterior addition, change or alteration to or maintenance of any
building, structure, wall or fence, including, without limitation, the nature, kind, shape, height,
materials, exterior color and surface and location of such dwelling structure, and bonding and
licensing requirements applicable to contractors and subcontractors performing work on behalf
of an Owner; and
(d) a description of the types of such construction, reconstruction,
additions, alterations or maintenance which, if completed in conformity with the Architectural
Standards, do not require the approval of the Architectural Committee.
Section 5.4 Non-Liability for Approval of Plans. Each Owner shall be solely
responsible for any violation of this Declaration or any applicable instrument, law or regulation
caused by an improvement made by such Owner even though same is approved by the
Architectural Committee. Plans and specifications shall be approved by the Architectural
070802\8587958v5 22
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Committee as to style, exterior design, appearance and location and are not approved for
engineering design or for compliance with zoning and building ordinances, this Declaration,
easements, deed restrictions and other rights and obligations affecting the Project, and by
approving such plans and specifications, neither the Architectural Committee, the members
thereof, the Association, the Members, the Board nor Declarant assumes liability or
responsibility therefor, or for any defect in any structure constructed from such plans and
specifications. The Architectural Committee shall have the right to require, as a condition of
approval, that an Owner provide indemnification on terms and conditions satisfactory to the
Architectural Committee.
Section 5.5 Appeal. In the event plans and specifications submitted to the
Architectural Committee are disapproved thereby, the party or parties.making such submission
may appeal in writing to the Board. The written request must be received by the Board not more
than fifteen (15) days following the final decision of the Architectural Committee. The Board
shall submit such request to the Architectural Committee for review, whose written
recommendations will be submitted to the Board. Within forty-five (45) days following receipt
of the request for appeal, the Board shall render its written decision. The failure of the Board to
render a decision within said forty-five (45) day period shall be deemed a decision in favor of the
appellant.
Section 5.6 Inspection and Recording of Approval. Any member of the
Architectural Committee or any officer, director, employee or agent of the Association may at
any reasonable time enter, without being deemed guilty of trespass, upon any Lot after notice to
the Owner in order to inspect improvements constructed or being constructed on such Lot to
ascertain that such improvements have been or are being built in compliance with plans and
specifications approved by the Architectural Committee and in accordance with the Architectural
Standards. The Architectural Committee shall cause such an inspection to be undertaken within
thirty (30) days of receipt of a written request therefor from any Owner as to his or her Lot, and
if such inspection reveals that the improvements located on such Lot have been completed in
compliance with this Article, the president and the secretary of the Association shall provide to
such Owner a notice of such approval in recordable form, which, when recorded, shall be
conclusive evidence of compliance with the provisions of this ARTICLE V as to the
improvements described in such recorded notice, but as to such improvements only.
Section 5.7 Notice Regarding Physical Changes. The Association shall distribute to
each Member annually within sixty (60) days prior to the beginning of the fiscal year a notice
regarding the Association's requirements for approval of physical changes to an Owner's Lot or
the improvements located thereon, which notice shall describe the types of changes that require
Architectural Committee approval and a copy of the procedure used to review and approve or
disapprove a proposed change.
070802\8587958x5 23
ARTICLE VI.
DUTIES AND POWERS OF THE ASSOCIATION
Section 6.1 General Duties and Powers. In addition to the duties and powers
enumerated in the Articles of Incorporation and Bylaws, or elsewhere provided for herein, and
without limiting the generality thereof, the Association shall have the specific duties and powers
specified in this Article.
Section 6.2 General Duties of the Association. The Association through the Board
shall have the duty and obligation to:
(a) enforce the provisions of this Declaration (including, without
limitation, enforcement of the full performance by Owners of all items of maintenance for which
they are responsible), the Articles of Incorporation, Bylaws, and Rules and Regulations by
appropriate means and carry out the obligations of the Association hereunder;
(b) maintain and otherwise manage the following:
(i) all easements and real property and all facilities,
improvements and landscaping thereon in which the Association holds an interest, subject to the
terms of any instrument transferring such interest to the Association;
(ii) all personal property in which the Association holds an
interest, subject to the terms of any instrument transferring such interest to the Association; and
(iii) all property, real or personal, including Common Areas and
Association Maintenance Area, which the Association is obligated to repair or maintain pursuant
to this Declaration, including, without limitation, ARTICLE VII (Repair and Maintenance) of
this Declaration, to reasonable standards adopted by the Board and as set forth in this Declaration
and the Bylaws;
(c) pay any real and personal property taxes and other charges
assessed to or payable by the Association;
(d) obtain, for the benefit of the Common Areas and Association
Maintenance Areas, water, gas, electric, refuse collections and other services, to the extent that
the Association deems such services necessary;
(e) provided that the Association's treasurer has been given at least ten
(10) days prior written notice of an Owner's desire to make such an examination, make available
the books, records and financial statements of the Association for inspection by Owners (or an
Owner's designee, provided that the Owner provides such designation to the Association in
writing) and First Mortgagees during normal business hours in the Association's business office
within the Project, or if the Association does not have a business office within the Project, then at
a place that the requesting Owner and the Association agree upon; provided, if the requesting
Owner and the Association cannot agree upon a location, then the Association may satisfy the
requirement to make books, records and financial statements of the Association available to the
070802\8587958v5 24
3c
Owner by mailing copies of the requested records to the Owner by first-class mail within ten (10)
days after the Association's receipt of the Owner's request. Prior to sending the requested
documents, the Association shall inform the requesting Owner of the amount of the copying and
mailing costs. Notwithstanding the foregoing, the Association may withhold or redact
information from the accounting books and records and the minutes of proceedings for any of the
reasons set forth below:
(i) the release of the information is reasonably likely to lead to
the unauthorized use of another person's personal identifying information to obtain credit, goods,
services, money, or property, commonly referred to as "identity theft";
(ii) the release of the information is reasonably likely to lead to
fraud in connection with the Association; or
(iii) the information is privileged under law.
However, except as provided by the attorney-client privilege, the Association may
not withhold or redact information concerning the compensation paid to employees, vendors or
contractors. Compensation information for individual employees shall be set forth by job
classification or title, not by the employee's name, social security number or other personal
information.
Section 6.3 Budgets and Financial Statements.
(a) Not less than forty-five(45) days and not more than sixty(60) days
prior to the beginning of each fiscal year of the Association (the "Distribution Date"), the Board
shall distribute to each Member a pro forma operating statement or budget for the upcoming
fiscal year which shall specifically include the following items:
(i) a statement of estimated revenue and expenses on an
accrual basis;
(ii) a summary of the Association's reserves based upon the
most recent review or Reserve Account Study conducted pursuant to Section 3.15, above, which
shall be printed in bold type and include all of the following:
(A) the current estimated replacement cost, estimated
remaining life and estimated useful life of each major component of the Common Areas and the
Association Maintenance Area;
(B) as of the end of the fiscal year for which the
Reserve Account Study is prepared:
(1) the current estimate of the amount of cash
reserves necessary to repair, replace, restore or maintain major components of the Common
Areas and Association Maintenance Areas; and
070802\8587958v5 25
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(2) the current amount of accumulated cash
reserves actually set aside to repair, replace, restore or maintain major components of the
Common Areas and Association Maintenance Areas; and
(C) the percentage. that accumulated cash reserves
actually set aside is of the current estimate of cash reserves necessary;
(iii) a statement as to whether the Board has determined or
anticipates that the levy of one (1) or more Special Assessments or Capital Improvement
Assessments will be required to repair, replace or restore any major component of the Common
Areas and Association Maintenance Areas or to provide adequate reserves therefore and if so,
the estimated amount, commencement date and duration of such Assessment;
(iv) a statement as to the mechanism or mechanisms by which
the Board will fund reserves to repair or replace major components, including Assessments,
borrowing, use of other assets, deferral of selected replacement or repairs, or other alternative
mechanisms; and
(v) a general statement setting forth the procedures used by the
Board in the calculation and establishment of reserves to defray the costs of future repair,
replacement or additions to the Common Areas and Association Maintenance Areas. The report
shall include, but need not be limited to, reserve calculations computed using the formula
described in Civil Code Section 5570(b)(4)'(or successor statute) and may not assume a rate of
return on cash reserves in excess of two percent (2%) above the rediscount rate published by the
Federal Reserve Bank of San Francisco at the time the calculation was made.
(b) In lieu of the distribution of the pro forma operating budget
described in Section 6.3(a), the-Board may elect to distribute a summary of the pro forma
operating budget to all of its Members together with a written notice (which shall be in at least
10-point bold type and located on the front page of the summary of the pro forma operating
budget) that the pro forma operating budget is available at the business office of the Association
or at another suitable location within the boundaries of the Project and that copies will be
provided upon request and at the expense of the Association. If any Member requests copies of
the pro forma operating budget to be mailed to the Member, the Association shall provide copies
to the Member by first-class mail at the expense of the Association and mailed within five (5)
days. The pro forma operating budget also must be made available to First Mortgagee upon their
submission of a written request for it.
(c) Within one-hundred twenty (120) days after the close of each fiscal
year, the Board shall cause to be prepared an annual report consisting of the following:
(i) a balance sheet as of the end of the fiscal year;
(ii) an operating(income) statement for the fiscal year; and
(iii) a statement of changes in financial position for the fiscal
year.
070802\8587958v5 26
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For any fiscal year in which the gross income to the Association exceeds $75,000.00,
review of the annual report shall be prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of Accountancy. A copy of the review
shall be distributed within one hundred twenty (120) days after the close of each fiscal year. If
the report referred to in this Section 6.3(c) is not prepared by an independent accountant, it shall
be accompanied by the certificate of an authorized officer of the Association that the annual
report was prepared from the books and records of the Association without independent audit.
The Board shall notify each Member annually of the Member's right to receive the annual report,
upon receipt of a written request from a Member for the annual report, the Board shall promptly
cause the most recent annual report to be sent to the requesting Member.
(d) The Board shall take the following actions not less frequently than
quarterly:
(i) cause a current reconciliation of the Association's
operating accounts to be made and review the same;
(ii) cause a current reconciliation of the Association's reserve
accounts to be made and review the same;
(iii) review the current year's actual reserve revenues and
expenses compared to the current year's budget;
(iv) review the most current account statements prepared by the
financial institution where the Association has its operating and reserve accounts; and
(v) review an income and expenses statement for the
Association's operating and reserve accounts.
(e) The Board shall prepare and distribute to each Member, not less
than thirty (30) days nor more than ninety (90) days prior to the beginning of each fiscal year of
the Association, a summary of the Association's property, general liability, earthquake and flood
and fidelity insurance policies, that states all of the following:
(i) the name of the insurer;
.(ii) the type of insurance;
(iii) the policy limits of the insurance; and
(iv) the insurance deductibles.
(f) The Board shall, as soon as reasonably practical, notify each
Member by first-class United States mail if any of the policies described in Subsection (e),
above, have been canceled and not immediately renewed, restored or replaced, or if there is a
significant change, such as a reduction in coverage or limits or an increase in the deductible, as
to any of those policies. if the Association renews any of the policies or a new policy is issued to
replace an insurance policy of the Association, and where there is no lapse in coverage, the
070802\8587958x5 27
Association shall notify each Member of that fact in the next available mailing to all Members.
If the Association receives any notice of nonrenewal of a policy described in Subsection (e),
above, the Association shall immediately notify its Members if replacement coverage will not be
in effect by the date the existing coverage will lapse.
(g) To the extent that the information to be disclosed pursuant to
Subsections (e) and (f), above, is specified in the insurance policy declaration page, the Board
may meet the requirements of those subsections by making copies of that page and distributing it
to each Member. The summary distributed pursuant to this Subsection (g) shall contain, in at
least 10-point boldface type, the following statement (or such statement as may be required by
any successor statute to Civil Code Section 5300(b)(9)):
"This summary of the association's policies of insurance provides
only certain information, as required by Section 5300 of the Civil
Code, and should not be considered a substitute for the complete
policy terms and conditions contained in the actual policies of
insurance. Any association member may, upon request and
provision of reasonable notice, review the association's insurance
policies and, upon request and payment of reasonable duplication
charges, obtain copies of those policies. Although the association
maintains the policies of insurance specified in this summary, the
association's policies of insurance may not cover your property,
including personal property or, real property improvements to or
around your dwelling, or personal injuries or other losses that
occur within or around your dwelling. Even if a loss is covered,
you may nevertheless be responsible for paying all or a portion of
any deductible that applies. Association members should consult
with their individual insurance broker or agent for appropriate
additional coverage."
(h) The Association shall distribute to each Member annually (i) not
less than thirty (30) days nor more than ninety (90) days prior to the beginning of the fiscal year
a statement regarding the Association's policies and procedures with respect to the matters set
forth in Section 4.1, (ii) not less than sixty (60) days prior to the beginning of the fiscal year, a
notice regarding assessments and foreclosure in the form required by Civil Code Section 5730(a)
(or any successor statute), and (iii) at the time the pro forma Budget is distributed or in the
manner prescribed in Corporations Code Section 5016, the summary required by Civil Code
Section 5965 (or any successor statute) regarding alternative dispute resolution, which summary
shall include (1) the following language: "Failure of a member of the association to comply with
the alternative dispute resolution requirements of Section 5930 of the Civil Code may result in
the loss of your right to sue the association or another member of the association regarding
enforcement of the governing documents or the applicable law" and (2) a description of the
internal dispute resolution procedure set forth in Section 19.1(b).
Section 6.4 General Powers of the Association. In general, the powers of the
Association include, but are not limited to, the following:
070802\8587958v5 28
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(a) Enforce applicable provisions of this Declaration, the Articles,
Bylaws and other instruments for the ownership, management and control of the subdivision.
(b) Pay taxes and assessments which are, or could become, a lien on
the Common Area or a portion thereof.
(c) Contract for casualty, liability and other insurance on behalf of the
Association.
(d) Contract for goods and/or services for the Common Areas and
Association Maintenance Areas, or for the Association subject to the limitations set forth below.
(e) Delegate its powers to committees, officers or employees of the
Association as expressly authorized by the Management Documents.
(f) Prepare budgets and financial statements for the Association as
prescribed in the Management Documents.
'(g) Formulate rules of operation of the Common Areas and
Association Maintenance Areas and facilities owned or controlled by the Association.
(h) Initiate and execute disciplinary proceedings against Members of
the Association for violations of provisions of the Management Documents in accordance with
procedures set forth in the Management Documents.
(i) Enter upon any privately-owned subdivision interest as necessary
in connection with construction, maintenance or emergency repair for the benefit of the Common
Area, Association Maintenance Area, or the Owners in common.
(j) Elect officers of the Association.
(k) Fill vacancies on the .Board except for a vacancy created by the
removal of a Board Member.
In addition, the Association through the Board shall have the power but not the obligation
to:
(1) employ a manager or other persons and contract with independent
contractors or managing agents to perform all or any part of the duties and responsibilities of the
Association, provided that any contract with a person or firm appointed as a manager or
managing agent shall have (i) a term of not more than one (1) year with successive one (1) year
renewal periods upon mutual agreement of the parties, and (ii) shall provide for the right to
terminate without cause or penalty upon at least thirty (30) days' notice;
(rn) acquire interests in real or personal property for offices or other
facilities that may be necessary or convenient for the management of the Project, the
administration of the affairs of the Association or for the benefit or enjoyment of the Members;
070802\8587958v5 29
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(n) borrow money in a total amount not to exceed ten percent (10%) of
the then existing estimated annual Common Expenses as may be needed in connection with the
discharge by the Association of its powers and duties;
(o) establish, only if requested by and in cooperation with the City, a
special tax assessment district for the performance of all or a portion of the maintenance or other
functions now within the responsibility of the Association;
(p) convey, only if requested by the City, all or a portion of the
Common Areas to any district established pursuant to Section 6.4(o), above;
(q) establish and maintain a working capital and contingency fund in
an amount to be determined by the Board. Such resulting contributions shall be a Common
Expense and shall be used by the Board as it deems fit to carry out the objectives and purposes of
the Association; and
(r) negotiate and enter into contracts with Institutional Mortgagees
and mortgage insurers and guarantors as may be necessary or desirable to facilitate the
availability of loans secured by Mortgages within the Project.
Section 6.5 General Limitations and Restrictions on the Powers of the Board. In
addition to the limitations and restrictions enumerated in the Articles of Incorporation and
Bylaws or elsewhere provided for herein, and without limiting the generality thereof, the Board:
(a) Shall not enter into Contracts for materials or services which have
a term in excess of one (1) year without the approval of a majority of the voting power of the
Association other than the Declarant, with the following exceptions:
(i) A Contract with a public utility company if the rates
charged for the materials or services are regulated by the Public Utilities Commission; provided,
however, that the term of the Contract shall not exceed the shortest term for which the supplier
will contract at the regulated rate;
(ii) Prepaid casualty and/or liability insurance policies of not to
exceed three (3) years duration, provided that the applicable policy permits short rate
cancellation by the insured;
(iii) A Management Contract, the terms of which have been
approved by the Federal Housing Administration or VA, or which Contract provides that the
Association may terminate the Contract without cause, penalty or other obligation upon thirty
(30) (or fewer) days' written notice;
(iv) Contracts for the sale or lease of burglar alarm and fire
alarm equipment, installation and services of not to exceed five years duration provided that the
supplier or suppliers are not entities in which the Declarant has a direct or indirect ownership
interest of ten percent (10%) or more;
070802\8587958x5 30
37
(v) Contracts for cable television services and equipment or
satellite television services and equipment of not to exceed five (5) years duration, provided that
the supplier is not an entity in which the Declarant has a direct or indirect ownership interest of
ten percent (10%) or more; and
(vi) Contracts with a term not exceeding three (3) years that are
terminable by the Association after no longer than one (1) year without cause, penalty or other
obligation upon thirty (30) days' written notice of termination to the other party.
(b) Shall not take any of the following actions without the approval of
sixty-seven percent (67%) of the voting power of the Association other than the Declarant:
(i) Except as provided in Section 12.1(e), below, sell, transfer,
assign or encumber the Common Areas or any other Asset with an aggregate fair market value in
excess of five percent (5%) of the budgeted gross expenses of the Association for that fiscal year;
(ii) Pay compensation to directors or to officers of the
Association for services performed in the conduct of the Association's business; provided,
however, the Board may cause a director or officer to be reimbursed for expenses incurred in
carrying on the business of the Association;
(iii) Incur aggregate indebtedness in excess of five percent (5%)
of the budgeted gross expenses of the Association for that fiscal year;
(iv) Incur aggregate expenditures for capital improvements to
the Common Areas and Association Maintenance Areas in excess of five percent (5%) of the
budgeted gross expenses of the Association for that fiscal year; or
(v) Grant exclusive use of any portion of the Common Area to
any Owner, except for any of the following:
(1) A reconveyance of all or any portion of the
Common Area to the Declarant to enable the continuation of development that is in substantial
conformance with a detailed plan of development submitted to the CalBRE with the application
for a public report;
(2) Any grant of exclusive use that is in substantial
confonnance with a detailed plan of development submitted to the Ca1BRE with the application
for a public report or in accordance with the Management Documents approved by the Ca1BRE;
or
(3) Any grant of exclusive use that is for any of the
following reasons:
(A) To eliminate or correct engineering errors in
documents recorded with the County or on file with a public agency or utility company;
(B) To eliminate or correct encroachments due
to errors in construction of any improvements;
070802\8587958v5 31
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(C) To permit changes in the plan of
development submitted to the Ca1BRE in circumstances where the changes are the result of
topography, obstruction, hardship, aesthetic considerations, or environmental conditions;
(D) To fulfill the requirement of a public
agency; or
(E) To transfer the burden of management and .
maintenance of any Common Area that is generally inaccessible and is not of general use to the
membership at large of the Association.
Any measure placed before the Members requesting that the Board grant exclusive use of
any portion of the Common Area shall specify whether the Association will receive any
monetary consideration for the grant and whether the Association or the transferee will be
responsible for providing any insurance coverage for exclusive use of the Common Area.
Section 6.6 Rules and Regulations. The Board shall also have the exclusive power to
adopt, amend, and repeal such rules and regulations as it deems reasonable (the "Rules and
Regulations") which may include the establishment of a system of fines and penalties
enforceable as Remedial Assessments, all as provided in the Bylaws. The Rules and Regulations
shall govern such matters in furtherance of the purposes of the Association, including, without
limitation, the use of the Common Areas; provided, however, that the Rules and Regulations
may not discriminate among Owners and shall not be inconsistent with this Declaration, the
Articles of Incorporation or Bylaws. Furthermore, the Rules and Regulations may not arbitrarily
or unreasonably restricts an Owner's ability to market his or her Lot by listing, advertising, or
obtaining or providing access to show the Owner's Lot, and the Association may not adopt,
enforce, or otherwise impose any rule or regulation that does either of the following:
(a) imposes an assessment or fee in connection with the marketing of an
Owner's Lot in an amount that exceeds the Association's actual or direct costs, or
(b) establishes an exclusive relationship with a real estate broker through
which the sale or marketing of a Lot owned by Owner other than Declarant is required to occur.
A copy of the Rules and Regulations as they may from time to time be adopted, amended
or repealed or a notice setting forth the adoption, amendment or repeal of specific portions of the
Rules and Regulations shall be delivered to each Owner in the same manner established in this
Declaration for the delivery of notices. Upon completion of the notice requirements, said Rules
and Regulations shall have the same force and effect as if they were set forth in and were a part
of this Declaration and shall be binding on the Owners and their successors in interest whether or
not actually received thereby. The Rules and Regulations, as adopted, amended or repealed,
shall be available at the principal office of the Association to each Owner and Institutional
Mortgagee upon request. In the event of any conflict between any such Rules and Regulations
and any other provisions of this Declaration, or the Articles of Incorporation and Bylaws, the
provisions of the Rules and Regulations shall be deemed to be superseded by the provisions of
this Declaration, the Articles of Incorporation or the Bylaws to the extent of any such conflict.
070902\8597959v5 32
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Section 6.7 Delegation of Powers. The Association shall have the right, according to
law, to delegate to committees, officers, employees or agents any of its duties and powers under
this Declaration, the Articles of Incorporation and Bylaws; provided, however, no such
delegation to a professional management company, the Architectural Committee or otherwise
shall relieve the Association of its obligation to perform such delegated duty.
Section 6.8 Pledge of Security for Obligations; Notice to Obligees. The
Association shall have the power to pledge the right to exercise its Assessment powers or pledge
Assets as security for a loan, contract or other obligation; provided, however, any such pledge
shall require the prior affirmative vote or written assent of not less than sixty-six and two-thirds
percent (66 2/3%) of the voting power of the Members. Said power shall include, but not be
limited to, the ability to make an assignment of Assessments which are then payable to or which
will become payable to the Association, which assignment may then be presently effective but
shall allow said Assessments to continue to be paid to and used by the Association as set forth in
this Declaration unless and until the Association shall default on the repayment of the debt which
is. secured by said assignment. The Association may levy Special Assessments against the
Members to obtain such funds. Upon the failure of any Member to pay said Special Assessment
when due, the Association may exercise all its rights, including, without limitation, the right to
foreclose its lien, pursuant to ARTICLE 1V (Nonpayment of Assessments) of this Declaration.
Without limiting the generality of the foregoing, any pledge of Assessment rights or Assets in
excess of an amount equal to twenty-five percent (25%) of the total Regular Assessments
collected by the Association in the then preceding fiscal year shall ,require the prior written
approval of seventy-five percent (75%) of the Institutional Mortgagees based on one (1) vote for
each First Mortgage held. Notice is hereby given by this Declaration to all future obligees of the
Association that any pledge of security which is not in conformity with this Section 6.8 shall be
invalid and unenforceable against the Association or its Members.
Section 6.9 Emergency Powers. The Association or any person authorized by the
Association may enter any Lot, Common Area or Association Maintenance Areas in the event of
any emergency involving illness or potential danger to life or property. Such entry shall be made
with as little inconvenience to the Owners as practicable, and any damage caused thereby shall
be repaired by the Association unless covered by insurance carried by the Owner.
Section 6.10 Conveyance of Common Area. In the event all of the Project becomes
subject to a special tax district, open space maintenance district or other assessment district or
governmental agency capable of holding title to and which has duly resolved to accept title to the
Common Areas, the Board of the Association shall convey the Common Areas, or so much
thereof as such governmental agency will accept, to such governmental agency.
ARTICLE VII.
REPAIR AND MAINTENANCE
Section 7.1 Repair and Maintenance by Association. Except as otherwise expressly
provided in Section 7.2(b), below, and without limiting the generality of the statement of duties
and powers contained in this Declaration, the Articles of Incorporation, Bylaws, or Rules and
070803\8587958v5 33
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Regulations, the Association shall have the duty to accomplish the following upon the Project or
other land in such manner and at such times as the Board shall prescribe:
(a) maintain, repair, restore, replace and make necessary
improvements to the Common Areas and Association Maintenance Areas and the improvements
located thereon or therein; and
(b) maintain all other areas, facilities, equipment, services or aesthetic
components of whatsoever nature as may from time to time be requested by the vote or written
consent of a majority of the voting power of the Members.
The costs of any such maintenance and" repair pursuant to this Section shall be
paid out of the general funds of the Association, except as otherwise herein specified as payable
by the particular Owners.
The Association's obligation to maintain the Common Areas and Association
Maintenance Areas in each Phase of Development shall commence on the Assessment
Commencement Date for that Phase of Development.
Section 7.2 Repair and Maintenance by Owner. Except to the extent that the
Association is obligated to maintain and repair as referenced above, every Owner shall be
responsible for the following maintenance and repair:
(a) Every Owner shall maintain his or her Lot, including without .
limitation, walls, fences, drainage, slopes and all portions of the Owner's dwelling located on
such Lot, in good condition and repair, including maintenance of the established grade or
elevation of the Lot and location of the drainage lines and gutters as initially constructed by
Declarant so as not to alter the established drainage patterns without the prior written consent of
the City and the Architectural Committee. For the purposes hereof, established drainage patterns
are defined as the drainage patterns existing at the time the grading of said Lot was completed in
conformity with the grading and drainage plan heretofore approved by the City.
Notwithstanding the foregoing, the Association shall be responsible for repair, maintenance, or
replacement of the exterior portions of the Perimeter Walls and for long-term maintenance and
repairs of Perimeter Walls except as otherwise provided in subsection (b), below.
(b) In the event the Board shall determine that any Perimeter Wall,
Common Area or Association Maintenance Area has been damaged by an Owner (or such
Owner's family members, guests, licensees, invitees, agents or employees), then such Owner
shall be responsible for the repair of such damage and/or removal of such landscaping in a timely
manner and in accordance with such rules as the Board or Architectural Committee shall from
time to time adopt;
(c) Each Owner shall maintain the landscaping upon his or her Lot in a
neat and attractive condition, including all necessary landscaping and gardening, and shall
properly maintain and periodically replace when necessary any trees, plants, grass and other
vegetation. All such landscaping maintenance shall be consistent with applicable City ordinances
and shall be performed in accordance with such standards and rules as the Board or Architectural
Committee shall from time to time adopt; and
070802\8587958v5 34
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(d) In the event that an Owner fails to comply with the obligations set
forth in this Section 7.2, then (subject to the notice and hearing requirements set forth in Section
7.3, below) the Association or its delegates shall have the right at reasonable times to enter the
Lot to effect such repair, maintenance or other compliance, and the cost thereof shall be charged
to the Owner of the Lot, and, if not paid in a timely manner, shall be a Reimbursement
Assessment enforceable in accordance with the provisions of this Declaration applicable thereto.
Section 7.3 Right of Association to Maintain and Install. In the event that an
Owner fails to accomplish any maintenance, repair or installation required by Section 7.2, above,
or fails to pay his or her share of expenses incurred in the accomplishment of the same
(including, without limitations, the obligations of installation and reimbursement pursuant to
Section 7.2, above) (such failures referred to in this Article as a "deficiency"), the Association or
its delegates may, but shall not be obligated to, cause such maintenance, repair and installation to
be accomplished or cause such payment to be made to the appropriate parties as hereinafter set
forth.
(a) Upon a finding by the Board of a deficiency, the Board shall give
notice of the deficiency to the violating Owner which shall briefly describe the deficiency and set
a date for the cure thereof. If the violating Owner submits a written request to the Board for a
hearing within fifteen (15) days after the mailing of such deficiency notice, the Board shall set a
date for such hearing before the Board or a committee selected by the Board for such purpose.
The Board may delegate its powers under this subsection to a duly appointed committee of the
Association.
(b) Such hearing shall be held not less than ten (10) nor more than
thirty(30) days from the date of receipt of said request for hearing.
(c) Such hearing shall be conducted according to such reasonable rules
and procedures as the Board shall adopt which shall provide the Owner with the right to present
oral and written evidence and to confront and cross-examine any person offering at such hearing
evidence adverse to such Owner. If the Board or any such committee renders a decision against
the Owner, it may set another date by which the deficiency is to be corrected by the Owner. A
decision of such committee may be appealed to the Board, but a decision of the Board shall be
final.
(d) If the deficiency continues to exist after the time limitation set
forth in the deficiency notice or, in the event a hearing is held, the date imposed by a final
decision of the Board or any such committee, the Board or such committee may cause such
maintenance, repair or installation to be.accomplished or such payment to be made.
(e) In the event the Board or such committee elects to cause such
maintenance, repair or installation to be accomplished, it shall give written notice of such
election to the violating Owner and the following shall apply:
(i) the Owner shall have no more than ten (10) days following
the receipt thereby of said written notice of election in which to select a day or days upon which
such maintenance, repair or installation work shall be accomplished;
070802\8587958v5 35
y2.
(ii) the date which said Owner selects shall be not less than ten
(10) days nor more than thirty (30) days following the last day of the ten (10) day period
specified in such notice of election;
(iii) if said Owner does not select such day or days within the
ten (10) day period specified in such notice of election, the Board or such committee may select
a day or days upon which such work may be accomplished which shall be not less than twenty-
five (25) nor more than fifty-five (55) days from the last day of the ten (10) day period specified
in such notice of election; and
(iv) unless the Owner and the Board otherwise agree, such
maintenance or installation shall take place only during daylight hours on any day, Monday
through Friday, excluding holidays.
(f) If the Association pays for all or any portion of correcting such
deficiency or if an Owner has not paid his or her share of the maintenance and repair expenses as
set forth in Section 7.2 and Section 7.3 of this Article regardless of whether the Association has
reimbursed the appropriate parties or Owners pursuant to this Section, such amount shall be a
Reimbursement Assessment to the violating Owner and his or her Lot, as applicable.
Section 7.4 Standards for Maintenance and Installation. All maintenance required
by this ARTICLE VII shall be accomplished in accordance with the Architectural Standards,
and, if required by the Architectural Standards, only after approval of the Architectural
Committee, and shall be performed to the stricter of (i) the maintenance standards and
procedures provided by the Declarant to the Association or the Owners, as the case may be, or
(ii) commonly accepted maintenance practices.
Section 7.5 Right of Entry. The Association shall have the right to enter upon any
Lot, Common Area or Association Maintenance Areas in connection with any exterior
maintenance, repair or construction in the exercise of the powers and duties of the Association.
Any damage caused by such entry shall be repaired by the entering party to the extent that the
damage caused was unnecessary under the circumstances to carry out the Association's rights
and obligations.
Section 7.6 Maintenance of Public Utilities. Subject to the provisions of ARTICLE
XVII below, nothing contained herein shall require or obligate the Association to maintain,
replace or restore the facilities of public utilities which are located within easements in the
Common Areas owned by such public utilities. However, the Association shall take such steps
as are reasonably necessary or convenient to ensure that such facilities are properly maintained,
replaced or restored by such public utilities.
Section 7.7 Assumption of Maintenance Obligations. Declarant and Declarant's
assigns, its subcontractors and the agents and employees of the same shall have the right to enter
upon the Common Areas and/or Association Maintenance Areas to complete the maintenance,
repair, restoration, or construction of the Common Areas, Association Maintenance Areas or any
landscaping or other improvement located, or to be located, thereon, as provided in this
Declaration.
070802\8587958v5 36
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Section 7.8 Common Areas and Association Maintenance Areas within
Annexable Property. Certain portions of the Annexable Property, upon annexation to the
Project in accordance with ARTICLE XIV of this Declaration, may consist of Common Areas or
Association Maintenance Areas. Upon annexation of such portions of the Annexable Property,
the Association shall be responsible for the maintenance and repair of such Common Areas and
Association Maintenance Areas.
ARTICLE VIII.
INSURANCE
Section 8.1 Types. The Association, to the extent available, shall obtain and continue
in effect in its own name the following types of insurance with such deductible provisions as
may be appropriate so long as such amounts or type of insurance coverage are not, in the good
faith judgment of the Board, prohibitively expensive or no longer necessary or appropriate for
the protection of the Project, the Association and the Members:
(a) a comprehensive policy of public liability insurance covering the
Common Areas and Association Maintenance Areas with a limit of not less than Three Million
Dollars ($3,000,000) for claims for personal injury and/or property damage arising out of a
single occurrence, such coverage to include protection against water damage liability, liability
for non-owned and hired automobile and liability for property of others, and such other risks as
shall customarily be covered with respect to similar planned unit developments in the area of the
Project, and shall contain a "severability of interest" endorsement or the equivalent which shall
preclude the insurer from denying the claim of an Owner because of negligent acts or omissions
of the Association, its officers and directors acting in such capacity or other Owners;
(b) a policy of fire and casualty insurance (all-risk) with extended
coverage for the full replacement value of the Common Areas and Association Maintenance
Areas (including all building service equipment and the like), without deduction for depreciation,
with an "agreed amount endorsement" or its equivalent and clauses waiving subrogation against
Members and the Association and persons upon the Project with the permission of a Member,
such insurance to afford protection against at least loss or damage by fire and other hazards
covered by the standard extended coverage endorsement, and by sprinkler leakage, debris
removal, cost of demolition, vandalism, malicious mischief, windstorm, water damage, and such
other risks as shall customarily be covered with respect to similar planned unit developments in
the area of the Project; and
(c) fidelity coverage against dishonest acts on the part of directors,
officers or employees of the Association or volunteers who handle or who are responsible to
handle the funds of the Association, and such fidelity bonds shall name the Association as
obligee, shall be written in an amount .not less than the maximum amount of funds of the
Association over which the Manager and other employees of the Association reasonably may be
expected to have control or access at any time, and shall contain waivers of any defense based on
the exclusion of persons who serve without compensation or from any definition of"employee"
or similar expression.
070802\8587958v5 37
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Section 8.2 Waiver by Members. All insurance obtained by the Association shall be
maintained by the Association for the benefit of the Association, the Owners and the Mortgagees
as their interests may appear. As to each of said policies which will not be voided or impaired
thereby, the Owners hereby waive and release all claims against the Association, the Board,
other Owners, the Declarant, and agents and employees of each of the foregoing, with respect to
any loss covered by such insurance, whether or not caused by negligence of or breach of any
agreement by said persons, but to the extent of insurance proceeds received in compensation for
such loss only.
Section 8.3 Other Insurance. The Board may and, if required by any Institutional
Mortgagee, shall purchase and maintain in force demolition insurance in adequate amounts to
cover demolition in the event of total or partial destruction and a decision not to rebuild, as well
as a blanket policy of flood insurance. The Board shall also purchase and maintain worker's
compensation insurance, to the extent that the same shall be required by law, for all employees of
the Association. The Board shall also purchase and maintain in effect such insurance on
.personal property owned by the Association, and such other insurance, as it deems necessary or
as is required by an Institutional Mortgagee including, without limitation, earthquake insurance,
plate-glass insurance and directors' and officers' liability insurance.
Section 8.4 Premiums, Proceeds and Settlement. Insurance premiums for any such
blanket insurance coverage obtained by the Association and any other insurance deemed
necessary by the Association shall be a Common Expense to be included in the Regular
Assessments levied by the Association. Casualty insurance proceeds shall be used by the
Association for the repair or replacement of the property for which the insurance was carried, or
otherwise disposed of as provided in ARTICLE IX (Destruction of Improvements) of this
Declaration. The Association is hereby granted the authority to negotiate loss settlements with
the appropriate insurance carriers. Upon approval by the Board, any two (2) Directors of the
Association may sign a loss claim form and release form in connection with the settlement of a
loss claim, and such signatures shall be binding on the Members.
Section 8.5 Annual Insurance Review. The Board shall annually determine whether
the amounts and types of insurance it has obtained provide adequate coverage for the Project in
light of increased construction costs, inflation, practice in the area in which the Project is located,
or any other factor which tends to indicate that either additional insurance policies or increased
coverage under existing policies are necessary or desirable to protect the interests of the Owners
and of the Association. If the Board determines that increased coverage or additional insurance
is appropriate, it shall obtain the same.
Section 8.6 Abandonment of Replacement Cost Insurance. Unless at least sixty-
seven percent (67%) of the Institutional. Mortgagees based on one (1) vote for each First
Mortgage held or sixty-seven percent (67%) of the Owners other than Declarant has given their
prior written approval, the Association shall not be entitled to fail to maintain the extended
coverage fire and casualty insurance required by this Article on less than a one hundred percent
(100%) current replacement cost basis.
Section 8.7 Notice of Expiration Requirements. If available, each of the policies of
insurance maintained by the Association shall contain a provision that said policy.shall not be
070802\8587958v5 38
canceled, terminated, materially modified or allowed to expire by its terms without thirty (30)
days' prior written notice to the Board and Declarant, and to each owner and mortgagee, insurer
and guarantor of a First Mortgage who has filed a written request with the carrier for such notice,
and every other person in interest who requests such notice of the insurer. In addition, fidelity
bonds shall provide that they may not be canceled or substantially modified without thirty (30)
days' prior written notice to the Association and to each FNMA servicer who has filed a written
request with the carrier for such notice.
Section 8.8 Federal Requirements. Notwithstanding the foregoing provisions of this
Article, the Association shall continuously maintain in effect such casualty, flood and liability
insurance and a fidelity bond meeting the insurance and fidelity bond requirements for planned
unit development projects established by any of the Federal Agencies, so long as one of the
Federal Agencies is a Mortgagee, Owner, or insures or guarantees a Mortgage within the Project,
except to the extent such coverage is not available or has been waived in writing by the
foregoing entities.
ARTICLE IX.
DESTRUCTION OF IMPROVEMENTS
Section 9.1 Duty of Association. In the event of partial or total destruction of
improvements upon the Common Areas or Association Maintenance Area, it shall be the duty of
the Association to restore and repair same as promptly as practical pursuant to this Article. The
proceeds of any casualty insurance maintained pursuant to this Declaration shall be used for such
purpose, subject to the prior rights of Mortgagees whose interest may be protected by said
policies.
Section 9.2 Automatic Reconstruction. In the event that the amount available from
the proceeds of such insurance policies for such restoration and repair shall be at least eighty-five
percent (85%) of the estimated cost of restoration and repair, a Reconstruction Assessment, with
each Owner contributing a like sum, may be levied by the Association to provide the necessary
funds for such reconstruction over and above the amount of any insurance proceeds available for
such purpose, and the Board shall cause the damaged or destroyed Common Areas and
Association Maintenance Area to be restored as closely as practical to its condition prior to the
destruction or damage.
Section 9.3 Vote of Members. In the event that the amount available from the
proceeds of such insurance policies for such restoration and repair shall be less than eighty-five
percent (85%) of the estimated cost of restoration and repair, the improvements shall be replaced
or restored unless twenty-five percent (25%) of the voting power of a quorum of the Association
objects in writing to such replacement or restoration or votes against the same at a meeting duly
called therefor. Such written objections or vote must include at least twenty-five percent (25%)
of the Class A Members. If the Members do not disapprove such replacement or restoration, the
Board shall levy a Reconstruction Assessment, with each Owner contributing a like sum, in order
to provide the necessary funds for such reconstruction over and above the amount of any
insurance proceeds available for such purpose, and the Board shall cause the damaged or
070802\8587958v5 39
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destroyed Common Areas and Association Maintenance Area to be restored as closely as
practical to its former. condition prior to the destruction or damage. In the event of a
determination, as provided above, not to replace or restore the improvements on the Common
Areas and Association Maintenance Area, the Common Areas and Association Maintenance
Area, as applicable, shall be cleared and landscaped for community park use and the costs
thereof shall be paid for with the insurance proceeds, and any deficiency may be raised by
Reconstruction Assessments in an amount determined by the Board.
Section 9.4 Excess Insurance Proceeds. In the event any excess insurance proceeds
remain; after any reconstruction by the Association pursuant to this Article, the Board, in its sole
discretion, shall distribute such sums pro rata equally to the Owners subject to the prior rights of
Mortgagees whose interest may be protected by insurance policies carried by the Association. In
the absence of such prior rights, the rights of an Owner and the Mortgagee of his or her Lot as to
such pro rata distribution shall be governed by the provisions of the Mortgage encumbering such
Lot.
Section 9.5 Use of Reconstruction Assessments. All amounts collected as
Reconstruction Assessments shall only be used for the purposes set forth in this Article and shall
be deposited by the Board in a separate bank account to be held in trust for such purposes. Such
funds shall not be commingled with any other funds of the Association and shall be deemed a
contribution to the capital account of the Association by the Members. Any excess amounts
which are so collected shall be treated in the same manner as set forth in Section 9.4, above.
ARTICLE X.
EMINENT DOMAIN
Section 10.1 Definition of Taking. The term "taking" as used in this Article shall
mean condemnation by eminent domain or sale under threat of condemnation of all or any
portion of the Common Areas.
Section 10.2 Representation by Board in Condemnation Proceedings. In the event
of a threatened taking of all or any portion of the Common Areas, the Members hereby appoint
the Board and such persons as the Board may delegate to represent all of the Members in
connection with the taking. The Board shall act in its sole discretion with respect to any awards
being made in connection with the taking and shall be entitled to make a voluntary sale to the
condemnor in lieu of engaging in a condemnation action.
Section 10.3 Inverse Condemnation. The Board is authorized to bring an action in
inverse condemnation. In such event, the provisions of this Article shall apply with equal force.
Section 10.4 Award for Taking. Any awards received on account of the taking of any
portion of the Common Areas shall be paid to the Association. The Board may in its sole
discretion retain any award in the general funds of the Association or distribute pro rata all or a
portion thereof to the Members. The rights of an Owner and the Mortgagee of his or her Lot as
to any pro rata distribution shall be governed by the provisions of the Mortgage encumbering
such Lot.
070802\85879580 40
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ARTICLE XI.
USE RESTRICTIONS
Section 11.1 Single-Family Residential Use. All Lots shall only be used for the
residential purposes of a household and no part of a Lot shall be used or caused to be used or
allowed or authorized in any way, directly or indirectly, for any business, commercial,
manufacturing, mercantile, storing, vending, or any nonresidential purposes; provided, however,
the Association shall have the right to provide or authorize such services on the Common Areas
and Association Maintenance Areas as it deems appropriate for the enjoyment of the Common
Areas and Association Maintenance Areas or for the benefit of the Members and provided
further, Declarant may use the Project as otherwise permitted by the provisions of this
Declaration (including, without limitation, for model homes, sales and leasing offices and
displays and other promotional events in accordance with the provisions of this Declaration).
Notwithstanding.the foregoing, the provisions of this Section shall not preclude any Owner of a
Lot from maintaining (a) any business expressly permitted by law (e.g., a family day care center)
or (b) from using his residence as a home-office and conducting business activities therefrom
provided, however, that such activities are secondary and subordinate to the primary residential
use of such Lot and do not create unreasonable traffic congestion, involve advertising on the Lot,
alter the appearance of a Lot, alter the aesthetics of the Project, or violate any applicable laws or
regulations or the provisions of this Declaration.
Section 11.3 Signs. No sign or billboard of any kind shall be displayed to the public
view on any portion of the Project except such signs as may be used by Declarant or its sales
agents in connection with the development of the Project and sale of the Lots; provided,
however:
(a) A Member or his or her agent may display on his or her Lot or that
portion(s) of the Common Area or Association Maintenance Area approved by the Board, a sign
advertising its sale or lease by him or her so long as such sign shall comply with any customary
and reasonable standards promulgated by the Board as to the size, color, shape or other
qualification for permitted signs;
(b) An Owner may display a noncommercial sip, poster, flag, or
banner (a "Sign") if such Sign (i) is made of paper, cardboard, cloth, plastic, or fabric (no such
Sign may be placed, maintained, affixed or painted on any portion of the Common Area or
Association Maintenance Areas); (ii) is posted or displayed in the yard, balcony or deck of the
Owner's Lot or on the window or door of the Owner's residence; (iii) does not include lights,
balloons or any other similar decorative component, or include the painting of architectural
surfaces; (iv) is not more than nine (9) square feet in size with respect to solid Signs and fifteen
(15) square feet in size for flags or banners; (v) does not endanger public health or safety or
violate a local, state, or federal law; and (vi) is not otherwise a nuisance under Section 11.4;
This Section shall not be deemed to prohibit a Member from displaying the flag of the United
States made of fabric, cloth or paper and displayed from a staff or pole or in a window on or in
that Owner's Lot; provided, however, a depiction or emblem of the flag of the United States
made of lights, paint, roofing, siding, paving materials, flora or balloons or any other similar
building, landscaping or decorative component shall be prohibited. The rights of an Owner to
070802\8587958v5 41
display in or on the Owner's Lot religious or holiday signs, symbols and decorations of the kinds
normally displayed in residential neighborhoods shall not be prohibited; however, the
Association may adopt time, place and manner restrictions for such displays if they are visible
outside the Residence; and
(c) Owners may install a maximum of two (2) signs which disclose
that the Lot is protected by a security system. Such security signs may be placed on or around
the Lot; provided, however, that such signs do not exceed customary dimensions.
Section 11.4 Nuisance. No noxious or offensive trade or activity shall be carried on
upon any Lot or any part of the Project, nor shall anything be done thereon which may be or may
become an annoyance, health or safety concern or nuisance to the Project which shall in any way
interfere with the quiet enjoyment of each of the Owners of his or her respective Lot, which shall
in any way increase the rate of any insurance policy maintained by the Association, or which will
violate any applicable law, ordinance, statute, rule or regulation of any governmental body with
jurisdiction over the Project.
Section 11.5 Temporary Structures. No structure of a temporary character, trailer,
basement, shack, barn, storage building or shed or other outbuilding shall hereafter be used on
any Lot at any time either temporarily or permanently without the prior consent or approval of
the Architectural Committee; provided, however, that the foregoing restriction shall not be a
restriction upon the use of any Lot owned by Declarant.
Section 11.6 Vehicles. Parking within the Project shall be permitted only as follows:
(a) Each Owner shall maintain the space within his or her garage so
that at least two (2) vehicles may be parked therein and shall utilize his or her garage to park his
or her vehicles; provided, however, if an Owner owns more than one (1) vehicle, that Owner
may park such excess vehicles (including commercial and/or recreational vehicles or equipment)
in such Owner's garage and may park conventional passenger vehicles or registered motorcycles
that are generally driven on an everyday basis by such Owner first(i) on such Owner's driveway
(subject to the further limitation in subsection (d)(ii) below); then, (ii) if such Owner's garage
and driveway are full or cannot accommodate a conventional passenger vehicle due to the length
of the driveway, on the street in close proximity to the Owner's Lot. For purposes of this Section
11.6, "Owner" shall refer to an Owner, his or her tenants, and their respective household
members living in such Owner's residence.
(b) An Owner's guest may park his or her conventional passenger
vehicle in such Owner's garage, on such Owner's driveway (subject to the further limitation in
subsection (d)(ii) below), or on the street in close proximity to the Owner's Lot provided that
guest parking on the street shall be limited to seventy two (72) hours or such longer period of
time as may be approved in writing by the Board and subject to such Rules and Regulations as
are adopted by the Board but not in excess of one (1) week.
(c) No commercial or recreational vehicles or equipment shall be
permitted to remain upon the Project, including, without limitation, streets, alleys, driveways, or
rear yards, except as follows:
070802\8587958v5 42
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(i) An Owner may park commercial or recreational vehicles or
equipment owned by such Owner within his or her garage;
(ii) Commercial vehicles being used in the furnishing of
services to an Owner may be parked on such Owner's driveway or on the street in close
proximity to that Owner's Lot for such period of time as is reasonably necessary therefor;
(iii) Recreational vehicles may be parked within a designated
area approved for such use (if any) by the Architectural Committee in accordance with the
Design Guidelines, or on the street in close proximity to the Lot of the Owner using the
recreational vehicle or whose guest is using the recreational vehicle for a maximum of seventy-
two (72) hours or for such longer period of time as may be approved in writing by the Board and
subject to such Rules and Regulations as are adopted by the Board but not in excess of one (1)
week; and
(iv) Emergency vehicles provided by the fire department or
other emergency service provider may be parked within the Project in the course of providing
such emergency service to the Project.
(d) Notwithstanding anything set forth in this Declaration to the
contrary, no vehicles of any type (other than emergency vehicles provided by the fire department
or other emergency service provider in the course of providing such emergency service to the
Project) may be parked in any of the following areas: (i) areas designated as a fire lane, (ii) in
any driveway that measures less than 18' from the garage to the back of sidewalk (provided,
however, this clause (ii) shall not apply to registered motorcycles) nor in excess of the intended
capacity of a driveway, (iii) on any sidewalk, (iv) on any cul-de-sac within the Project after 5:30
a.m. on solid waste service days, or (v) in any of the areas identified on Exhibit "E" attached
hereto as a "no parking" area. The Association shall be responsible for enforcement of this
subsection.
(e) No conventional passenger vehicle, recreational vehicle or
equipment or commercial vehicle or any other motorized vehicle may be dismantled, rebuilt,
repaired, abandoned, stored, disabled, serviced or repainted on a Lot . nor shall any
nonoperational vehicle be parked anywhere within the Project other than within the Owner's
garage; provided, however, such activity with respect to an Owner's conventional passenger
vehicle shall not be prohibited if such activity takes place within such.Owner's garage with the
garage door closedand such activity does not become an annoyance or nuisance to the
neighborhood or in any way interfere with the quiet enjoyment of each of the other Owners of
their respective Lots. For purposes of this Section, and without limiting the generality of the
foregoing, a vehicle shall be deemed to be in storage if such vehicle is placed on a Lot for the
primary purpose of storing such vehicle even if such vehicle is used occasionally. By way of
example and not limitation, a vehicle which is parked on the Project for a continuous period
exceeding seven (7) days without the prior written approval of the Board shall be deemed to be
in storage.
(f) As used in this Section "conventional passenger vehicles" shall be
defined to be station wagons, family sedans, mini-vans, sport utility vehicles, compacts,
070802\8587958x5 43
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subcompacts, pick-up trucks,pick-up trucks with shell not extending above the cab level beyond
one (1) foot, passenger vans and passenger vans with extended tops not extending more than six
(6) inches above the top of such van, but excluding vehicles having a Gross Vehicle Weight
Rating of 10,000 pounds or higher.
(g) As used in this Section, "recreational vehicles" shall include,
without limitation, trailers, boats, campers, trailer coaches, buses, house cars, camp cars, motor
homes (if a size larger than seven (7) feet in height and/or greater than one hundred twenty-four
(124) inches in wheel base length), or any other similar type of vehicle.
(h) As used in this Section, "registered motorcycles" shall be defined
to be motorcycles registered with the California Department of Motor Vehicles for regular
highway use.
(i) As used in this Section, "commercial vehicle" shall be defined as a
vehicle having a Gross Vehicle Weight Rating of 10,000 pounds or higher and/or any vehicle
with a sign displayed on any part thereof advertising any kind of business or on which racks,
materials, and/or tools are visible, or with a body type normally employed as a business vehicle
whether or not a sign is displayed on any part thereof. The type of motor vehicle license plate
shall not be material to the foregoing definition.
0) The Board may adopt rules for the regulation of the admission and
parking of vehicles within the Project, including the assessment of charges to Owners who
violate or whose invitees violate such rules, citing and towing of any violating vehicle. Any
charges so assessed shall be Remedial Assessments. The Association shall have the power and
right to enforce its Rules and Regulations regarding parking by all lawful means, including the
levying of fines, citing and towing of any violating vehicle. The owner of a violating vehicle
shall be responsible for all costs incurred to remedy the violation, including, but not limited to,
towing costs, citations and legal fees, and the Association shall not be liable for any damages
incurred by an Owner because of the removal in compliance with this Section or for any damage
to the Owner's vehicle caused by such removal, unless such damage resulted from the intentional
misconduct or gross negligence of the Association.
Section 11.7 Animals. No animals, livestock or poultry of any kind shall be raised,
bred or kept upon the Project except that up to two (2) dogs, two (2) cats or two (2) of any other
domestic household pets may be kept on the Lots, provided they are not kept, bred or maintained
for any commercial purpose or in numbers disallowed by the City of Fresno or deemed
unreasonable by the Board, whichever is less. Notwithstanding the foregoing, no animals or
fowl may be kept on the Lots which in the good faith judgment of the Board or a committee
selected by the Board for this purpose result in an annoyance or are obnoxious to residents in the
vicinity, including without limitation, any dog which routinely barks excessively. All dogs
permitted to be kept by this Section shall be kept on a leash by a person capable of controlling
the dog when on any portion of the Project except within the fenced area of the Owner's Lot.
Each and every owner of any pet shall immediately clean, remove and dispose all animal waste
materials and shall dispose of same on their own Lot. Each Owner shall comply with all
reasonable rules and regulations promulgated by the Board regarding animals permitted to be
kept by this Section.
070802\8587958v5 44
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Section 11.8 Oil and Mineral Rights. No oil drilling, oil development operations, oil
refining, quarrying, or mining operations of any kind shall be permitted upon or in the Project
nor, subsequent to the recording of this Declaration, shall oil or water wells, tanks, tunnels, or
mineral excavations or shafts be installed upon the surface of the Project or with respect to water
wells, within fifty (50) feet below the surface of the Project and with respect to all other matters,
within five hundred (500) feet below the surface of such properties. No derrick or other structure
designed for use in boring for water, oil or natural gas shall be erected, maintained or permitted
upon the Project.
Section 11.9 Unsightly Items. All weeds, rubbish, debris, or unsightly material or
objects of any kind (as determined by the Board in its reasonable discretion) shall be regularly
removed from the Lots and shall not be allowed to accumulate thereon, nor shall any exterior
portion of a Lot be used for storage purposes except within enclosed facilities approved by the
Architectural Committee. There shall be no exterior drying or laundering of clothes on
balconies, patios, porches or other outside areas unless obscured from view by a fence or
appropriate screen approved by the Architectural Committee. Trash, garbage or other waste
shall be kept only in sanitary containers, and no Owner shall permit or cause any trash or refuse
to be kept on any portion of the Project other than in receptacles customarily used for it, and any
and all refuse containers, trash cans, woodpiles, storage areas, machinery and equipment which
are stored on a Lot must be concealed behind fences such that they are not visible to the street or
clearly visible to adjacent Lots, except, as to refuse containers and trash cans, placed for
collection before 5:30 a.m. on the scheduled day for trash pickup, but not before 6:00 p.m. on the
preceding day and returned to their normal storage location by not later than 10:00 p.m. of the.
collection day. All walls, fences or screens shall comply with any standards established pursuant
to the ARTICLE V (Architectural Control) of this Declaration as to size, color or other
qualification for permitted walls, fences or screens. Without limiting the Architectural
Committee's authority to adopt more restrictive height limitations, no wall, fence or screen
(other than perimeter walls constructed by Declarant and/or as may be reconstructed in
substantial compliance with that original construction from time to time) shall exceed six (6) feet
in height.
Section 11.10 Antennae and Other Roof Structures. No television, radio, or other
electronic towers, aerials, antennae or device of any type for the reception or transmission of
radio or television broadcasts or other means of communication shall hereafter be erected,
constructed, placed or permitted to remain on the Project unless and until the same shall have
been approved in writing by the Architectural Committee, unless the same is contained within a
building or underground conduits, or unless such structure is a video or television antenna with a
diameter or diagonal measurement of one (1) meter or less and such antenna is not visible from
any street or Common Area. To the extent permitted by law, the Architectural Committee may
require a video or television antenna having a diameter or diagonal measurement of one (1)
meter or less to be reasonably screened from view of any street or Common Area, as the case
may be, provided such requirement does not significantly increase the cost of the video or
television antenna system (including all related equipment), and does not significantly decrease
its efficiency or performance. Notwithstanding the foregoing, all restrictions on video or
television antennas (including satellite dishes) shall be subject to all applicable federal, state and
local laws, including, but not limited to, the Federal Telecommunications Act of 1996; and
provided further that all television, radio, or other electronic towers, aerials, antennae or device
070802\8587958v5 45
52.
of any type for the reception or transmission of radio or television broadcasts or other means of
communication erected, constructed, placed, permitted to remain or used within the Project shall
comply with all such federal, state and local laws and regulations, including laws and regulations
prohibiting interference with other electronic equipment.
No appliances or installations on exterior roofs of structures shall be permitted unless
they are installed in such a manner that they are not visible from the Common Areas, Association
Maintenance Areas, common drives or other Lots, except as otherwise provided above with
respect to a video or television antenna and except that attic ventilators and solar panels which
are architecturally treated in conformity with guidelines contained in the Architectural Standards
(subject to the provisions of Section 714 of the California Civil Code, as same may be amended
from time to time) and which have been approved by the Architectural Committee pursuant to
the provisions of the Article hereof entitled "Architectural Committee" shall be permitted.
. . Section 11.1f Drainage. All drainage of water from any Lot shall drain or now into
adjacent streets or alleys and shall not be allowed to drain or flow upon, across, or under any
other portion of the Project unless an easement for such purpose is granted. An Owner shall not
alter the drainage of water which exists pursuant to the drainage plan originally created at the
time of the initial sale of his or her Lot by Declarant except through the use of a positive
drainage device approved by a licensed landscape architect or civil engineer which does not
materially affect the concentration or flow direction of drainage water under said drainage plan.
Each Owner shall also maintain in good condition and repair all gutters and other drainage
devices installed upon his or her Lot except to the extent that the Association shall be obligated
to maintain and repair as provided in this Declaration.
Section 11.12 Garages. Garage doors should not remain open for an extended period of
time, and the Board may adopt rules for the regulation of the opening of garage doors.
Section 11.13 Windows. Curtains, drapes, shutters or blinds may be installed as window
covers. No window shall be covered with aluminum foil, newspaper or other material not
designed for use as a window cover. Window coverings may only be mounted on the interior of
a structure, and are prohibited on the exterior thereof. All awnings, shade structures and
enclosed patios shall be subject to approval by the Architectural Committee.
Section 11.14 Backboards. Unless otherwise approved by the Architectural Committee,
no basketball backboards may be installed anywhere within the Project; provided, however, that
a Resident Owner may install a basketball backboard in the rear of his or her Lot provided that
such basketball backboard is not visible from any Common Area, Association Maintenance
Areas or common drives and may erect a temporary basketball backboard if such temporary
basketball backboard is stored out of sight from any Common Area, Association Maintenance
Areas or common drives at all times when not in use.
Section 11.15 Maintenance by Owner. The Owner of each Lot shall maintain his or
her Lot including the improvements which are a part thereof in a clean and attractive condition
except to the extent that the Association shall be obligated to-maintain and repair as may be
provided in this Declaration. Without.limiting the generality of the foregoing, the Owner of each
Lot shall: (a) generally keep his or her Lot free from rubbish and litter, (b) maintain and keep in
070802\8587958v5 46
53
good condition and repair the dwelling located upon his or her Lot, (c) maintain in good
condition and repair and adequately painted or otherwise finished all improvements which are
from time to time a part of his or her Lot, and (d) maintain all paved surfaces on his or her Lot
and keep them clean, reasonably dry and free of oil and other extraneous matter.
Section 11.16 Solar and Other Energy Saving Devices. No solar and other energy
saving device or system which was not part of the original construction of the Lots shall be
permitted to be installed without the prior written approval of the Architectural Committee.
Section 11.17 No Views. There are no views in the Project which are protected to any
extent pursuant to this Declaration, and no.Owner who becomes subject to the terms hereof shall
thereby obtain any view rights whatsoever. Each Owner and the Association, by accepting a
deed to a Lot or any Common Area, hereby acknowledges that any construction or installation by
Declarant or by other Owners following required approvals may impair the view of such Owner
or of the Members of the Association, and each Owner and the Association on behalf of the
Members hereby consent to such impairment.
Section 11.18 Limited Use Areas. Owners of Lots which contain an exclusive easement
in favor of a utility company, special assessment district, or similar entity for maintenance and
repair are prohibited from constructing any improvement, including without limitation, balconies
and decks over or on such easement areas (the "Limited Use Areas"), or in any way interfering
with the maintenance and repair obligations of any such entity with respect to the Limited Use
Areas.
Section 11.19 Compliance with Law. No Owner shall permit anything to be done or
kept in its, his or her Lot that violates any law, ordinance, statute, rule, or regulation of any local, .
county, state, or federal body.
Section 11.20 Exceptions. The restrictions set forth in ARTICLE V and in this
ARTICLE XI shall not and do not apply to any of the following:
(a) any part of the Project which is owned by any public body;
(b) any act done or proposed to be done upon the Project, or any
condition created thereon, by any governmental agency or entity, or the agents or employees of
any governmental entity acting in the scope of their authority as such agents or employees;
(c) any act done or proposed to be done upon the Project, or any
condition created thereon, by any utility company (including, but not limited to, companies
furnishing electric, gas, water, telephone, cable television and/or sewer service to all or parts of
the Project), or the agents or employees of any such company, which act could be done by such
company were this Declaration not made;
(d) any act done or proposed to be done upon the Project, or any
condition created thereon, by Declarant or its respective successors, assigns, agents, employees
or contractors, in connection with the marketing and sales by Declarant of the Lots, or in the
course of planning for, preparing the Project for and/or construction upon the Project, or any Lot,
of streets, utilities and residential buildings, and all other original improvements, or in
070802\8587958v5 47
Sy
connection with the exercise of any easement reserved to Declarant in ARTICLE XIII
(Easements) of this Declaration or in any conveyance document; provided, however, Declarant,
in exercising all of its rights under this Declaration, shall not unreasonably interfere with the use
of the Common Areas, Association Maintenance Areas or the Lots; and
(e) any act done or proposed to be done upon the Project or any
condition created thereon by any person pursuant to court order or the order of any public officer
or public agency; provided, however, the orders contemplated in this subparagraph are only
those which are the result of action initiated by public officers or agencies and which embody
mandatory requirements with penalties for non-performance and are not those orders which
result from the application of private parties or are merely permissive.
ARTICLE XII.
RIGHTS OF ENJOYMENT
Section 12.1 Members' Right of Enjoyment. Every Member shall have a
nonexclusive easement for use and enjoyment in and to the Common Areas and such right shall
be appurtenant to and shall pass with the interest of every Lot subject to all of the easements,
covenants, conditions, restrictions and other provisions of record or contained in this
Declaration, including, without limitation, the following provisions:
(a) the right of the Association to limit the number of guests of
Members and to limit the use of the Common Areas by persons not in possession of a Lot;
(b) the right of the Association to establish reasonable rules and
regulations pertaining to the use of the Common Areas;
(c) the right of the Association to borrow money for the purpose of
improving, replacing, restoring or expanding the Common Areas or adding new Common Areas
and in aid thereof, to mortgage said property, provided that the prior affirmative vote or written
approval of sixty-six and two-thirds percent (66 2/3%) of each of the Class A and the Class B
Member has been obtained to mortgage said property and provided further that the rights of the
lender thereunder shall be subordinated to the rights of the Members. In the event of a default
upon any such mortgage of the Common Areas, the lender's rights thereunder shall be limited to
a right, after taking possession of such properties, to charge admission and other fees as a
condition to continued enjoyment by the Members and, if necessary, to open the enjoyment of
the Common Areas to a wider public until the mortgage debt is satisfied, whereupon the
possession of such properties shall be returned to the Association and all rights of the Members
hereunder shall be fully restored;
(d) the rights of the Association to suspend the right of a Member to
use the Common Areas or any portion thereof designated by the Board during any time in which
any Assessment against his or her Lot remains unpaid and delinquent for a period not to exceed
thirty (30) days for any single infraction of the Rules of the Association; provided, that any
suspension of such right to use such Common Areas, except for failure to pay Assessments, shall
be made only by the Association or a duly appointed committee thereof, after notice and hearing
070802\8587958v5 48
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given and held in accordance with the Bylaws. Notwithstanding the foregoing, the Association
shall not have the right hereunder to suspend any Member's right to use any portion of the
Project necessary for such Member to gain access to his or her Lot;
(e) the right of the Association, subject to the approval rights of
Institutional Mortgagees pursuant to ARTICLE XV (Rights of Lenders) of this Declaration, to
dedicate or transfer all or any part of the Common Areas to any public agency, authority or
utility or other entity; and
(f) the right of the Association to establish, only if requested by and in
cooperation with the City, a special tax assessment district for the performance of all or a portion
of the maintenance and other functions now within the responsibility of the Association, together
with the right of the Association to convey, lease or otherwise transfer, subject to the provisions
of this Section, all or any portion of the Common Areas to said district.
Section 12.2 Delegation of Use. Any Member may delegate his or her right of
enjoyment to the Common Areas to the members of his or her family or his or her tenants who
reside on his or her Lot or to his or her guests subject to the Rules and Regulations. In the event
and for so long as an Owner delegates said rights of enjoyment to his or her tenants, said Owner
shall not be entitled to said rights.
Section 12.3 Waiver of Use. No Member may exempt himself from personal liability
for Assessments duly levied by the Association, nor release the Lot owned by him from the liens,
charges or other provisions of this Declaration, the Articles of Incorporation, Bylaws, and Rules
and Regulations by waiver of the use and enjoyment of the Common Areas, Association
Maintenance Areas or the abandonment of his or her Lot.
ARTICLE XIII.
EASEMENTS
Section 13.1 Amendment to Eliminate Easements. This Declaration cannot be
amended to modify or eliminate the easements reserved to Declarant without prior written
approval of Declarant and any attempt to do so shall have no effect. Any attempt to modify or
eliminate this Section shall likewise require the prior written approval of Declarant.
Section 13.2 Nature of Easements. Unless otherwise set forth herein, any easement
reserved to Declarant herein shall be nonexclusive.
Section 13.3 Certain Rights and Easements Reserved to Declarant.
(a) Utilities. There is hereby reserved to Declarant, together with the
right to grant and transfer the same to its successors and assigns, easements over the Project for
the installation and maintenance of electric, telephone, cable television, water, gas, sanitary
sewer lines and drainage facilities as are needed to service the Project, and for the construction,
maintenance, restoration and repair of a subterranean drain line; provided, however, such
070802\8587958v5 49
easements shall not unreasonably interfere with the use and enjoyment by the Members of their
Lots or the Common Areas.
(b) Cable Television. There is hereby reserved to Declarant, together
with the right to grant and transfer the same to its successors and assigns, easements over the
Project for the placement on, under or across the Project of transmission lines and other facilities
for a community antenna television system and thereafter to own and convey such lines and
facilities and the right to enter upon the Project to service, maintain, repair, reconstruct and
replace said lines or facilities, together with the right to grant and transfer the same; provided,
however, the exercise of such rights shall not unreasonably interfere with any Owner's
reasonable use and enjoyment of his or her Lot.
(c) Telecommunications. There is hereby reserved to Declarant,
together with the right to grant and transfer the same to its successors and assigns, easements
over the Project for the placement on, under or across the Project of fiber optic cable and/or other
telecommunication and video (broadband) systems, and for the installation in the Residences of a
low-voltage structured wiring systems (including RG6 coaxial cable, CAT5e cable, empty
conduit and related outlets and other facilities) and thereafter to own and convey such lines and
facilities and the right to enter upon the Project to service, maintain, repair, reconstruct and
replace said lines or facilities, together with the right to grant and transfer the same; provided,
however, the exercise of such rights shall not unreasonably interfere with any Owner's
reasonable use and enjoyment of his or her Lot.
(d) Water Rights. There is hereby reserved to Declarant with full right
and power, among others, to transfer or assign to others or to use or utilize on any other property
owned or leased by Declarant any and all water rights or interests in water rights no matter how
acquired by Declarant and owned or used by Declarant in connection with or with respect to the
Project, whether such water rights shall be riparian, overlying, appropriative, percolating,
prescriptive or contractual, provided, however, the reservation made herein shall not reserve to or
for the benefit of Declarant any right to enter upon the surface of the Project in the exercise of
such rights.
(e) Construction and Sales. There is hereby reserved to Declarant,
together with the right to grant and transfer the same to its successors and assigns, sales agents
and representatives and prospective purchasers of Lots, over the Project as the same may from
time to time exist, easements for construction, display, maintenance, sales and exhibit purposes
in connection with the sale or lease .of Lots within the Project; provided, however, such
easements shall not be for a period beyond the earlier of(i) ten (10) years from the conveyance
of the first Lot by Declarant to a Resident Owner or (ii) the sale of all Lots within the Project to
Resident Owners, and provided further that no such use by Declarant or others shall otherwise
unreasonably restrict the Members in the reasonable use and enjoyment of the Project. There is
hereby further reserved to Declarant an easement over the Project for display, maintenance, sales
and exhibit purposes in connection with the use by Declarant of the model homes owned by
Declarant within the Project for the sale or lease of homes in other projects developed by
Declarant within the County, together with the right to grant and transfer the same to its
affiliates, successors and assigns, sales agents and representatives and prospective purchasers of
lots in such other residential projects; provided, however, (1) such easement shall not be for a
070802\8587958x5 50
period beyond ten (10) years from the conveyance of the first Lot by Declarant to a Resident
Owner, (2) use of the easement shall unreasonably restrict the Members in the reasonable use
and enjoyment of the Project, and (3) Declarant shall be obligated to pay its equitable share of
the cost of maintenance and repair of private streets within the Project.
(f) In er s�s/Egress to Annexable Property. Declarant further reserves
to itself, its successors and assigns, a nonexclusive easement over the Common Areas for ingress
and egress for the benefit of the Annexable Property. In the event all or any portion of the
Annexable Property is not annexed to the Project (the "Unannexed Property"), the Declarant
shall contribute to the Association the Declarant's fair share of the cost of maintenance and
repair of the Common areas used by the Declarant for ingress and egress purposes between the
Unannexed Property and public streets.
(g) Emergency Vehicle Access. There is hereby reserved to
Declarant, together with the right to grant and transfer the same to its successors and assigns,
easements over the Project, including the private streets, common drives, and/or the Common
Areas for fire department and other emergency vehicle access, as needed to service the Project.
In connection with the foregoing easement, Members are prohibited from parking on or
otherwise obstructing the streets, common drives and other areas within the Project designated
by the Association as "no parking" areas. Vehicles parked in violation of this Section 13.3(8)
shall be subject to towing at the sole cost of the owner of such vehicle. .
Section 13.4 Certain Easements for Owners.
(a) Rights and Duties: Utilities and Cable Television. Wherever
sanitary sewer house connections, water house connections, electricity, gas, telephone and cable
television lines or drainage facilities are installed within the Project, Declarant hereby reserves to
itself, its successors and assigns, and hereby grants to the Owners of any Lot served by said
connections, lines or facilities, easements and rights to the full extent necessary for the full use
and enjoyment of such portion of such connections which service that Lot, and to enter upon the
Lots owned by others, or to have utility companies enter upon the Lots owned by others, in or
upon which said connections, lines or facilities, or any portion thereof lie, to repair, replace and
generally maintain said connections as and when the same may be necessary as set forth below,
provided that such entry shall be during normal business hours, except for emergencies, and such
Owner or utility company shall promptly repair any damage to a Lot caused by such entry as
promptly as possible after completion of work thereon.
(b) Easements for Clustered Mailboxes. In order to comply with the
various requirements of the City, County and the United States Postal Service, clustered
mailboxes may be installed within the Project. Easements are hereby created on and over the
affected portions of the Project in favor of all Owners and the United States Postal Service for
delivery, deposit and retrieval of snail. The location of the clustered mailboxes as originally
installed may be subject to change as required by the United States Postal Service.
(c) Ingress and Egress ghts. For as long as Declarant is an Owner,
Declarant hereby reserves to itself, its successors and assigns, and hereby grants to all Owners,
nonexclusive easements for ingress, egress, and pedestrian walkway over and upon the Common
070802\8587958v5 51
Areas. Such easements when granted to Owners shall be subject to the rights of the Association
as set forth in ARTICLE XII (Rights of Enjoyment) of this Declaration.
(d) Rain Water Drainage Easements. Declarant hereby reserves to
itself, its successors and assigns, and hereby grants to all Owners, nonexclusive easements in and
over portions of Lots, which easements are hereby granted for the purpose of the installation and
placement of drainage pipes in the locations as initially installed by Declarant in order to drain
rain water from roofs or Lots; provided, however, that Declarant shall be under no obligation to
install or place such drainage pipes. No Owner shall interfere with the operation of such
drainage pipes, gutters or any other drainage devices installed by Declarant.
Section 13.5 Certain Easements for Association.
(a) Association Rights. There is hereby reserved to Declarant
easements over the Project, which easements are hereby granted to the Association, for the
purpose of permitting the Association to discharge its obligations and powers as described in this
Declaration, including, without limitation, its maintenance obligations with respect to the
Common Areas and Association Maintenance Areas.
(b) Rights and Duties: Utilities and Cable Television. Wherever
sanitary sewer house connections, water house connections, electricity, gas, telephone and cable
television lines or drainage facilities are installed within the Project, and said connections, lines
or facilities serve the Common Areas or Association Maintenance Areas, the Association shall
have the right and there is hereby reserved to Declarant, together with the right to grant and
transfer the same to the Association, an easement to the full extent necessary for the full use and
enjoyment of such portion of such connections which service the Common Areas or Association
Maintenance Areas and to enter upon the Lots owned by others, or to have utility companies
enter upon the Lots owned by others, in or upon which said connections, lines or facilities, or any
portion thereof lie, to repair, replace and generally maintain said connections as and when the
same may be necessary as set forth below, provided the Association or utility company shall
promptly repair any damage to a Lot caused by such entry as promptly as possible after
completion of work thereon.
Section 13.6 Support, Settlement and Encroachment. There is hereby reserved. to
Declarant and its successors and assigns .the following reciprocal easements, which easements
are hereby granted to the Owners, for the purposes set forth below:
(a) an easement appurtenant to each Lot which is contiguous to
another Lot or Common Areas which Lot shall be the dominant tenement and the contiguous Lot
or Common Areas shall be the servient tenement;
(b) an easement appurtenant to the Common Areas contiguous to a.
Lot, which Common Areas shall be the dominant tenement and which contiguous Lot shall be
the servient tenement;
(c) it is provided, however, that in the event Common Areas are the
dominant tenement in an easement described in this Section, Declarant shall have the right to
transfer said easement to the Association and not to Owners;
070802\8587958v5 52
�cl.
(d) the easements described in this Section shall be for the purposes
of:
(i) engineering errors, errors in original construction and
support and accommodation of the natural settlement or shifting of structures;
(ii) encroachment by reason of a roof or eave overhang from a
Lot and for the maintenance of such roof or eave overhang by the Owner of the dominant
tenement; and
(iii) encroachment of fireplaces, doorsteps, foundation footings,
garage doors, utilities and other appurtenances or fixtures and the maintenance thereof by the
Owner of the dominant tenement which, in the construction of the structures upon the dominant
tenement or from any reconstruction or modifications of such structures, project beyond the
external surface of the outer walls of such structures.
ARTICLE XIV.
INTEGRATED NATURE OF THE PROJECT
The Annexable Property and/or any other real property may be annexed to and become
subject to this Declaration by any of the methods set forth hereinafter in this Article, as follows:
Section 14.1 Development of the Project. Declarant intends to develop the Annexable
Property on a phased basis; provided, however, Declarant may elect not to develop all or any part
of such real property, to annex such real property to this Declaration in increments of any size
whatsoever, or to develop more than one such increment at any given time and in any given
order. Although Declarant shall have the ability to annex the Annexable Property as provided in
this Article, Declarant shall not be obligated to annex all or any portion of such property, and
such property shall not become subject to this Declaration unless and until a Declaration of
Annexation as defined in Section 14.2, below, shall have been so executed and recorded.
Section 14.2 Declarations of Annexation. A "Declaration of Annexation" shall be a
writing in recordable form which annexes real property to the plan of this Declaration and which
incorporates by reference all of the covenants, conditions, restrictions, easements and other
provisions of this Declaration and shall contain such other provisions as set forth in this
Declaration relating to Declarations of Annexations. A Declaration of Annexation contemplated
above may contain such complementary additions and modifications of the covenants, conditions
and restrictions contained in this Declaration as may be necessary to reflect the _different
character, if any, of the annexed property and as are not inconsistent with the plan of this
Declaration. The Declaration of Annexation shall contain at least the following:
(a) A legal description of the portion of the Annexable Property to be
annexed; the names and addresses of the record owner or owners of said property; the names and
addresses of the beneficiaries and trustees of all mortgages and trust deeds which constitute liens
against said property as of the date said Declaration of Annexation is recorded;
070802\8587958v5 53
b�
(b) A statement submitting that portion of the Annexable Property to
be annexed to this Declaration, which shall be referred to by title and date and instrument
number of recording;
(c) A statement of the use restrictions imposed upon that portion of the
Annexation Property to be annexed as part of the general plan for the Project, which restrictions
may be the same as or different from those set forth in this Declaration; and
(d) A statement submitting that portion of the Annexable Property to
be annexed to the control of the Architectural Committee established in ARTICLE V of this
Declaration.
Section 14.3 Annexation Without Approval and Pursuant to General Plan. All or
any part of the Annexable Property may be annexed under and become subject to this
Declaration and subject to the jurisdiction of the Association without the approval, assent or vote
of the Association or its Members provided that a Declaration of Annexation covering the
portion of the Annexable Property to be annexed shall be executed and recorded by Declarant.
The Declaration of Annexation shall be in substantial conformance with the detailed plan of
phased development submitted to CaIBRE with the Final Subdivision Public Report application
for the first Phase of Development. The recordation of said Declaration of Annexation shall
constitute and effectuate the annexation of the said real property described therein, making said
real property subject to this Declaration and subject to the functions, powers and jurisdiction of
the Association, and thereafter said annexed real property shall be part of the Project and all of
the Owners of Lots in said annexed real property shall automatically be Members.
Section 14.4 Annexation Pursuant to Approval. Upon approval in writing of the
Association, pursuant to a two-thirds (2/3) majority of the voting power of the Association
residing in Members other than Declarant, any person who desires to add real property other than
the Annexable Property to the plan of this Declaration and to subject such property to the
jurisdiction of the Association may file of record a Declaration of Annexation. The certificate of
the President and the Secretary of the Association attached to any Declaration of Annexation
recorded pursuant to this Section certifying that the required two-thirds (2/3) majority of the
voting power of the Association residing in Members other than Declarant has approved the
recordation of such Declaration of Annexation shall be deemed conclusive proof thereof.
Section 14.5 De-Annexation. Any property annexed to the Project by the Declarant in
accordance with the provisions of this Declaration may be removed by Declarant as a portion of
the Project and from the jurisdiction of this Declaration and the Association at any time by the
recordation of an appropriate "Declaration of Removal," provided that (1) such Declaration of
Removal is recorded in the same manner as the applicable Declaration of Annexation was
recorded, (2) Declarant has not exercised any Association vote with respect to any portion of
such Phase of Development, (3) assessments have not yet commenced with respect to any
portion of such Phase of Development, and (4) close of escrow has not occurred for the sale of
any Lot in such Phase of Development to a Resident Owner; provided, however, that in the event
any Common Area is conveyed to or becomes subject to a special tax district, open space
maintenance district or other assessment district, such Declarant or the president of the Board
070802\8587958x5 54 f
p�
shall have the right to execute and record a Declaration of Removal for such Common Area
without the consent of any other Owner.
The Declaration of Removal shall contain at least the following:
(a) A legal description of the portion of the Project to be removed; the
names and addresses of the record owner or owners of said property; and
(b) A statement removing that portion of the Project to be removed
from this Declaration, which shall be referred to by title and. date and instrument number of
recording.
Any property which is removed by Declarant may be annexed at a future date to
the Project in accordance with the provisions of this Declaration.
ARTICLE XV.
RIGHTS OF LENDERS
Section 15.1 Filing Notice; Notices and Approvals. Upon filing a written request for
notification with the Board, each First Mortgagee, insurer and guarantor of a First Mortgage shall
be entitled to written notification from the Association of matters as "Eligible Mortgagees" as
set forth below in this ARTICLE XV (Rights of Lenders) of this Declaration. Notwithstanding
the foregoing, if any right of a Mortgagee under this Declaration is conditioned on a specific
written request to the Association, in addition to having delivered the notice provided in this
Section, a Mortgagee must also make such request, either in a separate writing delivered to the
Association or in the notice provided above in this Section, in order to be entitled to such right.
Except as provided in this ARTICLE XV (Rights of Lenders) of this Declaration, a Mortgagee's
rights pursuant to this Declaration, including, without limitation, the priority of the lien of
Mortgages over the lien of Assessments levied by the Association hereunder, shall not be
affected by the failure to deliver a notice to the Board. Any notice or request delivered to the
Board by a Mortgagee shall remain effective without any further action by such Mortgagee for
so long as the facts set forth in such notice or request remain unchanged.
Section 15.2 Priority of Mortgage Lien. No breach or amendment of the covenants,
conditions or restrictions herein contained, nor the enforcement of any lien provisions herein,
shall affect, impair, defeat or render invalid the lien or charge of any First Mortgage made in
good faith and for value encumbering any Lot, but all of said covenants, conditions and
restrictions shall be binding upon and effective against any Owner whose title is derived through
foreclosure or trustee's sale, or otherwise, with respect to a Lot except as otherwise provided in
this Article.
Section 15.3 Curing Defaults. A Mortgagee, or the immediate transferee of such
Mortgagee, who acquires title by judicial foreclosure, deed in lieu of foreclosure or trustee's sale
shall not be obligated to cure any breach of the provisions of this Declaration which is
noncurable or of a type which is not practical or feasible to cure. The determination of the Board
070802\8587958v5 55
io2.
made in good faith as to whether a breach is noncurable or not feasible to cure shall be final and
binding on all Mortgagees.
Section 15.4 Resale. It is intended that any loan to facilitate the resale of any Lot after
judicial foreclosure, deed in lieu of foreclosure or trustee's sale is a loan made in good faith and
for value and entitled to all of the rights and protections afforded to other Mortgagees.
Section 15.5 Relationship with Assessment Liens.
(a) The lien provided for in ARTICLE IV (Nonpayment of
Assessments) of this Declaration for the payment of Assessments (excepting Remedial
Assessments) shall be subordinate to the lien or any First Mortgage which was recorded prior to
the date any such Assessment becomes due.
(b) If any Lot subject to a monetary lien created by any provision
hereof shall be subject to the lien of a First Mortgage, (1) the foreclosure of any lien created by
anything set .forth in this Declaration shall not operate to affect or impair the lien of such First
Mortgage, and (2) the foreclosure of the lien of said First Mortgage (such event being hereinafter
referred to as an "Event of Foreclosure") shall not operate to affect or impair the lien hereof,
except that any persons who obtain an interest through an Event of Foreclosure and their
successors in interest shall take title free and clear of the lien hereof or any personal obligation
for said charges as shall have accrued up to the time of an Event of Foreclosure but subject to the
lien hereof for all said charges that shall accrue subsequent to the Event of Foreclosure.
(c) Any Mortgagee who obtains title to a Lot by reason of an Event of
Foreclosure or any purchaser at a private or judicial foreclosure sale shall take title to such Lot
free and clear of any lien or claim for unpaid Assessments against such Lot which accrue prior to
the time such Mortgagee or purchaser takes title to such Lot except for liens or claims for a share
of such Assessments resulting from a pro rata reallocation of such Assessments to all Lots within
the Project.
(d) Nothing in this Section shall be construed to release any Owner
from his or her obligations to pay for any Assessment levied pursuant to this Declaration.
Section 15.6 Vote of Eligible Mortgagees. Except with: (1) the consent of Owners of
Lots, other than Declarant, to which at least sixty-seven percent (67%) of the votes in the
Association are allocated, and (2) the approval of Eligible Mortgagees holding Mortgages on
Lots which have at least fifty-one percent (51%) of the votes of Lots subject to Mortgages held
by Eligible Mortgagees, neither the Association nor the Members shall be entitled to do any of
the following:
(a) subject to the provisions of Section 6.10, above, dissolve the
Association or abandon or terminate the maintenance of the Common Areas by the Association;
(b) amend a material provision to the Declaration or to the Bylaws,
provided "material amendment" shall mean amendments governing the following subjects:
070802\8587958v5 56
(i) the fundamental purpose for which the Project was created
(such as a change from residential use to a different use);
(ii) voting;
(iii) increases in assessments that raise the previously assessed
amount by more than 25 percent (25%), assessment liens, or the prior of assessment liens;
(iv) the reserve for repair and replacement of the Common
Areas;
(v) property maintenance obligations;
(vi) casualty, fidelity and liability insurance or the allocation of
proceeds thereof,
(vii) reconstruction in the event of damage or destruction;
(viii) rights to use the Common Areas;
(ix) de-annexation;
(x) any provision, which by its terms, is specifically for the
benefit of First Mortgagees, or specifically confers rights of First Mortgagees; and
(xi) restrictions on the leasing of Lots;
(c) effectuate any decision to terminate professional management and
assume self-management of the Project; or
(d) abandon, partition, sell, alienate, subdivide, release, transfer,
assign, hypothecate or otherwise encumber the Common Areas or any other Asset, with an
aggregate fair market value in excess of five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year; provided, however, that the following acts shall not require such
approval: (i) the granting of easements for public utilities or other public purposes consistent
with the intended use of the Common Areas, (ii) the granting to an Owner or Owners of
exclusive easements over portions of the Common Area or of fee interests in portions of the
Common Area pursuant to a recorded lot line adjustment approved by the requisite governmental
entity, so long as each such grant to an Owner is reasonably required for the purposes of
conformity with the as-built location of authorized improvements, or (iii) the conveyance of any
Common Area easement to the City, community facilities district or other assessment district.
Institutional Mortgagees who fail to respond within sixty (60) days after receipt of notice of any
of the actions described above, sent by certified or registered mail, return receipt requested, may
be deemed by the Board to have approved the proposed action.
070802\8587958v5 57
Section 15.7 Other Rights of Institutional Mortgagees. Any Institutional Mortgagee
or its mortgage servicing contractor, and the insurer or guarantor of a First Mortgage, shall, upon
written request to the Association, be entitled to:
(a) inspect the books and records of the Association during normal
business hours;
(b) receive the annual audited financial statement of the Association
one hundred and twenty (120) days following the end of the Association's fiscal year;
(c) receive written notice of all annual and special meetings of the
Members of the Board, and designate a representative to attend all such meetings in order to,
among other things, draw attention to violations of this Declaration which have not been
corrected or made the subject of remedial action by the Association; provided, however, nothing
contained in this Section shall give an Institutional Mortgagee or the insurer or guarantor of a
First Mortgage the right to call a meeting of the Board or of the Members for any purpose or to
vote at any such meeting;
(d) receive written notification from the Association of any default in
the performance of the obligations imposed by this Declaration by the Owner whose Lot is
encumbered by such Institutional Mortgagee, insurer or guarantor's Mortgage which default has
not been cured within sixty (60) days of a request therefor by the Association; provided,
however, the Association shall only be obligated to provide such notice to Institutional
Mortgagees who have delivered a written request therefor to the Association specifying the Lot
or Lots to which such request relates; and
(e) receive written notice from the Association of any lapse,
cancellation or material modification of any policy of insurance or fidelity bond maintained by
the Association.
Section 15.8 Mortgagees Furnishing Information. Mortgagees are hereby authorized
to furnish information to the Board concerning the status of any Mortgage.
Section 15.9 Right of First Refusal. In the event this Declaration is amended to
provide for any right of first refusal to purchase or lease a Lot in the Association, a Mortgagee
who comes into possession of a Lot pursuant to a judicial foreclosure, a deed in lieu of
foreclosure or a trustee's sale shall be exempt therefrom. In addition conveyances to and from
third party foreclosure purchasers and mortgage insurers and guarantors shall also be exempt.
Section 15.10 Conflicts. In the event of any conflict between any of the provisions of
this Article and any of the other provisions of this Declaration, the provisions of this Article shall
control.
Section 15.11 Voting Rights of Institutional Mortgagees. In the event of a default by
an Owner in any payment due under the terms of any Institutional Mortgage held by an
Institutional Mortgagee or the promissory note secured thereby, the Institutional Mortgagee or
his or her representative shall have the right, upon giving written notice to such defaulting Owner
and the Association and placing of record a notice of default, to exercise the voting rights of such
070802\8587958v5 58
�v5
defaulting Owner attributable to such Lot at any regular or special meeting of the Members held
during such time as such default may continue. Any such Owner's voting rights shall be restored
to him at such time as such default is cured.
Section 15.12 Notice of Destruction or Taking. In the event that any Common Areas,
or any portion thereof, is substantially damaged or is made the subject of any condemnation
proceeding in eminent domain or is otherwise sought to be acquired by a condemning authority,
the Board shall promptly notify any Institutional Mortgagee, insurer or guarantor of a First
Mortgage affected by such destruction, taking or threatened taking, provided such Institutional
Mortgagee, insurer or guarantor has delivered to the Board a written notice stating that such
Institutional Mortgagee, insurer or guarantor is the holder, insurer or guarantor, respectively, of a
First Mortgage encumbering a Lot within the Project. As used herein, "substantially damaged"
or "taking" shall mean damage or taking exceeding Ten Thousand Dollars ($10,000). If
requested in writing by an Institutional Mortgagee, insurer or guarantor, the Association shall
evidence its obligations under this Section in a written agreement in favor of such Institutional
Mortgagee, insurer or guarantor.
Section 15.13 Payment of Taxes or Premiums by Institutional Mortgagees.
Institutional Mortgagees may, jointly or singly, pay taxes or other charges which are in default
and which may or have become a charge against the Common Areas, unless such taxes or
charges are separately assessed against the Owners, in which case the rights of Institutional
Mortgagees shall be governed by the provisions of their Mortgages. Institutional Mortgagees
may, jointly or singly, also pay overdue premiums on hazard insurance policies, or secure new
hazard insurance coverage on the lapse of a policy, for the Common Areas and Institutional
Mortgagees making such payments shall be owed immediate reimbursement therefor from the
Association. Entitlement to such reimbursement shall be reflected in an agreement in favor of
any Institutional Mortgagee which requests the same to be executed by the Association.
ARTICLE XVI.
ANNUAL INSPECTION
Section 16.1 Duty to Inspect. It shall be the duty of the Board to have the Common
Areas and Association Maintenance Areas inspected at least once each year.
Section 16.2 Purpose of Inspection. The purpose of the inspection shall be to (i)
determine whether the Common Areas or Association Maintenance Areas and any improvements
thereon are being maintained adequately in accordance with the standards of maintenance
established in Section 6.2 and Section 7.1 hereof, (ii) identify the condition of the Common
Areas, Association Maintenance Areas and any improvements thereon including the existence of
any hazards, and the need for performing additional maintenance, refurbishment, replacement, or
repair, and (iii) recommend preventive actions which may be taken to reduce potential
maintenance costs to be incurred in the future. .
Section 16.3 Scope of Inspection. All of the Common Areas, Association
Maintenance Areas and improvements thereon including, but not limited to, the exterior integrity
070802\8587958x5 59
�P
of all structures, gates, walls, walkways, irrigation systems, landscaping, and drainage devices
shall be inspected. The Board shall not permit forensic inspections and/or destructive testing for
alleged defects within the Common Areas or Association Maintenance Areas without first calling
a special meeting of the Members for the purpose of discussing the merits of such inspections
and/or testing and obtaining the vote or written approval of a majority of the voting power of the
Association. Such meeting shall be called according to the provisions of the Bylaws dealing
with special meetings of the Members.
Section 16.4 . Experts and Consultants. The Board may employ such experts and
consultants as are necessary to perform the inspection and make the report required by this
Article.
Section 16.5 Inspectors. No.inspector may be hired or permitted to make inspections
of Common Areas or Association Maintenance Areas without the prior authorization of the
Board. The Board shall not retain an inspector for purposes of this Article without first finding
that such inspector is qualified, is an impartial specialist in homeowner maintenance inspections,
and is not receiving or paying compensation or gratuities to or from Declarant, any vendor under
a current or potential Contract with the Association, the Association's management company,
any attorney, or the employees of any of the foregoing. All inspectors shall be compensated on a
fee-for-service basis and shall not be compensated based upon the results of the inspection or any
requirement for further services. The Board shall not hire or permit inspections to be made by
inspectors offering free inspections or inspections for fees substantially below industry norms.
Section 16.6 Report of Results. The Board shall have a report of the results of the
inspection of the Common Areas and Association Maintenance Areas required by this Article
prepared, which report shall be made available for inspection by Owners during non-nal business
hours. The report shall include at least the following:
(a) a description of the condition of the Common Areas and
Association Maintenance Areas, including a list of items inspected, and the status of
maintenance, repair and need for replacement of all such items;
(b) a description of all maintenance, repair and replacement planned
for the ensuing fiscal year and included in the Ca1BRE Accepted Budget;
(c) if any maintenance, repair or replacement is to be deferred, the
reason for such deferral;
(d) a surmnary of all reports of inspections performed by any expert or
consultant employed by the Board to perform inspections;
(e) a report of the status of compliance with the maintenance,
replacement and repair needs set forth in the inspection report for preceding years; and
(f) such other matters as the Board deems appropriate.
070802\8587958v5 60
ARTICLE XVII.
RIGHTS OF THE CITY OF FRESNO
Section 17.1 City's Rights. Notwithstanding any other provisions of this Declaration
to the contrary and in addition to any standards or provisions set by other applicable codes,
ordinances or laws, the following requirements shall apply:
Section 17.2 Access Easements. The City is hereby granted the right of immediate
access to all portions of the Common Areas for the purpose of preserving the public health,
safety, and welfare.
Section 17.3 Sewer, Water and Storm Drainage Lines. The Association shall have
the duty to maintain and repair all on-site sewer, water and storm drainage facilities, unless the
City or flood control district have determined that a particular facility should be public to provide
necessary system completion or otherwise protect public health, safety, and welfare.
Section 17.4 Utilities. The Association shall have the duty to pay for all utility charges
which are not separately metered and billed, including but not limited to charges for sewer,
water, gas, electric and waste collection service.
Section 17.5 Party Walls. No Owner shall alter, modify, reconstruct, or do any other
thing to any party wall within the Project or to any plumbing, electrical or mechanical fixture
located along such wall which will impair the integrity of the wall as a fire separation without the
review and approval of the Building Official of the City. City approval shall be in addition to,
and shall not eliminate the need for, Architectural Committee approval pursuant to ARTICLE V
of this Declaration.
Section 17.6 Fire Insurance. The Association shall provide fire and extended
insurance for all structures and buildings within the Common Areas and Association
Maintenance Area of the Project.
Section 17.7 Public Easement and Common Area Maintenance. The Association
shall landscape and maintain: (1) all Common Areas, including all facilities and all landscaped
areas within any of those Common Areas adjacent to public or private street right-of-ways and
asphalt and other street improvements within the Project; as well as, (2) the Association
Maintenance Areas shown on Exhibit "D" of this Declaration. The Association shall maintain
such areas in good condition and in a manner compatible with the requirements of the City's
Municipal Code and City standards, and shall not decrease the amount of Regular Assessments
charged against Members of the Association, if such decrease will adversely affect the ability of
the Association to perform these duties. After thirty (30) days written notice to the Association,
the City may make any repairs and/or maintenance to the improvements, fixtures, facilities
and/or landscaping in the Common Areas and/or the Association Maintenance Areas, to bring
such improvements, facilities, fixtures and/or landscaping into compliance with the City
Municipal Code and/or City standards and/or the standards imposed under any relevant
subdivision agreement, covenant or conditions of approval required to approve Final Map No.
6099. The City may also pursue any civil, administrative or criminal action available at law and
070802\8587958v5 61
in equity to obtain compliance with this Section and the Fresno Municipal Code. The City may
recover any costs incurred in enforcing this Declaration, including any and all abatement costs,
and any attorney's fees in any civil action, administrative action, and/or special proceeding. The
City may impose a lien against the Association and/or the Owners to recover its costs.
Section 17.8 City Easements; Repair of Street Improvements Due to Repair of
Public Facilities. There is hereby reserved to Declarant easements over the Project, which
easements are hereby granted to the City, (i) to enter the Project for the maintenance, repair and
replacement of public water and sewer mains and lines that are to be located within the private
streets within the Project and other public utility facilities within the Project, and (ii) to engage in
any and all traffic control measures necessary to preserve public health and safety during such
maintenance, repair and replacement of the facilities. Neither the Association nor any Owner
may interfere with the City's right to exercise the easement granted by this Section 17.8. The
cost of repair and replacement of asphalt and other street improvements within the Project due to
the repair of public utilities within the streets shall be at the expense of the Association and shall
be performed to City standards.
Section 17.9 Indemnification. To the furthest extent allowed by law, the Association
shall indemnify, hold harmless and defend the City and each of its officers;.officials, employees,
agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and
damages (whether in contract, tort or strict liability, including but not limited to personal injury,
death at any time and property damage) incurred by the City, the Association or any other
person, and from any and all claims, demands and actions in law or equity (including attorney's
fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of the
City's maintenance, repair, or replacement of utilities or related replacement of asphalt or street
or other improvements. The Association's obligations under the preceding sentence shall apply
regardless of whether the City or any of its officers, officials, employees, agents or volunteers are
passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or the willful misconduct, of the City or any of
its officers, officials, employees, agents or volunteers.
Section 17.10 Special Amendment Rights. Any amendment by the Association to
Section 1.12, Section 1.13, Section 7.1, Exhibit "C," Exhibit "D," the provisions of this
ARTICLE XVII or any other provision specifying any right of the City shall be approved as to
form by the City Attorney of the City prior to any such amendment being valid. No later than
the date that is thirty (30) calendar days after its receipt of a proposed amendment, the City shall
deliver written notice of its approval or disapproval of the proposed amendment to the party who
delivered the proposed amendment to the City. If the City fails to deliver such written notice
within such thirty (30) calendar day period, the City shall be deemed to have approved the
proposed amendment.
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ARTICLE XVIII.
GENERAL PROVISIONS
Section 18.1 Enforcement. The Association, Declarant and/or any Owner shall have
the right to enforce by proceedings at law or in equity all restrictions, conditions, covenants and
reservations now or hereafter imposed by the provisions of this Declaration or any amendment or
supplement thereto, including the right to prevent the violation of any such restrictions,
conditions, covenants, or reservations and the right to recover damages or other dues for such
violation. The Association, the Declarant or any Owner shall also have the right to enforce by
proceedings at law or in equity the provisions of the Articles of Incorporation or Bylaws and any
amendments thereto. With respect to architectural control and Rules and Regulations, the
Association shall have the exclusive right to the enforcement thereof unless the Association
refuses or is unable to effectuate such enforcement, in which case any Owner who otherwise has
standing and/or Declarant shall have the right to undertake such enforcement. With respect to .
Assessment liens, the Association shall have the exclusive right to the enforcement thereof.
Section 18.2 No Waiver. Failure by the Association or by any Member to enforce any
covenant, condition, or restriction contained in this Declaration, the Articles of Incorporation,
Bylaws, or Rules and Regulations in any certain instance or on any particular occasion shall not
be deemed a waiver of such right on any such future breach of the same or any other covenant,
condition or restriction.
Section 18.3 Cumulative Remedies. All rights, options and remedies of Declarant (so
long as Declarant is an Owner), the Association, the Owners and the Mortgagees under this
Declaration are cumulative, and not one of them shall be exclusive of any other, and.Declarant
(so long as Declarant is an Owner), the Association, the Owners and the Mortgagees shall have
the right to pursue any one or all of such rights, options and remedies or any other remedy or
relief which may be provided by law whether or not stated in this Declaration.
Section 18.4 Severability. Invalidation of any one or a portion of these covenants,
conditions or restrictions by judgment or court order shall in no way affect any other provisions,
which shall remain in full force and effect.
Section 18.5 Covenants to Run with the Land; Term. The covenants, conditions and
restrictions of this Declaration shall run with and bind the Project and shall inure to the benefit of
and be enforceable by the Association or any Owner, their respective legal representatives, heirs,
successors and assigns, for a term of sixty (60) years from the date this Declaration is recorded,
after which time said covenants, conditions and restrictions shall be automatically extended for
successive periods of ten (10) years unless an instrument signed by a majority of the then
Owners and seventy-five percent (75%) of the Eligible Mortgagees, based on one (1) vote for
each First Mortgage held, has been recorded at least one (1) year prior to the end of any such
period, agreeing to terminate said covenants, conditions and restrictions in whole or in part.
Section 18.6 No Dedication. No public rights are created by this Declaration either by
gift, declaration or dedication.
070802\8587958v5 63
Section 18.7 Sale or Title Transfer. Any Resident Owner, prior to the sale or transfer
of his or her interest, must provide the prospective purchaser with a copy of(1) this Declaration,
(2) the Articles of Incorporation, (3) the Bylaws, (4) the most recent financial statements of the
Association, (5) a statement from an authorized representative of the Association listing all
unpaid assessments and charges against the interest being sold; (6) a copy or summary of any
notice previously sent to the selling Resident Owner setting forth any alleged violation of the
Management Documents that remains unresolved at the time of the request; (7) in the event the
Association has claimed an alleged defect in the Project, either (i) a copy of the preliminary list
of alleged defects provided by the Association to each Member pursuant to Civil Code Section
6000, or, (ii) if the Association has entered into a settlement agreement or otherwise resolved the
matter, a copy of the latest information provided by the Association pursuant to Civil Code
Section 6100, including without limitation, (A) the Association's general description of the
defects that the Association reasonably believes, as of the date of the disclosure, will be
corrected or replaced, and a good faith estimate, as of the date of the disclosure, of when the
Association believes that the defects will be corrected or replaced, and (B) the status of the
claims for defects in the design or construction of the Project that were not identified in clause
(A); and (8) any change in the current Regular Assessment or other Assessments and fees of the
Association that have been approved by the Board but have not yet become due and payable as
of the date of the disclosure to the prospective purchaser.
The Association shall provide any Owner with a copy of the items listed in the preceding
paragraph within ten (10) days of receiving a written request or shall make the same available to
the Owner and its prospective purchaser by electronic transmission. The Association's fee for
this service shall not exceed the cost of providing these items.
Any Resident Owner, prior to the sale or transfer of his interest, shall give the secretary
of the Association timely notice of the Resident Owner's intent to list the Lot for sale. Upon
closing of title such selling Resident Owner shall immediately notify the secretary of the
Association of the name and address of the new Lot Owner.
The Association shall not collect any fee in connection.with any transfer of title except
the Association's costs to change records and provide copies of requested documents.
Section 18.8 Construction. The provisions of this Declaration shall be liberally
construed to effectuate its purpose of creating a plan for the development of a residential
community or tract and for the maintenance of the Project. The Article and Section headings
have been inserted for convenience only and shall not be considered or referred to in resolving
questions of interpretation or construction. References to Code sections shall refer to any
amendment or successor statute to the referenced Code section.
Section 18.9 Singular Includes Plural. Whenever the context of this Declaration
requires same, the singular shall include the plural and the masculine shall include the feminine
and the neuter.
Section 18.10 Nuisance. The result of every act or omission, whereby. any provision,
condition, restriction, covenant, easement, or reservation contained in this Declaration is violated
in whole or in part, is hereby declared to be and constitutes a nuisance, and every remedy
070802\8587958x5 64
allowed by law or equity against a nuisance, either public or private, shall be applicable against
every such result and may be exercised by the Association or any Member. Such remedy shall
be deemed cumulative and not exclusive.
Section 18.11 Attorneys' Fees. In the event action is instituted to enforce any of the
provisions contained in this Declaration, the party prevailing in such action shall be entitled to
recover from the other party thereto as part of the judgment, reasonable attorneys' fees and costs
of such suit.
Section 18.12 Notices. Except as otherwise provided in ARTICLE XVIII, any notice to
be given to an Owner, the Association or a Mortgagee or mortgage servicing contractor under the
provisions of this Declaration shall be in writing and may be delivered as follows:
(a) notice to an Owner shall be deemed to have been properly
delivered when delivered to the Owner's Lot, whether said Owner personally receives said notice
or not, or placed in the first class United States mail, postage prepaid, to the most recent address
furnished by such Owner in writing to the Association for the purpose of giving notice, or if no
such address shall have been furnished, then to the street address of such Owner's Lot. Any
notice so deposited in the mail within the City shall be deemed delivered forty-eight (48) hours
after such deposit. In the case of co-Owners, any such notice may be delivered or sent to any
one of the co-Owners on behalf of all co-Owners and shall be deemed delivery on all such co-
Owners;
(b) notice shall be deemed to have been properly delivered to the
Association when placed in the first class United States mail to the address furnished by the
Association or the address of its principal place of business;
(c) notice to a Mortgagee or its•mortgage servicing contractor shall be
deemed to have been properly delivered when placed in the first class United States mail,
postage prepaid, to the address furnished to the Association by such Mortgagee or such
contractor for the purposes of notice or, if no such address is furnished, to any office.of the
Mortgagee in the City, or if no such office is located in the City, to any office of such
Mortgagee; and
(d) the affidavit of an officer or authorized agent of the Association
declaring under penalty of perjury that a notice has been mailed to any Owner or Owners, to any
Mortgagee or Mortgagees shown on the records of the Association, shall be deemed "conclusive
proof of such mailing, whether or not such notices are actually received.
Section 18.13 Obligations of Declarant. So long as Declarant owns any portion of the
Project, Declarant shall not be subject to the provisions of ARTICLE V (Architectural Control)
of this Declaration or the provisions of ARTICLE XI (Use Restrictions) of this Declaration to the
extent necessary to exercise Declarant's rights and fulfill Declarant's duties with regard to the
development and disposal of the Project.
Section 18.14 Effect of Declaration. This Declaration is made for the purposes set forth
in the Recitals to this Declaration and Declarant makes no warranty or representation, express or
implied, as to the binding effect or enforceability of all or any portion of this Declaration, or as to
070802\8587958v5 65
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the compliance of any of these provisions with public laws, ordinances and regulations
applicable thereto.
Section 18.15 Personal Covenant. To the extent the acceptance of a conveyance of a
Lot creates a personal covenant between the Owner of such Lot and Declarant or other Owners,
such personal covenant shall terminate and be of no further force or effect from and after the date
when a person or entity ceases to be an Owner except to the extent this Declaration may provide
otherwise with respect to the payment of money to the Association.
Section 18.16 Non-Liability of Officials. To the fullest extent permitted by law, neither
the Board, the Architectural Committee, any other committees of the Association or any member
of such Board or committee shall be liable to any Member of the Association for any damage,
loss or prejudice suffered or claimed on account of any decision, approval or disapproval of
plans or specifications, course of action,act, omission, error, negligence or the like, including
without limitation a decision not to institute inspections for alleged defects or a decision not to
file a lawsuit on behalf of the Association or its Members within the time limits provided by the
statute of limitations, made in good faith within which such Board, committees or persons
reasonably believed to be the scope of their duties and/or in the interests of the Association or its
Members.
Section 18.17 Enforcement of Bonded Obligations. In the event that the
improvements to the Common Areas have not been completed prior to the issuance of a Final
Subdivision Public Report covering the Project, and the Association is obligee under a bond or
other arrangement (hereinafter the "Bond") to secure performance of the commitment of
Declarant to complete such improvements, the following provisions shall apply:
(a) The Board shall consider and vote on the question of action by the
Association to enforce the obligations under the Bond with respect to any improvements for
which a Notice of Completion has not been filed within sixty (60) days after the completion date
specified for such improvements in the Planned Construction Statement appended to the Bond.
If the Association has given an extension in writing for the completion of any Common Areas
improvement, the Board shall consider and vote on the aforesaid question if a Notice of
Completion has not been filed within thirty(30) days after the expiration of such extension.
(b) In the event that the Board determines not to initiate action to
enforce the obligations under the Bond, or in the event the Board fails to consider and vote on
such question as provided above, the Board shall call a special meeting of the Members for the
purpose of voting to override such decision or such failure to act by the Board. Such meeting
shall be called according to the provisions of the Bylaws dealing with meetings of the Members,
but in any event such meeting shall be held not less than thirty-five (35) days nor more than
forty-five (45) days after receipt by the Board of a petition for such meeting signed by Members
representing five percent (5%) of the total voting power of the Association.
(c) The only Members entitled to vote at such meeting of Members
shall be the Owners other than Declarant. A vote at such meeting of a majority of the voting
power of such Members other than Declarant to take such action to enforce the obligations under
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the Bond shall be deemed to be the decision by initiating and pursuing appropriate action in the
name of the Association.
(d) All amounts obtained by the Association upon enforcement of the
obligations under the Bond with respect to the completion of improvements upon the Common
Areas shall be used only for such purpose and shall be deposited by the Board in a separate bank
account to be held in trust for such purpose. Such funds shall not be commingled with any other
funds of the Association. In the event any excess funds remain, after the completion of the
Common Areas by the Association pursuant to this Section, the Board, in its sole discretion, shall
distribute such sums pro rata equally to the Owners.
Section 18.18 Leases. Any agreement for the leasing or rental of a Lot (hereinafter in
this Section referred to as a "Lease") shall provide that the terms of such lease shall be subject in
all respects to the provisions of this Declaration, the Articles of Incorporation, the Bylaws, the
Rules and Regulations and any applicable agreements between the Association and any of the
Federal Agencies. Said lease shall further provide that any failure by the lessee thereunder to
comply with the terms of the foregoing documents shall be a.default under the lease. All leases
shall be in writing, and any Owner who intends to lease his or her Lot shall deliver a copy of
such written lease to the Board no later than seven (7) days prior to the commencement of the
term of such lease. Any Owner who shall lease his or her Lot shall be responsible for assuring
compliance by such Owner's lessee with this Declaration, the Articles of Incorporation, the
Bylaws and the Rules and Regulations. No Lot shall be leased for transient or hotel purposes,
which shall be defined as rental for any period less than one hundred eighty (180) days or any
rental whatsoever if the occupants of the Lot are provided customary hotel services such as room
service for food and beverage, maid service, furnishing laundry and linen service or bellboy
service.
Section 18.19 Construction by Declarant. Nothing in this Declaration shall limit the
right of Declarant to alter the Common Areas or Lots, or to construct such initial or additional
improvements as Declarant deems advisable prior to completion of improvements upon and the
sale of the entire Project. In amplification but not limitation of the foregoing, Declarant shall not
be subject to the provisions set forth in ARTICLE V, above, entitled "Architectural Control." In
the event any such alteration or addition constitutes a material change in the offering, the
Declarant shall notify the Ca1BRE of such alteration or addition. Such right shall include but
shall not be limited to erecting, constructing and maintaining on the Project such structures and
displays as may be reasonably necessary for the conduct of the business of completing the work
and disposing of the same by sale, lease or otherwise. This Declaration shall not limit the right
of Declarant at any time prior to acquisition of title by a purchaser from such Declarant to
establish on the Project additional licenses, reservations and rights-of-way to itself, to utility
companies, or to others as may from time to time be reasonably necessary to the proper
development and disposal of the Project. Declarant reserves the right to alter its construction
plans and designs as it deems appropriate. The rights of Declarant hereunder may be assigned to
any successor or successors to all or part of said entity's respective interest in the Project, by an
express assignment incorporated in a recorded deed or lease, as the case may be, transferring
such interest to such successor. Declarant shall exercise its rights contained in this provision in
such a way as not to unreasonably interfere with the Members' rights to use and enjoy the
Project.
070802\8587958v5 67
Section 18.20 Amendments. Subject to the other provisions of this Declaration,
including, without limitation, the rights of Mortgagees pursuant to the Articles hereof entitled
"Insurance" and "Rights of Lenders," or otherwise, this Declaration may be amended as follows:
(a) until such time as there is a Class A membership pursuant to this
Declaration, amendments or modifications shall be effective when executed by Declarant and
when recorded in the Official Records of the County. Declarant shall provide a copy of any such
amendments or modifications to the CaIBRE. Thereafter, as long as there is a Class B
membership, any amendments shall require the affirmative written consent or vote of not less
than sixty-seven percent (67%) of the voting power of each class of Members of the Association.
After the Class B membership has been converted to Class A membership, amendments to this
Declaration may be enacted only by the vote or written assent of Members representing both
sixty-seven percent (67%) of the total voting power of the Association and a majority of the
voting power of the Association residing in Members other than the Declarant;
(b) in addition to the foregoing, any amendment or modification of the
Articles hereof entitled "Covenant for Maintenance Assessments," "Nonpayment of .
Assessments," "Architectural Control," "Repair and Maintenance," "Destruction of
Improvements," and "Eminent Domain" shall additionally require the prior written approval of
not less than sixty-seven percent (67%) of the Class A Members;
(c) an amendment or modification that requires the vote and written
assent of the Members as hereinabove provided shall be effective when executed by the president
and secretary of the Association who shall certify that the amendment or modification has been
approved as hereinabove provided, and when recorded in the Official Records of the County.
The notarized signature of the Members shall not be required to effectuate an amendment of this
Declaration;
(d) notwithstanding the foregoing, any provisions of this Declaration,
or the Articles of Incorporation, Bylaws or Rules and Regulations which expressly requires the
approval of a specified percentage of the voting power of the Association for action to be taken
under said provision can be amended only with the affirmative-vote or written assent of not less
than the same percentage of the voting power of the Association;
(e) the Association, or any Owner, may petition the County superior
court for an order reducing the percentage of the affirmative votes necessary to amend this
Declaration. The petition shall describe the effort that has been made to solicit approval of the
Association members in the manner provided in this Declaration. The Petition shall also
.describe number of affirmative and negative votes actually received, the percentage of
affirmative votes required to effect the amendment in accordance with this Declaration, and other
matters the petitioner considers relevant to the court's determination. The petition shall also
contain as exhibits thereto, copies of all of the following: (1) the Management Documents, (2) a
complete text of the amendment, (3) copies of solicitation and notice materials utilized in the
solicitation of owner approvals, (4) a short explanation of the reason for the amendment, and (5)
any other documentation relevant to the court's determination;
070802\8587958x5 68
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(f) notwithstanding.the amendment procedures set forth above, the
Declarant reserve the right, prior to the close of escrow for the first sale of a Lot by Declarant to
a Resident Owner, to unilaterally make certain amendments ("Exhibit Amendments") to the
exhibits attached hereto to amend said exhibits to more precisely describe the actual sizes and
locations of the areas or improvements described on said exhibits. Declarant shall effect such
changes by preparing or causing to be prepared, and recording or causing to be recorded, a
declaration in a form determined by Declarant. Declarant shall provide a copy of such Exhibit
Amendments to the Ca1BRE;
(g) notwithstanding any other provisions of this Section, for so long as
Declarant owns any portion of the Project, Declarant may unilaterally amend this Declaration by
recording a written instrument signed by Declarant in order to conform this Declaration to the
requirements of the VA, FHA, the Ca1BRE, FNMA, GNMA or FHLMC then in effect.
Declarant shall provide a copy of such amendments to the Ca1BRE; and
(h) notwithstanding anything else in this Declaration to the contrary,
any amendment to this Declaration must be approved by the VA so long as the Declarant
controls the Association or a class of membership; provided, however, that such approval will
not be unreasonably withheld.
ARTICLE XIX.
DISPUTE RESOLUTION
Section 19.1 Consensus for Association Action.
(a) The Association may not commence a legal proceeding or an
action under this Article without the approval of at least two-thirds of the voting power of the
Association; provided, however, this Section 19.1 shall not apply to (i) actions brought by the
Association to enforce the Management Documents (including, without. limitation, the
foreclosure of liens); (ii) the imposition and collection of Assessments; (iii) proceedings
involving challenges to ad valorem taxation; or (iv) counterclaims brought by the Association in
proceedings instituted against it.
(b) Prior to the Association or any Member commencing any
proceeding to which Declarant is a party, including but not limited to an Alleged Defect (as that
term is defined below), Declarant shall have the right to meet and confer with the Claimant (as
that term is defined below) and shall have the right to cure the Alleged Defect as set forth in
Section 19.4 below.
(c) Notwithstanding any other provision in this Declaration to the
contrary (including, without limitation, any provision which expressly or implicitly provides
Declarant with control over Association decisions for any period of time), Declarant hereby
relinquishes control over the Association's ability to decide whether to initiate any claim against
Declarant with respect to any Alleged Defect in any Common Areas. The decision to initiate any
such claims for Alleged Defect in any Common Areas shall, instead, rest with the majority of the
Owners of Lots other than Declarant.
070802\8587958v5 69
Section 19.2 Election to Opt Out of Civil Code Sections 910-938; Alternative
Method for Resolving Disputes. DECLARANT HEREBY INFORMS ALL OWNERS AND
THE ASSOCIATION THAT DECLARANT HAS ELECTED NOT TO ENGAGE IN,
FOLLOW, NOR BE BOUND BY, CIVIL CODE SECTIONS 910-938. Notwithstanding any
provision of this Declaration to the contrary, (i) Declarant, its officers, directors, partners,
members, employees, agents, successors and assigns; (ii) the Association, its officers, directors
and committee members; (iii) all persons subject to this Declaration, including, without
limitation, any Member or Owner; (iv) any contractor, subcontractor, consultant, .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 this ARTICLE XIX (individually, a "Builder" and,
collectively, the "Builders"); and (v) any person or entity not otherwise subject to this
Declaration who agrees to be bound to this ARTICLE XIX (each such person or entity described
in this Section 19.1 being referred to herein as a "Bound Party") covenants and agrees that all
Disputes (as defined in Section 19.3) shall be subject to the provisions set forth in Section 19.4
prior to the inception of any alternative dispute resolution procedure.
Section 19.3 Disputes.
(a) Unless specifically exempted below, all claims, grievances and
disputes between any of the Bound Parties regardless of how the same might have arisen or on
what it might be based, including, but not limited to, disputes (a) arising out of or relating to the
interpretation, application or enforcement of the Management Documents or the rights,
obligations and duties of any Bound Party under the Management Documents, (b) relating to the
planning, design, engineering, grading, construction or other development of the Project; or (c)
based upon any statements, representations, promises, warranties, or.other communications made
by or on behalf of any Bound Party, shall be "Disputes" subject to the provisions of Section 19.4
and Section 19.5 below.
(b) Notwithstanding the provisions of Section 19.3(a), above, unless
all parties thereto otherwise agree, the following shall not be "Disputes" and shall not be subject
to the provisions of this ARTICLE XIX:
(i) Any .suit by the Association against any Bound Party to
enforce the provisions of ARTICLE III (entitled "Covenant for Maintenance Assessments") or
ARTICLE IV (entitled "Nonpayment of Assessments"), except as otherwise provided in Section
4.1(c);
(ii) Any action subject to the provisions of Section 18.17;
(iii) Any suit by the Association or Declarant to obtain a
temporary restraining order or injunction (or equivalent emergency equitable relief) and such
other ancillary relief as the court may deem necessary in order to maintain the status quo and
preserve the Association's ability to act under and enforce the provisions of ARTICLE VII
(entitled"Repair and Maintenance") or ARTICLE XI (entitled "Use Restrictions");
070802\8587958x5 70
77..
(iv) Any suit between or among Owners that does not include
Declarant, a Builder or the Association as a party, if such suit asserts a Dispute which would
constitute a cause of action independent of the Management Documents.
Section 19.4 Notice and Right to Cure.
(a) Notice. Any Bound Party having a Dispute ("Claimant") against
any other Bound Party ("Respondent") (the Claimant and the Respondent, being individually
referred to herein as a"Party," or, collectively, as the "Parties") shall notify each Respondent in
writing(the "Notice"), stating plainly and concisely:
(i) The nature of the Dispute, including the Parties involved
and Respondent's role in the Dispute;
(ii) The legal basis of the Dispute (i.e.,'the specific authority
out of which the Dispute arises);
(iii) The proposed remedy; and
(iv) The fact that Claimant will meet with Respondent to
discuss in good faith ways to resolve the Dispute.
(b) Tolling of Statute of Limitations. Except as provided in this
Section 19.4(b), the Notice shall, upon mailing, toll all statutory and contractual limitations on
actions against all Parties who may be responsible for the Disputes, whether named iri the Notice
or not, including claims for indemnity applicable to the Dispute, for a period of 180 days or such
longer period as may be agreed to in writing between the Parties; provided, however, at any time,
Declarant may give written notice (the "Cancellation Notice") to cancel the tolling of the statute
of limitations provided in this Section 19.4(b). Upon delivery of a Cancellation Notice, the
Parties shall be relieved of any further obligations to satisfy the requirements of this Section
19.4(b) except that Claimant shall not be relieved of the obligations under Section 19.4(8),
below. The tolling of all applicable statutes of limitations shall cease sixty (60) days after a
Cancellation Notice is delivered to the Claimant.
(c) Alleged Defect. In the event that any Claimant asserts any.
Dispute(s) that any portion of the Common Area, any Lot and/or any improvement constructed
on the Project, is deficient, inadequate, incomplete, or otherwise defective or that Declarant or
any Builder was negligent in the planning, design, engineering, grading, construction or other
development of the Project (collectively, an "Alleged Defect"), Declarant hereby reserves the
right for itself and any successor, assign or agent to inspect, repair and/or replace such Alleged
Defect as set forth herein.
(d) Meet and Confer; Inspection.
(i) Within a reasonable time after the receipt by Declarant of
Claimant's Notice, which period shall not exceed sixty (60) days, the Parties to the Dispute shall
participate in an initial meeting at a mutually acceptable place and time to explain their positions
to each other and confer in good faith in an effort to resolve the Dispute, including, without
070802\8587958v5 71
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limitation, discussion of available alternative processes for resolving the Dispute, available.
processes for reducing costs or losses by the involved Parties, and the scope of discovery, if any,
to be conducted prior to the inception of any alternative dispute resolution procedure. In the
event the Dispute involves all or a portion of the Property or the Improvements thereto, then at
such meeting and at other mutually agreeable times, the Parties shall have full access to that
portion of the Property and the Improvements that are the subject of the Dispute for purposes of
inspection. Claimant shall provide Declarant with access to Claimant's Lot for inspection and
testing purposes, including testing which may cause physical damage to any property within the
Project, in order to evaluate such Alleged Defect. If the Claimant has conducted inspection and
testing prior to the date Declarant received the Notice asserting an Alleged Defect, the Claimant
shall make available to the Declarant for inspection and testing at least those areas inspected or
tested by the Claimant. The Declarant shall further have the right, upon reasonable notice to
Claimant and the Owners of Lots upon which the Declarant intends to enter, during normal
business hours to enter onto or into, as applicable, the Project, including, without limitation, any
residential dwelling unit or other improvement constructed within the Project, for the purposes of
inspection and testing (including testing that may cause physical damage to any property in the
Project) in order to evaluate the Alleged Defect, and each Owner and Association shall make
such areas available to Declarant for inspection and testing. The inspection and testing shall be
completed within a reasonable period of time, taking into consideration the nature of the Alleged
Defect and other circumstances affecting the inspection and testing. If Declarant does not timely
complete the inspection and testing, Claimant shall be relieved of any further obligations to
satisfy the requirements of this Section 19.4; provided, however, that Claimant shall not be
relieved of the obligations under Section 19.4(8), below. In conducting such inspection and
testing, the Declarant shall be entitled to take any actions it deems reasonable and necessary
under the circumstances. The Declarant shall pay all costs of inspection and testing that is
requested by the Declarant, shall restore the property to the condition which existed immediately
prior to the testing, and shall indemnify the Association and each Owner of a Lot upon which the
Declarant enters for the purposes of inspection and testing for any damages resulting from such
inspection and testing. The results of the inspection and testing shall not be inadmissible in
evidence in any civil action solely because the inspection and testing was conducted pursuant to
this Section.
(ii) Any resolution of the Dispute agreed to by the Parties
pursuant to this Section 19.4 shall be memorialized in writing and signed by the Parties,
including, if the Association is a Party to the Dispute, the Board designee for the Association,
and such agreement shall bind the Parties to the Dispute and shall be enforceable so long as (i)
the agreement is not in conflict with law or the Management Documents and (ii), if the
Association is a Party to the Dispute, the agreement either is consistent with the authority granted
by the Board to its designee or the agreement is ratified by the Board.
(iii) With respect to a Dispute between the Association and an
Owner, the Owner may not be charged a fee to participate in the process described in this Section
19.4. This Section 19.4 is intended to comply with the requirements of Article 5 (commencing
with California Civil Code Section 5900) of the Davis-Stirling Common Interest Development
Act (set forth at California Civil Code Section 4000, et seq.). In the event of a.conflict between
this Section 19.4 and the provisions of said Article 5 (as the same may be amended or modified),
the provisions of said Article 5 (as amended or modified) shall control.
070802\8587958v5 72
�Ct
(e) Disputes Regarding Alleged Defects in Common Area or
Association Maintenance Area. Notwithstanding the provisions of Section 19.4(d), in the event
of a Dispute involving a claim (a "Damage Claim") for damage to the Common Area,
Association Maintenance Area or damage to any Lot that is integrally related to any damage to
the Common Area or Association Maintenance Area, the provisions of this Section 19.4(e),
rather than the provisions of Section 19.4(d), shall apply. Before commencing any legal
proceedings against any Bound Party based upon a Damage Claim, the Association covenants
and agrees that the Association shall comply with the provisions of California Civil Code Section
6000. In the event the Board either rejects a settlement offer as referenced in, or decides to
commence an action for damages pursuant to, California Civil Code Section 6000 or any other
provision of California law, the Association first shall call a special meeting of the Members. In
addition to the information required by California Civil Code Section 6000 to be specified in the
notice of such meeting, the notice also shall specify the following:
(i) A good faith estimate of the costs to repair the alleged
defects prepared by a licensed contractor who has submitted a bid to perform the necessary
repair work;
(ii) How the necessary repairs will be funded;
(iii) The name of the attorney whom the Association is
contemplating retaining and an estimate of the attorney's fees, consultant's fees and any other
costs to be incurred to prosecute such proceedings;
(iv) How such fees and costs will be funded;
(v) Each Owner's duty to disclose to prospective purchasers
the alleged defects; and
(vi) The potential impact the proceedings may have on the
marketability and availability of financing and/or insurance for the Lot in the Project.
(f) At any time after any Notice is delivered pursuant to this Section,
the Parties may agree in writing to modify or excuse any of the time periods or other obligations
imposed by this Section. All notices, requests, statements, or other communications required
pursuant to this Section shall be delivered by first-class registered or certified mail, return receipt
requested, or in any manner in which it is permissible to serve a summons pursuant to Section
415.10 or 415.20 of the California Code of Civil Procedure.
(g) Any judgment or award in connection with any legal action, cause
of action, proceeding, reference or arbitration against the Declarant alleging damages (1) for the
costs of repairing or the replacement of any Alleged Defect, (2) for the diminution in value of
any real or personal property resulting from such Alleged Defect, or (3) for any consequential
damages resulting from such Alleged Defect shall first be used to correct and/or repair such
Alleged Defect or to reimburse the Claimant for any costs actually incurred by such Claimant in
correcting and/or repairing the Alleged.Defect. In the event the Association recovers any funds
from the Declarant (or any other person or entity) to repair an Alleged Defect, any excess funds
remaining after repair of such Alleged Defect shall be paid into the Association's reserve fund
070802\8587958v5 73
go
unless at least seventy-five percent (75%) of the voting power of the Association elects to
allocate or distribute the remaining funds otherwise.
(h) Nothing set forth in this Section shall be construed to impose any
obligation on the Declarant to inspect, repair or replace any item or Alleged Defect for which the
Declarant is not otherwise obligated under applicable law or any limited warranty provided by
the Declarant in .connection with the sale of the Lots and/or the improvements constructed
thereon. The right of the Declarant to enter, inspect, repair, and/or replace reserved hereby shall
be irrevocable and may not be waived or otherwise terminated except by a writing, in recordable
form, executed and recorded by the Declarant in the Official Records of the County.
Section 19.5 Mediation. if the Parties cannot resolve the Dispute pursuant to the
procedures described above (including, if applicable, Civil Code Section 6000 procedures),
either Party may request that the matter be submitted to mediation and if the other Parties agree,
the matter shall be submitted to mediation pursuant to this Section 19.5. Such mediation shall be
conducted by JAMS pursuant to the mediation procedures adopted by JAMS or its successor or,
in the event that JAMS or its successor is for any reason unwilling or unable to serve as the
mediation service, the parties shall select another reputable mediation service. If the Parties are
unable to agree on an alternative service, then either party may petition any court of competent
jurisdiction in the county in which the Project are located to appoint such an alternative service,
which appointment shall be binding on the parties. The rules and procedures of such alternative
service in effect at the time of the initiation of the mediation shall be followed. 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.
(a) Position Memoranda; Pre-Mediation Conference. Within ten
days of the selection of the mediator, each Party shall submit a 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 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 Fresno
County, California, or such other place as is mutually acceptable by the Parties.
(b) Conduct of Mediation. The mediator shall have discretion. to
conduct the mediation in the manner in which the mediator believes is most appropriate for
settlement of the dispute. The mediator shall be authorized to conduct joint and separate
meetings with the parties and to make oral and written recommendations for settlement.
Whenever necessary, the mediator also may obtain expert advice concerning technical aspects of
the dispute, provided the Parties shall assume the expenses of obtaining such advice. The
mediator shall not have the authority to impose a settlement on the parties.
(c) Evidence Exclusion Agreement. Prior to the commencement of
the mediation session, the mediator and all parties to the mediation shall execute an agreement
pursuant to California Evidence Code Section 1 l 52.5(c) et seg. in order to exclude the use of any
070802\8587958v5 74
testimony or evidence produced at the mediation in any subsequent dispute resolution forum,
including, but not limited to court proceedings or reference proceedings. Pursuant to California
.Evidence Code Section 1152.5(c) et seg., the agreement specifically shall 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 (or copy thereof), prepared for the purpose of, or in the course of, or
pursuant to the mediation, 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 also shall be
applicable to such mediation process.
(d) Persons Permitted at Sessions. Persons other than the Parties, the
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 proceedings.
(e) Expenses. The expenses of witnesses for either side shall be paid
by the Party producing such witnesses. All other expenses of the mediation, including required
traveling and other expenses of the mediator, expense of witnesses and/or the cost of any proofs
or expert advice produced at the request of the mediator, shall be borne equally by the parties
unless they agree otherwise. Each Party to the mediation shall bear its own attorneys' fees and
costs in connection with such mediation.
Section 19.6 ARBITRATION OF DISPUTES. IF THE PARTIES HAVE NOT
REACHED AN ENFORCEABLE AGREEMENT OF THEIR DISPUTE THROUGH
NEGOTIATION OR MEDIATION, THEN, EXCEPT FOR DISPUTES SUBJECT TO
ARBITRATION UNDER THE LIMITED HOME WARRANTY PROVIDED BY
DECLARANT, THE DISPUTE SHALL BE SUBMITTED TO ARBITRATION
PURSUANT TO THIS Section 19.6 WITHOUT THE NEED TO AGAIN COMPLY WITH
THE PROCEDURES SET FORTH IN Section 19.4 OR Section 19.5. ANY AND ALL
SUCH UNRESOLVED DISPUTES SHALL BE SUBMITTED TO ARBITRATION IN
ACCORDANCE WITH THE FOLLOWING RULES AND PROCEDURES:
A. THE ARBITRATION SHALL BE CONDUCTED BY ONE
OF THE FOLLOWING ARBITRATION SERVICE PROVIDERS, AT THE ELECTION
OF THE CLAIMANT: (1) JAMS, THE RESOLUTION EXPERTS, (2) AMERICAN
ARBITRATION ASSOCIATION ("AAA"), (3) ADR SERVICES, INC., OR (4) DEMARS
AND ASSOCIATES, LTD. ("DEMARS"), IN ACCORDANCE WITH AND PURSUANT
TO SUCH ARBITRATION SERVICE ORGANIZER'S APPLICABLE RULES AND
REGULATIONS. IN THE EVENT THAT SUCH SELECTED ARBITRATION
SERVICE PROVIDER IS UNABLE OR UNWILLING TO CONDUCT OR IS
DISABLED FROM CONDUCTING SUCH ARBITRATION, THE ARBITRATION
SHALL BE SUBMITTED TO ARBITRATION BY AND PURSUANT TO RULES OF AN
ALTERNATIVE. ARBITRATION SERVICE PROVIDER SELECTED IN
070802\8587958v5 75
`�Z
ACCORDANCE WITH THE AGREEMENT OF THE PARTIES. IF THE PARTIES
ARE UNABLE TO AGREE UPON AN ALTERNATIVE ARBITRATION SERVICE
PROVIDER, THEN EITHER PARTY MAY PETITION ANY COURT OF COMPETENT
JURISDICTION IN THE COUNTY TO APPOINT SUCH AN ALTERNATIVE
SERVICE PROVIDER, WHICH APPOINTMENT SHALL BE BINDING ON THE
PARTIES. THE RULES AND PROCEDURES OF SUCH ALTERNATIVE
ARBITRATION SERVICE PROVIDER IN EFFECT AT THE TIME THE REQUEST
FOR ARBITRATION IS SUBMITTED SHALL BE FOLLOWED.
B. NOTWITHSTANDING ANY PROVISION OF THIS Section
19.6 TO THE CONTRARY, EITHER PARTY MAY USE SMALL CLAIMS COURT AS
AN ALTERNATIVE TO ARBITRATION OF A DISPUTE IF THE AMOUNT IN
CONTROVERSY IS WITHIN THE JURISDICTIONAL LIMITS OF SMALL CLAIMS
COURT.
C. GENERAL PROVISIONS.
(a) THIS Section 19.6 SHALL INURE TO THE BENEFIT
OF, AND BE ENFORCEABLE BY,. THE DECLARANT'S SUBCONTRACTORS,
AGENTS, VENDORS, SUPPLIERS, DESIGN PROFESSIONALS, INSURERS AND ANY
OTHER PERSON WHOM THE CLAIMANT CONTENDS IS RESPONSIBLE FOR ANY
ALLEGED DEFECT IN OR TO THE PROPERTY OR AN IMPROVEMENT
THERETO. THE PARTIES CONTEMPLATE THE INCLUSION OF SUCH PARTIES
IN ANY ARBITRATION OF A DISPUTE AND AGREE THAT THE INCLUSION OF
SUCH PARTIES WILL NOT . AFFECT THE ENFORCEABILITY OF THIS
ARBITRATION AGREEMENT. ANY PARTY SHALL BE ENTITLED TO RECOVER
REASONABLE ATTORNEY'S FEES AND COSTS INCURRED IN ENFORCING THIS
Section 19.6, AND THE ARBITRATOR SHALL HAVE SOLE AUTHORITY TO
AWARD SUCH FEES AND COSTS.
(b) THE ARBITRATOR SHALL BE AUTHORIZED TO
PROVIDE ALL RECOGNIZED REMEDIES. AVAILABLE IN LAW OR IN EQUITY
FOR ANY CAUSE OF ACTION THAT IS THE BASIS OF THE ARBITRATION. THE
DECISION OF THE ARBITRATOR SHALL BE FINAL AND BINDING. AN
APPLICATION TO CONFIRM, VACATE, MODIFY OR CORRECT AN AWARD
RENDERED BY THE ARBITRATOR SHALL BE FILED IN ANY COURT OF
COMPETENT JURISDICTION IN THE COUNTY IN WHICH THE PROPERTY IS
LOCATED.
(c)- THIS ARBITRATION AGREEMENT SHALL BE
DEEMED TO BE A SELF-EXECUTING ARBITRATION AGREEMENT. ANY
DISPUTE CONCERNING THE INTERPRETATION OR THE ENFORCEABILITY OF
THIS Section 19.6, INCLUDING, WITHOUT LIMITATION, ITS REVOCABILITY OR
VOIDABILITY FOR ANY CAUSE, ANY CHALLENGES TO THE ENFORCEMENT
OR THE VALIDITY.OF THIS AGREEMENT, OR THIS Section 19.6, OR THE SCOPE
OF ARBITRABLE ISSUES UNDER THIS Section 19.6, AND ANY DEFENSE
RELATING TO THE ENFORCEMENT OF THIS Section 19.6, INCLUDING WITHOUT
070802\8587958v5 76
LIMITATION, WAIVER, ESTOPPEL, OR LACHES, SHALL BE DECIDED BY AN
ARBITRATOR IN ACCORDANCE WITH THIS Section 19.6 AND NOT BY A COURT
OF LAW.
(d) THE PARTICIPATION BY ANY PARTY, OR ANY
PARTY WHOM BUYER CONTENDS IS RESPONSIBLE FOR A DISPUTE, IN ANY
JUDICIAL PROCEEDING CONCERNING THIS Section 19.6 OR ANY MATTER
ARBITRABLE HEREUNDER SHALL NOT BE ASSERTED OR ACCEPTED AS A
REASON TO DELAY, STAY, OR REFUSE TO PARTICIPATE IN, OR TO REFUSE TO
ENFORCE THIS Section 19.6, INCLUDING INSTANCES IN WHICH THE JUDICIAL
PROCEEDING INVOLVES PARTIES NOT SUBJECT TO THIS Section 19.6 AND/OR
WHO CANNOT OTHERWISE BE COMPELLED TO ARBITRATE.
(e) EXCEPT AS AGREED BY THE PARTIES
PURSUANT TO AN ENFORCEABLE PROVISION TO THE CONTRARY, IN THE
EVENT OF A DISPUTE INVOLVING THE DECLARANT AND ONLY ONE (1)
RESIDENT OWNER OR THE ASSOCIATION, THE DECLARANT SHALL ADVANCE
THE FEES NECESSARY TO INITIATE THE ARBITRATION; IN ALL OTHER
DISPUTES, SUCH FEES SHALL BE SHARED EQUALLY BY THE PARTIES TO THE
ARBITRATION; PROVIDED, HOWEVER, THE ADMINISTRATION FEES AND ANY
OTHER FEES AND COSTS OF THE ARBITRATION SHALL ULTIMATELY BE
BORNE AS DETERMINED BY THE ARBITRATOR.
(f) THIS DECLARATION INVOLVES AND CONCERNS
INTERSTATE COMMERCE AND THIS Section 19.6 IS GOVERNED BY THE
PROVISIONS OF THE FEDERAL ARBITRATION ACT (9 U.S.C. §1, ET SEQ.) NOW
IN EFFECT AND AS THE SAME MAY FROM TIME TO TIME BE AMENDED, TO
THE EXCLUSION OF ANY DIFFERENT OR INCONSISTENT STATE OR LOCAL
LAW, ORDINANCE, REGULATION, OR JUDICIAL RULE. ACCORDINGLY, ANY
AND ALL DISPUTES NOT OTHERWISE RESOLVED THROUGH NEGOTIATION
OR MEDIATION IN ACCORDANCE WITH Section 19.5 SHALL BE ARBITRATED —
WHICH ARBITRATION SHALL BE MANDATORY AND BINDING — PURSUANT TO
THE FEDERAL ARBITRATION ACT, AND TO THE EXTENT THAT ANY STATE OR
LOCAL LAW, ORDINANCE, REGULATION, OR JUDICIAL RULE IS
INCONSISTENT WITH ANY PROVISION OF THE RULES OF THE ARBITRATION
SERVICE UNDER WHICH THE ARBITRATION PROCEEDING SHALL BE
CONDUCTED, THE LATTER RULES SHALL GOVERN THE CONDUCT OF THE
PROCEEDING.
(g) THE ARBITRATOR APPOINTED TO SERVE
SHALL BE A NEUTRAL AND IMPARTIAL INDIVIDUAL, SHALL BE APPOINTED
WITHIN SIXTY (60) DAYS AFTER INITIATION OF THE ARBITRATION, AND MAY
BE CHALLENGED FOR BIAS.
(h) THE VENUE OF THE ARBITRATION SHALL BE IN
THE COUNTY WHERE THE PROPERTY IS LOCATED UNLESS THE PARTIES
AGREE IN WRITING TO ANOTHER LOCATION.
070802\8587958v5 77
(i) PROMPT AND TIMELY COMMENCEMENT OF
THE ARBITRATION SHALL BE REQUIRED IN ACCORDANCE WITH (1) THE
ABOVE-REFERENCED RULES OF THE ARBITRATION, OR IF THE RULES DO
NOT SPECIFY A DATE BY WHICH THE ARBITRATION MUST COMMENCE, THEN
(11) A DATE AS AGREED TO BY THE PARTIES, AND IF THEY CANNOT AGREE,
(III) A DATE DETERMINED BY THE ARBITRATOR(S).
(j) PROMPT AND TIMELY CONCLUSION OF THE
ARBITRATION SHALL BE REQUIRED, INCLUDING THE ISSUANCE OF ANY
DECISION OR RULING FOLLOWING THE PROCEEDING OR HEARING.
(k) IF ANY PROVISION OF THIS Section 19.6 SHALL
BE DETERMINED BY THE ARBITRATOR OR BY ANY COURT TO BE
UNENFORCEABLE OR TO HAVE BEEN WAIVED, THE REMAINING PROVISIONS
SHALL BE DEEMED TO BE SEVERABLE THEREFROM AND ENFORCEABLE
ACCORDING TO THEIR TERMS.
EACH OWNER, BY ACCEPTANCE OF A DEED TO A LOT AGREES TO HAVE
ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS Section 19.6
ENTITLED "ARBITRATION OF DISPUTES" DECIDED BY NEUTRAL, BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND
THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION
ACT, AND SUCH OWNER 1S GIVING UP ANY RIGHTS IT MIGHT POSSESS TO
HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL OR OTHER
PROCEEDING. EACH OWNER, BY ACCEPTANCE OF A DEED TO A LOT, IS
GIVING UP ITS JUDICIAL AND/OR STATUTORY RIGHTS TO DISCOVERY, TRIAL
AND APPEAL, EXCEPT TO WHATEVER EXTENT ANY RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS ARBITRATION AGREEMENT. IF AN OWNER
REFUSES TO SUBMIT TO ARBITRATION, (I) SUCH PARTY MAY BE COMPELLED
TO ARBITRATE UNDER THE FEDERAL ARBITRATION ACT AND THE
CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION
ACT, AND/OR (II) ARBITRATION MAY GO FORWARD IN THE ABSENCE OF THE
REFUSING PARTY.
Section 19.7 Civil Code Provisions. In the event of a Dispute that is subject to both
ARTICLE XIX and the provisions of California Civil Code Section 1369.510 et seq., then the
parties to such Dispute shall comply both with the provisions of ARTICLE XIX and any
additional requirements of California Civil Code Section 5925 et seq.
Section 19.8 Amendment of Article. Without the express prior written consent of
Declarant, this ARTICLE XIX may not be amended for a period of twenty years from the
effective date of this Declaration.
(Signature page follows.)
070802\8587958x5 78 q
U5
IN WITNESS WHEREOF, Declarant has executed this instrument the day and year first
hereinabove written.
"DECLARANT"
LAS BRISAS BUILDERS, INC.,
a California corporation
By:
Name: C-,.
Its:
A notary public or other officer completing this certificate.verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss:
COUNTY OFF P-C-5 N O )
On \,L5i 31, 201--� before me, L)eL VQ U 6 L
Notary PtPblic (insert name and title 6f the officer),
personally appeared S+CO2A G. 'R 6UU , who proved to me on the
basis of satisfactory evidence to be the personkfwhose nameWs/emsubscribed to the within
instrument and acknowledged to me that he/sl ed+-executed the same in his/hrrftheir
authorized capacity(ies)-, and that by his/l eis•signatureKon the instrument the person or
the entity upon behalf of which the person( acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS d and official 1. LIANA LEYVA
Commission #2078341 z
a:_�,a Notary Public California z
Signature: "a=== _ Fresno County r
My Comm.Expires Aug 17,2018
[Seal]
070802\8587958v5 79
EXHIBIT"A"
to the Declaration of Covenants, Conditions and Restrictions
for Canvas at Copper
Legal Description— Initial Property
Lots 1 through 18, inclusive, Lots 47 through 74, inclusive, Lots 84 through 91, inclusive, and
Outlot B of Tract No. 6099, recorded in Volume_Sr pages r_Y of Plats, Fresno
County Records.
070802\8587958x5 exhibit"n"
EXHIBIT "B"
to the Declaration of Covenants, Conditions and Restrictions
for Canvas at Copper
Legal Description—Annexable Property
Lots 19 through 46, inclusive, Lots 75 through 83, inclusive, and Outlot A of Tract No. 6099,
recorded in Volume 'A"7 , pages -?a ai4_2�of Plats, Fresno County Records.
Thr
070802\8587958x5 Exhibit"B"
V R�
EXHIBIT"C"
to the Declaration of Covenants, Conditions and Restrictions
for Canvas at Copper
Description of Common Area
Outlot B of Tract No. 6099, recorded in Volume , pages 3� aof Plats, Fresno
County Records
070802\8587958x5 Exhibit"C"
o f
EXHIBIT "D"
to the Declaration of Covenants, Conditions and Restrictions
for Canvas at Copper
Association Maintenance Areas
(attached)
070802\8587958v5 Exhibit"M
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EXHIBIT "E"
to the Declaration of Covenants, Conditions and Restrictions
for Canvas at Copper
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070802\8587958v5 Exhibit"E"
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SUBORDINATION
The undersigned is holder of the beneficial interest in and under that certain deed of trust
recorded on October 31, 2013, as Instrument No. 2013-0151335 in the Official Records of
Fresno County, California, between Las Brisas Builders, Inc., a California corporation, as
Trustor, First American Title Company, as Trustee, and Copper River Ranch, LLC, a California
limited liability company, as Beneficiary (the "Original Deed of Trust") pursuant to that certain
Assignment of Deed of Trust recorded October 31, 2013 as Instrument No. 2013-0151336 (the
"Assignment") by which Copper River Ranch, LLC assigned its interest in the Original Deed of
Trust to ACAP Holding, LLC, a California limited liability company.. The Original Deed of
Trust as modified by the Assignment is referred to herein collectively as the "Deed of Trust").
As such, the undersigned hereby expressly subordinates such Deed of Trust and the beneficial
interest thereunder to the Declaration of Covenants, Conditions and Restrictions for Canvas at
Copper (Tract No. 6099), recorded concurrently herewith in the Official Records of Fresno
County, California, to which this Subordination is attached and as otherwise heretofore modified
and as it may be modified in the future (collectively, the "Declaration"), and to all easements to
be conveyed in accordance with the Declaration. By executing this Subordination, the
undersigned agrees that should the undersigned acquire title to all or any portion of the
"Property" (as defined in the Declaration) by foreclosure (whether judicial or nonjudicial),
deed-in-lieu of foreclosure or any other remedy in or relating to the Deed of Trust, the
undersigned will acquire title subject to the provisions of the Declaration, which shall remain in
full force and effect.
Dated: ACAP HOLDING, LLC,
a California limited liability company
By:
Name:
Its: �.
070802\8587958x5
CT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
ss:
COUNTY OF �(12Sno )
On a� , 201 q before me, - tit b
Notary M blic (insert name and title o ffi
the ocer),
personally appeared
011t
personally 0" , o , who proved to me on the
basis of satisfactory evidence to be the person(sj whose name( is/aye subscribed to the within
instrument and acknowledged to me that he/sh-.�ey executed the same in' his/he*heir
authorized capacity(k j, and that by his/heF444air signature(s) on the instrument the person(sf, or
the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
[Seal] KATRINA INGRAO
Notary Public-California
Fresno County
Z Commission 0 2167877
My Comm 'Ex fires Oct 14,2020
070802\8587958v5 c
�J
SUBORDINATION
The undersigned is holder of the beneficial interest in and under that certain deed of trust
recorded on April 27, 2017, as Instrument No. 2017-0051996 in the Official Records of Fresno
County, California, between Las Brisas Builders, Inc., a California corporation, as Trustor, Old
Republic Title Insurance Company,as Trustee,and U.S.Bank National Association,d/b/a Housing
Capital Company, as Beneficiary (the "Deed of Trust"). The undersigned hereby expressly
subordinates such Deed of Trust and the beneficial interest thereunder to the Declaration of
Covenants, Conditions and Restrictions for Canvas at Copper (Tract No. 6099), recorded
concurrently herewith in the Official Records of Fresno County, California, to which this
Subordination is attached and as otherwise heretofore modified and as it may be modified in the
future (collectively, the "Declaration"), and to all easements to be conveyed in accordance with
the Declaration. By executing this Subordination, the undersigned agrees that should the
undersigned acquire title to all or any portion of the"Property"(as defined in the Declaration)by
foreclosure(whether judicial or nonjudicial), deed-in-lieu of foreclosure or any other remedy in or
relating to the Deed of Trust, the undersigned will acquire title subject to the provisions of the
Declaration, which shall remain in full force and effect.
Dated: ( U , 2i�) -� U.S. BANK NATIONAL ASSOCIATION,
d/b/a Housing Capital Company
By: CC I u ( -,an
Name: rrie,(—•hu 1
Its: e_ Pfe-'s� L uaf
070802\8587958x5
1�
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF rf SA 0 j ss:
On �Q , 2013 before me, _ ft(D �\
Notary ublic (insert name and titlethe officer),
personally appeared Cali(1e L . 1. )�IY01V� , who proved to me on the
basis of satisfactory evidence to be the person.0 whose name is/are subscribed to the within
instrument and acknowledged to me that 1Q/she/thy executed the same in 4i6/her/+ieir
authorized capacity(ijog), and that by his/her/tfreir signaturekg� on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State•of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
KATRINA INGRAO
Notary Public-California
Fresno County
Signature: Commission#2167877
My Comm.Expires Oct 14,2020
[Seal]
070802\8587958x5
I�