HomeMy WebLinkAboutT-6153 - Agreement/Covenant - DCC&Rs - 12/6/2017 IIII III I IIII II II II IIII Till I I 1111111 I II IIII I II IIII
WHEN RECORDED RETURN TO: FRESNO County Recorder
Copper River Ranch Villages, LLC Paul Qictos, C,P:A,DOC_ 2017_0157031
Attn: Steve Hertel
Acct 8002-Old Republic Title CONCORD
11861 N. Alicante Wednesday, DEC 06, 2017 08:00:00
Fresno, CA 93730 Tt 1 Pd $361,00 Rcpt # 0004897550
RGRfE3f1-115
DECLARATION OF COVENANTS, CONDITIONS,RESTRICTIONS &EASEMENTS
TRACT NO. 6153
THE BLUFFS AT ALICANTE
PLANNED DEVELOPMENT
NOTICE
ARTICLE XVII, SECTION 17.7 AT PAGES 89, 90 AND 91, AND EXHIBIT A,ARTICLE III, AT
PAGES 102 AND 103 OF THIS DECLARATION CONTAIN BINDING ARBITRATION
PROVISIONS IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT.
ARBITRATION INCLUDES A WAIVER OF THE CONSTITUTION RIGHT TO A JURY.
OWNER SHOULD READ THE ARBITRATION PROVISIONS CAREFULLY AND CONSULT
INDEPENTDENT LEGAL COUNSEL OF OWNER'S CHOOSING WITH ANY QUESTIONS
TABLE OF CONTENTS
RECITALS....................................................................................................................................................1
ARTICLEI DEFINITIONS.........................................................................................................................3
1.1 ARCHITECTURAL COMMITTEE.........................................................................................3
1.3 ARCHITECTURAL RULES....................................................................................................3
1.3 ARTICLES................................................................................................................................3
1.4 AS-BUILT PLANS...................................................................................................................3
1.5 ASSESSMENT(S) ....................................................................................................................3
1.6 ASSOCIATION........................................................................................................................3
1.7 ASSOCIATION RULES...........................................................................................................3
1.8 BOARD OF DIRECTORS........................................................................................................3
1.9 BUDGET...................................................................................................................................3
1.10 BY-LAWS...............................................................................................................................3
1.11 CERTIFICATE OF COMPLIANCE......................................................................................3
1.12 CITY .......................................................................................................................................3
1.13 COMMON AREA...................................................................................................................4
1.14 COMMON EXPENSE(S).......................................................................................................4
1.15 CONTRACT BUYER(S)......................................................:.................................................4
1.16 COUNTY................................................................................................................................4
1.17 DECLARANT.........................................................................................................................4
1.18 DECLARATION ....................................................................................................................4
1.1.9 DEVELOPMENT...................................................................................................................4
1.20 DIRECTORS...........................................................................................................................5
1.21 DUE PROCESS REQUIREMENTS.......................................................................................5
1.22 ELIGIBLE MORTGAGE HOLDER(S).................................................................................5
1.23 FINAL SUBDIVISION PUBLIC REPORT...........................................................................5
1.24 FISCAL YEAR.......................................................................................................................5
1.25 GOVERNING DOCUMENT(S).............................................................................................5
1.26 IMPROVEMENT(S)...............................................................................................................5
1.27 INVITEE(S)............................................................................................................................5
1.28 LOT(S)....................................................................................................................................5
1.29 MAJOR COMPONENT(S).....................................................................................................5
1.30 MEMBER(S)...........................................................................................................................6
1.31 MEMBERSHIP.......................................................................................................................6
1.32 MORTGAGE(S); MORTGAGEES(S); INSTITUTIONAL MORTGAGEE(S);
ANDFIRST MORTGAGEE(S) ............................................................................................6
1.33 NOTICE OF COMPLETION .................................................................................................6
1.34 NOTICE OF INTENT TO RECORD A NOTICE OF VIOLATION.....................................6
1.35 NOTICE OF VIOLATION.....................................................................................................6
1.36 OWNER(S).............................................................................................................................6
1.37 PARTY FENCES....................................................................................................................6
1.38 PARTY WALLS.....................................................................................................................7
1.39 PROPERTY............................................................................................................................7
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1.40 RECORD; RECORDING; RECORDED; RECORDATION.................................................7
1.41 REGULAR MONTHLY ASSESSMENT(S)..........................................................................7
1.42 RESERVE ACCOUNT...........................................................................................................7
1.43 RESERVE ACCOUNT REQUIREMENTS...........................................................................7
1.44 RESERVE FUNDS.................................................................................................................7
1.45 RESIDENCE(S)......................................................................................................................7
1.46 SPECIAL ASSESSMENT(S).................................................................................................7
1.47 SUBDIVISION MAP..............................................................................................................7
1.48 TENANT(S)............................................................................................................................7
1.49 VIOLATION OF A PROVISION OF THE GOVERNING DOCUMENTS .........................7
ARTICLE11 MEMBERSHIP ......................................................................................................................8
2.1 QUAL.IFICATIONS..................................................................................................................8
2.2 TRANSFER OF MEMBERSHIP .............................................................................................8
2.3 MEMBERSHIP RIGHTS .........................................................................................................8
2.4 TERMINATION OF MEMBERSHIP......................................................................................8
ARTICLE III VOTING RIGHTS................................................................................................................9
3.1 VOTING RIGHTS....................................................................................................................9
3.2 VESTING OF VOTING RIGHTS............................................................................................9
3.3 APPLICATION.........................................................................................................................9
3.4 JOINT OWNER DISPUTES ....................................................................................................9
3.5 CUMULATIVE VOTING........................................................................................................9
3.6 PROXY VOTING ....................................................................................................................9
ARTICLE IV ASSESSMENTS.................................................................................................................10
4.1 OBLIGATION OF ASSESSMENTS -AGREEMENT TO PAY..........................................10
4.2 LIMITED EXEMPTION FROM ASSESSMENT DURING CONSTRUCTION 10
4.3 SCOPE OF ASSESSMENT-AUTHORITY...........................................................................11
4.4 DELIVERY OF REQUESTED ITEMS..................................................................................11
4.5 REGULAR MONTHLY ASSESSMENTS............................................................................12
4.6 INCREASE IN REGULAR MONTHLY ASSESSMENTS BY BOARD.............................13
4.7 RESERVE FUNDS.................................................................................................................13
4.8 SPECIAL ASSESSMENTS PURPOSE OF A PROCEDURE
FORLEVYING ....................................................................................................................15
4.9 QUORUM...............................................................................................................................15
4.10 EMERGENCY ASSESSMENTS.........................................................................................16
4.11 INDIVIDUAL ASSESSMENTS ..........................................................................................16
4.12 DAMAGES TO COMMON AREA......................................................................................16
4.13 COLLECTION DATE..........................................................................................................16
4.14 UNIFORM RATE OF ASSESSMENT................................................................................16
4.15 DATE OF COMMENCEMENT...........................................................................................17
4.16 DUE DATE, LATE CHARGES, AND INTEREST.............................................................17
4.17 ALLOCATION OF REGULAR MONTHLY AND SPECIAL ASSESSMENTS...............17
4.18 ASSOCIATION'S POWER TO ESTABLISH ASSESSMENT LIEN................................18
4.19 PRE-LIEN NOTICE .............................................................................................................18
4.20 CREATION OF ASSESSMENT LIEN................................................................................19
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4.21 FORECLOSURE UNDER ASSESSMENT LIEN...............................................................21
4.22 TRANSFER OF A LOT BY SALE OR FORECLOSURE..................................................23
4.23 PRIORITY OF LIEN............................................................................................................24
4.24 FAILURE TO PAY ASSESSMENTS..................................................................................24
4.25 NO CHARGE FOR TRANSFER OF TITLE.......................................................................24
ARTICLE V OWNERSHIP OF LOTS AND COMMON AREA.............................................................25
5.1 OWNERSHIP OF LOTS AND COMMON AREA................................................................25
5.2 ENCUMBRANCE OF COMMON AREA.............................................................................25
ARTICLE VI OCCUPANCY AND USE OF LOTS AND COMMON AREA........................................26
6.1 ANIMALS...............................................................................................................................26
6.2 ANTENNA AND EXTERNAL FIXTURES..........................................................................26
6.3 ARCHAEOLOGICAL REQUIREMENTS............................................................................26
6.4 CHANGING GRADES, SLOPES, AND DRAINAGE..........................................................27
6.5 COMMON AREA...................................................................................................................27
6.6 COMPLIANCE WITH LAW.................................................................................................28
6.7 DAMAGE TO COMMON AREA..........................................................................................28
6.8 EQUIPMENT..........................................................................................................................28
6.9 EXTERIOR LIGHTING.........................................................................................................28
6.10 EXPLORATION FOR MINERALS.....................................................................................28
6.11 FENCES AND WALLS........................................................................................................28
6.12 GARBAGE, RUBBISH AND TRASH.................................................................................29
6.13 GAS OR LIQUID STORAGE..............................................................................................29
6.14 INDEMNIFICATION...........................................................................................................29
6.15 LEASING OR RENTING.....................................................................................................29
6.16 LEGAL REMEDIES FOR OWNER NONCOMPLIANCE
WITH THE PROVISIONS OF THE GOVERNING DOCUMENTS..................................30
6.17 WINDOW COVERINGS .....................................................................................................30
6.18 MONUMENTS.....................................................................................................................30
6.19 NOXIOUS OR OFFENSIVE ACTIVITIES.........................................................................30
6.20 OUTSIDE LAUNDERING AND DRYING ........................................................................31
6.21 PARKING RESTRICTIONS; USE OF GARAGES ............................................................31
6.22 RESIDENCE.........................................................................................................................32
6.23 RESTRICTION ON FURTHER SUBDIVISION
ANDSEVERABILITY OF LOTS ................................................................................................32
6.24 SIGNS ...................................................................................................................................32
6.25 STORAGE ............................................................................................................................33
6.26 STRUCTURAL CHANGES.................................................................................................33
6.27 TAXES..................................................................................................................................33
6.28 TEMPORARY BUILDINGS................................................................................................33
6.29 TEMPORARY LIVING QUARTERS .................................................................................34
6.30 TIMESHARING PROHIBITED..........................................................................................34
6.31 UNALLOCATED TAXES...................................................................................................34
6.32 USE AND OCCUPANCY OF RESIDENCE.......................................................................34
6.33 UTILITY CHARGES ...........................................................................................................35
6.34 MINIMUM SQUARE FOOTAGE ......................................................................................35
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ARTICLE VII COVENANT AGAINST PARTITION.............................................................................36
7.1 PARTITION............................................................................................................................36
ARTICLE VIII LABOR AND MATERIALMAN'S LIENS ....................................................................37
8.1 OWNERS................................................................................................................................37
8.2 ASSOCIATION......................................................................................................................37
ARTICLE IX ARCHITECTURAL CONTROL........................................................................................38
9.1 PROVISION FOR ARCHITECTURAL APPROVALS ........................................................38
9.2 APPOINTMENT AND MAKEUP OF ARCHITECTURAL.................................................38
9.3 SUBMISSION OF PLANS; ACTION BY THE ARCHITECTURAL COMMITTEE .........39
9.4 STANDARDS AND PROCEDURES FOR THE ARCHITECTURAL RULES ..................40
9.5 VARIANCES..........................................................................................................................41
9.6 FUTURE CONSTRUCTION .................................................................................................41
9.7 ARCHITECTURAL ADVISER.............................................................................................41
9.8 INSPECTION..........................................................................................................................42
9.9 NOTICE TO COMMITTEE...................................................................................................42
9.10 CERTIFICATE OF COMPLIANCE....................................................................................42
ARTICLE X INSURANCE.......................................................................................................................44
10.1 LIABILITY INSURANCE...................................................................................................44
10.2 FIRE AND CASUALTY INSURANCE ..............................................................................44
10.3 PROVISION APPOINTING TRUSTEE..............................................................................45
10.4 PROVISION TO ADJUST LOSSES....................................................................................45
10.5 DIRECTOR AND OFFICER LIABILITY INSURANCE...................................................45
10.6 WORKER'S COMPENSATION, DEMOLITION, AND OTHER ASSOCIATION
INSURANCE........................................................................................................................46
10.7 OWNER'S LI.ABILITY INSURANCE................................................................................46
10.8 INSURANCE REVIEW AND NOTICE..............................................................................46
ARTICLE XI MAINTENANCE, REPAIR AND RESTORATION.........................................................47
11.1 MAINTENANCE, REPAIR AND RESTORATION...........................................................47
11.2 DEFAULT OF OWNER.......................................................................................................48
11.3 OWNER LIABILITY ...........................................................................................................48
11.4 APPORTIONMENT OF EXPENSES ..................................................................................48
11.5 PARTY FENCES AND PARTY WALLS ON PROPERTY LINES...................................48
11.6 APPROVAL OF PLANS......................................................................................................49
11.7 TIMING AND COMPLETION............................................................................................49
11.8 INDIVIDUAL ASSESSMENTS ..........................................................................................49
11.9 LIMIT ON INDIVIDUAL ASSESSMENT..........................................................................49
ARTICLE XII DESTRUCTION OR CONDEMNATION........................................................................50
12.1 DESTRUCTION OF COMMON AREA..............................................................................50
12.2 DAMAGE OR DESTRUCTION OF RESIDENCE.............................................................50
12.3 COMPLETION BY ASSOCIATION...................................................................................51
12.4 CONDEMNATION..............................................................................................................51
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12.5 SPECIAL ASSESSMENT....................................................................................................52
ARTICLE XIII EASEMENTS AND ENCROACHMENTS.....................................................................53
13.1 PERSONS SUBJECT TO THE PROVISIONS OF
THE GOVERNING DOCUMENT................................................................................................53
13.2 NONEXCLUSIVE EASEMENTS........................................................................................53
13.3 RIGHT OF DECLARANT TO APPEAR AT MEETINGS .................................................54
13.4 UTII.,ITY SERVICE .................................................................................................:...........54
13.5 RIGHTS OF ENTRY OR USE.............................................................................................54
13.6 MINOR ENCROACHMENTS.............................................................................................55
13.7 POWER TO GRANT EASEMENTS...................................................................................56
13.8 PARTY FENCE AND PARTY WALL EASEMENTS .......................................................56
13.9 EMERGENCY ACCESS AND RIGHT-OF-WAY OVER PRIVATE
STREETS.............................................................................................................................56
13.10 PUBLIC SERVICE EASEMENT.......................................................................................56
13.11 DELEGATION.OF USE.....................................................................................................56
13.12 FUTURE CONSTRUCTION AND ASSIGNMENT OF
DECLARANT'S RIGHTS..................................................................................................57
13.13 REQUIREMENT TO COMPLY WITH DUE PROCESS .................................................58
13.14 APPURTENANT EASEMENTS........................................................................................58
13.15 OWNER'S EASEMENT OF ENJOYMENT.....................................................................59
13.16 RIGHTS OF ASSOCIATION............................................................................................59
13.17 VEHICULAR TRAF.FIC ....................................................................................................60
13.18 ADDITIONAL EASEMENTS............................................................................................60
ARTICLE XIV POWERS AND DUTIES OF ASSOCIATION...............................................................61
14.1 INCORPORATION..............................................................................................................61
14.2 ACTION THROUGH DESIGNATED OFFICERS .............................................................61
14.3 ASSESSMENT RIGHTS......................................................................................................61
14.4 THE RIGHT TO ESTABLISH ASSOCIATION RULES....................................................61
14.5 RIGHT TO IMPOSE SANCTIONS FOR A VIOLATION
OF A PROVISION OF THE GOVERNING DOCUMENTS..............................................61
14.6 RIGHT OF THE BOARD TO DELEGATE ITS
POWERSAND DUTIES .....................................................................................................62
14.7 DUTIES.................................................................................................................................63
14.8 MANAGEMENT AND MAINTENANCE OF THE DEVELOPMENT.............................63
14.9 CONTRACTING FOR GOODS AND SERVICES .............................................................63
14.10 PAYMENT OF TAXES AND ASSESSMENTS ...............................................................63
14.11 SECURING INSURANCE COVERAGE..........................................................................63
14.12 PREPARATION AND DISTRIBUTION OF FINANCIAL
STATEMENTS, REPORTS, AND COPIES OF THE,
GOVERNING DOCUMENTS ...........................................................................................63
14.13 ENFORCEMENT OF BONDED OBLIGATIONS............................................................66
14.14 OTHER DUTIES ................................................................................................................66
14.15 LIMITATIONS ON THE AUTHORITY OF THE BOARD
ORTHE ASSOCIATION...................................................................................................66
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14.16 TRANSFER OF THE AUTHORITY TO INITIATE
CONSTRUCTION DEFECT CLAIMS.............................................................................69
14.17 CONSTRUCTION DEFECT CLAIMS..............................................................................69
14.18 LIMITATION ON LIABILITY OF OFFICERS AND DIRECTORS ...............................70
14.19 RIGHT OF ENFORCEMENT............................................................................................71
14.20 ADMINISTRATION OF DEVELOPMENT......................................................................73
14.21 AUTHORITY OF BOARD ................................................................................................74
14.22 PERSONAL LIABILITY ...................................................................................................75
14.23 AUDIT................................................................................................................................76
14.24 DELIVERY OF DOCUMENTS AND INSPECTION
OF BOOKS AND RECORDS............................................................................................76
14.25 AGREEMENTS WITH LENDERS....................................................................................77
14.26 GRANT EASEMENTS.......................................................................................................77
14.27 100%APPROVAL REQUIRED........................................................................................78
14.28 BOARD TO PROVIDE CALIFORNIA CIVIL8
CODE4525 DOCUMENTS ..............................................................................................78
ARTICLE XV RIGHTS OF LENDERS....................................................................................................79
15.1 MORTGAGE PERMITTED.................................................................................................79
15.2 SUBORDINATION..............................................................................................................79
15.3 MORTGAGEE'S RIGHT TO EXAMINE BOOKS AND RECORDS................................79
15.4 PRIORITY IN DISTRIBUTION OF INSURANCE
AND CONDEMNATION PROCEEDS ...............................................................................79
15.5 STATUS OF AMENITIES...................................................................................................80
15.6 DEFAULT NOTICE REQUIREMENT...............................................................................80
15.7 ELIGIBLE INSURER DEFINED.........................................................................................80
15.8 NOTICE OF ACTION..........................................................................................................80
15.9 PRIORITY RESERVED.......................................................................................................80
15.10 PRIORITY OF MORTGAGE LIEN...................................................................................81
15.11 CURING DEFAULTS........................................................................................................81
15.12 RESALE..............................................................................................................................81
15.13 RELATIONSHIP WITH ASSESSMENT LIE.NS..............................................................81
15.14 CONSENT FOR RESTORATION OR REPAIR...............................................................81
15.15 TERMINATION OF THE DEVELOPMENT....................................................................81
15.16 TERMINATION OF PROFESSIONAL MANAGEMENT...............................................82
15.17 MATERIAL AMENDMENTS...........................................................................................82
15.18 RIGHT OF FIRST REFUSAL............................................................................................83
15.19 OTHER RIGHTS OF ELIGIBLE MORTGAGE HOLDERS............................................83
15.20 MORTGAGEE INFORMATION.......................................................................................84
15.21 CONFLICTS.......................................................................................................................84
15.22 PAYMENT OF TAXES......................................................................................................84
15.23 PRIORITY IN DISTRIBUTION OF INSURANCE PROCEEDS.....................................84
15.24 REQUIREMENT OF FHA/VA..........................................................................................84
ARTICLE XVI AMENDMENT OF DECLARATION ................................................................:...........86
16.1 PROCESS TO AMEND OR REVOKE THE PROVISION6
OFTHE DE.CLARATION....................................................................................................86
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16.2 CONTROL IF THE PROVISION OF ARTICLE XII CONFLICT
WITH ANY MORTGAGEE PROTECTION OR OTHER
PROVISIONS OF THE DECLARATION...........................................................................86
16.3 COMPLIANCE WITH THE PROVISIONS OF BUSINES
AND PROFESSIONS CODE SECTION 11018.7 ...............................................................86
16.4 RELIANCE ON AMENDMENTS TO OR REVOCATIONS
OF THE PROVISIONS OF THE DECLARATION............................................................87
16.5 CONFORMING WITH THE MORTGAGEE
REQUIREMENT PROVISIONS OF THE DECLARATION..............................................87
ARTICLE XVII MISCELLANEOUS .......................................................................................................88
17.1 ACCEPTANCE OF PROVISIONS BY GRANTEES..........................................................88
17.2 ENFORCEMENT OF DECLARATION..............................................................................88
17.3 TERM....................................................................................................................................88
17.4 NOTIFICATION OF MORTGAGEE ..................................................................................88
17.5 DOCUMENTS TO BE PROVIDED TO PROSPECTIVE PURCHASER..........................89
17.6 JOINT AND SEVERAL LIABILITY..................................................................................89
17.7 DISPUTES............................................................................................................................89
17.8 SINGULAR AND PLURAL ................................................................................................91
17.9 INTERPRETATION OF RESTRICTIONS..........................................................................91
17.10 LIABILITY AND INDEMNIFICATION...........................................................................91
17.11 ASSIGNMENT OF POWERS............................................................................................91
17.12 APPLICABILITY...............................................................................................................91
17.13 BINDING EFFECT.............................................................................................................92
17.14 CONFLICTS WITH OTHER DOCUMENTS....................................................................92
17.15 CUMULATIVE REMEDIES..............................................................................................92
17.16 EASEMENTS RESERVED AND GRANTED..................................................................92
17.17 HEADINGS ........................................................................................................................92
17.18 INCORPORATION OF EXHIBITS...................................................................................92
17.19 LIBERAL CONSTRUCTION ............................................................................................92
17.20 NO DISCRIMINATORY RESTRICTIONS ......................................................................92
17.21 NO REPRESENTATIONS OR WARRANTIES ...............................................................92
I7.22 NOTICES AND COMMUNICATION...............................................................................92
17.23 NOTIFICATION OF SALE................................................................................................93
17.24 NUMBER; GENDER .........................................................................................................93
17.25 OWNER'S ACCESS TO BOOKS......................................................................................93
17.26 SEVERABILITY OF PROVISIONS..................................................................................93
17.27 VIOLATION OF A PROVISION OF THE GOVERNING
DOCUMENTS AS NUISANCE........................................................................................93
17.28 LIMITATION OF RESTRITIONS ON DECLARANT.....................................................93
ARTICLE XVIII RIGHTS OF CITY OF FRESNO...................................................................................95
18.1 CONFLICTS WITOTHER ARTICLES.............................................................................95
18.2 IMMEDIATE ACCESS EASEMENTS .............................................................................95
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18.3 SEWER,WATER AND DRAINAGE LINES
18.4 UTILITY RESPONSIBILITIES.........................................................................................95
18.5 PRIVATE PAYMENT REPA.IRS ......................................................................................95
18.6 ALTERATION, MODIFICATION OR RECONSTRUCTION PARTY WALL..............95
18.7 LANDSCAPE AND MAINTENANCE OF COMMON AREAS......................................95
18.8 STREET SWEEPING/CLEANING....................................................................................95
18.9 CITY EASEMENTS..........................................................................................................95
18.10 STREET IMPROVEMENTS.............................................................................................96
18.11 INDEMNITY.....................................................................................................................96
18.12 AMENDMENTS BY THE ASSOCIATION.....................................................................96
EXHIBIT A CONSTRUCTION DEFECTS CLAIMS PROCEDURES...................................................97
ARTICLEI: RECITALS ...............................................................................................................97
ARTICLE 11: NON-ADVERSARIAL PRE-LITIGATION PROCEDURES................................98
2.1 CLAIMS SUBJECT TO PRE-LITIGATION PROCEDURES..............................................98
2.2 CLAIM NOTICE....................................................................................................................99
2.3 RIGHT TO INSPECT AND RIGHT TO
CORRECTIVEACTION ..............................................................................................................99
2.4 MEDIATION........................................................................................................................100
ARTICLE III: BINDING ARBITRATION.................................................................................101
3.1 AUTHORITY TO COMMENCE BINDING ARBITRATION...........................................101
3.2 CONDUCT OF ARBITRATION.........................................................................................101
3.3 GOVERNING PROCEDURES............................................................................................101
ARTICLE IV: CLAIM NOTICE.................................................................................................102
4.1 AGENT FOR SERVICES OF DEFECT CLAIM(S)NOTICE............................................102
4.2 PROVIDED DOCUMENTS TO SUBSEQUENT OWNERS..............................................103
4.3 AMENDMENTS...................................................................................................................104
4.4. DEFECT CLAIM(S)FILING PERIOD................................................................................104
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DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS & EASEMENTS
TRACT NO. 6153
THE BLUFFS AT ALICANTE
PLANNED DEVELOPMENT
TH DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS & EASEMENTS is made
this /074-1ay of �G�yl�toa— , 2017, by Copper River Ranch Villages, LLC a California limited liability
company, with reference to the following recitals(the"Recitals"):
A. Unless otherwise expressly provided for in the provisions of the Governing Documents or
exclusively dictated by grammatical correctness, any capitalized words and/or phrases, when used herein, shall
have the specified meanings given to them in the provisions of Article I of the Declaration.
B. Declarant (as defined in Section 1.17 below) is the holder of the fee title interest in that certain real
property that is more fully described as Lots 1 through 41, inclusive, and "Outlot A", all of which are shown,
designated and described on that certain map entitled "Final Map of Tract No. 6153" ("Subdivision Map") that
was filed for Record in the office of the County Recorder of Fresno County, California, on 'j��. , 201D
in Volume of Plats at Pages County Records.
C. It is the intent of the Declarant, in order to promote the efficient preservation of the values and
amenities in and on the Property, to establish a common plan ("Common Plan"), which is defined by the
provisions that are set forth in the Governing Documents for the subdivision, improvement, and development of
the Property. Declarant desires to secure the hannonious and uniform development of the Property in
accordance with the Common Plan.
D. Declarant intends to subdivide and develop the Property as a Planned Development under the laws
of the State of California by constructing thereon forty-one (41) single-family Residences together with
Common Area (Outlot A), in accordance with the map for said Tract No. 6153, to impose upon the Property,the
covenants, conditions, restrictions and easements set forth herein below for the benefit of the Property and all
Residences to be constructed thereon, as well as the future Owners thereof, and to provide enhanced security for
the Owners and residents of the Development by limiting access to the Development through a gated entry.
E. Declarant desires to impose the Development with certain reciprocal easements and mutually
beneficial covenants all as hereinafter set forth.
F. The Declaration shall apply to all Lots and the Common Area within the Development.
G. All Lots within Tract 6153 shall be subject to the provisions of the Master Declaration Of
Covenants, Conditions And Restrictions For Copper River Ranch which was recorded on June 2, 2006, as
Document No. 2006-0115469, Fresno County Records, and the First Amendment thereto recorded on_August
22, 2006, as Document No. 2006-175087, Fresno County Records (collectively, "Master Declaration"), the
Easement Agreement for Copper River Ranch, which was recorded December 30, 2004 as Document No. 2004-
0291147, Fresno County Records ("Easement Agreement") and the First Addendum to Easement Agreement,
which was recorded August 22, 2006 as Document No. 2006-175086, Fresno County Records ("First
Addendum to Easement Agreement"), and any subsequent addendums or amendments thereto.
H. In the event of any conflict between the provisions of the Master Declaration and the provisions of
the Governing Documents,the provisions of the Master Declaration shall prevail.
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NOW, THEREFORE, Declarant hereby declares that the Development, and every part thereof, shall be
held, conveyed, hypothecated, encumbered, leased, rented, occupied and improved subject to the following
limitations, covenants, conditions, restrictions, reservations and easements, all of which are declared and agreed
to be imposed as equitable servitudes in furtherance of a planned development as provided in the provisions of
California Civil Code Sections 4000 through 6000, inclusive, or any compatible superseding statutes, to be in
furtherance of a plan for the subdivision of the Property and are established and agreed upon for the purpose of
enhancing the security, and protecting the value, desirability and attractiveness of the Development, and every
part thereof. All of the restrictions, covenants, limitations and easements set forth herein shall run with the
Property, and every part thereof, and shall be binding on all persons having or acquiring any right, title or
interest therein or thereto and shall be for the benefit of each Owner of any portion thereof, and shall inure to the
benefit of and be binding upon any successor in interest of such Owners.
The Declarant further declares that it is the express intent that the provisions of the Declaration satisfy
the requirements set forth in the provisions of California Civil Code Sections 4250 and 4255. In the event
California Civil Code Sections 4250 and 4255 is amended or superseded by another similar provision of the
California statutes, the Declaration shall be deemed amended, without the necessity of further Owners'
approval,to correspond to the amended or successor Civil Code provision.
END OF RECITALS
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ARTICLE II
DEFINITIONS
1.1 ARCHITECTURAL COMMITTEE. "Architectural Committee" shall mean and refer to the
committee of persons appointed and acting pursuant to the provisions of Section 9.2 of the Declaration.
1.2 ARCHITECTURAL RULES. "Architectural Rules" shall mean and refer to the rules and
regulations that have been adopted by the Architectural Committee with the approval of the Board, all in
accordance with the provisions of Section 9.4 of the Declaration which interpret and implement the provisions
of the Governing Documents by setting forth the guidelines, standards, and procedures for the review and
approval of proposed Improvements by the Architectural Committee.
1.3 ARTICLES. "Articles" and/or Articles of Incorporation shall mean and refer to the Articles of
Incorporation of The Bluffs at Alicante Homeowners Association and any amendments thereto.
1.4 AS-BUILT PLANS. "As-Built Plans" shall mean and refer to any drawings showing, describing,
and designating the precise locations of any of the Major Components, Improvements, and/or easements located
within the Development.
1.5 ASSESSMENT(S). "Assessment(s)" shall mean and refer to any Regular Monthly and/or Special
Assessment(s) which is/are made or levied by the Board against an Owner and its, his, her, or their Lot in
accordance with the provisions of Article IV of the Declaration.
1.6 ASSOCIATION. "Association" shall mean and refer to The Bluffs at Alicante Homeowners
Association, a California nonprofit mutual benefit corporation, and its successors and assigns, the Members of
which shall be the Owners of Lots.
1.7 ASSOCIATION RULES. "Association Rules" shall mean and refer to the rules, regulations, and
policies regulating the use and enjoyment of the Development, which may from time to time be adopted by the
Board.
1.8 BOARD OF DIRECTORS. "Board of Directors" or"Board" shall mean and refer to the Board of
Directors of the Association.
1.9 BUDGET. "Budget" shall mean and refer to a written, itemized estimate of the income and
Common Expenses of the Association in the performance of its functions under the provisions of the Governing
Documents.
1.10 BY-LAWS. "By-Laws" shall mean and refer to the Association's By-Laws and any amendments
thereto.
1.11 CERTIFICATE OF COMPLIANCE. "Certificate of Compliance" shall mean and refer to that
certain certificate that is issued by the Board or the Architectural Comnuttee, as the case may be, in accordance
with the provisions of Section 9.10 of the Declaration.
1.12 CITY. "City" shall mean and refer to the City of Fresno, California and its various departments,
divisions, employees, and representatives.
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1.13 COMMON AREA.
1.13.1 "Common Area" shall mean and refer to all of the real property whose fee title interest is held by
the Association, together with any interest in real property which the Association has for the common use and
enjoyment of the Members and shall include, upon conveyance to the Association, those certain plots of land
which are shown, designated and described on the Subdivision Map as "Outlots A" along with any plot of land
and/or easement that may later be conveyed to the Association and designated as"Common Area."
1.13.2 Unless the context clearly indicates a contrary intent, any reference in the provisions of the
Governing Documents to the"Common Area" shall include any Major Component and/or personal property that
is located thereon.
1.14 COMMON EXPENSE(S). "Common Expense(s)" shall mean and refer to any use of the funds of
the Association authorized by the provisions of Article IV of the Declaration and Article VII of the By-Laws
and includes,but is not limited to:
1.14.1 All expenses or charges incurred by or on behalf of the Association for the management,
maintenance, administration, insurance, operation, repairs, additions, alterations, or reconstruction of the
Common Area and the Major Components.
1.14.2 All expenses or charges reasonably incurred to procure insurance for the protection of the
Association, the Members, and/or the Board.
1.14.3 Any amounts reasonably necessary for Reserve Funds or to cure a shortfall caused by the
nonpayment of Assessments.
1.14.4 The use of such funds to defray the costs and expenses incurred by the Association in the
performance of its functions or in the proper discharge of the responsibilities of the Board as provided for in the
provisions of the Governing Documents.
1.15 CONTRACT BUYER(S). "Contract Buyer(s)" shall mean and refer to a buyer who purchases a
fee title interest in a Lot under contractual provisions which provide for the payment of the purchase price of
such fee title interest to be made in installments and for the conveyance of such fee title interest to be made on
the completion of such payments.
1.16 COUNTY. "County" shall mean and refer to the County of Fresno, California, and its various
departments, divisions, employees, and representatives.
1.17 DECLARANT. "Declarant" shall mean and refer to Copper River Ranch Villages, LLC, a
California limited liability company, and its successors and assigns, if such successors and assigns are assigned
to the rights of the Declarant pursuant to the provisions of Section 13.12 of the Declaration, or if such successor
or assign is a Mortgagee acquiring Declarant's interest in the Development by foreclosure or deed in lieu of
foreclosure.
1.18 DECLARATION. "Declaration" shall mean and refer to this instrument as it may from time to
time be amended,modified, or supplemented.
1.19 DEVELOPMENT. "Development" shall mean and refer to any real property that is subject to the
Governing Documents as well as any Improvements and/or Major Components that are located on or within
such real property.
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1.20 DIRECTORS. "Directors" shall mean and refer to the members of the Board of Directors.
1.21 DUE PROCESS REQUIREMENTS. "Due Process Requirements" shall mean and refer to all of
the requirements of the provisions of Section 13.13 of the Declaration.
1.22 ELIGIBLE MORTGAGE HOLDER(S). "Eligible Mortgage Holder(s)" shall mean and refer to
any mortgage holder, including, but not limited to, any Institutional First Mortgagee who has requested a notice
from the Association pursuant to the terms and conditions set forth in the provisions of Section 15.19 of the
Declaration.
1.23 FINAL SUBDIVISION PUBLIC REPORT. "Final Subdivision Public Report" shall mean and
refer to a final subdivision public report for the Property that has been issued by the Commissioner of the
California Bureau of Real Estate(`B.R.E.")pursuant to the California Subdivided Lands Law.
1.24 FISCAL YEAR. "Fiscal Year" shall mean and refer to the twelve(12) month accounting period of
the Association.
1.25 GOVERNING DOCUMENT(S). "Governing Document(s)" is a collective term that shall mean
and refer to the Declaration, the Articles and the By-Laws, the Master Declaration, Easement Agreement, the
First Addendum to Easement Agreement, as well as the Master Land Use Plan and Architectural Standards
referred to in the Easement Agreement and First Addendum to Easement Agreement, together with any
Architectural and/or Association Rules.
1.26 IMPROVEMENT(S). "Improvement(s)" includes, but is/are not limited to, the construction,
installation, alteration, or remodeling of any buildings, masonry block walls on Lots, roofs, foundation, decks,
fences (including wrought iron fences), swimming pools, landscaping, landscape materials, landscape structures,
skylights, solar heating equipment, spas, antennas, and utility lines, as well as any structures of any kind. In no
event shall the term "Improvement" be interpreted to include projects that are restricted to the interior of any
Residence.
1.27 INVITEE(S). "Invitee(s)" shall mean and refer to any person(s) within the Development at the
express or implied invitation of an Owner for business purposes, mutual advantage, or purely social purposes.
1.28 LOT (S).
1.28.1 "Lot(s)" shall mean and refer to any portion of the Property that is shown, designated, and
described on the Subdivision Map as Lots 1 through 41, inclusive of Tract No. 6153.
1.28.2 When appropriate within the context of the provisions of the Governing Documents, the term
"Lots" shall also include any Residence together with any other Improvements constructed or to be constructed
thereon.
1.29 MAJOR COMPONENT(S). "Major Component(s)" shall mean and refer to any constituent
element(s) of the Development that the Association is obligated to maintain, such as, but not limited to, streets,
curbs, gutters, valley gutters, sidewalks, stamped concrete, landscaping, including landscaping in entry gate area
(inside and outside of entry gate), irrigation system, including timer, perimeter masonry block walls, wrought
iron fencing at entry and around emergency access gates, if any, emergency access gates and related equipment,
entry gates with keypad and related equipment, gate operators, pedestrian gate at entry, entrance features, entry
monument and monument lights, street signs, monument signage or wall signage at entry to identify the
Development, and handicap access ramps.
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1.30 MEMBER(S). "Member(s)" shall mean and refer to every person or entity holding a
Membership.
1.31 MEMBERSHIP. "Membership" shall mean and refer to the state or status of being a Member of
the Association.
1.32 MORTGAGE(S); MORTGAGEE(S); INSTITUTIONAL MORTGAGEE(S); AND FIRST
MORTGAGEE(S).
1.32.1 "Mortgage(s)" shall mean and refer to a mortgage or deed of trust encumbering a Lot, the
Common Area or any portion thereof.
1.32.2 "Mortgagee(s)"shall mean and refer to the beneficiary under a deed of trust and any guarantor or
insurer of a Mortgage.
1.32.3 "Institutional Mortgagee(s)" shall mean and refer to a Mortgagee that is a bank, savings and loan
association, mortgage company, or other entity which is chartered or licensed under any Federal or State laws
and whose principal business is lending money on the security of real property, investing in such loans, or any
insurance company, as well as any Federal or State agency or instrumentality, including, without limitation, the
Federal National Mortgage Association and/or the Federal Home Loan Mortgage Corporation.
1.32.4 "First Mortgage(s)" or"First Mortgagee(s)" shall mean and refer to one having priority as to all
of the other Mortgages or holders of Mortgages encumbering the same Lot, the Common Area or any other
portions thereof.
1.33 NOTICE OF COMPLETION. "Notice of Completion" shall mean and refer to a written notice,
which has been signed and verified by the fee titleholder of real property that a certain work of improvement on
such real property has been completed. Any such Notice of Completion shall be in compliance with the
provisions of California Civil Code section 9204 or any compatible superseding statutes.
1.34 NOTICE OF INTENT TO RECORD A NOTICE OF VIOLATION. "Notice of Intent to Record a
Notice of Violation" shall mean and refer to that certain notice that may be Recorded by the Board in
accordance with the provisions of Section 14.19 of the Declaration.
1.35 NOTICE OF VIOLATION. "Notice of Violation" shall mean and refer to that certain notice that
may be recorded by the Board in accordance with the provisions of Section 14.19 of the Declaration.
1.36 OWNER(S).
1.36.1 "Owner(s)"shall mean and refer to each person or entity holding a Recorded fee title interest in a
Lot, including, but not limited to, the Declarant and any Contract Buyer, as well as, except where the context
otherwise requires,the family, Tenants, and Invitees of an Owner.
1.36.2 "Ownership" shall not include persons or entities that hold an interest in a Lot merely as security
for the performance of an obligation.
1.37 PARTY FENCES. "Party Fences" shall mean and refer to any fences, including iron fences, that
are constructed on the property line of any two (2) adjoining Lots, a portion of which is located on each of the
two(2) adjoining Lots.
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1.38 PARTY WALLS. "Party Walls" shall mean and refer to any block walls that are constructed on
the property line of any two (2) adjoining Lots, a portion of which is located on each of the two (2) adjoining
Lots.
1.39 PROPERTY. "Property" shall mean and refer to Lots 1 through 41, inclusive, and "Outlots A, B
and C all of which are shown, designated and described on that certain map entitled "Final Map of Tract No.
6153".
1.40 RECORD; RECORDING; RECORDED; RECORDATION. "Record," "Recording," "Recorded,"
and"Recordation"shall mean and refer to the entering of any document in the Official Records of the County.
1.41 REGULAR MONTHLY ASSESSMENT(S). "Regular Monthly Assessment(s)" shall mean and
refer to any Assessment(s)that is/are levied by the Board in accordance with the provisions of Section 4.5 of the
Declaration.
1.42 RESERVE ACCOUNT. "Reserve Account" shall mean and refer to the bank account into which
any Reserve Funds are deposited together with any funds received and not yet expended or disposed of from
either a compensatory damage award or a settlement to the Association, or from any person for injuries to
property, real or personal, arising from any construction or design defects. The latter funds shall be separately
itemized from the Reserve Funds.
1.43 RESERVE ACCOUNT REQUIREMENTS. "Reserve Account Requirements" shall mean and
refer to the estimated Reserve Funds that the Board has determined are required to be available at a specified
time.
1.44 RESERVE FUNDS. "Reserve Funds" shall mean and refer to that portion of each annual Regular
Monthly Assessment that has been set aside in such amounts as the Board, in its discretion, deems appropriate to
meet the cost of any future repair, replacement, or addition to the Major Components, pursuant to California
Civil Code Sections 4177 and 4178.
1.45 RESIDENCE(S). Residence(s) shall mean and refer to the single family dwelling, including, but
not limited to, any garages associated therewith.
1.46 SPECIAL ASSESSMENT(S). "Special Assessment(s)" shall mean and refer to any Assessment(s)
that is/are levied by the Board in accordance with the provisions of Section 4.8 of the Declaration.
1.47 SUBDIVISION MAP. "Subdivision Map" shall mean and refer to that certain Recorded final
Subdivision Map for the Development, entitled, Final Map of Tract No. 6153 as described in Recital B above.
1.48 TENANT(S). "Tenant(s)" shall mean and refer to any person(s) or entity(ies) who has/have the
occupation or temporary possession of a Lot under the provisions of a lease or rental agreement, which may be
either oral or written, or as a guest of the Owner of such Lot.
1.49 VIOLATION OF A PROVISION OF THE GOVERNING DOCUMENTS. "Violation of a
Provision of the Governing Documents" shall mean and refer to any single transgression or breach of any
provision of the Governing Documents that occurs on any particular day.
END OF ARTICLE I
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ARTICLE U
MEMBERSHIP
2.1 QUALIFICATIONS. Each Owner of a Lot, including Declarant, shall be a Member of the
Association. If a given Lot is owned by more than one Owner, all such Owners shall be Members of the
Association.
2.2 TRANSFER OF MEMBERSHIP. The Membership of each Owner (including Declarant) shall be
appurtenant to the Lot giving rise to such Membership, and shall not be assigned,transferred,pledged, conveyed
or alienated in any way except upon the transfer of title to said Lot and then only to the transferee of title to such
Lot. Any attempt to make a prohibited transfer shall be void. Any transfer of title to a Lot shall operate
automatically to transfer the Membership in the Association appurtenant thereto to the new Owner thereof.
2.3 MEMBERSHIP RIGHTS. The rights, duties, privileges and obligations incidental to Membership in
the Association shall be exercised and imposed in accordance with the Declaration and the By-Laws of the
Association.
2.4 TERMINATION OF MBERSHIP. An Owner's membership in the Association shall cease upon the
termination of his status as an Owner, whether by sale, assignment or conveyance of the Lot giving rise to such
Membership.
END OF ARTICLE 11
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ARTICLE III
VOTING RIGHTS
3.1 VOTING RIGHTS. The Association shall have two (2) classes of voting Memberships, specifically,
Class A voting Members and Class B voting Members.
3.1.1 Each Lot, other than a Lot owned by the Declarant during such time as Class B voting rights are in
existence, shall have Class A voting rights entitling such Lot to one (1) vote, regardless of the number of
Owners thereof. There shall be as many Class A votes as there are Lots in the Development; provided, however,
that during such time as Class B votes shall be in existence, there shall be as many Class A votes as there are
Lots not owned by Declarant.
3.1.2 Declarant shall have Class B voting rights entitling it to three (3) votes for each Lot in the
Development owned by Declarant. Class B voting rights shall be converted to Class A voting rights and shall
forever cease to exist on the occurrence of the first to occur of the following:
(a) The total outstanding votes held by Class A Members equals the total outstanding votes
held by the Declarant, or
(b) The second anniversary of the first conveyance of a Lot in the.Property.
3.2 VESTING OF VOTING RIGHTS. The voting rights prescribed with respect to each Lot within the
Development pursuant to this Article III shall not vest with respect to such Lot until the first day following the
initial levy of the Regular Monthly Assessment against such Lot by the Association pursuant to Article 1V of the
Declaration.
3.3 APPLICATION. Whenever the Declaration or the By-Laws of the Association 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 III 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 Owner shall be cast.
3.4 JOINT OWNER DISPUTES. The vote for each Lot shall be cast only as a unit, and fractional votes
shall not be allowed. In the event that joint Owners are unable to agree among themselves as to how their vote or
votes shall be cast, they shall lose their right to vote on the matter in question. If any Owner or Owners cast a
vote representing a certain Lot, it will thereafter be conclusively presurned for all purposes that he or they were
acting with the authority and consent of all other Owners of the same Lot. In the event more than one vote is
cast for a particular Lot,none of said votes shall be counted and all of said votes shall be deemed void.
3.5 CUMULATIVE VOTING. In any election of the Board the vote attributable to a given Lot may be
cumulated by the Owner or Owners thereof as prescribed by Section 5.4 of the By-Laws.
3.6 PROXY VOTING. Persons entitled to vote at meetings of the Members may do so by proxy as
prescribed in Section 4.10 of the By-Laws.
END OF ARTICLE Ill
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ARTICLE IV
ASSESSMENTS
4.1 OBLIGATION OF ASSESSMENTS—AGREEMENT TO PAY. The Declarant, for each Lot owned
by it within the Development hereby covenants, and each Owner of a Lot within the Development, by
acceptance of a deed therefore, is deemed to covenant and agree to pay to the Association the following
assessments in accordance with the provisions of the Governing Documents, and to allow the Board to enforce
an Assessment lien established in accordance with such provisions by non judicial proceedings under a power of
sale or by any other means that may be authorized by law:
4.1.1 Regular Monthly Assessments;
4.1.2 Special Assessments; and
4.1.3 Individual Assessments.
Certain Regular and Special Assessments provided for by the Declaration (not Individual Assessments
prescribed by Section 4.11 below)together with such interest thereon and the cost for collection thereof shall be
a charge on the Lot against which each assessment is made, which lien shall be created and enforced in
accordance with the provisions of this Article IV, together with interest and the cost of collection thereof, shall
further be the joint and several personal obligation of each person who was an Owner of such Lot at the time
when such Assessment fell due. The personal obligation for any delinquent Assessments or installments and
related sums shall not pass to an Owner's successor in interest unless expressly assumed by such successor in
interest. No Owner may be relieved from the obligation to pay any Assessments, installments, late charge,
interest, collection cost, and/or reasonable attorney's fee by waiving the use or enjoyment of all or any portion
of the Common Area or the Owner's Lot, or by abandoning such Lot.
4.2 LIMITED EXEMPTION FROM ASSESSMENT DURING CONSTRUCTION.
4.2.1 Notwithstanding the provisions of Section 4.1 of the Declaration, any portion of the Development
upon which there are no structural Improvements for human occupancy shall be exempt from the payment of
that portion of any Assessments that is for the purpose of defraying any Common Expenses and/or providing
Reserve Funds that are directly attributable to the existence and use of a structural Improvement. The exemption
may include,but is not limited to:
(a)Roofs;
(b) Exterior maintenance;
(c)Walkway lighting;
(d)Refuse disposal;
(e) Cable television; and
(f)Domestic water supply to the Residences.
4.2.2. Any exemption from the payment of Assessments attributed to a Residence shall be in effect until
the earliest of the following events:
(a) Recordation of a Notice of Completion for any such structural Improvements and/or
commencement of the maintenance or activity for which an exemption is being taken;
(b) Occupation or use of the Residence on the Lot; or
(c)Completion of all elements of the Residence which the Association is obligated to maintain.
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4.2.3 In addition, the Declarant and any Owner are exempt from the payment of that portion of any
Assessment that is for the purpose of defraying Common Expenses and/or providing Reserve Funds that are
directly attributable to the existence and use of a Major Component and/or portion of the Common Area that is
not complete at the time Assessments commence. This exemption from the payment of Assessments shall be in
effect until the earliest of the following events:
(a) Recordation of a Notice of Completion for any such Major Components and/or portion of
the Common Area that has been Recorded; or
(b) Any such Major Component and/or portion of the Common Area that has been placed into
use.
4.3 SCOPE OF ASSESSMENT-AUTHORITY. The Assessments levied by the Association shall be
used exclusively to promote the recreation, health, safety, and welfare of the Members, to improve, replace,
repair, operate, and maintain the Conunon Area, the landscaping, the Major Components as well as any
Association personal property, wherever such items may be located, to provide funds necessary for the
performance of the duties of the Association as set forth in the provisions of the Governing Documents and to
further any other purpose that is for the common benefit of the Members in promoting their use and enjoyment
of the Property.
4.4 DELIVERY OF REQUESTED ITEMS.
4.4.1 On the written request of an Owner, Mortgagee, or prospective purchaser, if such prospective
purchaser's request is accompanied by a copy of a signed agreement of purchase or by a copy of signed escrow
instructions, the Association, within ten (10) days after receiving such request or within any earlier time as may
be required by law, shall provide such requesting Owner,Mortgagee, or prospective purchaser with a copy of:
(a)The Declaration, the Articles,the By-Laws, and the Association Rules;
(b) The most recent financial statements of the Association that have been distributed under the
provisions of Section 14.12 of the Declaration;
(c) A true statement in writing from an authorized representative of the Association as to the
amount of the Association's current Regular and Special Assessments and fees, as well as any Assessments that
have been levied on a Lot which are unpaid as of the date of such statement, including true information on late
charges,interest, and collection costs that, as of the date of such statement, are or may be made a lien on a Lot;
(d) A copy or a summary of any notice previously sent to an Owner under the provisions of
California Civil Code Section 4820 that sets forth any alleged violation of the Governing Documents and/or a
Board resolution which remains unresolved at the time of a request;
(e) A copy of the preliminary list of defects that are to be provided to each Member of the
Association under the provisions of California Civil Code Section 6000, including, but not limited to, a
statement that a final determination as to whether the list of defects is accurate and complete has not been made,
unless the Association and a builder subsequently enter into a settlement agreement or otherwise resolve the
matter and the Association complies with the provisions of California Civil Code Section 6100;
(f) A copy of the latest information provided for in the provisions of California Civil Code
Section 6100; and
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(g) Any change in the Association's current Regular and/or Special Assessments and fees that
have been approved by the Board but have not become due and payable as of the date of the disclosure.
4.4.2 The Association may charge the requesting Owner, Mortgagee, or prospective purchaser, as the
case may be, a fee for the services described in the provisions this Section 4.4, which shall not exceed the
Association's actual cost to prepare and reproduce the requested items.
4.4.3 Any such statement referred to in Section 4.4.1(b) and (c) above, may be relied on by any
requesting Owner, Mortgagee, or prospective purchaser, but reliance on such statement may not extend to any
default not involving the payment of Assessments of which the signer had no actual knowledge.
4.5 REGULAR MONTHLY ASSESSMENTS.
4.5.1 Not less than sixty (60) days nor more than ninety (90) days prior to the beginning of each Fiscal
Year following the Initiation Date (as defined in Section 4.15 of this Declaration), the Board shall meet for the
purpose of estimating the net cash requirements for the ensuing Fiscal Year for the Association to operate and
maintain the Development, including reasonable reserves for the replacement or repair of all improvements
comprising the Common Area, in accordance with the Association's duties as set forth in the Declaration and the
By-Laws. Such pro-forma operating statements shall be distributed to each Member of the Association not less
than sixty (60) days nor more than ninety (90) days before the commencement of the Fiscal Year pursuant to
Section 14.12.1 of the Declaration. The amount of the estimated net cash requirements for the ensuing Fiscal
Year for the Association, as detemiined pursuant to this Section 4.5.1, shall constitute the Regular Monthly
Assessment for such Fiscal Year, and each Lot in the Development shall be assessed for its share of the Regular
Monthly Assessment pursuant to the provisions of Section 4.1 of the Declaration. All Regular Monthly
Assessments shall continue in effect until the end of the Fiscal Year during which they became effective, and for
each Fiscal Year thereafter unless increased or decreased in accordance with and at the time and in the manner
provided for by the Declaration.
4.5.2 At such meeting the Board shall review the proposed Budget for such Fiscal Year and consider
any written comments received from the Members and Mortgagees as well as any other pertinent information
that has been made available to the Board for such Budget review purposes.
4.5.3 After making any adjustments that the Board considers appropriate, the Board, subject to the
restrictions provided for in the provisions of Sections 4.5.4, 4.5.5, and 4.7.10, below, if there is an increase in
the amount of the Regular Monthly Assessment over the Regular Monthly Assessment that was levied for the
previous Fiscal Year, having either complied with the provisions of Section 14.12 of the Declaration, Section
14.12.1(b) or, in the alternative, at a meeting of the Association, obtained the assent of a simple majority of the
Members who constitute a quorum consisting of fifty-one percent (51%) of the voting power of the Association,
shall establish the Regular Monthly Assessment for the forthcoming Fiscal Year.
4.5.4 Except as provided for in the provisions of Section 4.5.5, below, without having first obtained the
approval of such action by the vote or written assent of Members casting a majority of the votes at a meeting of
the Association at which a quorum, for the purposes of the provisions of this Section 4.5.4, "quorum"shall mean
and refer to Members constituting more than fifty percent (50%) of the voting power of the Association, is
present, the Board may not levy a Regular Monthly Assessment for any Fiscal Year that is more than one
hundred and twenty percent (120%) of the Regular Monthly Assessment for the immediately preceding Fiscal
Year. Any meeting of the Association for the purpose of complying with the provisions of this Section 4.5.4
shall be conducted in accordance with the provisions of Chapter 5, commencing with Section 7510, of Part 3,
Division 2 of Title 1 and Section 7613,both of the California Corporations Code.
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4.5.5 The restrictions on Regular Monthly Assessment increases set forth in Section 4.5.4 above, do not
apply to increases necessitated by emergency situations described in Section 4.10 below.
4.5.6 Notwithstanding any other provisions in the Governing Documents to the contrary, the Board may
not impose a Regular Assessment for any Fiscal Year that is more than twenty percent(20%) above the Regular
Assessment for the Association's immediately preceding Fiscal Year.
4.6 INCREASE IN REGULAR MONTHLY ASSESSMENTS BY BOARD. The Association shall at
all times levy assessments sufficient to perform its obligations under the Declaration and under the California
Davis-Stirling Common Interest Development Act. The Board must comply with the provisions of Sections
5605, 5610 and 5615 of the California Civil Code prior to any increase in Regular Monthly Assessments. The
Board shall provide notice by first-class mail to all of the Owners who are subject to any such Assessments, or
any increase in a Regular Monthly or Special Assessment, not less than thirty(30)nor more than sixty(60) days
prior to any such increased Assessments or installments thereof, as the case may be,becoming due.
4.7 RESERVE FUNDS.
4.7.1 Each Regular Monthly Assessment shall include a portion for the Reserve Funds. Reserve Funds
shall be deposited into the Reserve Account.
4.7.2 The Board shall do all of the following:
(a) Review a current reconciliation of the Association's operating accounts on at least a
quarterly basis.
(b) Review a current reconciliation of the Association's Reserve Accounts on at least a quarterly
basis.
(c) Review, on at least a quarterly basis, the current year's actual reserve revenues and expenses
compared to the current year's budget.
(d) Review the latest account statements prepared by the financial institutions where the
association has its operating accounts and Reserve Accounts.
(e) Review an income and expense statement for the Association's operating accounts and
Reserve Account's on at least a quarterly basis.
4.7.3 Reserve Funds shall be deposited in a separate account and the signatures of at least two (2)
persons who shall either be Directors or one(1) officer of the Association, who is not a Director, and a Director,
shall be required to withdraw money from the Reserve Account.
4.7.4 Except as provided for in the provisions of Sections 4.7.5 and 4.7.6 below, Reserve Funds may not
be expended for any purpose other than repair, restoration, replacement, or maintenance of, or litigation
involving the repair,restoration,replacement, or maintenance of the Major Components.
4.7.5 Notwithstanding the foregoing, the Board may authorize the temporary transfer of money from the
Reserve Account to the Association's general operating fund to meet short term cash flow requirements or other
expenses, provided the Board has made a written finding, recorded in the Board's minutes, explaining the
reasons that the transfer is needed and describing when and how the money will be repaid to the Reserve
Account.
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4.7.6 The transferred funds shall be restored to the Reserve Fund within one (1) year of the date of the
initial transfer, provided that the Board, on the making of a finding supported by documentation that a
temporary delay is in the best interest of the Development, may provisionally delay the restoration.
4.7.7 The Board shall exercise prudent fiscal management in maintaining the integrity of the Reserve
Account and shall, if necessary, levy a Special Assessment to recover the full amount of any Reserve Funds
within the time limits required. This Special Assessment shall be subject to the Assessment increase restrictions
set forth in the provisions of Section 4.8 of the Declaration, Sections 4.8.6 and 4.10 below and California Civil
Code Sections 5605, 5610 and 5615, or any compatible superseding statutes. The Board may, at its discretion,
extend the date the payment of the Special Assessment is due. Any extension shall not prevent the Board from
pursuing any legal remedy available to them for enforcing the collection of an unpaid Special Assessment as so
extended.
4.7.8 At least once every three (3) years, the Board shall cause to be conducted a reasonably competent
and diligent visual inspection of the accessible areas of the Major Components as part of the Reserve Account
Requirements, and of the Development if the current replacement value of the Major Components is equal to or
greater than one-half (1/2) of the Budget, excluding the Reserve Account for that period. The Board shall
review this study annually and shall consider and implement the necessary adjustments to the Board's analysis
of the Reserve Account Requirements as a result of that review. The study shall, at a minimum, include:
(a) Identification of the Major Components as of the date of the study that have a remaining
useful life of less than thirty(30)years;
(b) Identification of the probable remaining useful life of each of those Major Components that
have been identified in the provisions of Section 4.7.8(a) above, as of the date of the study;
(c) An estimate of the cost of repair, replacement, restoration, or maintenance of each of the
Major Components that have been identified in compliance with the provisions of Section 4.7.8(a), above,
during, and at the end of its useful life; and
(d) An estimate of the total annual contribution necessary to defray the costs to repair, replace,
restore, or maintain each of the Major Components identified in compliance with the provisions of Section
4.7.8(a), above, during, and at the end of their useful lives after subtracting the total of the Reserve Funds as of
the date of the study.
4.7.9 If the Board elects to use Reserve Funds or to temporarily transfer money from the Reserve
Account to pay for litigation, the Board shall, in the next available mailing to all of the Members in compliance
with the provisions of California Corporations Code Section 601(b), or any compatible superseding statutes,
notify the Members of such a decision and of the availability of an accounting of these expenses. The Board
shall make an accounting of any expenses related to such litigation on at least a quarterly basis. The accounting
shall be made available for inspections by the Members at the Association's office.
4.7.10 In the event the Association does not qualify as being exempt from federal and state income
taxes, including without limitation an exemption under the provisions of Internal Revenue Code Section 528 and
California Revenue and Taxation Code Section 23701t, or any compatible superseding statutes, all Reserve
Funds, to the extent possible, shall be designated and accounted as capital contributions to the Association and
the Board shall take such steps as may be reasonably necessary under federal and state laws to prevent the
Reserve Funds from beuig taxed as income of the Association.
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4.8 SPECIAL ASSESSMENTS PURPOSE OF AND PROCEDURE FOR LEVYING.
4.8.1 Subject to the restrictions described in the provisions of Sections 4.8.6 and 4.10 below, the Board
may levy a Special Assessment if, for any particular Fiscal Year in which the Board, in its sole discretion,
determines that for any reason, including, but not limited to, any unanticipated delinquencies, the costs of
necessary and unforeseen construction, or any unexpected repairs to or the placement of a Major Component,
the Association's available funds are or will become inadequate to meet the estimated Common Expenses,
including but not limited to,the maintenance of appropriate Reserve Funds.
4.8.2 The Board shall determine the amount necessary to meet such shortfall and if the amount is
approved by a majority vote of the Board, it shall become a Special Assessment.
4.8.3 The Board, in its sole discretion, may levy such entire Special Assessment immediately or levy it
in installments over a period of time the Board considers appropriate.
4.8.4 In the event the Association does not qualify as being exempt from federal or state income taxes,
including, without limitation, any exemption under the provisions of Internal Revenue Code Section 528 and
California Revenue and Taxation Code Section 23701t, or any compatible superseding codes, the Board shall
take such steps as may be reasonably necessary to prevent any such Special Assessment from being included in
the Association's income for federal and state income tax purposes, including, if necessary, depositing the funds
received from any such Special Assessment in a separate account, not commingling such funds with any other
funds of the Association and using such funds solely for the purpose for which they were levied.
4.8.5 After compliance with the Due Process Requirements, the Board may impose a monetary penalty
and levy a Special Assessment against a particular Lot to reimburse the Association for costs incurred in
repairing damage to the Common Area, Major Components, or any personal property that is owned by the
Association, for which the Owner was allegedly responsible, or in bringing the Owner or the Owner's Lot into
compliance with the provisions of the Governing Documents; provided, however, such Special Assessments
may not become a lien against the Owner's Lot that is enforceable by a power of sale under the provisions of
Civil Code Sections 2924, 2924b, and 2924c, or any compatible superseding statutes. The restriction on
enforcement is not applicable to late payment penalties for delinquent Assessments or charges imposed to
reimburse the Association for the loss of interest or for collection costs, including reasonable attorney's fees, for
delinquent Assessments.
4.8.6 Except as provided in the provisions of Section 4.10 below, without having first obtained the
approval of such action by the vote or written assent of Members casting a majority of the votes at a meeting of
the Association at which a quorum is present,the Board may not levy a Special Assessment to defray the cost of
any action or undertaking on behalf of the Association which, in the aggregate, exceeds five percent(5%) of the
budgeted Common Expenses for such Fiscal Year. For the purposes of the provisions of this Section 4.8.6,
"quorum" shall mean and refer to Members constituting more than fifty percent (50%) of the voting power of
the Association. Any meeting of the Association for the purpose of complying with the provisions of this
Section 4.8.6 shall be conducted in accordance with the provisions of Chapter 5, commencing with Sections
7510, of Part 3,Division 2 of Title 1 of the California Corporations Code and 7613.
4.8.7 The restrictions on Special Assessments increases set forth in Section 4.8.6 above, do not apply to
increases necessitated by emergency situations described in Section 4.10 below.
4.9 QUORUM. For purposes of Sections 4.5.1 and 4.6 of this Article IV, a quorum means more than
fifty percent(50%)of the Members of the Association.
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4.10 EMERGENCY ASSESSMENTS. The restriction contained in the provisions of Sections 4.5.4 and
4.8.6, above, shall not apply in the following circumstances:
4.10.1 An Assessment levied against a particular Lot to reimburse the Association for any costs incurred
in bringing the Owner of such Lot or such Lot into compliance with the provisions of the Governing
Documents.
4.10.2 Increases necessary for emergency situations. For the purposes of the provisions of this Section
4.10, an emergency situation is any one(1) of the following:
(a) An extraordinary expense required by an order of a court of law having jurisdiction of the
matter for which such extraordinary expense has been occasioned.
(b) An extraordinary expense that is necessary to repair or maintain the Development, or any
portion thereof that the Association is responsible to maintain, when a threat to personal safety on the Property
is discovered.
(c) An extraordinary expense necessary to repair or maintain the Development, or any portion
thereof that the Association is responsible to maintain, which could not have been reasonably foreseen by the
Board in preparing and distributing the Budget for the current Fiscal Year. Provided that before the imposition
or collection of any such Special Assessment that is to be levied under the provisions of this Section 4.10.1(c),
the Board must pass a resolution containing written findings as to the necessity for any such extraordinary
expense as well as why such an extraordinary expense was not or could not have been reasonably foreseen in the
Budget process for the current Fiscal Year. The Board shall then distribute a copy of such resolution to all of
the Members with the notice of such Special Assessment.
(d) Any Special Assessment levied to restore Reserve Funds under the provisions of California
Civil Code Section 5510(b)and 5515, or any compatible superseding statutes.
4.11 INDIVIDUAL ASSESSMENTS. Each Owner of a Lot shall also be assessed from time to time for
all fines, penalties and damages to which its Owner is subject as a result of a violation of the terms of the
Declaration, any rules prescribed by the Board for use of the Common Area, and for any other liability,
indebtedness or other obligation of the Owner to the Association arising under the provisions of the Declaration.
Notice of all Individual Assessments shall be given by the Board to the Owner of each Lot assessed within
fifteen(15) days of the adoption of the I.ndividual Assessment. Individual Assessments shall be due and payable
within thirty(30)days following written notice thereof by the Board.
4.12 DAMAGES TO COMMON AREA. Each Owner of a Lot shall also be assessed from time to time
for all fines, penalties and damages to which the Owner is subject as a result of any damages caused to the
Common Area by the negligence or willful misconduct of such Owner; provided, however, that an assessment
levied pursuant to this Section 4.12 may not be treated as an assessment which may become a lien against the
Owner's Lot enforceable by sale of the interest pursuant to Sections 4.21 and 4.22 below.
4.13 COLLECTION DATE. Regular Monthly Assessments shall be collected on a monthly basis unless
the Board directs otherwise; Special Assessments may be collected in one (1) payment or periodically as the
Board shall direct. Individual and Emergency Assessments shall be paid in full within thirty (30) days from
notice thereof.
4.14 UNIFORM RATE OF ASSESSMENT. Regular Monthly Assessments must be fixed at a uniform
rate for all Lots in the Development. Regular Monthly Assessments shall be collected on a monthly basis and
Individual Assessments shall be paid in full within thirty(30) days from notice thereof. If a Special Assessment
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is assessed in accordance with Section 4.8 of this Article IV, the amount thereof shall be pro-rated over the
number of months remaining in the Fiscal Year in which it is so assessed.
4.15 DATE OF COMMENCEMENT. The first day of the calendar month immediately following the
date of the first conveyance of a Lot under authority of the Final Subdivision Public Report shall be hereinafter
referred to as the"Initiation Date". Until January 1 of the Fiscal Year immediately following the Initiation Date
the Regular Monthly Assessment shall be the amount set forth in the final subdivision public report. The
Regular Monthly Assessment shall commence on the Initiation Date as to all Lots in the Development, including
those owned by the Declarant. For each Fiscal Year commencing January 1 of the year following the Initiation
Date, the Board may increase the amount of the Regular Monthly Assessment for such year against each Lot in
the Development as provided by Section 4.6 of this Article IV in the manner and upon the notice prescribed
therein.
4.16 DUE DATE, LATE CHARGES,AND INTEREST.
4.16.1 At least ten (10) days prior to the commencement of any Regular or Special Assessment, the
Board shall give each Owner who is subject to such Assessment, a written notice of the amount of the
Assessment,that is about to commence, and the due date, or due dates if paid installments, as well as the amount
of any such installment. Such notice need only be given once for any Assessment that is to be paid in
installments. Unless the Board specifies otherwise, the due date of any installment shall be the first day of each
month.
4.16.2 Any Assessment payment, including any installment payment, shall become delinquent if
payment is not received by the Association within fifteen (15) days after its due date. There shall be a late
charge of ten percent (10%) or ten dollars ($10), whichever is greater, on each delinquent payment. A late
charge may not be imposed more than once on any delinquent payment; however, it shall not eliminate or
supersede any charges imposed on prior delinquent payments. Interest shall also accrue on any delinquent
payment at the rate of twelve percent (12%) per annum. Interest shall commence thirty (30) days after an
Assessment becomes due.
4.16.3 Before adopting, amending, or repealing any standards for delinquent payment plans, the Board
shall provide to the Owners at least thirty (30) days prior written notice of such proposed action. The notice
shall include the text of the proposed standard and a description of its purpose and effect. The Board shall
decide on any such proposed action at a Board meeting,after considering any comments made by the Owners.
4.17 ALLOCATION OF REGULAR MONTHLY AND SPECIAL ASSESSMENTS.
4.17.1 Subject to the provisions of Section 4.2 of the Declaration, the Regular Monthly and Special
Assessments levied by the Board shall, except as otherwise provided herein, be allocated among each Lot
subject to the Assessment by dividing the total amount of the Assessments by the total number of Lots subject to
such Assessment. Special Assessments levied against a particular Lot or an Owner, as the case may be, to
reimburse the Association for costs incurred in bringing such Owner and/or Lot into compliance with the
provisions of the Governing Documents shall not be subject to the allocation provisions that are contained in
this Section 4.17.1.
4.17.2 All Regular Monthly Assessments and Special Assessments shall be segregated by the Board as
to the purpose for which they were assessed. Following such segregation, such funds shall be transferred and
held by the Board in an operating account and shall be used by the Board to discharge the expenses for the
annual operation, repair and maintenance of the Common Area of the Development, and to the extent permitted
by the Declaration,the Lots and Residences within the Development.
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4.17.3 The reserve accounts of the Association shall require the signature of at least two (2) Directors of
the Association or the signature of one Director and one Officer, who is not a Director, for the withdrawal of
funds therefrom. The operating accounts of the Association shall require the signature of the Chief Financial
Officer and one other officer designated by the Board, unless operating responsibilities are contracted by the
Association to a managing agent, in which case the prospective managing agent shall make written disclosure to
the Board pursuant to California Civil Code Sections 5375, 5385 and 4158. Moreover, a managing agent that
accepts or receives Association funds shall comply with the requirements of Civil Code Sections 5380, 5385 and
4158.
4.18 ASSOCIATION'S POWER TO ESTABLISH ASSESSMENT LIEN.
4.18.1 The Board has the right to collect and enforce Assessments.
4.18.2 In addition to the enforcement powers described in the provisions of Section 14.5 of the
Declaration and subject to the restrictions on the enforcement of monetary penalties described in the provisions
of Section 4.8 of the Declaration, the Board may enforce any delinquent Assessments, including any delinquent
installments of such Assessments, by suing the Owner directly on the debt established by any such delinquency,
or by establishing a lien against such Owner's Lot as provided for in the provisions of Section 4.20 of the
Declaration, and foreclosing such lien through either judicial proceedings or non judicial proceedings under a
power of sale as provided for in the provisions of Section 4.21 of the Declaration.
4.18.3 The Board may commence and maintain a lawsuit directly on the debt without waiving its right
to establish a lien against the Owner's Lot for any such delinquency.
4.18.4 In any action instituted by the Board to collect a delinquent Assessment together with any
accompanying late charges or interest, as the case may be, the prevailing party shall be entitled to recover their
costs and reasonable attorney's fees.
4.19 PRE-LIEN NOTICE.
4.19.1 At least thirty (30) days prior to recording a lien against a Lot under the provisions of Section
4.20 of the Declaration, the Board shall notify ("Pre-Lien Notice") the record Owner(s) in writing by certified
mail of the following:
(a) A general description of the collection and lien enforcement procedures of the Association
and the method of calculation of the amount;
(b) A statement that the Owner has the right to inspect the Association records under the
provisions of California Civil Code Section 5205; and
(c)The following statement in 14-point boldface type, if typed, or in capital letters, if printed:
"IMPORTANT NOTICE: IF YOUR LOT IS PLACED IN FORECLOSURE
BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE
SOLD WITHOUT COURT ACTION."
(d) An itemized statement of the charges owing by the Owner, including items on the statement
that indicate the amount of any delinquent Assessments, the fees and reasonable costs of collection, reasonable
attorney fees, any late charges, and any interest.
(e) A statement that the Owner shall not be liable to pay charges, interest, or collection costs, if
it is found that the Assessment was paid on time to the Association.
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(f) The right to request a meeting with the Board to discuss a payment plan for the amount
owing by the Owner.
(g) The right to dispute the Assessment debt by submitting a written request for dispute
resolution to the Board under the Association's"meet and confer"program required by the provisions California
Civil Code Sections 5900, 5905, 5910, 5915 and 5920.
(h) The right to request alternative dispute resolution with a neutral third (3rd) party under the
provisions of California Civil Code Section 5925 before the Board may initiate foreclosure against an Owner's
Lot, except that binding arbitration shall not be available if the Board intends to initiate a judicial foreclosure.
4.19.2 An Owner may submit a written request to meet with the Board to discuss a payment plan for the
amount owing as shown in the Association notice. The Board shall provide the Owners 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 on such Owner's request, if the request is mailed within fifteen(15) days after
the date of the postmark on the Pre-Lien Notice, unless there is no regularly scheduled Board meeting within
that period, in which event the Board may designate a committee of one(1) or more Director(s)to meet with the
Owner.
4.19.3 Before the Board may place a lien on a Lot to collect a delinquent Assessment, the Board must
first send the Pre-Lien Notice.
4.19.4 The decision to record a lien for delinquent Assessments may be made only by the majority vote
of the Directors at an open meeting and may not be delegated to an agent of the Association.
4.20 CREATION OF ASSESSMENT LIEN.
4.20.1 Subject to the provisions of Section 4.8 of the Declaration, if a delinquency occurs in the
payment of any Assessment or installment of same or in the payment of any other amount with respect to which
a lien is authorized to be imposed by the provisions of the Declaration or by law, the Association shall have a
lien against the Lot against which such delinquent Assessments have been levied in the amount of the delinquent
payments, plus any late charges and interest and all costs that are incurred by the Association or its authorized
agent or representative in collecting such amounts, including reasonable attorney fees.
4.20.2 The lien shall be effective on the recordation of a notice of delinquent Assessment ("Delinquent
Assessment Notice") in the office of the County Recorder as provided for in the provisions of California Civil
Code Sections 5650 and 5660.
4.20.3 The Delinquent Assessment Notice shall state:
(a)The amount of the Assessment and other sums owing;
(b) A legal description of the delinquent Owner's Lot;
(c)The name(s) of the Owner(s) as reflected in the recorded deed to the fee title interest of such
Lot; and
(d) If the lien is to be enforced by non judicial foreclosure, the naive and address of the trustee
authorized by the Association to enforce the lien by sale as provided for in the provisions of Section 4.21 below.
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4.20.4 The Delinquent Assessment Notice shall be signed by the President of the Association or by a
person authorized by a resolution of the Board, and mailed in the manner set forth in the provisions of California
Civil Code Section 2924b,to all record Owners of such Lot no later than ten(10) calendar days after recordation
of said Delinquent Assessment Notice.
4.20.5 The Delinquent Assessment Notice shall not be recorded unless and until the Association has
complied with the provisions of Section 4.19 of the Declaration.
4.20.6 Such lien shall continue until the Association records a further notice stating the satisfaction and
release of such lien as provided for in the provisions of California Civil Code Sections 5675, 5685(a) and
5725(a), or until foreclosure as provided for in the provisions of the Declaration.
4.20.7 Within twenty-one (21) days after payment of the sums specified in the Delinquent Assessment
Notice,the Association shall record or cause to be recorded in the office of the County Recorder a lien release or
notice of rescission and shall provide the affected Owner(s) with a copy of such lien release or notice that the
delinquent Assessment has been satisfied.
4.20.8 Any lien created under the provisions of this Section 4.20 shall be prior to all other liens recorded
subsequent to the recordation of the Delinquent Assessment Notice, except for Mortgages to which such lien has
been expressly made subordinate under the provisions of the Declaration or by a separate written instrument of
subordination executed by the Association, or taxes, bonds, Assessments and other similar levies which by law
would be superior thereto.
4.20.9 The Association may not voluntarily assign or pledge the Association's right to collect payments
or Assessments, or to enforce or foreclose a lien to a third party, except when such assignment or pledge is made
to a financial institution or a lender chartered or licensed under federal or state law, when acting within the
scope of that charter or license, as security for a loan obtained by the Association.
4.20.10 However, the above provision shall not restrict the Association's right or ability to assign any
unpaid obligations of a former Owner to a third party for purposes of collection.
4.20.11 If a lien that has been previously recorded against a Lot was recorded in error, the party who
recorded the lien shall, within twenty-one (21) calendar days after becoming aware of such error, record or
cause to be recorded in the office of the County Recorder of the County a lien release or notice of rescission and
provide the Owner(s) of the Lot against which the lien was recorded-with a declaration that the lien recording
was in error and a copy of the lien release or notice of rescission.
4.20.12 If the Association fails to comply with the procedures set forth in the provisions of this Section
4.20 it shall,before recording a lien, recommence the required notice process and any costs associated with such
recommencing of said process shall be borne by the Association and not by the delinquent Owner(s).
4.20.13 The provisions of this Section 4.20 are intended to comply with the requirements of California
Civil Code Sections 5650, 5655, 5660, 5665, 5670, 5673, 5675, 5680, 5685(a) and (b), 5690, 5700, 5705,
5710(a)(b)and(c), 5725(a) and (b) and 4040(b). If the provisions of the California Civil Code Sections referred
to in the immediately preceding sentence are amended or modified in any way that is binding on the Association
and causes this Section 4.20 to be in conflict with applicable law, the provisions of this Section 4.20 shall
automatically be amended or modified in the same manner.
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4.21 ENFORCEMENT OF ASSESSMENT LIEN.
4.21.1 Subject to the provisions of Section 4.20 of the Declaration, after the expiration of thirty (30)
days following the Recording of the Notice of Delinquent Assessment, the Board may enforce a delinquent
Assessment lien that was created by such Recording by the filing of an action in any court of competent
jurisdiction for judicial foreclosure or, in the alternative, by non judicial foreclosure as provided for in the
provisions of California Civil Code Sections 2924, 2924b, 2924f, 2924g, 2924h, and 2924] or any compatible
superseding statutes.
4.21.2 The collection by the Association of delinquent Regular Monthly Assessments or delinquent
Special Assessments of an amount less than one thousand eight hundred dollars ($1,800), not including any
accelerated Assessments, late charges; fees and costs of collection, attorney's fees, or interest may not be
enforced through judicial or non judicial foreclosure, but may be collected or secured in any of the following
ways:
(a)By a civil action in small claims court,pursuant to Chapter 5.5, (commencing with Section
116.110 of Title 1 of the California Code of Civil Procedure. If the Association chooses to proceed by an action
in small claims court, and prevails,the Association may enforce the judgment as permitted under Article 8
(commencing with Section 116.810 of Title 1 of the California Code of Civil Procedure. The amount that may
be recovered in small claims court to collect upon a debt for delinquent Assessments may not exceed the
jurisdictional limits of the small claims court and shall be the sum of the following;
1. The amount owed as of the date of filing the complaint in the small claims court
proceeding.
2. In the discretion of the court an additional amount to that described in subparagraph
(1)above equal to the amount owed for the period from the date the complaint is filed until satisfaction of the
judgment, which total amount may include accruing unpaid Assessments and any reasonable late charges, fees
and costs of collection, attorney's fees, and interest, up to the jurisdictional limits of the small claims court.
(b) By recording a lien on the Owner's Lot upon which the Association may not foreclose until
the amount of the delinquent Assessments secured by the lien, exclusive of any accelerated Assessments, late
charges, fees and costs of collection, attorney's fees, or interest equals or exceeds one thousand eight hundred
dollars ($1,800) or the Assessments are more than twelve (12) months delinquent. If the Association chooses to
record a lien under these provisions, prior to recording the lien, the Association shall offer the Owner and, if so
requested by the Owner, participate in dispute resolution as set forth in Article 2 (commencing with Section
5900)of Chapter 10 of the California Civil Code.
(c) Any other manner provided by law, except for judicial or non judicial foreclosure.
4.21.3 The Association may collection delinquent Regular Monthly Assessments or delinquent Special
Assessments of an amount of one thousand eight hundred dollars ($1,800) or more, not including any
accelerated Assessments, late charges, fees and costs of collection, attorney's fees, or interest, or any
Assessments that are more than twelve (12) months delinquent by a civil action, including, if within the
jurisdiction of the small claims court, in small claims court, pursuant to Chapter 5.5 (commencing with Section
116.110 of Title 1 of the California Code of Civil Procedure or any other manner provided by law, including
using judicial or non judicial foreclosure subject to the following conditions
(a) Prior to initiating a foreclosure on an Owner's separate interest, the Association shall offer
the Owner and, if so requested by the Owner, participate in dispute resolution pursuant to the Association's
"meet and confer" program required in Article 2 (commencing with Section 5900) of Chapter 10 of the
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California Civil Code or alternative dispute resolution as set forth in California Civil Code, Article 3
(commencing with Section 5925) of Chapter 10 of the California Civil Code. The decision to pursue dispute
resolution or a particular type of alternative dispute resolution or a particular type of alternative dispute
resolution shall be the choice of the Owner, except that binding arbitration shall not be available if the
Association intends to initiate a judicial foreclosure.
(b) The decision to initiate foreclosure of an Assessment Lien for delinquent Assessments that
has been validly recorded 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 members in an executive
session. The Board shall record the vote in the minutes of the next meeting of the Board open to all Members.
The Board shall maintain the confidentiality of the Owner or Owners of the Lot by identifying the matter in the
minutes by the Lot number of the property, rather than the name of the Owner or Owners. A Board cote to
approve foreclosure of a lien shall take place at least thirty(30)days prior to any public sale.
(c) The Board shall provide notice by personal service to an Owner of a Lot who occupies the
Lot or to the Owner's legal representative, if the Board votes to foreclose upon the Lot. The Board shall provide
written notice to an Owner of a Lot who does not occupy the Lot 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 Owner to
the Association,the address of the Owner's Lot may be treated as the Owner's mailing address.
(d) A non judicial foreclosure by the Association to collect upon a debt for delinquent
Assessments shall be subject to a right of redemption. The redemption period within which the Lot may be
redeemed from a foreclosure sale under this subparagraph(d) ends ninety(90)days after the sale.
In addition to the requirements of California Civil Code Sectiori 2924, a notice of default shall be served
by the Association on the Owner's legal represent in accordance with the manner of service of summons in
Article 3 (cornmencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil
Procedure. 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 any notices required by this Section 4.21.3 the
secondary address provided. The Association shall notify Owners of their right to submit secondary addresses
to the Association, at the time the Association issues the pro-forma operating budget pursuant to California Civil
Code Section 5310. 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 notices to the indicated secondary address from the point the
Association receives the request..
4.21.4 Any sale by the trustee shall be conducted in accordance with the provisions of Sections 2924,
2924b and 2924c of the California Civil Code applicable to the exercise of powers of sale in mortgages and
deeds of trust, including any successor statutes thereto, or in any other manner permitted by law. The fees of a
trustee may not exceed the amounts prescribed in California Civil Code Sections 2924c and 2924d. Nothing in
,this Declaration shall preclude the Association from bringing an action directly against an Owner for breach of
the personal obligation to pay Assessments nor from taking a deed in lieu of foreclosure. Any foreclosure sale
shall be conducted by the trustee named in the Notice of Delinquent Assessment or by a trustee substituted in
accordance with the provisions of California Civil Code Section 2934a.
4.21.5 The Association acting on behalf of the Lot Owners, shall have the power to bid for the Lot at a
foreclosure sale, and to acquire and hold, lease, mortgage and convey the Lot. If the purchase of a Lot would
result in a five percent (5%) or greater increase in Assessments, the purchaser shall require the vote or written
consent of a majority of the total voting power of the Association, including a majority of Members other than
Declarant. During the period a Lot is owned by the Association, following Foreclosure:
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(a) No right to vote shall be exercised on behalf of the Lot;
(b) No Assessment shall be assess or levied on the Lot; and
(c) Each other Lot shall be charged, in addition to its usual Assessment, its share of the
Assessment that would have been charged to such Lot had it not been acquired by the Association as a result of
foreclosure.
After acquiring title to the Lot at Foreclosure sale following notice and publication, the Association may
execute, acknowledge and record a deed conveying title to the Lot which deed shall be binding upon the
Owners, successors, and all other parties.
4.21.6 If the default is cured before completing a judicial foreclosure, or prior to the sale that would
result from such a foreclosure, including the payment of all costs and expenses incurred by the Board, the Board
shall Record a notice of satisfaction and release of lien and, on receipt of a written request by the current Owner,
a notice of rescission of the declaration of default and demand for sale.
4.22 TRANSFER OF A LOT BY SALE OR FORECLOSURE.
4.22.1 The following rules shall govern the Association's rights to enforce its Assessment collection
remedies subsequent to the sale or foreclosure of a Lot:
(a) Except as provided for in the provisions of Section 15.2 of the Declaration, the sale or
transfer of any Lot shall not affect any Assessment lien that was duly Recorded with respect to that Lot prior to
such sale or transfer and the Association can continue to foreclose its lien in spite of any change in ownership.
The Association's Assessment lien shall be extinguished as to all delinquent sums, late charges, interest, and
costs of collection incurred before the sale or transfer of a Lot under a foreclosure sale or exercise of a power of
sale by the holder of a prior encumbrance, but not by a deed or assignment, in lieu of foreclosure. A "prior
encumbrance"means any Mortgage or lien Recorded prior to the Association's Assessment lien.
(b) Except as provided for in the provisions of Section 15.2 of the Declaration, no sale or
transfer of the fee title of all or any portion thereof, of a Lot as the result of a foreclosure, an exercise of a power
of sale or otherwise, shall relieve any new Owner of such Lot from the liability for any Assessments that are
thereafter levied or from any lien created thereon.
(c) Any Assessments, late charges, interest, and associated costs of collection that are lost as a
result of a sale or transfer covered by the provisions of this Section 4.22 shall be deemed to be a Common
Expense collectible from the Owners of all of the Lots including any person or persons who acquire(s) such Lot
and its,his,her,or their heirs, successors and assigns, as the case may be.
(d) No sale or transfer of a Lot as the result of a foreclosure, an exercise of a power of sale, or
otherwise that is occasioned by a senior encumbrance or lien, shall affect the Association's right to maintain an
action against the foreclosed previous Owner of the Lot personally, to collect the delinquent Assessments, late
charges, interest, and associated costs of collection incurred by said Owner prior to any sale or transfer resulting
from such actions.
(e) The provisions of Section 4.21 of the Declaration and this Section 4.22 are intended to
reflect the California law concerning community association Assessment lien priority in effect as of the effective
date of the Declaration. In the event that the applicable California laws are revised, the provisions of this Section
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4.22 and the above referenced Section 4.21 may be modified by an action of the Board to conform to the new
statutory provisions concerning this subject matter without submitting same to a vote of the Owners.
4.23 PRIORITY OF LIEN. The lien created pursuant to Article IV of the Declaration upon the
recordation of a Notice of Delinquent Assessments shall be prior and superior to all liens except:
4.23.1 All taxes, bonds, assessments and other similar levies which by law would be superior thereto,
and
4.23.2 The rights of lenders as prescribed by Article XV of the Declaration.
4.24 FAILURE TO PAY ASSESSMENTS. Failure to pay Assessments does not constitute a default
under an insured First Mortgage.
4.25 NO CHARGE FOR TRANSFER OF TITLE. The Association shall not impose or collect any
Assessment,penalty, or fee in connection with a transfer of title to a Lot in the Property or any other interest in a
Lot in the Property except the Association's actual cost to change its records to reflect such transfer.
END OF ARTICLE IV
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ARTICLE V
OWNERSHIP OF LOTS AND COMMON AREA
5.1 OWNERSHIP OF LOTS AND COMMON AREA. Each Lot in the Property is to be owned by the
Owner in fee simple. The Common Area of the Development is to be owned by the Association for the benefit
of all Owners. Prior to the conveyance of a Lot in the Development, the Declarant shall convey the Common
Area in the Development to the Association by grant deed, free and clear of all liens and encumbrances, except
conditions, easements and restrictions of record, including those set forth in the Declaration.
5.2 ENCUMBRANCE OF COMMON AREA. The Common Area cannot be mortgaged or conveyed by
the Association without the prior written consent of at least sixty-six and two-thirds percent (66 2/3%) of the
Owners (excluding the votes of the Declarant).No such conveyance or encumbrance shall be prior to the
easements granted or reserved by Article XIII of the Declaration.
END OF ARTICLE V
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ARTICLE VI
OCCUPANCY AND USE OF LOTS AND COMMON AREA
6.1 ANIMALS.
6.1.1 The Board shall have the right to establish and enforce sensible rules and regulations imposing
standards for the reasonable control and keeping of animals in, upon and around the Development to ensure that
the same do not interfere with the quiet and peaceful enjoyment of the Development by the Owners,their family
members, agents, employees, representatives, Invitees, Tenants, licensees, customers, clients, patients, and
Contract Buyers. Such rules shall include, but not be limited to, a prohibition against maintaining, breeding, or
raising animals for commercial purposes and in unreasonable numbers.
6.1.2 Each person bringing or keeping an animal within the Development shall be liable to other
Owners, their family members, agents, employees, representatives, Invitees, Tenants, licensees, customers,
clients,patients, and Contract Buyers for any damage to person or property caused by any such animal, and shall
defend, indemnify and hold harmless all other Lot Owners from any such liability.
6.1.3 All animals must be kept within a secure backyard enclosure or securely enclosed back yard, or
on a leash or other tether being held by a person capable of controlling the animal. All areas where animals are
kept shall be maintained in a neat, clean, sanitary, workable and attractive condition at all times.
6.1.4 All construction of structures intended to house and/or contain animals shall be created in
accordance with the minimum standards required by the current building codes of the City for outbuildings and
improvements of such a nature as well as in a manner that will provide for the control of the animals. All such
structures shall be maintained in a neat,clean, sanitary, workable, and attractive condition.
6.1.5 Animal owners shall be responsible for immediately picking up and disposing of animal waste
deposited by animals under their control on any portion of the Development.
6.2 ANTENNA AND EXTERNAL FIXTURES.
6.2.1 No outside television antenna, microwave or satellite dish, aerial, or other such device
(collectively"Antennas") with a diameter or diagonal measurement in excess of thirty-six inches (36") shall be
erected,constructed or placed within the Common Area or on any Lot.
6.2.2 Antennas with a diameter or diagonal measurement of thirty-six inches (36") or less may be
installed only if they conform to the Architectural Rules and Landscape Design Regulations. Reasonable
restrictions which do not significantly increase the cost of the Antenna system or decrease its efficiency or
performance may be imposed.
6.2.3 The Architectural Committee, in acting upon requests for approval of a satellite dish or other
signal reception transmission devices, shall comply with the provisions of California Civil Code Section 4725
and Federal Communications Commission regulations.
6.3 ARCHAEOLOGICAL REQUIREMENTS. If in the course of development, any archaeological,
historical or paleontological resources are uncovered, discovered or otherwise detected or observed, construction
activities in the affected areas shall cease, until a qualified archaeologist/historian/paleontologist, as the case
may be, is contacted and has evaluated said resources and establishes boundaries around any sensitive areas. If
the site is determined to be significant, appropriate mitigation measures shall be formulated and implemented. If
there are suspected human remains, the Fresno County Coroner shall be immediately contacted. If the remains
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or other archaeological material is possibly Native American in origin, the Native American Heritage
Commission shall be immediately contacted, and the California Archaeological Inventory Southern San Joaquin
Valley Information Center shall be contacted to obtain a referral list of recognized archaeologists. If animal
fossils are uncovered, the Museum of Paleontology, U.C. Berkley shall be contacted to obtain a referral list of
recognized paleontologists.
6.4 CHANGING GRADES, SLOPES, AND DRAINAGE.
6.4.1 No change in the established grade or elevation of a Lot or an easement and no change in the
established slope or ratio of the cuts and fills which alters established drainage patterns shall be pemiitted
without the prior written consent of the City and the Board.
6.4.2 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.
6.4.3 Notwithstanding any other provisions of the Declaration, with respect to storm drainage, each Lot
and the Common Area of the Development shall be developed, occupied and maintained so as to provide
adequate drainage as required by the City. No portion of any Lot or the Common Area may be used in such a
manner that impairs adequate drainage across the boundary lines of a Lot.
6.5 COMMON AREA.
6.5.1 The Common Area of the Development, subject to the Declaration and the Association Rules,
shall be improved, maintained and used for the following purposes:
(a) The use of the Common Area shall be available for, and limited to Owners or lessees of a
Residence and their accompanying guests.
(b) Affording and controlling temporary vehicular parking and vehicular and pedestrian
movement within the Property, including access to the Residences.
(c) Affording such landscaping and other beautification to the Development as the Board may
deem necessary from time to time.
(d) Affording easements in order to facilitate the service of utilities to Lots and the Common
Area.
(e) Enhancing the security of Owners and residents by limiting access to the Development
through a gated entry.
6.5.2 No structures may be installed or maintained within the Common Area.
6.5.3 No exposed utility boxes, transformers, meters piping, excepting the backflow prevention device,
are allowed to be located in the Common Area, which backflow device shall be screened by landscaping or by
another method with the express approval of the City.
6.5.4 No person or entity other than the Association or its duly authorized agents shall. construct,
reconstruct, paint, decorate, repair, replace, refinish, alter, modify or maintain any structure or Improvements
upon, or create any excavation or fill or change the natural or existing drainage of any portion of, the Common
Area that is managed or maintained by the Association.
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6.5.5 No person shall remove any shrub or other vegetation from, or plant any shrub or other vegetation
upon, the Common Area without the express approval of the Board.
6.6 COMPLIANCE WITH LAW.
6.6.1 Nothing shall be done or kept on any Lot or in the Common Area that might increase the rate of,
or cause the cancellation of, any insurance.for the Development, or any portion of the Development, without the
prior written consent of the Board.
6.6.2 No Owner shall permit anything to be done or kept in its, his, her, or their Lot that violates any
covenant, restrictions, law, ordinance, statute, rule, or regulation of the provisions of the Governing Documents
and/or any local, county, state, or federal body.
6.6.3 No Owner shall allow its, his, her, or their furniture, furnishings, or other personal items to remain
within any portion of the Common Area except as may otherwise be permitted by the Board or the Association
Rules.
6.7 DAMAGE TO COMMON AREA. Each Owner shall be liable to the Association for any damage to
the Common Area or any improvements, landscaping or equipment thereon or any landscaping or gardening
upon the Lot which is the obligation of the Association to maintain pursuant to the Declaration, which may be
sustained by reason of the negligence or willful misconduct of the Owner, his family, guests,tenants, servants or
invitees.The Board shall levy an Individual Assessment against said Owner pursuant to Article IV of the
Declaration for the costs of the repair or replacement thereof, together with costs and attorney fees.
6.8 F(�IJIPMENT. No machinery or equipment of any kind shall be placed, operated, or maintained
upon or adjacent to any Lot except such machinery or equipment that is usual or customary in connection with
the use, maintenance, or repair of a Residence or appurtenant structures within the Development or that has been
approved by the Architectural Committee. No power equipment, hobby shop, or carpenter shop shall be
maintained on the Development, except within the confines of a garage or upon the prior approval of the
Board.No automobile overhaul or maintenance work other than emergency work, shall be permitted in the
Development, except within the confines of a garage.
6.9 EXTERIOR LIGHTING.No exterior lighting other than that which is a part of the original
construction or reconstruction of the Development by the Declarant shall be installed or maintained on any Lot
by the Owner without the prior written consent of the Architectural Committee. The Architectural Committee
shall not approve exterior lighting that is unreasonably intrusive, invasive or annoying to neighboring Owners.
For purposes of this Section 6.9, ordinary light fixtures attached to the Residence utilizing non-directional white
or yellow incandescent bulbs of 100 watts or less are presumed to be reasonable, subject to the discretion of the
Architectural Committee.
6.10 EXPLORATION FOR MINERALS. No oil drilling, oil development operations, oil refining,
quarrying, or mining operations of any kind shall be permitted upon or in the Development or any portion
thereof, nor shall oil wells, tanks, tunnels, or mineral excavations or shafts be permitted upon the surface of any
portion of the Development.
6.11 FENCES AND WALLS. Except as may otherwise be provided for in the provisions of the
Governing Documents for the installation of fences and/or walls that have been installed in accordance with the
original construction of the Development, no fences, ornamental screens, or walls of any nature or kind,
including, but not limited to, retaining walls, shall be altered, removed, erected, or maintained on or around any
portion of any Lot except those authorized and approved by the Architectural Committee and the Board.
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6.12 GARBAGE, RUBBISH AND TRASH.
6.12.1 No trash, garbage, rubbish, or other waste material shall be allowed to accumulate on any Lot
unless stored in an appropriate sanitary, covered disposal container that is located within an enclosed area
adjacent to the Owner's Residence and screened from the view of any street or Lot.
6.12.2 An exception being that prior to 6:00 A.M. on the scheduled day for trash pickup, Owners must
place their solid waste containers at the edge of the curb approximately four(4) feet apart and not blocking any
vehicle. On the day trash is scheduled to be picked up no solid waste container or residential rubbish shall be
allowed to remain at the curb after 8:00 p.m.
6.12.3 Any extraordinary accumulation of rubbish, trash, garbage, or debris, such as, but not limited to,
debris generated upon vacating the premises or during the construction of modifications and Improvements,
shall be removed from the Development to a public dump or trash collection area by the Owner or Tenant on
whose Lot such accumulation exists, at its,his,her, or their expense.
6.12.4 The Board shall be entitled to impose reasonable fines and penalties for the collection of garbage
and refuse disposed of in a manner inconsistent with the provisions of this Section 6.12.
6.12.5 No toxic or hazardous materials, such as, but not limited to, fuels, oils, other petroleum products,
chemicals, detergents, or cleaners shall be disposed of within the Development by dumping them on the surface
of the ground, in drainage ways, waterways, or adjacent to the Property.
6.13 GAS OR LIQUID STORAGE. With the exception of propane tanks, no tank for the storage of
gas or liquid shall be installed on or within the Development unless such installation is done by the Declarant or
has been approved by the Board or the Architectural Committee, whichever is applicable.
6.14 INDEMNIFICATION.
6.14.1 Each Owner, by acceptance of its, his, her, or their interest in the fee title of a Lot, agrees
personally and for its, his, her, or their Invitees, to indemnify each and every other Owner, and to hold such
indemnified Owner(s)harmless from, and to defend them against, any claim of any person for personal injury or
property damage occurring within the Lot of the indemnifying Owner, except to the extent:
(a) That any such injury or damage is covered by insurance in favor of the Association or the
indemnified Owner, whichever is applicable; or
(b) The injury or damage occurred by reason of the willful or negligent act or omission of the
Association,an indemnified Owner, or any Invitees of an indemnified Owner.
6.15 LEASING OR RENTING.
6.15.1 The Development is designed and intended as an Owner-occupied, residential development.
Therefore, an Owner shall be responsible for any Violation of a Provision of the Governing Documents by a
Tenant or any other occupant of its, his, her, or their Lot. No Owner shall rent, lease, or otherwise delegate the
use and occupation of its, his, her, or their Lot except upon all of the following terms and conditions:
(a)No Lot may be leased or rented for a period of less than thirty(30) days;
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(b) The lease or rental must apply to the entire Lot including its appurtenant rights excluding
only the Owner's voting rights;
(c) Any lease or other rental must be by a written agreement which shall provide that the
tenancy is subject to the provisions of the Governing Documents and any Violation of a Provision of the
Governing Documents shall constitute a default under such agreement;
(d) Each Owner who leases or rents its, his, her or their Lot shall retain the right and power to
evict the Tenant, if the Tenant commits a Violation of a Provision of the Governing Documents;
(e) Each Owner who leases or rents its, his, her, or their Lot shall promptly notify the Secretary
in writing of the name of all of the Tenants, as well as the members of the Tenants' -family, who will be
occupying the Lot and shall provide the Secretary with a complete copy of the current lease or rental agreement,
whichever is applicable; and
(f) Any leasing or renting Owner shall also promptly notify the Secretary of the address and
telephone number where it,he, she, or they can be reached.
6.16 LEGAL REMEDIES FOR OWNER NONCOMPLIANCE WITH THE PROVISIONS OF THE
GOVERNING DOCUMENTS.
6.16.1 Subject to the requirements of the provisions of Section 14.19 of the Declaration, any Owner or
the Association may enforce the provisions of the Governing Documents against an Owner or the Association,
whichever is appropriate. In any action to enforce the Governing Documents, the prevailing party shall be
awarded reasonable attorneys fees and costs.
6.16.2 Nevertheless, the objective of the provisions of the Governing Documents is to promote and seek
voluntary compliance by the Owners and Tenants with the environmental standards and property use restrictions
contained herein.
6.16.3 Accordingly, in the event that the Association becomes aware of an architectural or property use
infraction that does not necessitate immediate corrective action, the Owner or Tenant responsible for such
Violation of a Provision of the Governing Documents shall receive a written notice thereof and shall be given a
reasonable opportunity to comply voluntarily with the pertinent provisions of the Governing Document.
6.16.4 Said notice shall describe the non-complying condition and request that the Owner or Tenant
correct the condition within a reasonable time, which time shall be specified in the notice, and advise the Owner
or Tenant of its,his, her, or their appeal rights.
6.17 WINDOW COVERINGS. Each Owner has complete discretion as to the choice of furniture,
furnishings, and interior decorating; except that windows, including without limitation, garage windows, can be
covered only by drapes, shutters, blinds, or shades and cannot be painted or covered by foil, cardboard, or other
similar materials.
6.18 MONUMENTS. Any monuments that have been installed in the Development by the Declarant
shall be maintained by the Association and shall not be altered or removed by anyone without the approval of
the Board.
6.19 NOXIOUS OR OFFENSIVE ACTIVITIES. No noxious or offensive activity or nuisance shall be
carried on or maintained within the Development, nor shall anything be done on or within the Development or
done or placed upon any property within the Development, which shall cause unreasonable embarrassment,
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disturbance or annoyance to other Owners. Nothing shall be done on or within the Development that may be or
may become an annoyance or nuisance to the residents of the Development, or that in any way interferes with
the quiet enjoyment of the occupants of Lots. The Board shall be entitled to determine if any device, noise, odor
or activity constitutes a nuisance. Unless otherwise permitted by the Board, no Owner shall serve food or
beverages, cook.barbecue,or engage in similar activities except within such Owner's Lot.
6.20 OUTSIDE .LAUNDERING AND DRYING. No exterior clotheslines shall be erected or
maintained within the Development and there shall be no exterior drying or laundering of clothes on balconies,
patios,porches,or other outside areas.
6.21 PARKING RESTRICTIONS; USE OF GARAGES.
6.21.1 Unless otherwise permitted by the Board or the provisions of this Section 6.21, no vehicle shall
be parked or left in the Development other than within a garage, on the appurtenant driveway or within any
designated guest parking area or space.
6.21.2 At no time shall a motor vehicle of any kind be permitted on the front yard landscaping.
6.21.3 No boat, trailer, recreational vehicle, camper, truck in excess of one (1) ton gross carrying
weight, or commercial vehicle shall be parked or left in the Development for a period longer than forty-eight
(48)hours over any two hundred forty(240)hour period.
6.21.4 All driveways and garages shall be maintained in a neat and orderly condition and all garage
doors shall remain closed except as is necessary to permit ingress and egress for vehicles or for the purpose of
cleaning or working in the garage or the surrounding area.
6.21.5 Two (2) car garages in the Development shall be used only for parking of conventional
passenger vehicles and limited storage which does not interfere with the parking of two(2) cars. In the case of a
three(3)car garage, two (2)of the garage spaces shall be used only for parking conventional passenger vehicles,
and one (1) of the garage spaces may be used for storage. In the case of a garage with four(4) or more spaces,
all but one space shall be used for parking conventional passenger vehicles, and the one (1) remaining space
may be used for storage.
6.21.6 The Association may, in accordance with the provisions of Vehicle Code Section 22658(a)(1), or
any compatible superseding statutes, install a sign at each vehicular entrance to the Development containing a
statement that public parking is prohibited and that all vehicles not authorized to park in the Development will
be removed at the vehicle owner's expense. Any such sign shall contain the telephone number of the local traffic
law enforcement agency and shall be not less than seventeen inches (17") by twenty-two inches (22") in size,
with its lettering no less than one(1) inch in height.
6.21.7 No motor vehicle shall be constructed, reconstructed, or repaired within the Development and no
dilapidated or inoperable vehicle, including vehicles without wheel(s) or an engine, shall be stored in the
Development unless within a garage.
6.21.8 In addition and in compliance with the above-cited Vehicle Code, the Association may cause the
removal of any vehicle wrongly parked on the Property, including a vehicle owned by the occupant of a Lot.
(a) If the identity of the vehicle owner is known or readily ascertainable, the Board, within a
reasonable time,must notify the owner of such vehicle, by first-class mail,of said removal.
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(b) If the identity of the owner of such vehicle is not known or readily ascertainable, the Board
must send a written report of such removal,by mail,to the California Department of Justice in Sacramento if the
vehicle has not been returned to its owner within one hundred twenty(120)hours.
(c) Immediately after any such vehicle has been removed, the Board must notify the local traffic
law enforcement agency of said removal.
(d) Any such notice must include a description of the vehicle, the license plate number and the
address from where the vehicle was removed.
(e) However, any vehicle may be removed without notice if it is parked in a marked fire lane,
within fifteen feet (15') of a fire hydrant, if it occupies without proper authority a parking space designated for
the handicapped or if it interferes with an entrance or exit of the Development.
(f) The cost of removal of a vehicle pursuant to this Section 6.21.8 shall be paid by the owner
of such vehicle.
6.21.9 On the scheduled day for trash pickup,there shall be no parking within any street.
6.21.10 Guests of an Owner shall first park in the Owner's driveway. If the Owner's driveway is
occupied, then guests shall park in front of the Owner's Residence. If no parking is available in front of the
Owner's Residence, then guests shall be permitted to park in front of a neighboring Residence for a short period
of time, but under no circumstances may guests park in front of the neighboring Residences' walkway or
driveway.
6.22 RESIDENCE. The Lots shall be used solely for the construction of one (1) permanent residential
dwelling together with customary appurtenances that are designed for single-family purpose in conformity with
the requirements imposed by suburban living, applicable zoning, or other governmental regulation.
6.23 RESTRICTION ON FURTHER SUBDIVISION AND SEVERABILITY OF LOTS. No Lot shall
be further subdivided by parcel, tentative, or final map, Record of survey, or in any other manner without prior
written approval of the Board.
6.24 SIGNS. No signs, posters, displays, flags or banners shall be permitted to be placed/posted or
displayed on in a Lot at any time, except for:
6.24.1 Directional signs established by Declarant or the Association;
6.24.2 Such signs as may be required for legal proceedings or notices;
6.24.3. Subject to California Civil Code Sections 712, 713 and 4710, no signs shall be displayed to the
public view on any Lot or on any other portion of the Development except non-commercial signs may be
displayed within a .Lot that are approved by the Board or a committee appointed by the Board that conform to
the Association Rules regarding signs, and that conform to the requirements of State law and applicable local
ordinances. "For Sale" or"For Rent" or"For Exchange" signs shall be allowed to be displayed within areas of
the Development that are designated in the Association Rules regarding such signs, and that conform to the
requirements of State law and applicable local ordinances, provided the design, dimensions and locations are
reasonable. An Owner or his or her agent may display one (1) such For Sale or For Rent or For Exchange sign
within his or her Lot and one sign in the Common Area advertising directions to the Owner's Lot which is for
sale, rent, or exchange, provided the design, dimensions and locations are reasonable and comply with the
Association Rules regarding signs, and confirm to the requirements of State law, and applicable local
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ordinances. These restrictions on display of signs apply to signs that are visible from the exterior of a Lot, and
are not intended to restrict signs that may be seen only from within the Lot in which the sign or signs are
displayed. Declarant's rights reserved under Section 17.28 of the Declaration are not limited to this Section
6.24.3.
6.24.4 Signs, billboards, and other advertising devices or structures used by Declarant in connection
with the development, subdivision,advertising, and sale of the Property and its Lots;
6.24.5 Noncommercial signs,posters, flags, or barriers otherwise permitted by law, except that under no
circumstances may a noncommercial sign or poster exceed nine (9) square feet or a noncommercial flag or
banner exceed fifteen(15) square feet; and
6.24.6 Except as permitted Declarant in Section 6.24.6 above, Owners may not place any signs in the
Common Area; except that the Board may establish one common sign. facility in the Common Area at the
entrance to the Development for use by individual Owners.
6.25 STORAGE. There shall be no storage of any item in or upon the Lot except in an enclosed area not
visible from adjoining streets, the Common Area or other Lots. Storage or other uses within a garage upon a Lot
shall not interfere or conflict with the use of such garage for the parking of vehicles. Storage in the Common
Area shall be limited to the storage by the Board or the manager, if any, of equipment or materials for use solely
in connection with the Common Area.
6.26 STRUCTURAL, EXTERIOR CHANGES.No Residence, or other Improvements may be
constructed or installed on any Lot without the prior written consent of the Architectural Committee.
6.26.1 No Owner shall make or cause to be made structural changes, alterations or modifications to the
exterior of its, his, her, their Residence or any Improvements upon its, his, her, their Lot without the prior
written consent of the Architectural Committee.
6.26.2 No Owner shall paint or repaint the exterior its, his, her, their Residence or any Improvements
upon its, his,her,their Lot,without the prior written consent of the Architectural Committee.
6.26.3 No work required to be performed on a Residence or on the Lot by the Owner thereof pursuant to
the Declaration, including routine maintenance and repairs, which may result in changes, alterations or
modifications to the exterior appearance of any Residence, Lot or any Improvements on a Lot shall be
undertaken without the prior written consent of the Architectural Committee. For purposes of this Section
6.26.3, window hangings, awnings, sunshades, screen doors, solar panels, basketball hoops and backboards,
satellite t.v. dishes, fences and similar additions to a Residence or a Lot shall be deemed to alter the exterior
appearance thereof.
6.26.4 The restrictions set forth in this Section 6.26 shall not apply to the initial construction of
buildings and improvements by Declarant, but shall apply to purchasers of vacant Lots. All Residences
constructed in the.Development shall conform to the architectural style established by Declarant with the initial
construction of Residences in the Development.
6.27 TAXES. Each Owner shall pay the real and personal property taxes separately assessed against his
Residence and Lot. The Association shall pay all taxes levied or assessed against the Common Area, if not
separately assessed to the Owners.
6.28 TEMPORARY BUILDINGS. No out building, basement, tent, shack, or shed or other temporary
building or improvement of any kind shall be placed upon any portion of the Development either temporarily or
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permanently, except as approved, in advance, by the Architectural Committee pursuant to Article IX of this
Declaration. Notwithstanding the immediately preceding sentence, sheds or construction shacks may be
maintained by the Declarant upon the Common Area in connection with its development of the Development.
6.29 TEMPORARY LIVING QUARTERS.
6.29.1 No boat, truck, trailer, van, camper, recreational vehicle, or tent shall be used as a living area
while located within the Development.
6.29.2 However, trailers or temporary structures or building for use incidental to the initial construction
of the Development or the initial sales of Lots may be maintained within the Development, provided that such
use does not unreasonably interfere with any Owner's use of the Common Area. Such trailers, structures, or
building will be promptly removed upon completion of all initial construction and all initial sales.
6.30 TIME SHARING PROHIBITED.
6.30.1 No Lot or any portion nor combination thereof, shall be leased, subleased, occupied, rented, let,
sublet, or used for or in connection with any time sharing agreement, plan, program, or arrangement, including,
without limitation, any so called"vacation license,""travel club," "extended vacation," or other membership or
time interval ownership arrangement.
6.30.2 The term "time sharing" as used herein shall be deemed to include, but shall not be limited to,
any agreement, plan, program, or arrangement under which the right to use, occupy, or possess a Lot, or any
portion thereof, rotates among various persons, either corporate, partnership, individual, or otherwise, on a
periodically recurring basis for value exchanged, whether monetary or like kind use privileges, according to a
fixed or floating interval or period of time.
6.30.3 The provisions of this Section 6.30 shall not be construed to limit the personal use of any Lot, or
any portion thereof,by any Owner or its, his,her, or their social or familial guests.
6.31 UNALLOCATED TAXES.
6.3 1.1 In the event that any taxes are assessed against the Common Area or the personal property of the
Association, rather than being assessed to the Lots, such taxes shall be included in the Regular Monthly
Assessment and, if necessary, a Special Assessment may be levied against the Lots in an amount equal to such
taxes to be paid in two (2) installments.
6.31.2 Each such installment shall be due thirty (30) days prior to the due date such tax is to be paid to
the taxing authority.
6.32 USE AND OCCUPANCY OF RESIDENCE.
6.32.1 None of the Lots shall be used, caused, allowed, or authorized to be used in any way, directly or
indirectly, for any business, commercial, manufacturing, mercantile, storing, vending, or other such
nonresidential purposes, except for any type of home occupation provided that the proposed occupation meets
the following criteria:
(a) Any such occupation shall be conducted within no more than one (1) room of the Residence,
excluding garages and artist studios;
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(b)There shall be no structural alterations of the exterior of the Residence to accommodate any
such home occupation and the existence of said occupation shall not be apparent beyond the boundaries of the
structure within which it is conducted;
(c)No displays or advertising signs shall be permitted on the premises;
(d) There shall be no more than two (2) customers, patients, clients, students, or other persons
served by said occupation upon the premises at any one (1) time, and all such customers, patients, clients,
students or other persons shall be required to park in the driveway of the Residence of the Owner engaged in the
home occupation;
(e) If so required by local ordinance, the City shall have issued a business license for said
occupation; and
(f) Said occupation shall be strictly secondary and subordinate to the primary residential use and
shall not change or detrimentally affect the residential character of the Residence,Property, or neighborhood.
6.32.2 For a period of ten(10) years from the date of the closing of the first sale of a fee title interest in
a Lot to an Owner other than the Declarant, Lots owned by the Declarant may be used by the Declarant or its
designees, as models, sales offices, and/or construction offices for the purposes of developing, improving, and
selling Lots.
6.33 UTILITY CHARGES. Each Owner shall pay any and all utility charges (including garbage
removal) separately metered or charged against his Residence and Lot, and such payment shall be made by each
Owner in addition to and separately from any assessments otherwise payable by such Owner to the Association
pursuant to the terms and provisions of the Declaration. If the Association is required to pay any utility charges
separately metered to a Lot which the Owner thereof is required to pay pursuant to this Section 6.33 or pursuant
to Section 14.21.4 of the Declaration, the Association shall levy an Individual Assessment against such Owner
pursuant to the provisions of Section 4.11 hereof to cover the costs of such charges.
6.34 MINIMUM SQUARE FOOTAGE. The ground floor area of all Residences exclusive of roofed or
unroofed porches, terraces, decks, garages, carports and other outbuildings, shall be not less than 2,000 square
feet.
END OF ARTICLE VI
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ARTICLE VU
COVENANT AGAINST PARTITION
7.1 PARTITION. Except as maybe authorized under Article XII of the Declaration, no Owner shall
bring any action for partition of the Common Area, it being agreed that this restriction is necessary in order to
preserve the rights of the Owners with respect to the operation and management of the Development. Nothing
herein contained shall prevent the partition or division of interests between joint or common Owners of one Lot.
END OF ARTICLE VII
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ARTICLE VIII
LABOR AND MATERIALMAN'S LIENS
8.1 OWNERS. Each Owner covenants that no labor, material or services furnished at his request or that
of his agent, contractor, subcontractor, materialman, employee or servant shall result in a lien upon another
Residence or Lot or upon the Common Area, unless such other Owner, or the Association expressly consent to
such labor, material or services being furnished.
8.2 ASSOCIATION. The Association may employ and authorize labor, services and material for the
benefit of the Development. All Owners are hereby deemed to have given their express consent to the
Association to employ and contract for such labor, services and materials for the benefit of the Development and
all Residences and Improvements thereon, consistent with the rights and obligations of the Association
described in the Declaration.
END OF ARTICLE VIII
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ARTICLE IX
ARCHITECTURAL CONTROL
9.1 PROVISION FOR ARCHITECTURAL APPROVALS.
9.1.1 Except for the construction of any Improvements by or at the direction of the Declarant, no
Improvement of any kind shall be commenced, constructed, erected, installed or maintained within the
Development, including without limitation, any Lot therein, nor shall any exterior addition, change, or alteration
be made until the plans and specifications showing the nature, color, kind, shape, height, including front, side
and rear elevations, materials, and location of the same shall have been submitted to and approved in writing by
the Architectural Committee in accordance with the Architectural Rules, as well as the architectural
requirements set forth in the Master Declaration, Easement Agreement and the First Addendum to Easement
Agreement, as to quality of workmanship and materials, harmony of external design and location in relation to
the surrounding structures, setback lines, topography, and finish grade elevations.
9.1.2 In reviewing and approving or disapproving a proposed alteration, modification or improvements
to a Lot that is subject to review under Article IX of the Declaration, the Architectural Committee shall satisfy
the following requirement in accordance with California Civil Code Section 4765:
(a) The Architectural Committee in the Architectural Rules shall provide a fair,
reasonable, and expeditious procedure for making its decision. The procedure shall provide for prompt
deadlines. The procedure shall state the maximum time for response to an application or a request for
reconsideration by the Board.
(b) A decision on a proposed change shall be made in good faith and may not be
unreasonable, arbitrary, or capricious.
(c) A decision on a proposed change shall be consistent with any governing provision of
law, including, but not limited to the Fair Employment and Housing Act (Part 2.8, commencing with
Section l 2900) of Division 3 of Title 2 of the Government Code.
(d) A decision on a proposed change shall be in writing. If a proposed change is
disapproved by the Architectural Committee, the written decision shall include both an explanation of
why the proposed change is disapproved and a description of the procedure for reconsideration of the
decision by the Board.
(e) If a proposed change is disapproved, the applicant is entitled to reconsideration by
the Board that made the decision at an open meeting of the Board. This Section 9.1.2 does not require
reconsideration by the Board of a decision that is made by the Board or a body that has the same
membership as the Board, at a meeting that satisfies the requirements of California Civil Code Sections
4900 to 4950. Reconsideration by the Board does not constitute dispute resolution with the meaning of
California Civil Code Section 5905.
9.2 APPOINTMENT AND MAKEUP OF ARCHITECTURAL COMMITTEE.
9.2.1 The Declarant shall appoint all of the original constituents of the Architectural Committee, which
shall be three(3)persons and any replacements for them until the first anniversary of the original issuance of the
Final Subdivision Public Report.
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9.2.2 The appointees do not have to be Members.
9.2.3 The number of persons initially appointed shall constitute the number of authorized members of
the Architectural Committee, unless they are increased or decreased by the vote or written consent of the holders
of at least fifty-one percent (51%) of the voting power of each class of Members. So long as there are two (2)
classes of Membership, and upon conversion of Class B Membership to Class A Membership pursuant to
Section 3.1.2 of the Declaration and there is a single class of Membership by the vote or written consent of fifty-
one percent(51%)of the votes of Members other than Declarant.
9.2.4 The initial appointees and any of their replacements shall hold office until the first anniversary of
the original issuance of the Final Subdivision Public Report.
9.2.5 Thereafter, the Declarant may appoint a majority of the members of the Architectural Committee,
and any of their replacements,until ninety percent(90%) of the fee title interests in the Lots have been conveyed
and deeds to them Recorded in favor of Owners, other than the Declarant.
9.2.6 After one (1) year from the date of the original issuance of the Final Subdivision Public Report,
the Board shall have the power to appoint one (1) member of the Architectural Committee, whose power shall
continue until ninety percent (90%) of the fee title interests in the Lots have been sold and deeds to them
Recorded in favor of Owners, other than the Declarant, or until the fifth anniversary of the issuance of the Final
Subdivision Public Report, whichever is first to occur.
9.2.7 Thereafter, the Board shall have the power to appoint all of the members of the Architectural
Committee.
9.2.8 Any person appointed to the Architectural Committee by the Board must be a Member.
9.2.9 The Architectural Committee may designate a representative of the Architectural Committee to act
on its behalf.
9.3 SUBMISSION OF PLANS: ACTION BY THE ARCHITECTURAL COMMITTEE.
9.3.1 When a proposed work of Improvement is submitted to the Architectural Committee for review,
the Architectural Conunittee shall grant the requested approval only if the Architectural Committee, in its sole
discretion, finds that all of the foregoing provisions have been satisfied:
(a)The Owner's plans and specifications:
(1) Conform to the provisions of the Governing Documents that are in effect at the time
said plans are submitted to the Architectural Committee;
(2) Will result in the construction of an Improvement that is in harmony with the
external design of other structures and/or landscaping within the Development; and
(3) Will not interfere with the reasonable enjoyment of any other Owner of its, his, her,
or their Lot.
(b) The proposed Improvement(s), if approved, will otherwise be consistent with the
architectural and aesthetic standard prevailing within the Development, together with the overall plan and
scheme of the subdivision as well as the purpose of the provisions of the Governing Documents.
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9.3.2 Though it is recognized that the Architectural Committee's determination to approve or disapprove
an Improvement will, of necessity, be subjective to some degree, the members of the Architectural Committee
shall act reasonably and in good faith.
9.3.3 Factors commonly considered by the Architectural Committee in reviewing proposed
Improvements include, but are not limited to,the following:
(a)The quality of workmanship and materials to be used in the proposed Improvement;
(b) The harmony of the proposed Improvement's exterior design, furnish materials, and color
with that of the existing structure; and
(c)The proposed location of the Improvement in relation to existing topography, finished grade
elevations,roads, Common Areas, and other structures.
9.3.4 The Architectural Committee shall be entitled to determine that a proposed Improvement or any
component thereof, is unacceptable in the context of a particular Lot, even if the same or a similar
Improvement/component has previously been approved for use at another location or locations within the
Development.
9.3.5 Factors that may cause the Architectural Committee to reject a proposal that was previously
approved at another site include,but are not limited to,the following:
(a) Poor drainage;
(b)Visibility from roads, Common Area, or Lots;
(c)Proximity to other Residences or Major Components; or
(d) A prior adverse experience with the product or design of the proposed Improvement or any
component thereof.
9.3.6 All decisions of the Architectural Committee shall be in writing.
9.3.7 If a proposed plan or any portion thereof is disapproved by the Architectural Committee, the
written decision shall include both an explanation for the disapproval and the procedure for an appeal of such
decision to the Board.
9.4 STANDARDS AND PROCEDURES FOR THE ARCHITECTURAL RULES.
9.4.1 The Architectural Committee may, from time to time, subject to review by the Board, adopt,
amend, and repeal the Architectural Rules.
9.4.2 The Architectural Rules shall provide guidelines for the architectural design, placement of any
work of Improvement, color schemes, exterior finishes, and materials, as well as any similar feature, which are
recommended for use within the Development.
9.4.3 The Architectural Rules shall not be in derogation of the minimum standards required by the
provisions of the Governing Documents.
9.4.4 In the event of any conflict between the Architectural Rules and either the Declaration, Articles,
and/or By-Laws, the provisions of the Declaration, Articles, and/or By-Laws, whichever is/are applicable, shall
prevail.
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9.5 VARIANCES.
9.5.1 The Board or the Architectural Committee shall be entitled to allow reasonable variances with
respect to the provisions of this Section 9.5 or any restrictions specified in the provisions of Article VI of the
Declaration, that have application to architectural design, in order to overcome any practical difficulties, to
avoid any unnecessary expense, or to prevent any unjustifiable hardships, provided that such grant will not in
any way relieve the requesting Owner from complying with any and all of the requirements of any governmental
or quasi-governmental agency or authority and the following conditions are met:
(a) If the requested variance will necessitate deviation from, or modification of, a property use
restriction that would otherwise apply under the provisions of the Governing Documents, the Board or the
Architectural Committee must conduct a hearing on such proposed variance after giving at least ten (10) days'
prior written notice to all of the Owners whose Lots are within one hundred feet (100') of the Lot to which the
variance will apply. Such Owners shall have thirty (30) days from the receipt by them of such notice in which
to submit to the Board or the Architectural Committee, whichever is applicable, their written continents, or
objections with respect to such variance. No decision shall be made concerning the proposed variance until the
above referenced thirty(30) day period has expired.
(b) The Board or the Architectural Committee, whichever is applicable, must make a good faith
determination that:
(1)The requested variance does not constitute a material deviation from the overall plan
and scheme of the Development or from any provision of the Governing Documents and that the proposal
allows the overall architectural objectives of the Development to be substantially achieved despite such
variance;
(2) The proposed variance relates to a requirement of the provisions of the Governing
Documents that it is unnecessary or burdensome under the circumstances; and
(3)The proposed variance, if granted, will not result in a material detriment or create an
unreasonable nuisance with respect to any other Lot, the Common Area, or an Owner.
9.6 FUTURE CONSTRUCTION. Nothing in the Declaration shall limit the right of Declarant to
complete construction of improvements to the Common Area and all Lots owned by Declarant or to alter them
or construct additional improvements as Declarant deems advisable before completion and sale of all Lots
within the Development.The rights of Declarant in the Declaration may be assigned by Declarant to any
successor to all or any part of any of Declarant's interest, and shall automatically be assigned to a successor who
acquires Declarant's interest in the Development by foreclosure or by deed in lieu of foreclosure of a Mortgage;
provided, however, the rights reserved by Declarant for itself, its successors in interest and assigns pursuant to
this Section 9.6 shall expire on the first to occur of the following events: (a) three (3) years after the close of
escrow of the first Lot in the Development, or (b) the close of escrow of the last Lot in the Development;
provided, however, such use by the Declarant, their agents, representatives, successors in interest and assigns
shall not restrict the Members of their use and enjoyment of the Common Area.
9.7 ARCHITECTURAL ADVISER. The Architectural Committee may designate an architect practicing
in the County to advise the Architectural Committee on such matters relating to the Architectural Committee's
duties as may from time to time be required. Such architect may be employed by the Board as a consultant and
his compensation may be paid by the Board from the Regular Monthly Assessment.
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9.8 INSPECTION. Inspection of work and correction of defects therein shall proceed as follows:
9.8.1 The Architectural Committee may at any time inspect any improvement for which approval of
plans is required under the Declaration; provided, however; that the Architectural Committee's right of
inspection shall terminate sixty (60) days after the work of improvement shall have been completed and the
respective Owners shall have given written notice to the Architectural Committee of such completion. If, as a
result of such inspection, the Architectural Committee finds that such improvement was done without obtaining
the approval of the plans therefore or was not done in substantial compliance with the plans approved by the
Architectural Committee, it shall notify the Owner in writing of the failure to comply with the Declaration
within sixty days from the inspection, specifying the particulars of noncompliance. The Architectural
Committee shall have the authority to require the Owner to take such actions as may be necessary to remedy the
noncompliance.
9.8.2 If upon the expiration of sixty (60) days from the date of such notification, the Owner shall have
failed to remedy such noncompliance, the Committee shall notify the Board in writing of such failure.The
Board shall, upon fifteen (15) days written notice to the Owner, conduct a hearing upon the Common Area in
accordance with the provisions of Article VII of the By-Laws of the Association and Article XIV of the
Declaration for the purpose of determining whether there is a noncompliance and, if so, the nature thereof and
the estimated costs of correcting or removing the same. If a noncompliance exists, the Owner shall remedy or
remove the same within a period of not more than forty-five (45) days from the date that notice of the Board
ruling is given, in writing,to the Owner. If the Owner does not comply with the Board ruling within such period,
the Board shall have the right to levy an Individual Assessment against such Owner pursuant to the provisions of
Section 4.11 of the Declaration to cover the costs to remedy or correct such noncompliance, and the Board shall
cause the work to be done.
9.8.3 Neither Declarant, the Architectural Committee, the Board nor their duly authorized
representatives shall be liable to the Association, or to any Owner for any loss, damage or injury arising out of
or in any way connected with the performance of the Comnuttee's duties under the Declaration,unless due to the
willful misconduct or bad faith of the Committee or any member thereof.
9.9 NOTICE TO COMMITTEE. All notices to be given to the Architectural Committee pursuant to this
Article IX inay be given to the Secretary of the Association in the manner prescribed by Section 18.22 of the
Declaration.
9.10 CERTIFICATE OF COMPLIANCE.
9.10.1 Within thirty (30) days after a written demand is delivered to the Board or the Architectural
Committee, as the case may be, by an Owner and upon payment to the Association of any reasonable fee, if
applicable, which may be fixed from time to time by the Board, the Board or the Architectural Committee,
whichever is applicable, shall issue a Certificate of Compliance, which shall be executed by two (2) Directors or
two (2) members of the Architectural Committee, as the case may be, certifying, with respect to any Lot that is
specified in the above referenced demand and is owned in fee by the applicant Owner(s), that as of the date of
such Certificate of Compliance, either:
(a) All of the Improvements made, as well as any other work that has been completed on such
Lot, complies with the provisions of the Governing Documents and any variances that may have been issued are
in compliance with the provisions of Section 9.5 of the Declaration, or
(b) That any such Improvements and/or other work do not so comply, in which event the
Certificate of Compliance shall also identify the non-complying Improvements and/or other work and shall set
forth with particularity the basis of such noncompliance.
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9.10.2 Any purchaser from such Owner, or anyone deriving any interest in such Lot through the Owner,
shall be entitled to rely on such Certificate of Compliance with respect to the matters therein set forth, such
matters being conclusive as between the Association, all of the Owners, and any persons deriving any interest in
such Lot through them.
END OF ARTICLE IX
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ARTICLE X
INSURANCE
10.1 LIABILITY INSURANCE.
10.1.1 The Board shall obtain and maintain a comprehensive public liability insurance policy insuring
the Association, any manager, the Declarant and the Owners and occupants of Lots as well as their respective
family members, Tenants, and Invitees together with the agents and employees of each, against any liability
incident to the ownership or use of the Common Area or any other Association owned or maintained real or
personal property and including, if obtainable, a cross liability or severability of interest endorsement insuring
each insured against liability to each other insured.
10.1.2 The limits of such insurance shall not be less than two million dollars ($2,000,000), covering all
claims for debt, personal injury, and property damage arising out of a single occurrence.
10.1.3 Such insurance shall include coverage against water damage liability, liability for non- owned
and hired automobiles, liability for property of others, and any other liability or risk customarily covered with
respect to developments similar in construction, location, and use.
10.2 FIRE AND CASUALTY INSURANCE.
10.2.1 The Board shall obtain and maintain a master or blanket policy of fire and casualty insurance
coverage for the full insurable value of all of the Improvements within the Common Area, if any, provided that
there may be lower dollar limits for specified items as is customarily provided in property insurance policies of
this nature.
(a) If available, the policy shall contain the following endorsements or their equivalent: agreed
amount, inflation guard, increased cost of construction, contingent liability from operation of building laws,
extended coverage, theft, vandalism, malicious mischief, a special form endorsement, and a determinable cash
adjustment clause or similar clause to permit cash settlement covering the full value of the Improvements in case
of partial destruction and a decision not to rebuild or replace, and such other endorsements as the Board, in its
discretion, shall elect.
(b) The policy shall name as insured, the Association, the Owners and the Declarant, as long as
the Declarant is the Owner of any Lot, and all Mortgagees as their respective interests may appear and may
contain a loss payable endorsement in favor of the Trustee described in the provisions of Section 10.3 of the
Declaration.
10.2.2 The policy shall be primary and noncontributing with any other policy of insurance covering the
same loss.
10.2.3 The Association shall not carry an earthquake endorsement without the approval of a majority of
the total voting power of the Members. If the Members elect to require the Association to obtain an earthquake
endorsement, the endorsement may be subsequently cancelled on vote of a majority of the total voting power of
the Members. If cancelled, the Board shall make reasonable efforts to notify the Members of the cancellation at
least thirty(30)days before the effective date of any such cancellation.
10.2.4 Subject to any restrictions imposed by any Mortgagees, the Board shall have the power and right
to deviate from the insurance requirements contained in the provisions of this Section 10.2 in any manner that
the Board, in its sole discretion, considers to be in the best interests of the Association. If the Board elects to
materially reduce the coverage from the coverage required in the provisions of this Section 10.2, the Board shall
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make all reasonable efforts to notify the Members of the reduction in coverage and the reasons therefore at least
thirty(30)days before the effective date of the reduction.
10.2.5 The Association, the Board and officers of the Association shall have no liability to any Owner or
Mortgagee if, after a good faith effort:
(a) The Board is unable to obtain any insurance required hereunder because the insurance is no
longer available;
(b)If available,the insurance can be obtained only at a cost that the Board, in its sole discretion,
determines is unreasonable under the circumstances; or
(c) The Members fail to approve any Assessment increase needed to fund the insurance
premiums.
10.2.6 Notwithstanding Sections 10.2.4 and 10.2.5 above, the Board shall comply with all insurance
requirements as set forth in the Davis Stirling Common Interest Development Act (Division 4, Part 5, Chapter 9
of the California Civil Code).
10.3 PROVISION APPOINTING TRUSTEE.
10.3.1 All fire and casualty insurance proceeds payable under the provisions of Section 10.2 above for
losses to any real and/or personal property, may be paid to a Trustee to be held and expended for the benefit of
the Association,the Owners, any Mortgagees and others, as their respective interests shall appear.
10.3.2 The Trustee shall be a commercial bank or other financial institution, with trust powers in the
County that agrees in writing to accept such trust.
10.3.3 If repair or reconstruction is authorized, the Board shall have the duty to contract for such work
as provided for in the provisions of the Governing Documents.
10.4 PROVISION TO ADJUST LOSSES.
10.4.1 The Board is authorized to negotiate and agree on the value and extent of any loss under any
policy carried by the Association, including, but not limited to, the full right and authority to compromise and
settle any claim or enforce any claim by legal action or otherwise and to execute any releases in favor of an
insurer.
10.4.2 Each and every Owner, by acceptance of a fee title interest in a Lot, irrevocably appoints the
Board as that Owner's attorney-in-fact for purposes of procuring, negotiating, accepting, compromising,
releasing, settling, distributing, and taking other related actions in connection with any insurance policy
maintained by the Association and any losses or claims related thereto, and agrees to be bound by the actions so
taken as if the Owner had personally taken the action.
10.5 DIRECTOR AND OFFICER LIABILITY INSURANCE. To the extent insurance is available, the
Board shall purchase and maintain insurance in an amount up to $500,000, on behalf of any Director, officer, or
member of a committee of the Association, for the purposes of the provisions of this Section 10.5, collectively
hereinafter referred to as the "Agents," against any liability asserted against or incurred by the Agents in such
capacity or arising out of the Agents' status as such, regardless of whether the Association would have the
power to indemnify the Agents against such liability under applicable law.
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10.6 WORKER'S COMPENSATION, DEMOLITION, AND OTHER ASSOCIATION INSURANCE.
10.6.1 The Board may purchase and maintain demolition insurance in adequate amounts to cover the
razing, in case of total or partial destruction, of the Major Components and a decision not to rebuild, as well as a
policy of flood insurance.
10.6.2 The Board shall also purchase and maintain worker's compensation insurance, to the extent it is
required by law, for all employees of insured contractors of the Association.
10.6.3 The Board shall also purchase and maintain fidelity bonds and/or insurance, in an amount not
less than one hundred and fifty percent (150%) of each year's estimated Common Expenses, which shall contain
an endorsement that covers any person who may serve without compensation, if reasonably practical, sufficient
to meet the requirements of any Institutional Mortgagee.
10.6.4 The Board shall also purchase and maintain such insurance on personal property owned by the
Association, together with any other insurance, that it deems necessary or, where practical, that is required by
any Institutional Mortgagee.
10.7 OWNER'S LIABILITY INSURANCE. An Owner may carry personal liability and property
damage insurance with respect to its, his, her, or their Lot that it, he, or she desires. However, any such policy
shall include a waiver of subrogation clause acceptable to the Board and to any Eligible Mortgage Holder that
encumbers such Owner's Lot.
10.8 INSURANCE REVIEW AND NOTICE.
10.8.1 Notwithstanding anything herein to the contrary, but subject to the provisions of Sections 14.11
and 14.12 of the Declaration, the Board shall periodically,but in no event less than every three(3) years, review
all of the insurance coverage maintained by the Association and make such adjustments to the policies' terms
and conditions as the Board may consider to be in the best interests of the Association.
10.8.2 The review shall include an appraisal by a qualified appraiser of the current replacement costs of
all of the covered property under the Association's policies, unless the Board is satisfied that the current dollar
limit of the property policies, coupled with the amount of the actual Reserve Funds on hand, is equal to or
greater than said current replacement costs.
END OF ARTICLE X
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ARTICLE XI
MAINTENANCE,REPAIR AND RESTORATION
11.1 MAINTENANCE, REPAIR AND RESTORATION. Notwithstanding the provisions for insurance
in Article X of the Declaration,the Association and the Owners shall have the obligations of maintenance,repair
and restoration as set forth herein. Provided, however, that all expenses to the extent covered by insurance shall
be paid from such insurance proceeds:
11.1.1 Owners. Except for those portions of the Development and the Lots which the Association is to
maintain, repair, replace, landscape and restore under this Declaration, each Owner shall, at his sole cost and
expense:
(a) Except as provided for in the provisions of Sections 13.8 and 14.8 of the Declaration, each
Owner shall be responsible for maintaining its, his, her, their Residence as well as all other structures, buildings
and Improvements located upon its, his, her, or their Lot, including the equipment and fixtures on, in or relating
to the structure, building or Improvement, as well as its walls, roof, ceilings, windows, and doors in a clean,
sanitary,workable, and attractive condition.
(b) Each Owner shall also be responsible for the maintenance, repair and replacement of all
plumbing, electrical, heating, air conditioning and gas lines, conduits, apparatus, and equipment servicing its,
his, her, or their Residence and Lot as well as repair, replacement and cleaning of the windows and glass of its,
his, her, or their Residence or any other structure or building on its, his,her, their Lot.
(c) In addition, each Owner shall have the Residence and Improvements on its, his, her, or their
Lot periodically inspected for termites and, if their presence is discovered, immediately take appropriate
corrective measures.
(d) If an Owner is required to make any repair or if the Owner desires to construct any
Improvement or install any fixture or equipment that will affect the exterior appearance of its, his, her, their
Residence or Lot and/or any other structure, building or Improvement on the Lot, the prior written approval of
the Architectural Committee must first be obtained.
(e) Such written approval of the Architectural Comnuttee need not be obtained to make
emergency repairs, provided that the structure, building or Improvement so affected is restored to its original
condition at the Owner's expense.
(f) Each Owner shall also be responsible for the maintenance of all of the exterior landscaping
located on its, his, her or their Lot. Any other provision in the Governing Documents notwithstanding, any
Owner shall maintain the landscaping on its, his,her, or their Lot in a safe, neat, and orderly manner.
(g) Each Owner shall maintain, repair and replace the masonry block wall(s) on its, his, her or
their Lot. Notwithstanding the immediately preceding sentence, those portions of masonry block walls on Lots
that are part of the perimeter masonry block wall shall be maintained,repaired and replaced by the Association.
(h) The Owners of Lots 5 through 17, inclusive, and Lot 29 (collectively the"View Lots") shall
be responsible for maintaining, repairing and replacing any wrought iron fencing installed on their respective
Lot as part of the original construction of the Residence on their Lot.
H.1.2 The Association. The Association shall, as an Association expense, and subject to the provisions
of the Declaration:
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(a) Manage and maintain in good condition and repair the Major Components and the Common
Area, including, but not limited to, any Improvements that may be located thereon, as well as the Association's
personal property together with any personal and/or real property that the Association may acquire or is made
subject to its management and maintenance responsibilities of the Association.
(b)Maintain,repair and replace any emergency vehicle access easement.
(c) Without limiting the foregoing,the Association shall be responsible for the following:
(1)Maintaining all landscaping and hardscaping located within Outlot A.
(2) Maintaining all landscaping and hardscaping located in any entry median island or
traffic medians located within the Property.
(3)Maintaining the Major Components within the Property.
(4)Maintaining trees within any local public rights-of-way associated with the Property
in good health; provided, however, trees may not be trimmed or pruned to reduce the natural height or overall
crown of the tree, except as necessary for the health of the tree and public safety, or as otherwise approved by
the City Planning and Development Department.
(5) Maintaining, repairing and replacing the perimeter masonry block wall in the
Development, including those portions of the perimeter masonry block wall located on Lots.
(d) Remove all graffiti from all interior and exteriors walls, fences and other Improvements
and/or structures within the Common Area that is managed or maintained by the Association.
(e) In addition to other remedies in the provisions of the Governing Documents and at law
provided to the Association, in the event an Owner of any Lot fails to maintain its, his, her, or their Lot and/or
any Improvements thereon, as required by the provisions of this Section 11.1.2(e),the Association's agents may,
after compliance with the .Due Process Requirements, enter the Lot and perform the necessary maintenance.
The cost of such maintenance shall immediately be paid to the Association by the Owner of such Lot, together
with interest at the rate of ten percent (10%) per annum from the date costs were incurred by the Association
until the date the cost is paid by such Owner.
11.2 DEFAULT OF OWNER. In the event any Owner fails to maintain, repair or replace his Residence
in such manner as may be deemed necessary in the judgment of the Board to preserve and protect the
attractiveness, appearance and value of the Development, the Board shall give written notice to such Owner,
stating with particularity the work of maintenance, repair or replacement which the Board finds to be required,
and requesting the same to be carried out within a period of ninety (90) days from the giving of such notice. If
such Owner fails to carry out such maintenance, repair or restoration within the period specified by the notice,
the Association, after approval by two-thirds (2/3rds) votes of the Board, shall have the right upon reasonable
notice to the Owner, and in compliance with the provisions of the Declaration, through its agents and
employees, contractors or subcontractors, to enter the Lot and to repair, maintain and restore the Lot and the
exterior of the Residence and any other improvements erected thereon. The cost of such exterior maintenance
shall be added to and become a part of the assessments to which such Lot is subject.
11.3 OWNER LIABILITY. Each Owner shall be liable to the Association for any damage to the
Common Area, including any structures, Improvements, equipment, and personal property thereon, and for any
damage to the landscaping or gardening of any part of the Development which the Association is to landscape
and garden pursuant to this Article XI, which may be sustained by reason of the negligence or willful
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misconduct of the Owner, his family, guests, tenants, servants, or invitees. Such maintenance, repair, restoration
or replacement of such damage shall be made by the Association at the expense of the Owner.
11.4 APPORTIONMENT OF EXPENSES. In the event repairs or restoration or extraordinary
maintenance of the Common Area, or any Improvements or structures thereon, or any portion of the Lots of the
Development which the Association is required to garden or landscape pursuant to this Article XI, is required as
a result of the acts or omissions of more than one Owner, the costs of such work shall be conclusively
apportioned by the Association.
11.5 PARTY FENCES AND PARTY WALLS ON PROPERTY LINES. To the extent Party Walls and
Party Fences built as part of the original construction of a Residence in the Development and placed on the
Development line between two (2) Lots in the Development are not maintained by the Association, as an
Association expense, the maintenance, repair, replacement or restoration of such Party Walls and Party Fences
shall be governed by the general rules of California Law regarding party walls and liability for property damage
due to negligence or willful acts or omissions shall apply to such improvements.
11.5.1 The cost of reasonable maintenance of such fences shall be borne equally by the Owners of the
Lots sharing such improvements.
11.5.2 The right of any Owner of a Lot to contribution from any other Owner under Section 11.5 of this
Declaration shall be appurtenant to such Lot.
11.5.3 Any dispute between Owners regarding the allocation of the,expenses of such maintenance,
repair, restoration or replacement shall be detennined pursuant to the provisions of Section 17.7 of the
Declaration.
11.6 APPROVAL OF PLANS. No work provided for in this Article XI or elsewhere in the Declaration
shall be commenced and no structure or Improvement in the Development shall be painted or repainted on the
exterior thereof or constructed, reconstructed, altered or repaired until complete plans and specifications for the
work, including color schemes, shall have been submitted to and approved by the Architectural Committee.
11.7 TIMING AND COMPLETION. If any work required of an Owner by this Article XI is not
commenced within thirty (30) days after written notice by the Association to the Owner or Owners involved of
the need therefor, or if the work once commenced is not diligently pursued to completion within the period
prescribed by Section 11.2 of this Article XI, the Association may, by written notice to the Owner or Owners
involved, elect to undertake the work on behalf of and at the expense of said Owner or Owners.
11.8 INDIVIDUAL ASSESSMENTS. If the Association undertakes any work which is at the expense
of the Owner pursuant to the provisions of this Article XI, the Association shall levy an Individual Assessment
against such Owner pursuant to the provisions of Section 4.11 of the Declaration, to cover the costs of such
expense.
11.9 LIMIT ON INDIVIDUAL ASSESSMENT. Any Individual Assessment made against an Owner or
Owners by the Association in order to allow the Association to undertake any work which is to be at the expense
of the Owner, shall be reduced by any amount paid by the Owner for such work and by the amount of any
insurance proceeds paid to the Association as a result of the damage to be repaired or replaced.
END OF ARTICLE XI
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ARTICLE X11
DESTRUCTION OR CONDEMNATION
12.1 DAMAGE OR DESCTRUCTION OF THE COMMON AREA.
12.1.1 If there is a total or partial destruction of any of the Major Components, such Major Components
shall be promptly rebuilt, unless, within ninety (90) days from the date of such destruction, the Owners then
holding at least seventy-five percent (75%) of the total voting power of the Members who are present and
entitled to vote, in person or by proxy, at a duly constituted meeting of the Members, determine that repair or
reconstruction shall not take place. If such a meeting is called, the Board shall solicit and obtain bids from at
least two (2) reputable contractors for the cost of repairing and/or reconstructing such Major Components in
accordance with the original construction plans and shall present this infonnation to the Owners at said meeting.
12.1.2 If the Major Components are to be rebuilt, all of the Owners shall be obligated to contribute their
proportionate share of any funds that are required over and above the available insurance proceeds, to cover the
cost of such repair or reconstruction. Said proportionate share shall be determined by dividing the full amount
of any additional funds that are required by the total number of Lots in the Development. If any Owner fails to
pay its, his, her, or their proportionate share, the Board may levy a Special Assessment against the Lot of such
Owner, which may be subject to the lien provisions contained in Section 4.20 and the enforcement provisions
set forth in Section 4.21 of the Declaration, or in any other manner provided for in the provisions of the
Governing Documents or by law.
12.1.3 The use of the proceeds of any insurance maintained by the Association upon the Common Area
improvements pursuant to Article X of the Declaration shall be used by the Board pursuant to this Section 12.1
subject to the prior rights of Mortgagees whose interests may be protected by said policies.
12.1.4 In the event of a determination not to replace, repair or restore the Common Area improvements
pursuant to Sections 12.1.1 and 12.1.2 of the Declaration, the Association may, upon the approval of a Majority
of Members clear the destroyed or damaged part of the Common Area of the Development and landscape or
otherwise improve such area for project use, including adequate vehicular and pedestrian rights of way, with the
costs thereof paid from the insurance proceeds and from Special Assessments, if necessary. Should any excess
insurance proceeds remain,the Board shall retain such sums in the general funds of the Association.
12.1.5 Notwithstanding anything to the contrary contained in this Section 1.2.1, the distribution or any
insurance proceeds for any damage or destruction to the Common Area of the Development shall be subject to
the prior rights of the Institutional Mortgagees.
12.2 DAMAGE OR DESTRUCTION OF A RESIDENCE.
12.2.1 If all or any portion of any Residence is damaged or destroyed by fire or other casualty, it shall
be the duty of the Owner of the Lot on which such Residence is located to rebuild, repair, or reconstruct such
Residence in a manner which will restore it substantially to its appearance and condition immediately prior to
the casualty.
12.2.2 Any Owner who has suffered such damage shall apply to the Architectural Committee for
approval of plans of the reconstructing, rebuilding, or repairing of its, his, her, or their Residence. Application
for such approval shall be made in writing to the Architectural Committee together with full and complete plans,
specifications, working drawings, and elevations showing the proposed reconstruction and the end result thereof.
The Architectural Committee shall grant such approval only if the design proposed by the Owner would result in
a finished Residence that will be in harmony with the exterior design of other Residences within the Property.
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12.2.3 The Owner or Owners of any damaged Residence(s) and the Architectural Committee shall be
obligated to proceed with all due diligence hereunder to discharge their respective obligations.
12.2.4 Unless a waiver or modification of these time requirements is obtained from the Architectural
Committee in accordance with the provisions of Section 9.5 of the Declaration, the Owner(s) shall commence
reconstruction or removal of the damaged or destroyed structure within six (6) months after the damage occurs
and complete reconstruction within eighteen(18)months after such damage occurs.
12.2.5 To the extent the reconstruction or repairs herein described requires the repair or reconstruction
of the Party Walls or Party Fences, the Owners of the two (2) Lots sharing such Party Walls and/or Party Fences
shall bear one-half('/2)of the expenses thereof.
12.2.6 If two (2) or more Owners cannot agree on the apportionment of expenses of maintenance, repair
or restoration, such expenses shall be conclusively apportioned by the Association. If the Association is
involved in dispute over the apportionment of such expenses, then the dispute shall be settled as provided in
Section 17.7 below.
12.3 COMPLETION BY ASSOCIATION. If any repair or reconstruction required of an Owner by this
Article XII is not commenced within sixty (60) days after written notice by the Association to the Owner or
Owners of the Residence involved of the need therefor, or if the work once commenced is not diligently pursued
to completion, the Association may, by written notice to such Owner or Owners elect to undertake the work on
behalf of and at the expense of said Owner or Owners. If the Association undertakes any repair or reconstruction
which this Article XII requires an Owner to undertake, the Association shall assess an Individual Assessment
against the Owner pursuant to Article IV of the Declaration; provided, however, that the Individual Assessment
shall be reduced by any amount paid by the Owner for such work and by the amount of any insurance proceeds
paid to the Association as a result of the damage or destruction to be repaired or replaced.
12.4 CONDEMNATION.
12.4.1 If an action for condemnation of all or a portion of the Common Area is proposed or threatened
by any governmental agency having the right of eminent domain, then, after approval by vote or written consent
of at least fifty-one percent (51%) of all the Owners and with the prior written consent of seventy-five percent
(75%) of all Institutional Mortgagees, the Common Area, or a portion of it may be sold and conveyed to the
condemning authority by the Association or its designees acting as the attorney-in-fact of all Owners under an
irrevocable power of attorney, which Owner by accepting a deed to a Lot in the Development grants to the
Board and which shall be coupled with an interest of all other Owners, for a price deemed fair and equitable by
the Board. On a sale occurring under this Section 12.4, the proceeds shall be distributed equally to each Owner
and their Mortgagees as their respective interests may appear. If the Common Area, or a portion of it, is not sold
but is instead taken, the award shall be apportioned among the Owners and their respective Mortgagees by the
terms of the judgment of condemnation, and if not so apportioned, then the award shall be distributed equally to
each Owner and their Mortgagees as their respective interests may appear. If less than all of the Common Area
is taken, then the reconstruction or replacement of the remaining Common Area, and improvements thereon
shall be determined according to the rules established in the event of the destruction of a portion of the Common
Area, as set forth in Section 12.1 of the Declaration.
12.4.2 Where part of a Residence and/or Lot has been taken by condemnation or by eminent domain (or
by deed in lieu of such proceedings) and the Residence and/or Lot remaining is capable of being repaired or
reconstructed substantially in accordance with the original plans and specifications therefore, the Owner or
Owners of such Residence and/or Lot shall arrange for the repair or restoration of such Residence and/or Lot in
the manner prescribed by Section 12.2 of this Article XII with respect to the to the repair or restoration of
damage or destruction of a Residence.
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12.4.3 Should an entire Lot or a substantial portion of a Lot (ie., so as to render the repair or restoration
of the Residence thereon or the construction of a new Residence on such Lot in architectural harmony with the
remaining Development impracticable) be taken, the Residence and/or Lot so taken shall cease to be part of the
Development; the Lot remaining shall become a part of the Common Area of the Development, and the Owner
or Owners of such Residence and/or Lot shall cease to be a Member of the Association.
12.4.4 All compensation, damages or other proceeds constituting awards in condemnation or eminent
domain or payments in lieu of condemnation or eminent domain for the taking of or injury to the Residence
and/or Lot, or any portion or portions thereof, so taken shall be equitably apportioned by the Association,
following the receipt thereof, among the Association and the Owners and their Mortgagees of the Residence or
Lot so affected by the taking, as their interests may appear. No Owner, or any other party, shall have priority
over any right of Institutional Mortgagees of Lots in the Development pursuant to their Mortgages in case of a
distribution by the Association of insurance proceeds or condemnation awards for losses to or a taking of Lots or
Common Area in the Development. The part of the award apportioned to the Association, if any, shall be
applied by the Association to discharge the costs and expenses of restoration of the Common Area damaged as a
result of the taking of such Lot.
12.5 SPECIAL ASSESSMENT. In the event of a determination to repair or reconstruct pursuant to this
Article,the Board shall levy a Special Assessment in compliance with the terms and provisions of Section 4.8 of
the Declaration, in order to secure such funds as may be necessary to pay for the costs of such repair or
reconstruction, including all plans, specifications and permits deemed necessary by the Board therefor, over and
above all sums paid and received for such purposes from insurance, eminent domain awards or an Individual
Assessment.
END OF ARTICLE XII
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ARTICLE XIII
EASEMENTS AND ENCROACHMENTS
13.1 PERSONS SUBJECT TO THE PROVISIONS OF THE GOVERNING DOCUMENTS.
13.1.1 All present and future Owners,their family members, agents, employees, representatives, tenants,
invitees, licensees, customers, clients,and patients shall be subject to and shall comply with each and every term
and provision of the Governing Documents, as the same or any of them shall be amended from time to time,
unless a particular provision is specifically restricted in its application to one (1) or more of such classes of
person, i.e., Owners,Tenants, Invitees, etc.
13.1.2 The acceptance of an ownership interest in the fee title to any Lot, the entering into a lease,
sublease, rental agreement, or contract of sale with respect to any Lot, or the occupancy of any Residence shall
constitute the consent and agreement of such Owner, Tenant, or occupant that each and all of the provisions of
the Governing Documents, as the same or any of them may be amended from time to time, shall be binding
upon said person and that said person will observe and comply with each and every one of the provisions of the
Governing Documents.
13.2 NONEXCLUSIVE EASEMENTS.
13.2.1 Every Owner has a nonexclusive easement of appropriate use, enjoyment, ingress, egress, and
support in, on, over, and throughout the Common Area as well as any Improvements or Major Components that
may be located on such area, as is applicable.
13.2.2 Each such nonexclusive easement shall be appurtenant to the Owner's respective Lot and shall
pass with the title to such Lot.
13.2.3 All such nonexclusive easements shall be subject to the following rights and restrictions:
(a) The right of the Board to limit the number of any Tenants, guests, and or Invitees as well as
to adopt and enforce the Association and/or Architectural Rules.
(b) The right of the Board, in accordance with the provisions of the Governing Documents, to
borrow money for the purpose of improving, repairing, or maintaining the Common Area as well as any Major
Component and in aid thereof, to Mortgage any or all of said property. Provided, however, that the rights of any
such Mortgagee in said property shall be subordinate to the rights of the Owners hereunder; and further
provided, that any such indebtedness shall be considered a Common Expense of the Association for purposes of
a Special Assessment.
(c) The right of the Board to assign, rent, license, or otherwise designate and control the use of
any Major Components situated upon the Common Area and charge reasonable fees for its/their use.
(d)The right of the Board to temporarily suspend the prerogative of a Member to use any Major
Component and/or the Common Area as provided for in the provisions of Section 14.5 of the Declaration.
Notwithstanding the immediately preceding sentence, the Board shall not take any action which would deny an
Owner access to its/his/her/their Lot.
(e) The right of the Board to adopt and enforce Association Rules concerning the control and
use of the private streets and any emergency vehicle access easement that are located on or across the Common
Area, including, but not limited to, the right to regulate the kind of vehicles and their speed together with any
parking of vehicles within such private streets and emergency vehicle access easement.
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(f) The Board is authorized to delegate to a municipality or any other governmental entity that
may have jurisdiction as well as to contract with any private security company to exercise its authorized rights in
connection with such private streets and emergency vehicle access easement.
(g) The private streets and any emergency vehicle access easement within the Development
shall also be subject to any emergency vehicle access easements and/or any public or private utility easements
that are shown,designated, and described on the Subdivision Map.
13.3 RIGHT OF DECLARANT TO APPEAR AT MEETINGS. Because of the Declarant's interest
in the maintenance, repair, and upkeep of the Development, for a period of ten (10) years from the date of the
first conveyance of a fee title interest in a Lot to an Owner other than the Declarant, its representatives may
appear, but cannot vote or be involved in any open discussions unless specifically requested to do so by the
person who is conducting such meeting. Such meetings include meetings of the Members as well as open Board
meetings.
13.4 UTILITY SERVICE. There is reserved for the benefit of each Owner, the Association, and all
utilities, persons and municipalities rendering services to the Development, an easement over, under, upon and
through each Residence, Lot and the Common Area for the installation, maintenance and repair of each and
every utility service, including but not limited to sewage, storm drainage, water, electricity, gas, telephone and
television service for the Development, and all necessary meters and gauges registering the use of such services,
(including the incidental easement of ingress and egress for the purpose of reading such meters); provided,
however, that the exercise of this easement shall not result in damage to existing improvements upon any Lot or
the Common Area, including Residences, lawns, shrubbery or trees unless adequate compensation is made for
any such damage by the Owner, the utility, the municipality or the Association exercising the rights granted by
this Section 13.4. By virtue of this easement, it shall be expressly permissible for the providing utility to erect
and maintain the necessary equipment and underground facilities on and within the Common Area.
Notwithstanding the foregoing, no sewer, electrical lines, water lines, or other utilities may be installed or
relocated within the Development except as initially designed and approved by the Declarant or thereafter
approved by the Board.
13.4.1 The easement areas in the Common Area and all improvements located thereon, shall be
maintained by the Association, except for those improvements for which a public authority or utility company is
responsible.
13.5 RIGHTS OF ENTRY OR USE.
13.5.1 Each Lot as well as the Association and/or Common Area, as the case may be, shall be subject to
the following rights of entry and use:
(a)The right of the Declarant or its designee(s) to enter upon any portion of the Development to
construct Improvements to the Property, to make repairs, to remedy construction defects, and to inspect the
Common Area for appropriate maintenance and repair. Provided that if such an entry is to a Lot, a request for
any such entry is made in advance and that such an entry is at a time convenient to the Owner whose Lot is
being entered. Any such entry must be authorized by its Owner, which authorization shall not be unreasonably
withheld. No such entry shall interfere with the reasonable use, occupancy or enjoyment by any Owner of its,
his,her, or their Lot or the Common Area
(b) The right of the Board or its agents to enter any Lot to cure any Violation of a Provision of
the Governing Documents, provided that, (i) the Association has complied with the Due Process Requirements,
except in the case of an emergency, and (ii) that within the time limit constraints of the Due Process
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Requirements such Owner has not acted to cure such Violation of a Provision of the Governing Documents.
The Board shall be entitled to levy a Special Assessment for its costs of effecting such cure against the Owner.
A request for any such entry must be made in advance and entry must be at a time convenient of the Owner
whose Lot is being entered upon. Notwithstanding the immediately preceding sentence, the rights of entry and
cure shall be immediate in the case of an emergency originating upon or threatening any Lot, whether or not the
Owner of the Lot being entered is present.
(c) The right of the Board, its officers, agents, employees, and any contractor selected by the
Board to enter in or cross over the Common Area as well as any of the Lots to perform its obligations and duties
under the provisions of the Governing Documents,which include, but are not limited to, its obligations or duties
with respect to the construction, maintenance, and repair of the Common Area, including, but not limited to, the
watering, planting, cutting, removing and otherwise caring for any landscaping, together with the cleaning,
repairing, replacing, and otherwise maintaining, or causing to be maintained, any underground utility lines
serving the Lots. A request for any such entry must be made in advance and entry must be at a time convenient
of the Owner whose Lot is being entered upon. Notwithstanding the immediately preceding sentence, the rights
of entry and cure shall be immediate in case of an emergency originating upon or threatening any Lot, whether
or not the Owner of the Lot being entered is present.
(d) The right of an Owner or Owner's representatives to enter the Lot of any other Owner for
purposes of performing installations, alterations, or repairs to mechanical or electrical services, including
installation of television antenna and related cables,which are reasonably necessary to the use and enjoyment of
its, his, her, or their Lot. A request for any such entry must be made in advance and entry must be at a time
convenient of the Owner whose Lot is being entered upon. The rights of entry and cure shall be immediate in
the case of an emergency, whether or not the Owner of the Lot being entered is present.
(e)The right of the Association and the Owners, or their representatives,to enter upon adjoining
Lots for access to slopes and drainage ways located thereon, when such access is essential for the maintenance
or stabilization of such slopes and/or drainage ways,provided request for any such entry is made in advance and
that such an entry is at a time convenient to the Owner whose Lot is being entered upon. The rights of entry and
cure shall be immediate in case of an emergency, whether or not the Owner of the Lot being entered is present.
13.6 MINOR ENCROACHMENTS.
13.6.1 Each Lot shall have and is hereby granted an appurtenant easement, not to exceed five feet (5')
from any point on the property line of any such Lot, over all adjoining Lots, including the Common Area, for
the purpose of accommodating- any encroachment due to engineering errors, errors in original construction,
settlement, or the shifting of structures together with any other reasonable cause, as long as such encroachment
remains.
13.6.2 However, in no event shall such a valid easement for encroachment exist in favor of a Lot if the
encroachment occurred due to the willful misconduct of the Owner of such a Lot.
13.6.3 In the event a structure on any Lot is partially or totally destroyed and then repaired or rebuilt,the
Owners, and each of them, hereby agree that under such circumstances any minor encroachments over adjoining
Lots and/or the Common Area, as the case may be, that do not exceed five feet (5) from any point on the
property line of any such Lot shall be permitted and that there shall also be valid easements for the maintenance
of the encroachments as long as such encroachments shall exist. Such appurtenant easements shall be for the
purpose of but not limited to, overhanging roofs and eaves, fireplace structures as well as extended windows.
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13.7 POWER TO GRANT EASEMENTS.
13.7.1 The Declarant or the Board shall have the power as well as the right to grant and convey in the
name of the Association, as to any real property to which the Association holds title, to any Owner or other
party, easements and rights-of-way in, on, over, or under the Common Area for the purpose of access, ingress,
and egress to real property, constructing, erecting, operating, or maintaining lines, cables, wires, conduits, or
other devices for electricity, cable television, power, telephone and other purposes, public sewers, storm water
drains and pipes, water systems, sprinkling systems, water, heating and gas lines, or pipes as well as any similar
public or quasi-public improvements or facilities.
13.7.2 Each Owner, in accepting an ownership interest in the fee title to a Lot, expressly consents to
such easements and rights-of-way and authorizes and appoints the Board and the Declarant, as long as the
Declarant has one (1) or more ownership interests in the fee title to a Lot, as attorney-in-fact of such Owner to
execute any and all instruments conveying or creating such easement of rights-of-way.
13.7.3 However, no such easement can be granted if it would permanently interfere with the use,
occupancy or enjoyment by any Owner of its, his, her, or their Lot unless it was approved by the vote or written
consent of the holders of not less than seventy-five percent (75%) of the total voting power of the Owners as
well as their Eligible Mortgage Holders.
13.8 PARTY FENCE AND PARTY WALL EASEMENTS.
13.8.1 Each Lot that shares a Party Fence and/or Party Wall with an adjoining Lot and its Owner is
declared to have an easement appurtenant and the same is granted by Declarant on, over, and upon such
adjoining Lot for that portion of the Party Fence and/or Party Wall that is located thereon, including the right to
enter upon such adjoining Lot to service and maintain said easement as well as repair or replace the
Improvements constituting the Party Fence and/or Party Wall. The entry shall be at reasonable times, after prior
notice, except that in the case of an emergency the right of entry shall be immediate.
13.8.2 Excluding any maintenance obligation or duty of the Association, each Lot and its Owner shall
be responsible for the maintenance, repair, and reconstruction of that portion of the Party Fence or Party Wall
that is located upon its,his,her, or their Lot.
13.8.3 No Owner shall alter the shape, size, or construction of such Party Fence or Party Wall or use any
materials different from those utilized in the initial construction without the written consent of the Architectural
Committee.
13.9 EMERGENCY ACCESS AND RIGHT-OF-WAY OVER PRIVATE STREETS. The Property,
each Owner, and the Association, as the case may be, is/are declared to be subject to any emergency vehicle
access easements and public right-of-way easements over the private streets in the Development.
13.10 PUBLIC SERVICE EASEMENT. There shall be and the Declarant hereby reserves and
covenants for itself as well as all of the future Owners, easements for public services, including, but not limited
to, the right of the police and fire departments to enter upon any part of the Development for the purpose of
carrying out their official duties.
13.11 DELEGATION OF USE.
13.11.1 Any Owner may delegate its, his, her, or their rights of use of the Development to members of
its, his, her, or their family, Tenants, employees, and Invitees and to such other persons as may be permitted by
the provisions of the Governing Documents.
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13.11.2 If an Owner has sold its, his, her, or their ownership interest in the fee title to any Lot to a
Contract Buyer or has leased or rented it, the Owner shall not be entitled to delegate any right to the use and
enjoyment of the Development that are appurtenant to such a Lot while such Owner's Lot is occupied by any
such Contract Buyer or Tenant. Instead,the Contract Buyer or Tenant, as the case may be,while occupying such
Lot, shall be entitled to use and enjoy such rights and can delegate such rights of use and enjoyment in the same
manner as if such Contract Buyer or Tenant were an Owner.
13.11.3 Each Owner shall notify the Secretary of the Association of the names of any Contract Buyer or
Tenants of such Owner's Lot. Each Owner, Contract Buyer, or Tenant .shall also notify the Secretary of the
Association of the names of all persons to whom such Owner, Contract Buyer, or Tenant has delegated any right
of use and enjoyment and the relationship that each such person bears to the Owner, Contract Buyer, or Tenant,
whichever is applicable.
13.11.4 Any delegated rights of use and enjoyment are subject to suspension to the same extent as are
the rights of the Owners. No such delegation shall relieve an Owner from liability to the Association or to the
other Owners for payment of Assessments or compliance with the performance of the covenants, conditions, and
restrictions that are contained in the provisions of the Governing Documents.
13.11.5 Any lease, rental agreement or contract of sale entered into between an Owner and a Tenant or
Contract Buyer shall contain a provision that requires compliance by such Tenant or Contract Buyer with all of
the covenants, conditions, and restrictions contained in the provisions of the Governing Documents. Such
provision shall categorically state that it is for the express benefit of the Association and each Owner.
13.11.6 The Association and each Owner shall have a right of action directly against any Tenant or
Contract Buyer of an Owner as well as against the Owner for a Violation of a Provision of the Governing
Documents to the same extent that such right of action would exist against such Owner.
13.12 FUTURE CONSTRUCTION AND ASSIGNMENT OF DECLARANT'S RIGHTS.
13.12.1 As provided in Section 9.6 of this Declaration, nothing in the provisions of the Governing
Documents shall limit the right of the Declarant to complete the construction of Improvements that are located
in the Common Area as well as to any Lots that are owned by the Declarant, to alter such Improvements and/or
Lots or to construct any additional Improvements that the Declarant might deem advisable, before completion
and sale of the entire Development. The Declarant, its agents, representatives, successors in interest and assigns
shall have a non-exclusive easement and right-of-way for ingress and egress over and upon the Conunon Area to
and from any portion of the Property until construction and development of the Property is completed.
Provided,however, such use by the Declarant, its agents, representatives, successors in interest and assigns shall
not restrict the Members in their use and enjoyment of the Common Area.
13.12.2 Any rights given to the Declarant by the.provisions of the Governing Documents may be
assigned by the Declarant to any successor of all or any part of the Declarant's interest in the Development, by
an express assignment that has been incorporated into a Recorded deed that transfers any such interest or portion
thereof, as the case may be, to a successor or to a Mortgagee who acquires all of the Declarant's interest in the
Development by foreclosure,by deed in lieu of foreclosure,or by assignment in lieu of foreclosure.
13.12.3 The provisions of this Section 13.12 may not be amended without the written consent of the
Declarant until all of the fee title interest of the Lots that are owned by the Declarant have been conveyed to
Owners other than the Declarant.
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13.13 REQUIREMENTS TO COMPLY WITH DUE PROCESS.
13.13.1 Before the Board Records a Notice of Violation, imposes any monetary penalties, suspensions
of Membership rights, or Common Area use privileges against any Member for a Violation of a Provision of the
Governing Documents, or before the Board and/or the Declarant exercise any entry rights that may be provided
for in the provisions of the Governing Documents, the Board and/or the Declarant, as the case may be, must act
in good faith and satisfy the following requirements. Such Member shall be given a ten (10) day prior written
notice, which for the purposes of this Section 13.13 shall be hereinafter referred to as the "Action Notice," by
either first-class mail or personal delivery. The Action Notice must:
(a) State that the Board or the Declarant, as the case may be, is/are contemplating entry into its,
his, her, or their Lot or that the Board is meeting to consider disciplining such Member, whichever is applicable.
(b) Contain the nature of the alleged Violation of a Provision of the Governing Documents or
the necessity for any such entry, whichever is applicable.
(c) State the date,time, and place of the meeting or any such entry.
(d) Advise the Member of its, his, her, or their right to attend any such meeting and to address
the Board or to discuss any such contemplated entry with the Board or the Declarant, whichever is appropriate.
13.13.2 If the Action Notice is given by mail, it must be sent to the address of the Member that is
currently shown in the Association's records.
13.13.3 If, after complying with all of the above procedures, the Board decides to Record a Notice of
Violation, impose such discipline or the Board and/or the Declarant, as the case maybe, determine to make such
entry, then, within fifteen (15) days of any such decision or determination, the Board and/or the Declarant,
whichever is applicable, shall notify the Member, in writing, by either first-class mail or personal delivery, of
such Recording,the disciplinary action to be taken or the entry to be made, as the case may be.
13.13.4 No such Recording, no disciplinary action shall be taken or no entry made until the Board or the
Declarant, as the case may be, has fulfilled all of the requirements that are called for in the provisions of this
Section 13.13.
13.14 APPURTENANT EASEMENTS.There shall be the following easements appurtenant to each
Lot:
13.14.1 Reciprocal easements between adjacent Lots for the maintenance, replacement and repair of all
fences situate upon the common boundary of said adjacent Lots.
13.14.2 Reciprocal easements between each Lot and such portion or portions of the Common Area
adjacent thereto for encroachments due to the placement, settling or shifting of any Residences or other
Improvements constructed, reconstructed, replaced or altered thereon in accordance with the original plans and
with the terms of the Declaration to a distance of not more than five feet, as measured from any point on the
common boundary between each Lot and the adjacent portions of the Common Area along a line perpendicular
to such boundary at such point; provided, however, in no event shall an easement for encroachment exist if such
encroachment occurs due to the willful conduct on the part of an Owner of a Lot, any tenant of such Lot or the
Association.
13.14.3 An easement of encroachment appurtenant to each Lot for any encroachments upon the air
space of any part of the Common Area by any part of the Residence or other Improvements originally
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constructed, reconstructed, replaced, repaired and/or maintained upon such Lot pursuant to the original plans
thereof, and with the consent of the Architectural Committee to a distance of not more than three feet (3'), as
measured from any point on the common boundary between each such Lot and the adjacent portion of the
Common Area along a line perpendicular to such boundary at such point.
13.14.4 In the event that there shall be located within any Lot pipes, vents, outlets, wires or other
structures serving another or more than one Lot, the Owner of each Lot so served shall have and enjoy a
perpetual easement appurtenant to his Lot for the maintenance and use of any such pipe, vent, outlet, wire or
other structure.
13.15 OWNER'S EASEMENT OF ENJOYMENT. Every Owner, and his tenants, servants, family
Members, guests and invitees, to the extent permitted by such Owner, shall have a non-exclusive easement of
access to, use and enjoyment of, and ingress and egress through the Common Area and such easement shall be
appurtenant to and shall pass with the title to every Lot, subject to the following provisions:
13.15.1 The right of the Association to reasonably limit the number of guests of Owners using the
Common Area.
13.15.2 The right of the Board to establish Association Rules pertaining to the use of the Common Area,
including without limitation,the parking of vehicles.
13.15.3 The right of the Association in accordance with the Declaration, its Articles and By-Laws, to
borrow money for the purpose of improving the Common Area and facilities therein.
13.15.4 The right of the Association to suspend the voting rights of an Owner for any period during
which any assessment against such Owner's Lot remains unpaid and delinquent as provided for by the
Declaration.
13.15.5 Subject to the provisions of the Declaration, the right of the Association to dedicate, release,
alienate or transfer all or any part of the Common Area to any public agency, authority or utility for such
purposes and subject to such conditions as may be agreed upon by the Members.
13.15.6 No such dedication, release, alienation or transfer shall be effective unless an instrument signed
by sixty-six and two-thirds percent (66 2/3%) of the total voting power of the Members of the Association
agreeing to such dedication, release, alienation or transfer has been recorded in the office of the County
Recorder.
13.15.7 The right of the Association to reconstruct, replace or refinish any improvement or portion
thereof upon the Common Area, in accordance with the original design, finish or standard of construction of
such improvement, or the general improvements within the Development, as the case may be.
13.15.8 The right of the Association to garden and landscape the Common Area.
13.15.9 No Improvements, structures, planting or material shall be placed or permitted to remain which
may damage or interfere with the installation and maintenance of utilities, or which may damage, interfere or
change the direction or flow of drainage facilities in the Common Area.
13.16 RIGHTS OF ASSOCIATION. There is expressly reserved to the Association an easement, to
which the entire Development shall be subject, of entry and access for the performance generally of its rights
and duties as provided in the Declaration. Any damage caused to a Residence, Lot or to the Common Area by
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the exercise of the rights of the Association granted pursuant to this Section 13.16 shall be repaired by the
Association.
13.17 VEHICULAR TRAFFIC. There shall be, and Declarant hereby expressly reserves and covenants
for themselves,the future Owners of Lots in the Development, and all fixture Owners of the Property, or any part
thereof, and every such Owner shall have a non-exclusive easement appurtenant to such property or Lot for
purposes of ingress and egress to and from such property or Lot over all road, and other private streets within
the Property.
13.18 ADDITIONAL EASEMENTS. Additional easements may be granted to the Association by
Declarant, to reflect the fences, walls, landscaping and irrigation systems installed along the perimeter of the
Development, and within the entry areas of the Development, as installed by Declarant without the necessity of
amending the Declaration. Each Lot and its Owner as well as the Association, as the case may be, is declared to
be subject to all of the easements, dedications, and rights-of-way that have been granted or reserved in, on, over,
and under the Property.
END OF ARTICLE XIII
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ARTICLE XIV
POWERS AND DUTIES OF ASSOCIATION
14.1 INCORPORATION.
14.1.1 The Association is a nonprofit mutual benefit corporation formed under the laws of the State of
California.
14.1.2 At the Recording of the first conveyance of a fee title interest in a Lot to an Owner other than the
Declarant, the Association shall be charged with the duties and invested with the powers set forth in the
provisions of the Governing Documents.
14.1.3 The Members of the Association shall hold an organizational meeting no later than the expiration
of six (6) months following the recordation of a deed evidencing the initial sale of a Lot within the
Development. Declarant shall call the organizational meeting and give notice of the time thereof in the manner
set forth in the By-Laws. Thereafter, annual and special meetings of the Members of the Association shall be
held as provided in the By-Laws.
14.2 ACTION THROUGH DESIGNATED OFFICERS. Except as to the matters requiring the approval
of the Owners as set forth in the provisions of the Governing Documents, the affairs of the Association,
including the exercise of its powers and duties, shall be conducted by the Board, such officers as the Board may
elect or appoint, or such persons or entities with delegated authority under the provisions of Section 14.6 of the
Declaration.
14.3 ASSESSMENT RIGHTS. The Board shall establish, fix, and levy Assessments against the
Owners, and collect and enforce payment of such Assessments in accordance with the provisions of the
Governing Documents. .
14.4 THE RIGHT TO ESTABLISH ASSOCIATION RULES.
14.4.1 The Board shall have the power to adopt, amend, and repeal the Association Rules as it considers
reasonable and appropriate, subject to the Owners' right to receive prior notice.
14.4.2 A copy of the current Association Rules as adopted, amended, or repealed shall be mailed or
otherwise delivered to each Owner and a copy shall be posted in a conspicuous place within the Development.
14.5 RIGHT TO IMPOSE SANCTIONS FOR A VIOLATION OF A PROVISION OF THE
GOVERNING DOCUMENTS.
14.5.1 In addition to any other enforcement rights described in the provisions of the Governing
Documents or authorized by law and subject to the Due Process Requirements, the Board may take any of the
following actions against any person or entity, whose act or failure to act is a Violation or a threatened Violation
of a Provision of the Governing Documents:
(a)Impose monetary penalties, including late charges and interest;
(b)Temporarily suspend voting rights in the Association;
(c) Temporarily suspend use privileges for any Major Component and/or the Common Area
(provided, however, no Owner shall be denied access to its/his/her/their Lot); and
(d)Commence a legal action for damages, injunctive relief, or both.
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14.5.2 The determination of whether to impose any of the foregoing sanctions shall be within the sole
discretion of the Board.
14.5.3 The Board may take more than one (1) of the foregoing enforcement actions against any
Violation or threatened Violation of a Provision of the Governing Documents, provided that any suspension of
use privileges shall not exceed thirty (30) days, unless such suspension is for delinquent Assessments and a
monetary penalty shall not exceed fifty dollars ($50), excluding late charges imposed for delinquent payments,
for any Violation of a Provision of the Governing Documents.
14.5.4 The Board shall have the power to adopt a schedule of a reasonable fines and monetary penalties
for a Violation of a Provision of the Governing Documents, provided that any such schedule is distributed to
each Member by personal delivery or first-class mail.
14.5.5 If any Member who is being disciplined so requests, the Board must meet in executive session
and the Member is entitled to attend.
14.5.6 The Board may not cause a forfeiture or abridgement of an Owner's rights to the full use and
enjoyment of its, his, her, or their Lot except by the judgment of a court that has the appropriate jurisdiction, a
decision arising out of an arbitration proceeding or on account of a foreclosure or sale under a power of sale for
failure of the Owner to pay Assessment fees duly levied by the Association.
14.5.7 The enforcement of monetary penalties is subject to the restrictions described in the provisions of
Section 4.8 of the Declaration.
14.5.8 If any Owner fails to cure a default within sixty (60) days after written notice to that Owner of
such default,the Board shall give the notice required by the provisions of Section 15.6 of the Declaration, to any
Eligible Mortgage Holder of Record who holds a Mortgage against such Owner's Lot.
14.5.9 The failure of the Board to enforce the Association Rules, these By-Laws, or the Declaration
shall not constitute a waiver of the right to enforce the same thereafter.
14.6 RIGHT OF THE BOARD TO DELEGATE ITS POWERS AND DUTIES.
14.6.1. The Board and the officers of the Association shall have the power to delegate their authority and
powers to committees, officers, or employees of the Association or to a manager employed by the Association,
provided that the Board shall not delegate its responsibility to:
(a)Make expenditures for capital additions or Improvements chargeable against Reserve Funds;
(b) Conduct hearings concerning compliance by an Owner or its, his, her, or their Tenant,
lessee, or Invitee with the provisions of the Governing Documents;
(c) Make a decision to levy monetary fines, impose Special Assessments against individual
Lots,temporarily suspend an Owner's rights as a Member or otherwise impose discipline;
(d)Make a decision to levy Regular Monthly or Special Assessments; or
(e) Make a decision to bring suit, Record a claim of lien, or institute foreclosure proceedings for
default in the payment of Assessments.
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14.7 DUTIES. In addition to the duties described in any other provision of the Governing Documents,
the Association shall have the duties set forth in the provisions of Sections 14.8 through 14.14, inclusive, and
14.24 of the Declaration.
14.8 MANAGEMENT AND MAINTENANCE OF THE DEVELOPMENT. The Association shall
manage and maintain the Major Components and the Common Area as provided in Section 11.1.2 of the
Declaration.
14.9 CONTRACTING FOR GOODS AND SERVICES. The Board shall enter into such contracts for
services or materials as may be necessary to perform its duties, including any contracts with the Declarant,
subject to the provisions of any and all of those Sections in the Governing Documents that have application
thereto.
14.10 PAYMENT OF TAXES AND ASSESSMENTS.
14.10.1 The Board shall pay all real and personal property taxes, Assessments and all other taxes levied
against the Association,the Common Area or any personal property owned by the Board.
14.10.2 Such taxes and Assessments may be contested or compromised by the Association, provided
they are paid or that a bond insuring payment is posted before the sale or disposition of any property to satisfy
the payment of such taxes.
14.11 SECURING INSURANCE COVERAGE. The Board shall obtain and maintain the insurance
described in the provisions of Sections 10.1, 10.2, 10.5 and 10.6 of the Declaration.
14.12 PREPARATION AND DISTRIBUTION OF FINANCIAL STATEMENTS, REPORTS, AND
COPIES OF THE GOVERNING DOCUMENTS.
14.12.1 The Board shall cause to be prepared and distributed Budgets, financial statements, and reports
to each Member as follows:
(a) A Budget for each Fiscal Year shall be distributed not less than thirty (30) nor more than
ninety(90) days prior to the beginning of such Fiscal Year and shall consist of at least the following:
(1) Estimated revenue and expenses on an accrual basis;
(2)A summary of the Association's reserves based upon the most recent review or study
conducted pursuant to the provisions of Section 4.7, of the Declaration, 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;
B. As of the end of the Fiscal Year for which the study is prepared:
1. The current estimate of the amount of cash reserves necessary to
repair,replace, restore, or maintain the Major Components;
2. The current amount of accumulated cash reserves actually set aside
to repair,replace, restore,or maintain Major Components;
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3. If applicable, the amount of funds received from either a
compensatory damage award or settlement to the Association from any person or entity for injuries to property,
real or personal, arising out of any construction or design defects, and the expenditure or disposition of funds,
including the amounts expended for the direct and indirect costs of repair of construction or design defects.
These amounts shall be reported at the end of the Fiscal Year for which the study is prepared as separate line
items under cash reserves pursuant to the provisions of Section 14.12.1(a)(2)B, above. The percentage that
accumulated cash reserves actually set aside is of the current estimate of the necessary cash reserves.
(3) A statement as to:
A. Whether the Board has determined or anticipates that the levy of one (1) or
more Special Assessments will be required to repair, replace, or restore any Major Component or to provide
adequate reserves therefore; and
B. If such a Special Assessment is anticipated, such a statement shall also set
out the estimated amount, commencement date, and duration of such Special Assessment, and the mechanism or
mechanisms by which the Board will fund reserves to repair or replace any Major Component, including, but
not limited to, Assessments, borrowing, use of other assets, deferral of selected replacement or repairs, or some
other alternative procedure.
(4) A general statement setting forth the procedures used in the calculation and
establishment of those Reserve Funds that will be used to defray the future repair, replacement or additions of
any Major Components. Such a statement shall include, but not be limited to, reserve calculations made using
the formula that is described in the provisions of California Civil Code Section 5570(b)(4), and may not assume
a rate of return on cash reserves in excess of two percent (2%) above the free discount rate published in the
Federal Reserve Bank of San Francisco at the time such calculation was made.
(b) In lieu of the distribution of the Budget, the Board may elect to distribute a summary of the
items described hereinabove to all the Members, with written notice that the Budget is available at the business
office of the Association or at another suitable location within the boundaries of the Development, and that
copies will be provided upon request and at the expense of the Association. Members shall be notified in
writing at the time that the Budget is distributed, or at the time of any general mailing to the entire membership,
of their right to have copies of the minutes of meetings, and how and where those minutes may be obtained. If
any Member requests a copy of the Budget, including the items referred to above, to be mailed to the Member,
the Association shall provide such a copy to the Member by first-class, United States mail at the expense of the
Association and delivered to such requesting Member within five(5) days. The written notice that is distributed
to each of the Members shall be in at least ten (10) point bold type and appear on the front page of such
summary.
(c) A report consisting of the following shall be distributed within one hundred twenty (120)
days after the close of the Fiscal Year:
(1)A balance sheet as of the end of the Fiscal Year;
(2)An operating(income) statement for the Fiscal Year;
(3) A statement of changes in the financial position for the Fiscal Year;
(4) For any Fiscal Year in which the gross income to the Association exceeds Seventy-
Five Thousand Dollars ($75,000), a copy of a review of the financial statement of the Association prepared in
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accordance with generally accepted accounting principles by a licensee of the California State Board of
Accountancy; and
(5) Any information required to be reported under the provisions of section 8322 of the
California Corporations Code;
(6) If the report referred to in the provisions of Section 14.12.1(b) above, is not
prepared by an independent accountant, it shall be accompanied by the certificate of an authorized officer of the
Association that the statement was prepared from.the books and records of the Association without independent
audit or review.
(d) A statement describing the Association's policies and practices in enforcing lien rights,
foreclosures, or other legal remedies for default in payment of its Assessments against its Members, and a
statement of the place where the names and addresses of the current Members are located shall be distributed
annually to the Members, and to any First Lender who has requested a copy,;not less than thirty (30) days nor
more than ninety(90)days prior to the beginning of the Association's Fiscal Year. The notice shall be printed in
at least 12-point type.
(e) A summary of the Association's insurance policies as set forth in and required by the
provisions of California Civil Code Sections 5300(a) and(b)(9) shall be distributed annually to the Members not
less than thirty (30) days nor more than ninety (90) days prior to the beginning of the Association's Fiscal year.
Such a summary shall contain the following statement in at least ten(10)point bold face type:
"This summary of the Association's policies of insurance provides only that
certain information that is required by the provisions of Sections 5300(b)(9) and
5810 of the California Civil Code and should not be considered a substitute for
the complete policy terms and conditions contained in the actual policies of
insurance. Any Association member, upon request and reasonable notice, may
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."
(f) The Board shall comply with the requirements of the provisions of California Civil Code
Section 5965 by providing Members an annually summary of the provisions of Article 3, commencing with
California Civil Code Section 5925, of Chapter 10, Division 4, Part 5, of the California Civil Code, including
the following language:
"Failure by any Member of the Association to comply with the alternative
dispute resolution requirements of the provisions of Section 5930 of the
California Civil Code may result in the loss of your rights to sue the Association
or another Member of the Association regarding enforcement of the governing
documents or the applicable law."
(g) The Board shall comply with the requirements of the provisions of California Civil Code
Sections 4040(b) and 5730 by distributing a written notice as described in the provisions of subdivision (b) of
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California Civil Code Section 5730(a), which is entitled"Notice Assessments and Foreclosure"to each Member
during the sixty (60) day period immediately preceding the beginning of the Association's Fiscal Year. Such a
notice is to be printed in at least twelve(12)point type.
(h) The Board shall annually provide the Members with notice of any requirements for
Association approval of physical changes to Lots as well as the Common Area. Such a notice shall describe the
types of changes that require Association approval and shall include a copy of the procedure used to review and
approve or disapprove a proposed change.
14.13 ENFORCEMENT OF BONDED OBLIGATIONS.
14.13.1 If the Association is the obligee under a bond or other security arrangement, hereinafter referred
to as the "Bond," to secure performance of a commitment of the Declarant, or its successors or assigns, to
complete the Common Area Improvements which were not completed at the time a Final Subdivision Public
Report was issued, the Board shall consider and vote on the question of taking action to enforce the obligations
that are secured by such Bond on any Common Area Improvement for which a Notice of Completion has not
been filed by the later of:
(a) Sixty (60) days after the completion date specified for such Improvement in the planned
construction statement("Planned Construction Statement") appended to the Bond; or
(b)Thirty(30)days after the expiration of any written extension given by the Board.
14.13.2 Notwithstanding any other provisions of the Governing Documents, if the Board fails to
consider and/or vote on the action to enforce the obligations under a Bond, or if the Board decides not to initiate
action to enforce the obligations under a Bond,then, on receipt of a petition signed by the Owners who represent
not less than five percent (5%) of the total voting power of the Association, the Board shall call a special
meeting of the Owners for the purpose of voting to override the decision of the Board not to initiate action or to
compel the Board to take action to enforce the obligation under such Bond,whichever is applicable.
(a) The Board shall give a written notice of the meeting to all of the Owners entitled to vote on
such a matter, in the manner provided for in the provisions of the Governing Documents for a notice of a special
meeting of Owners.
(b) The meeting shall be held not less than thirty-five (35) days or more than forty-five (45)
days after receipt of such a petition.
(c)At the meeting, the vote in person or by proxy of the majority of the Owners entitled to vote,
other than the Declarant, in favor of taking action to enforce the obligations under the Bond shall be considered
the decision of the Association and the Board shall implement this decision by initiating and pursuing any
appropriate action in the name of the Association.
14.14 OTHER DUTIES. The Board shall perform such other acts as may be reasonably necessary to
exercise its powers or perform its duties under any of the provisions of the Governing Documents or any Board
resolutions.
14.15 LIMITATIONS ON THE AUTHORITY OF THE BOARD OR THE ASSOCIATION.
14.15.1 Subject to the provisions of Sections 14.16 and 14.17, the Board shall not take any of the
following actions, unless it has the assent of a simple majority of the Members other than the Declarant, who
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constitute a quorum consisting of fifty-one percent (51%) of the voting power of the Association residing in
Members other than the Declarant.
(a) Such assent shall have been granted by a vote at a meeting of the Association or, after
complying with the provisions of Corporations Code Section 7513, or any compatible superseding statutes, by a
written ballot without a meeting:
(1) Incur aggregate expenditures for capital Improvements to the Association and/or
Common Area in any Fiscal Year that are in excess of five percent(5%) of the Budgeted Common Expenses for
such Fiscal Year;
(2) Sell, during the Fiscal Year, property of the Association having an aggregate Fair
Market Value greater than five percent(5%) of the Budgeted Common Expenses for the Fiscal Year;
(3) Pay compensation to the Directors or to the officers of the Association for services
performed in the conduct of the Association's business, provided that the Board may reimburse any Director
and/or officer of the Association for expenses incurred in carrying on the business of the Association; or
(4) Enter into a contract with a third person for such person to furnish goods and/or
services for or to, as the case may be, the Association and/or Common Area and/or the Association, for a term
longer than one(1) year, with the following exceptions:
A. A management contract, the terms of which have been approved by the
Federal Housing Administration or the Veterans Administration;
B. A contract with a public utility company if the rate charged for the materials
or services are regulated by the Public Utilities Commission, provided, the term does not exceed the shortest
term for which the supplier will contract at the regulated rate;
C. Prepaid casualty or liability insurance policies that do not exceed three (3)
years in duration, provided, the policy allows for a short rate cancellation by the insured;
D. Lease agreements for equipment that do not exceed five (5) years in
duration, provided, the Declarant does not have a direct or indirect ownership interest of ten percent (10%) or
more in any lessor under such an agreement;
E. Agreements for cable television services and equipment or satellite dish
television services and equipment, not exceeding five (5) years in duration, provided, the supplier is not an
entity in which the Declarant has a direct or indirect ownership interest often percent(10%)or more;
F. Agreements for the sale or lease of burglar alarm and/or fire alarm
equipment, installation, and services that do not exceed five (5) years in duration, provided, the supplier or
suppliers are not entities in which the Declarant has a direct or indirect ownership interest of ten percent
(10%)or more; and
G. Agreements for a term that does not exceed three (3) years in duration,
which are subject to termination by the Association, without cause, penalty, or other obligation, after being in
force for no longer than one (1) year, upon the giving of a ninety (90) day written notice of termination to all
of the other parties to any such agreement.
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(5) Levying an increase in the Regular Monthly Assessment and certain of the Special
Assessments pursuant to Article IV of the Declaration, in cases where the approval of Members is required
under said Article IV.
(6) Paying any compensation to Members of the Board or to officers of the Association
for services performed in the conduct of the Association's business. A member of the Board or an officer of the
Association may, however, be reimbursed for expenses incurred in carrying on the business of the Association
without obtaining the vote or written assent of a Majority of Members pursuant to this Section 14.15.1.
(7)Filling of a vacancy on the Board created by removal of a Board member.
14.15.2 Notwithstanding anything herein to the contrary, but subject to the provisions of Section
14.15.5, below, the Board shall not institute any significant legal proceedings, including any arbitration or
judicial reference proceeding, for the purposes of the provisions of this Section 14.15, being collectively
hereinafter referred to as the "Significant Legal Proceeding(s)," against any person without providing the
Members with at least one hundred and twenty (120) days' prior written notice, which, for the purposes of the
provisions of this Section 14.15, is hereinafter referred to as the "Proceedings Notice," of the Association's
intentions to institute such Significant Legal Proceedings. The Proceedings Notice shall describe the purpose of
such Significant Legal Proceeding, the parties to the Significant Legal Proceeding, the anticipated cost to the
Association, including attorney fees, to process such Significant Legal Proceeding, the source of the funds to
process such Significant Legal Proceedings (Reserve Funds, Special or Regular Monthly Assessments, etc.), and
any suggested information that should be disclosed to third (3rd) parties, such as, but not limited to, prospective
purchasers and lenders,while such Significant Legal Proceeding is being prosecuted.
14.15.3 For the purposes of this Section 14.15, "Significant Legal Proceeding" shall mean a legal
proceeding in which it is reasonable to anticipate that any of the following events might occur:
(a)The levy of a Special Assessment to fund all or any portion of a legal proceeding;
(b)The expenditure of more than five percent (5%) of then current Reserve Funds in connection
with a legal proceeding in an amount in excess;
(c)The amount of the claim of a legal proceeding that is or will be in excess of twenty thousand
dollars($20,000); or
(d)A material adverse effect on the ability to sell and/or refinance the Lots will occur during the
period a legal proceeding is being prosecuted.
14.15.4 Notwithstanding the foregoing, the Proceedings Notice shall not be required to commence and
pursue any action to collect delinquent Assessments as described in the provisions of Section 4.18 of the
Declaration, or to enforce any Association and/or Common Area completion Bond as described in the provisions
of Section .14.13 of the Declaration.
14.15.5 If the Board, in good faith, determines that there is insufficient time to provide prior notice to
the Members, as required herein, before the expiration of any applicable statute of limitations or before the loss
of any significant right of the Association, the Board may take the necessary steps to commence a Significant
Legal Proceeding to preserve the rights of the Association, provided that as soon as is reasonably practical
thereafter and not later than thirty(30) days following the commencement of such Significant Legal Proceeding,
the Board shall provide the Members with a Proceedings Notice.
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14.16 TRANSFER OF THE AUTHORITY TO INITIATE CONSTRUCTION DEFECT CLAIMS.
14.16.1 The sole and exclusive authority to initiate claims on behalf of the Association in connection
with any part of the Development that is maintained by the Association for violations of the functionality
standards that are set forth in the provisions of California Civil Code Sections 896 through 897, inclusive, or any
compatible superseding statutes ("Functionality Defect Claim(s)") shall rest with the Directors who have been
elected solely by the vote of the Members other than the Declarant("non-Declarant Directors").
14.16.2 Any non-Declarant Director may at any time request a meeting("Defect Claim(s)Meeting") for
the purpose of discussing, inspecting, investigating, and/or initiating any claims under the provisions of
California Civil Code Sections 896 or 897 or any compatible superseding statutes. Notice of a Defect Claim.(s)
Meeting shall be sent in the same form and manner as a notice for the Board's special meetings.
14.16.3 Any Director who has been appointed by the Declarant or elected by votes that have been cast
by the Declarant shall be entitled to attend the meeting but shall not be entitled to vote.
14.16.4 The meeting shall be open to all of the Members unless the non-Declarant Directors adjourn to
an executive session as authorized by the provisions of the Bylaws.
14.16.5 The decision of a majority of the non-Declarant Directors shall control.
14.16.6 If the non-Declarant Directors elect to initiate a Functionality Defect Claim(s), the authority to
initiate such Functionality Defect Claim(s) shall also require the approval of the votes cast by a majority of the
Non-Declarant Members present in person or by proxy at a duly held meeting. Any Non-Declarant Director
may call a special meeting of the Members for the purpose of voting on initiating a Functionality Defect .
Claim(s).
14.16.7 For purposes of the provisions of this Section 14.16, the quorum requirements shall be based on
the total votes of the Non-Declarant Members and any Declarant votes shall not count for approval or
disapproval purposes.
14.16.8 Any Functionality Defect Claim(s) is also subject to the provisions of Section 14.17 of the
Declaration.
14.16.9 If requested by the Non-Declarant Directors, the Association shall provide the administrative
support for the notice and conduct of any Defect Claim(s)Meetings.
14.16.10 In addition, the Association shall provide such reasonable financial support as may be
necessary for the Non-Declarant Directors to inspect, investigate, and/or initiate a Functionality Defect Claim(s)
on behalf of the Association.
14.16.11 The provisions of this Section 14.16 shall be become effective on the date the first Non-
Declarant Director is elected to the board. A construction defect claim may be iiutiated by the Association at
any time subject to the provisions of Section 14.16.
14.17 CONSTRUCTION DEFECT CLAIMS.
14.17.1 Any claim, dispute, or other controversy between the Association or any Owner(s) ("Defect
Claimant(s)") and the Declarant or any affiliated general contractor or affiliated contractor who is a "builder"
within the meaning of California Civil Code Section 911, or any compatible superseding statute, or any director,
officer, member, shareholder, partner, employee, or agent thereof, individually and collectively hereinafter
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referred to as the "Construction Declarant" for purposes of the provisions of this Section 14.17 or any
nonaffiliated general contractor, nonaffiliated contractor, subcontractor, material supplier, individual product
manufacturer, design professional, or any other person that provided materials or services to the Development
on behalf of the Construction Declarant, relating to the provisions of the Declaration, the use, condition, design,
specifications, surveying, grading, construction, installation, or operation of any Major Components that are
located within the Development, including any claims made under the provisions of California Civil Code
Sections 896 through 897, inclusive, or any compatible superseding statutes, individually and collectively
hereinafter referred to as the "Defect Claim(s)" for purposes of the provisions of this Section 14.17 shall be
subject to the claims procedures that are set forth in the provisions of"Exhibit A", which is attached hereto and
made a part hereof as if once again fully set forth herein.
14.17.2 The claims procedures that are set forth in the provisions of"Exhibit A" do not apply to any
action taken by the Association to:
(a) Collect monetary obligations, for damages, to restrain and enjoin any actual or threatened
breach of any provision of the Governing Documents, or any resolutions of the Board, and to enforce by
mandatory injunction, or otherwise, all of such provisions, which shall be governed by the provisions of
Sections 6.16 and 14.19 of the Declaration, or
(b)Enforce delinquent Assessments. which shall be governed by the provisions of Sections 4.18
through 4.21 of the Declaration.
14.18 LIMITATION ON LIABILITY OF OFFICERS AND DIRECTORS.
14.18.1 Subject to the provisions of Section 14.18.2, below, no Director, officer, committee member,
employee, or other agent of the Association, including the Declarant or any agent of the Declarant when acting
in such capacity, all of whom, for the purposes of the provisions of this Section 14.18, being collectively and
individually hereinafter referred to as the "Released Party(ies)," shall be personally liable to any of the
Members, or to any other person, for any error or omission in the discharge of their duties and responsibilities
for their failure to provide any service required under the provisions of the Governing Documents, provided that
such Released Party(ies) has/have, upon the basis of such information as may be possessed by the Released
Party(ies), acted in good faith, in a manner that such person believes to be in the best interests of the Association
and with such care, including reasonable inquiry, as an ordinary prudent person in a like position would use
under similar circumstance.
14.18.2 Without hinting the generality of the foregoing, such standard of care and limitation of liability
shall extend to such matters as the establishment of the Budget, the funding of the Reserve Accounts, the repair
and maintenance of the Common Areas as well as the Major Components together with the provisions of the
Governing Documents.
14.18.3 No person who suffers bodily injury, including, without limitation, emotional distress or
wrongful death, as a result of the tortuous act or omission of a volunteer Director or officer of the Association
shall recover damages from such Director and/or officer if all of the following conditions are satisfied:
(a)The Board member or officer is an Owner of no more than two (2)Lots;
(b) The act or omission was performed within the scope of the volunteer Director's and/or
officer's Association duties;
(c)The act or omission was performed in good faith;
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(d)The act or omission was not willful, wanton, or grossly negligent;
(e) The Association maintained and had in effect at the time the act or omission occurred and at
the time a claim was made one (1) or more policies of insurance that included coverage for general liability of
the Association and individual liability of the Directors and officers of the Association for negligent acts or
omissions in their official capacities, with minimum coverage for both types of insurance being not less than
five hundred thousand dollars($500,000).
14.18.4 The payment of the actual expenses incurred by a Director and/or officer of the Association in
the execution of that person's Association duties shall not affect that person's status as a volunteer Director
and/or officer of the Association for the purposes of the provisions of this Section 14.18. However, any Director
and/or officer of the Association who receives direct or indirect compensation from the Declarant or from a
financial institution that acquired a Lot as a result of a judicial or non judicial foreclosure proceeding, is not a
volunteer.
14.18.5 The provisions of this Section 14.18 are intended to reflect the protections accorded to volunteer
Directors and officers of community associations under the provisions of California Civil Code Section 5800.
In the event said Civil Code Section 5800 is amended or superseded by another compatible provision of the
California statutes, the provisions of this Section 14.18 shall be deemed amended, without the necessity of
further Owner approval, to correspond to such amended or successor Civil Code provisions.
14.19 RIGHT OF ENFORCEMENT.
14.19.1 The Association in its own name and on its own behalf, or on behalf of any Owner who
consents to same or in whose name an action is authorized to be prosecuted under the provisions of the
Declaration, shall have the power to commence and maintain actions to collect monetary obligations, for
damages or to restrain and enjoin any actual or threatened breach of any of the provisions of the Governing
Documents or a resolution of the Board, and to enforce by mandatory injunction, or otherwise, all of said
provisions.
14.19.2 Unless the applicable time limitation for commencing an action would run within one hundred
and twenty (120) days before the filing of a civil action by the Association solely for declaratory relief or
injunctive relief, or for declaratory relief or injunctive relief in conjunction with a claim for monetary damages,
other than Association Assessments, not in excess of five thousand dollar($5,000) related to the enforcement of
the provisions of the Governing Documents and/or a resolution of the Board, the Association and/or the
Owner(s), as the case may be, against whom any such civil action is to be filed shall endeavor to submit the
matter in dispute to a form of alternative dispute resolution such as mediation or arbitration in accordance with
the provisions and procedures in California Civil Code Sections 5935, 5940, 5945, 5950, 5955 and 5960.
14.19.3 On any violation of a provision of the Governing Documents and/or a Board resolution by an
Owner relating to the use, occupancy, or physical condition of the Owner's Lot the Board may authorize the
recording of a notice of violation ("Notice of Violation') in order to impart constructive notice to any
subsequent purchaser, successor in interest, or Mortgagee of the existence and nature of such violation.
14.19.4 The Notice of Violation shall state the legal description of the Owner's Lot, the name of the
Owner(s) as reflected in any recorded deed to the fee title of the Lot, shall describe the alleged violation and any
action required to be taken by the Owner in order to cure or correct such alleged violation.
14.19.5 The Notice of Violation shall be signed by the President of the Association or by a person
authorized by resolution of the Board to sign same.
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14.19.6 The Notice of Violation shall not be recorded unless and until the Board or its authorized
representative has delivered to the alleged violating Owner(s), at least fifteen (15) days prior to the date of such
intended recordation, a written notice of intent to file such Notice of Violation which includes a demand for the
cure and/or correction of such alleged violation or unless such alleged violation has been cured and/or corrected
prior to the date such recordation is scheduled to occur.
14.19.7 If the Association files an action or obtains a judgment relating to any such violation, the Board
may also authorize the recording of a notice of pendency of action or an abstract of judgment, whichever is
appropriate.
14.19.8 On the cure or correction of such violation, the dismissal of the action, or the satisfaction of the
judgment,the Board shall record a notice of cure, dismissal,or satisfaction of judgment, as the case may be.
14.19.9 In addition to its remedies under the provisions of Sections 14.19.1 through 14.19.8, inclusive,
of the Declaration, the Board may temporarily suspend the voting rights, temporarily suspend the use privileges
of the Common Area (provided, however, no Owner shall be denied access to its/his/her/their Lot), or assess
monetary penalties against any Owner or other person entitled to exercise such rights or privileges for any
violation of that provisions of the Governing Documents and/or Board resolutions.
14.19.10 However, any suspension of use privileges cannot exceed thirty (30) days for any one (1)
violation, except that if such suspension is due to the failure to pay Assessments, the suspension may continue
until payment is made, and any monetary penalty cannot exceed the amount necessary to compensate the
Association or other Owner(s) for any loss or expense resulting from such violation, and no suspension or
penalty can be imposed unless it is accomplished in the manner provided for in the provisions of Section
14.19.11 of the Declaration.
14.19.11 In accordance with that provisions of California Civil Code Section 5905, the Association shall
provide a fair, reasonable, and expeditious procedure to its Members for the resolution of disputes between the
Association and a Member involving their respective rights, duties, or liabilities under the provisions of the
Davis-Stirling Common Interest Development Act (California Civil Code Sections 4000-6000), the Nonprofit
Mutual Benefit Corporation Law (California Corporations Code Sections 7110 et seq.), the Governing
Documents and/or any Board resolution.
14.19.12 In addition to any notice given to a Member as provided for in the provisions of Section
14.19.11 of the Declaration, when the Board is to meet to consider or impose discipline on a Member, the Board
shall notify such Member in writing ("Discipline Meeting Notice"), by either personal delivery or first-class
mail, at least ten(10)days before such meeting.
14.19.13 The Disciplined Meeting Notice shall contain, at a minimum, the date, time, and place of such
meeting, the nature of the alleged violation for which the Member may be disciplined, and a statement that the
Member has a right to attend and address the Board at such meeting.
14.19.14 If requested by the Member who may be disciplined, the Board shall meet in executive session
and the Member shall have the right to address the Board during its executive session rather than during its open
session.
14.19.15 After the above referenced procedures the Board imposes discipline on a Member, the Board
shall give written notice to such Member of the disciplinary action, by either personal delivery or first-class
mail, within fifteen(15)days after the decision to impose such disciplinary action.
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14.19.16 A disciplinary action shall not be effective against a Member unless the Board fulfills the
applicable requirements of the provisions of this Section 14.19.
14.19.17 Prior to adopting, amending, or repealing any schedule of monetary penalties for violation of
the provisions of the Governing Documents and/or a resolution Board or any procedure for the imposition of
penalties, the Board shall provide to the Members at least thirty (30) days prior written notice of such proposed
action.
14.19.18 Such notice shall include the text of the proposed adopted, amended, or repealed schedule or
procedure, as the case may be, and a description of its purpose and effect.
14.19.19 The Board shall decide on any such proposed action at a Board meeting, after considering any
comments made by the Members that the Board is aware of.
14.19.20 Before exercising its power to assess monetary penalties or adopting a policy imposing any
monetary penalty, including any fee, on any Member for a violation of the provisions of Governing Documents
and/or by a Board resolution, including any monetary penalty relating to the activities of a Member's guest or
invitee, the Board shall adopt and distribute to each Member, by personal delivery or first-class mail, a schedule
of the monetary penalties that may be assessed for those violations, which shall be in accordance with the
provisions of the Governing Documents, if applicable.
14.19.21 The Board shall not be required to distribute any additional schedules of monetary penalties
unless changes are made to the schedule that was adopted and distributed to the Members under that provisions
of this Section 14.19.
14.19.22 Except as a result of a judgment or decree of a court or a decision arising from an arbitration or
mediation or a foreclosure or sale under a power of sale based on the Owner's failure to pay Assessments duly
levied by the Association, the Association does not have the power or authority to cause a forfeiture or
abridgment of an Owner's right to the full use and enjoyment of the Owner's Lot if the Owner does not comply
with the provisions of the Governing Documents and/or a Board resolution.
14.19.23 If an/the Owner(s) fail(s) to cure a default within sixty (60) days after written notice to such
Owner, the Association shall give the notice required in the provisions of Section 15.8 of the Declaration to any
Eligible Mortgagee Holder.
14.20 ADMINISTRATION OF DEVELOPMENT. The Owners, and each of them, together with all
parties bound by the Declaration covenant and agree that the administration of the Development shall be in
accordance with the provisions of the Declaration, the Articles, the By-Laws and such rules and regulations as
may be adopted by the Board, and all amendments and modifications as may be adopted from time to time. In
the event of any inconsistency between the provisions of the Declaration and the provisions of the Articles, the
By-Laws or said rules and regulations,the provisions of the Declaration shall prevail.
The primary purpose of the Association is to further and promote the common interests and welfare of
the Owners and to provide Ownership, management, maintenance, preservation and control of the Common
Area and maintenance, preservation and control of the Residences and Lots.The Association shall have such
powers as are set forth in the Declaration, the Articles, and By-Laws and afforded it by law.The Association
shall also be the sole and exclusive means for the regulation and enforcement of all rules necessary to govern the
use and enjoyment of private streets, sidewalks and the entire Common Area of the Development.
14.20.1 The Association shall have all the powers granted to it by the provisions of Sections 4000
through 6000, inclusive, of the California Civil Code together with all the powers of a nonprofit mutual benefit
73
corporation that has been organized under the provisions of the General Nonprofit Mutual Benefit Corporation
Law (California Corporations Code Sections 7110 et seq.), or any compatible superseding statutes, subject only
to such limitations on the exercise of its powers as are set forth in the provisions of the Governing Documents.
14.20.2 The Association shall have the power to do any lawful thing that may be authorized, required or
permitted to be done by the Association under the provisions of the Governing Documents, and to do and
perform any act that may be necessary or proper for, or incidental to,the exercise of any of such express powers
of the Association, including, but not limited to, the acts that are enumerated in the provisions of this Article
XIV.
14.21 AUTHORITY OF BOARD. Prior to the initial organizational meeting of Members and thereafter
until their successors are elected, the initial Board or their duly appointed successors shall manage the affairs of
the Association. The Board as constituted from time to time, shall at all times be responsible for the day to day
operation and management of the affairs of the Association and shall have the sole power and duty to perform
and carry out the powers and duties of the Association as set forth in the Declaration and the By-Laws,unlessthe
Articles require the vote or assent of the Members of the Association or a given percentage thereof. Without
limiting the generality of the foregoing, the Board, on behalf of the Association, shall have the following powers
and duties:
14.21.1 To accept as Members all persons described in Article II of the Declaration.
14.21.2 Immediately prior to any dissolution of the Association, to convey all property vested in the
Association to the Owners, as their interests in the Development may appear, or in such other manner as may be
agreed upon by the vote or written assent of seventy-five percent (75%) of both classes of Members of the
Association. Any meeting of Members called to approve such distribution of the Common Area shall be deemed
a "special meeting" of Members and shall be called and conducted in accordance with the By-Laws of the
Association.
14.21.3 To maintain, repair and restore the Common Area, and the Residences and Lots as provided in
Article XI hereof and to acquire for the Association and to pay from the assessments levied and collected in
accordance with the Declaration for such services, furnishings, equipment, maintenance, replacement and
repairs as it may determine to be necessary in order to keep and maintain the Common Area and all
improvements and easements therein and thereon in a state of good condition and repair.
14.21.4 To acquire and pay for out of the assessments levied and collected in accordance with the
Declaration, sewer, water, refuse collection, telephone, gas and electric power, gardening service and other
utilities and services for the Common Area, to also acquire and pay for out of the assessments levied and
collected in accordance herewith any sewer, water, refuse collection, gas and electric services and other utilities
rendered to Lots in the Development not separately metered or billed to individual Lots. To the extent any such
utilities or services are separately metered or separately rendered to the Lots, the Owners of such Lots shall be
primarily responsible for the payment thereof as prescribed by Section 6.33 of the Declaration.
14.21.5 Except as to taxes, bonds, levies and assessments levied separately and against individual Lots
and/or the Owner or Owners thereof, the Board shall pay all taxes, real and personal, and assessments, bonds
and levies which are or would become a lien on the Development or the Common Area.
14.21.6 To employ a manager, or other persons and contract with the Declarant, independent contractors
or managing agents who have professional experience in the management of developments similar to the
Development to perform all or any part of the duties and responsibilities of the Association; provided, however,
that any such contract shall be terminable by either party without cause and without the payment of any
termination fee on ninety(90) days written notice; shall be terminable by the Board for cause on thirty(30) days
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written notice; and shall have a term of not more than one year and with the vote or written assent of a Majority
of Members (excluding the votes or assents of the Declarant) may contain a provision for successive one year
renewal periods upon mutual agreement of the parties.
14.21.7 To establish by the vote of a majority of the Board, Association Rules with respect to the use
and occupancy of the Common Area by the Owners and their family Members, servants, tenants, guests and
invitees, and the conduct of such persons with respect to vehicles, parking, bicycles, use of recreational
facilities, control of pets and other activities which if not so regulated might detract from the appearance of the
Development or offend or be offensive to or cause inconvenience, noise or danger to persons residing in or
visiting the Development, and to challenge, the adoption, amendment, or repeal of certain categories of
Association Rules as provided for in the provisions of California Civil Code, Sections 4340 through 4370,
inclusive. The Association Rules shall, among other things, govern the use and enjoyment of the Common Area
by all of the Owners and tenants, and their respective family members, guests, and invitees; however, the
Association Rules shall not be inconsistent with nor materially alter any provisions of the Declaration, the
Articles, or the By-Laws.
14.21.8 All Association Rules shall be posted in a conspicuous place in the Common Area and the
Board shall send a copy of such rules and regulations, together with amendments and additions thereto to each
Owner within fifteen (15) days of the adoption of such rules and regulations or amendments and additions
thereto.
14.21.9 If any provision of the Declaration, the Articles, or the By-Laws is inconsistent with or
materially alters any Association and/or Architectural Rule, the provisions of the Declaration, the Articles, or the
By-Laws shall control to the extent of any such inconsistency.
14.2 1.10 To establish, fix and levy assessments against the Owners and enforce the payment thereof all.
in the manner and subject to the limitations set forth in the Declaration.
14.21.11 Without liability to any Owner, to enter into any Residence, Lot or the Common Area for the
purpose of enforcing Association Rules, the Declaration, or for the purpose of maintaining any Residence or Lot
if for any reason whatsoever any Owner fails to maintain such Residence or Lot as required by the Declaration
removing any Improvements constructed on such Residence or Lot contrary to the provisions of the Declaration,
or making emergency repairs.
14.21.12 To commence and maintain legal proceedings to restrain and enjoin the breach or threatened
breach of Association Rules or the Declaration and to seek redress therefor.
14.21.13 To have the power to perform such other acts, whether expressly authorized by the Declaration
or the By-Laws as may be reasonably necessary to enforce any of the provisions of the Declaration, the By-
Laws or Association Rules, or to carry out and perform its powers and responsibilities.
14.21.14 Subject to any more restrictive provision contained in this Declaration, to dedicate or transfer
all or any part of the Common Area to any public agency, authority or utility or any other person or entity for
such purposes and subject to such conditions as may be agreed to by the Association; provided, however, that no
such dedication or transfer shall be effective unless (i) such dedication or transfer is approved by a majority of
the voting power of each class of Members, and (ii) an instrument in writing is signed by the Secretary of the
Association certifying that such dedication or transfer has been approved by the required vote or written assent.
14.22 PERSONAL LIABILITY. No member of the Board or of any committee of the Association, or
any officer of the Association, or the Declarant, or the manager, if any, shall be personally liable to any Owner,
or to any other party, including the Association, for any damage or loss suffered or claimed on account of any
75
act, omission, error or negligence of the Association, the Board, manager or any other representative or
employee of the Association, the Declarant, the Architectural Committee, or any other committee, or any officer
of the Association, provided that such person has, upon the basis of such information as may be possessed by
him, acted in good faith, and without willful or intentional misconduct.
14.23 AUDIT. The Board upon the written request of any holder, insurer or guarantor of a First
Mortgage, shall provide an audited financial statement of the Association for the immediately preceding Fiscal
Year free of charge to the party requesting such statement. Any audited financial statement requested pursuant
to this Section 14.23 shall be furnished within a reasonable time following such request.
14.24 DELIVERY OF DOCUMENTS AND INSPECTION OF BOOKS AND RECORDS.
Commencing not later than ninety (90) days after the close of escrow on the sale of the first Lot in the
Development, copies of the following documents shall, as soon as readily obtainable, be delivered by the
Declarant to the governing body of the Association at the office of the Association, or at such other place as the
governing body of the Association shall prescribe. The obligation to deliver such documents shall apply to any
documents obtained by Declarant no matter when obtained, provided, however, that such obligation shall
terminate upon the earlier of(i)the conveyance of the last Lot covered by a final subdivision public report or(ii)
three years after the expiration of the most recent Final Subdivision Public Report applicable to the sale of Lots
in the Development:
14.24.1 The recorded subdivision map or maps for the Development.
14.24.2 The deeds and easements executed by the Declarant conveying the Common Area or other
interest to the Association,to the extent applicable.
14.24.3 The recorded Declaration, including all amendments and annexations thereto.
14.24.4 The Association's filed Articles of Incorporation and all amendments thereto.
14.24.5 The Association's By-Laws and all amendments thereto.
14.24.6 All Architectural and/or Association Rules, together with any other guidelines and rules
regulating the use of an Owner's interest in the subdivision or use of the Development or the Common Area
which have been promulgated by the Association.
14.24.7 The plans approved by the local agency or City where the Development is located for the
construction or improvement of facilities that the Association is obligated to maintain or repair; provided,
however, that the plans need not be as-built plans and that the plans may bear appropriate restrictions on their
commcrcial exnloitation or use and may contain appropriate disclaimers regarding their accuracy.
14.24.8 All notice of completion certificates issued for Common Area Improvements (other than
Residences).
14.24.9 Any bond or other security device in which the Association is the beneficiary.
14.24.10 Any written warranty being transferred to the Association for Common Area equipment,
fixtures,Major Components, or Improvements.
14.24.11 Any insurance policy procured for the benefit of the Association, its Board or the Common
Area.
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14.24.12 Any lease or contract to which the Association is a party.
14.24.13 The Membership register, including mailing addresses and telephone numbers, books of
account and minutes of meetings of the Members, of the.Board and of committees of the Board.
14.24.14 Any instrument referred to in Section 11018.6(d) of the Business and Professions Code but not
described above which establishes or defines the common, mutual or reciprocal rights or responsibilities of
Members of the Association.
(a) The Board shall maintain current copies of the Declaration, By-Laws, Articles, Association
Rules, a Membership register, including mailing address and telephone numbers, books of account and minutes
of meetings of the Members and of the Board and of committees of the Board, financial statements of the
Association as required by the By-Laws. The Board shall make all such documents, books and records available
for inspection and copying by any Member of the Association or by his duly appointed representative at any
reasonable time and for a purpose reasonably related to such Owner's interest as a Member, at the office of the
Association or at such other place within the Development as the Board shall prescribe and, upon thirty (30)
days written request, to lenders and to the holders, insurers or guarantors of any First Mortgagee.
(b) In the case of the minutes, minutes proposed for adoption that are marked to indicate draft
status, or a summary of the minutes of any meeting of the Board, other than an executive session, shall be
available to Members within thirty (30) days of the meeting and shall be distributed to only Members upon
request and payment of cost of reproducing copies of the documents requested. In addition, at the time of
distribution of the proforma operating budget required pursuant to Section 2792.23(d) of the Regulations of the
California Real Estate Commissioner, or at the time of any general mailing, Members of the Association shall be
notified in writing of their right to have copies of the minutes of meetings of the Board and as to how and where
those minutes may be obtained and the cost of obtaining such copies.
(c)The Board shall establish reasonable rules with respect to:
(1) Notice to be given to the custodian of the records by the Member desiring to make
the inspection.
(2) Hours and days of the week when such an inspection may be made.
(3) Payment of the cost of reproducing copies of the documents requested by a
Member.
(d) Every Director shall have the absolute right at any reasonable time to inspect all books,
records and documents of the Association and the physical properties owned or controlled by the Association.
The right of inspection by a Director includes the right to make extracts and copies of documents.
14.25 AGREEMENTS WITH LENDERS. The Association may enter into such agreements as may be
necessary in order to facilitate the financing of Lots within the Development as may be required by prospective
lenders, and holders, insurers or guarantors.
14.26 GRANT EASEMENTS.The Association shall have the power to grant permits, licenses and
easements over the Common Area for utilities, roads and/or other purposes reasonably necessary or useful for
the proper maintenance or operation of the Development.
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14.27 100% APPROVAL REQUIRED. In the exercise of the powers granted to the Board by the
Declaration, the approval of any of the following actions by the Board must first be obtained by the vote or
written assent of one hundred percent(100%)of each class of Members:
14.27.1 The transfer of all or substantially all the assets of the Association.
14.27.2 The filing of a Certificate of Dissolution.
14.28 BOARD TO PROVIDE CALIFORNIA CIVIL CODE 4525 DOCUMENTS. The Board upon the
written request of an Owner shall, within ten (10) days of the mailing or delivery of such request, provide the
Owner of a Lot in the Development with a copy of the documents specified in California Civil Code Section
4525 which have been requested by such Owner. The items required to be made available pursuant to Civil
Code Section 4525 may, pursuant to California Civil Code Section 4530, be maintained in electronic form and
requesting parties shall have the option of receiving thein by electronic transmission on machine readable
storage media if the Association maintains those items in electronic form. The Board may charge a fee for this
service, which shall not exceed the Association's reasonable cost to prepare and reproduce the requested items.
END OF ARTICLE XIV
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ARTICLE XV
RIGHTS OF LENDERS
15.1 MORTGAGE PERMITTED. Any Owner may encumber its, his, her, or their Lot with a
Mortgage.
15.2 SUBORDINATION.
15.2.1 Any lien created or claimed under the provisions of the Governing Documents is expressly made
subject to and subordinate to the rights of any First Mortgage that encumbers all or a portion of the
Development and that has been made in good faith and for value.
15.2.2 No such lien shall in any way defeat, invalidate, or impair the obligation or priority of such
Mortgage unless the Mortgagee of such Mortgage expressly subordinates its interest, in writing,to such lien.
15.2.3 If any Lot is encumbered by a First Mortgage that has been made in good faith and for value, the
foreclosure of any lien created in accordance with the provisions of the Governing Documents for Assessments
or any installments thereof, shall not operate to effect or impair such Mortgage.
15.2.4 On the foreclosure of any such Mortgage, the liens for any Assessments or the installments
thereof that have accrued up to the date such foreclosure is commenced, shall be subordinate to the lien of such
Mortgage, with the foreclosure-purchaser taking title to the Lot free of any lien for Assessments or installments
that have accrued up to the time of such foreclosure sale.
15.2.5 In taking title to any such Lot the foreclosure-purchaser thereof shall be obligated to pay only
those Assessments or other charges levied or assessed by the Association against such Lot and/or the Owner of
same that became due or payable on or after such foreclosure-purchaser acquired title to such Lot.
15.2.6 Any Assessment or other charges that are subsequently levied against such Lot and/or Owner,
may include any previously unpaid Assessments, or portions thereof,that were levied against the foreclosed Lot,
provided all of the Owners, including the foreclosure-purchaser and its, his, her, or their successors and assigns,
are required to pay their proportionate share as provided for in the provisions of Section 4.8 above.
15.3 MORTGAGEE'S RIGHT TO EXAMINE BOOKS AND RECORDS. Institutional First
Mortgagees shall have the right to examine the books and records of the Association and any Eligible Mortgage
Holder shall have the right to require the submission of financial date concerning the Association including
annual audit reports,Budgets, and operating statements as furnished to the Owners.
15.4 PRIORITY IN DISTRIBUTION OF INSURANCE AND CONDEMNATION PROCEEDS.
15.4.1 The provisions of Section 12.4 of the Declaration, notwithstanding, no Owner or any other party
shall have priority over any right of an Institutional First Mortgagee of a Lot pursuant to the provisions of their
Mortgage in the case of a distribution to the Owners of insurance proceeds or a condemnation award for losses
occasioned by the taking of any portion of a Lot or the Common Area.
15.4.2 Any provision in the Governing Documents to the contrary is to such extent void.
15.4.3 All applicable fire and all physical loss or extended coverage insurance policies shall contain loss
payable clauses acceptable to the affected Institutional First Mortgagees, naming the Mortgagees as their
interests may appear.
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15.5. STATUS OF AMENITIES.
15.5.1 All of the Common Area and the Major Components, as may be appropriate, shall be available
for the use of the Owners.
15.5.2 All such Common Area and/or Major Components shall be owned and/or maintained by the
Association, free of encumbrances except for any easements granted for public utilities or other public purposes
consistent with the intended use of such Common Area and/or Major Components by the Association.
15.6 DEFAULT NOTICE REQUIREMENT. If any Owner has committed a Violation of a Provision of
the Governing Documents and such Violation of a Provision of the Governing Documents is not cured within
sixty (60) days after a written notice of such Violation of the Provision of the Governing Documents to the
responsible Owner, the Association shall give to any Eligible Mortgage Holder of such Owner notice of such
default and of the fact that a sixty(60) day period after receipt of the above referenced notice has expired.
15.7 ELIGIBLE INSURER/ELIGIBLE GUARANTOR. For purposes of this Article XV the following
terms shall have the following meanings:
15.7.1 "Eligible Insurer" or"Eligible Guarantor" as used herein, shall mean an insurer or governmental
guarantor of a First Mortgage who has served a written request upon the Association pursuant to Section 15.8 of
Article XV of the Declaration.
15.7.2 Whenever the approval of a specified percentage of Eligible Mortgage Holder is required
pursuant to this Article, it shall be deemed to mean the approval of a specified percentage of only the
Mortgagees who have served the written notice upon the Association pursuant to Section 15.8 herein below.
15.8 NOTICE OF ACTION. An Eligible Mortgage IIolder upon filing a written request upon the
Association identifying the name and address of the Eligible Mortgage Holder, and the name and address of the
insurer or governmental guarantor of such Eligible Mortgage Holder together with the Lot number of the Lot the
subject of such Eligible Mortgage Holder's Mortgage shall qualify such Mortgagee as an Eligible Mortgage
Holder, and such insurer or guarantor as an Eligible Insurer or Guarantor, as defined in Section 15.7.1
above.Upon giving such request, any Eligible Mortgage Holder, or Eligible Insurer or Guarantor will be entitled
to timely written notice of:
15.8.1 Any condemnation loss or any casualty loss which affects a material portion of the Development
or of any Residence on which there is a First Mortgage held, insured, or guaranteed by such Eligible Mortgage
Holder or Eligible Insurer or Eligible Guarantor.
15.8.2 Any delinquency in the payment of assessments or charges owed by an Owner of a Lot subject to
a First Mortgage held, insured or guaranteed by such Eligible Mortgage Holder or Eligible Insurer or Eligible
Guarantor,which remains uncured for a period of sixty(60)days.
15.8.3 Any lapse, cancellation or material modification of any insurance policy or fidelity bond required
to be maintained by the Association pursuant to Article X of the Declaration.
15.8.4 Any proposed action which would require the consent of a specified percentage of Eligible
Mortgagees pursuant to this Article XV.
15.9 PRIORITY RESERVED. Except as provided in Section 15.8 above, a Mortgagee's rights pursuant
to the Declaration including, without limitation, the priority of the lien of Mortgagees over the lien of
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assessments levied by the Association pursuant to Article IV of the Declaration shall not be affected by the
failure to deliver the notice prescribed by said Section 15.8.
15.10 PRIORITY OF MORTGAGE LIEN. No breach of the covenants, conditions or restrictions herein
contained, nor the enforcement of any lien provisions pursuant to Article IV of the Declaration, shall affect,
impair, defeat or render invalid the lien or charge of any 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, trustee's sale, or otherwise, with respect to a Lot.
15.11 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 the Declaration which is non-curable or of a type which is not practicable or
feasible to cure.The determination of the Board made in good faith as to whether a breach is non-curable or not
feasible to cure shall be final and binding on all Mortgagees.
15.12 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 protection afforded to Mortgagees under the Declaration.
15.13 RELATIONSHIP WITH ASSESSMENT LIENS.
15.13.1 The lien prescribed by Section 4.20 of Article IV of the Declaration for payment of
Assessments shall be subordinate to the lien of any First Mortgage which was recorded prior to the date of the
recordation of the Notice of Delinquent Assessment as prescribed by California Civil Code Section 5675 and
pursuant to said Section 4.20 ("Prior Mortgage",herein).
15.13.2 If any Lot subject to a monetary lien created by any provision of Article IV ("Article IV Lien",
herein) shall be subject to the lien of a Prior Mortgage: (i) the foreclosure of any Article IV Lien shall not
operate to affect or impair the lien of said Prior Mortgage; and (ii) the foreclosure of the lien of said Prior
Mortgage, or the sale under power of sale included in such Mortgage("Foreclosure", herein) shall not operate to
affect or impair the Article IV Lien; provided, however, that any person who obtains an interest in a Lot in the
Development through Foreclosure, and their successors in interest, shall take title to such Lot free of the Article
IV Lien or any personal obligation for any charges or assessments pursuant to said Article IV which have
accrued up to the time of Foreclosure (except for claims for a pro-rata share of such assessments or charges to
all Lots in the Development, including the Mortgaged Lot, that shall accrue upon such Lot subsequent to
Foreclosure).
15.13.3 Nothing in this Section 15.13 shall be construed to release any Owner from his obligations to
pay for any assessments levied pursuant to Article IV of the Declaration, while such Owner is an Owner as
defined in Section 1.36 of the Declaration.
15.14 CONSENT FOR RESTORATION OR REPAIR. Any restoration or repair of the Development,
after a partial condemnation or partial damage due to an insurable hazard, shall be perfornied substantially in
accordance with the Declaration and the original plans and specifications, unless other action is approved by not
less than fifty-one percent(51%)of the Eligible Mortgagees.
15.15 TERMINATION OF THE DEVELOPMENT.
15.15.1 Any election to terminate the legal status of the Development as a Planned Development after
substantial destruction or a substantial taking in condemnation of the Development must have the approval of
fifty-one percent(51%) of the Eligible Mortgagee Holders.
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15.15.2 After the conveyance of a Lot to an Owner other than the Declarant, unless sixty-seven percent
(67%) of the total voting power of the Association or at least sixty-seven percent(67%) of all Eligible Mortgage
Holders (based upon one vote for each Eligible Mortgage owned) have given their prior written approval,
neither the Association nor the Owners shall be entitled to:
(a) By act or omission, seek to abandon, partition, subdivide, encumber, sell or transfer the
Common Area. However, the granting of easements for public utilities or for other public purposes consistent
with the intended use of such Conunon Area by the Association shall not be deemed a transfer within the
meaning of this clause;
(b) Change the method of determining the obligations,assessments, dues or other charges which
may be levied against an Owner;
(c) By act or omission change, waive or abandon the provisions of the Declaration, or the
enforcement of them, pertaining to the architectural design or control of the exterior appearance of Residences,
the exterior maintenance of Residences, the maintenance of the Common Area, including party walls, party
walks, common fences and driveways, or the upkeep of lawns and plantings in the Development;
(d) Fail to maintain fire and extended coverage on insurable Common Area property on a
current replacement cost basis in an amount not less than one hundred percent (100%) of the insurable value
(based on current replacement costs);
(e) Use hazard insurance proceeds for losses to any Association property, including Common
Area for other than the repair, replacement or reconstruction of such Common Area.
15.16 TERMINATION OF PROFESSIONAL MANAGEMENT. When professional management has
been required by any Eligible Mortgage Holder or Eligible Insurer or Eligible Guarantor, whether such entity
became an Eligible Mortgage Holder or eligible insurer or Eligible Guarantor at that time or later, any decision
to establish self-management by the Association shall require the prior consent of not less than sixty-seven
percent (67%) of the voting power of the Association and the approval of not less than fifty-one percent (51%)
of the Eligible Mortgage Holders.
15.17 MATERIAL AMENDMENTS. In addition to the requirements of Section 16.1.3 through 16.1.6,
inclusive, of the Declaration, and unless a greater percentage is expressly required by the Declaration, the
Articles,the By-Laws, or by-law, the prior written consent(or deemed consent as provided below in this Section
15.17 of Eligible Mortgage Holders of Lots that have at least fifty-one percent (51%) of the votes of all Lots
encumbered by First Mortgages, and the approval of Members who represent sixty-seven percent (67%) of the
total allocated votes in the Association shall be required to add or amend any material provision of the
Declaration, the By-Laws, the Articles or the subdivision map which establish, provide for, govern or regulate
any of the following:
15.17.1 Voting;
15.17.2 Assessments, collection of assessments, assessment liens or subordination of such liens;
15.17.3 Reserves for maintenance, repair and replacement of the Common Area and all improvements
located on it;
15.17.4 Casualty and liability insurance or fidelity bonds;
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15.17.5 Rights to use of the Conn-non Area;
15.17.6 Responsibility for maintenance and repair of Lots and Common Area and all improvements
thereon;
15.17.7 Expansion or contraction of the Development for the addition, annexation, or withdrawal of
property to or from the Development;
15.17.8 The interest or rights of the Association or Owners in and to the Common Area;
15.17.9 Convertibility of Lots into Common Area or of Common Area into Lots;
15.17.10 Imposition of any right of first fefusal or similar restriction on the right of an Owner to sell,
transfer, or otherwise convey his or her Lot.
15.17.11 Any provisions which are for express benefit of First Mortgagees, Eligible Mortgage Holders
or Eligible Insurers or Guarantors.
An addition or amendment to the aforementioned documents shall not be considered material if it is for
the purpose of correcting technical errors, or for clarification only. Any First Mortgagee who receives a written
request to consent to additions or amendments requiring consent under this provision who does not deliver or
post to the requesting party a negative response within thirty (30) days after such receipt shall be deemed to
have consented to such request.
15.18 RIGHT OF FIRST REFUSAL. Unless the Declaration shall be amended pursuant to Section
15.17 of this Article XV, the right of an Owner to sell, transfer, or otherwise convey his Lot shall not be subject
to any right of first refusal or similar restriction. Any right of first refusal which may be added to the Declaration
or any other management documents shall not impair the rights of a First Mortgagee to:
15.18.1 Foreclose or take title to a Lot pursuant to the remedies provided in the Mortgage, or
15.18.2 Accept a deed(or assignment) in lieu of foreclosure in the event of default by a Mortgager, or
15.18.3 Sell or lease a.Lot acquired by the Mortgagee.
15.19 OTHER RIGHTS OF ELIGIBLE MORTGAGE HOLDERS.
15.19.1 Any Eligible Mortgage Holder shall upon written request to the Association,be entitled to:
(a)Receive written notice of a condemnation or casualty loss which affects a material portion of
the Development or any Lot on which there is a Mortgage held by such Eligible Mortgage Holder.
(b) Receive written notice of a lapse, cancellation, or material modification of any insurance
policy or fidelity bond maintained by the Association; and Proposed action that would require the consent of a
specified percentage of Eligible Mortgage Holders as delineated in this Article XV.
(c) Receive written notice of all annual and special meetings of the Members or of the
Board. The Eligible Mortgage Holders shall further be entitled to designate a representative to attend all such
meetings in order to, among other things, draw attention to violations of the Declaration which have not been
corrected or made the subject of remedial action by the Association; provided, however, nothing contained in
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the Section shall give a Eligible Mortgage Holder the right to call a meeting of the Board or of the Members for
any purpose or to vote at any such meeting; and
(d) Receive written notification from the Association of any default in the performance of the
obligations imposed by the Governing Documents and/or delinquency in the payment of an Assessment or
charge by an Owner of a Lot encumbered by such First Mortgage, which default has not been cured within sixty
(60)days of a request therefore by the Association.
(e) Nothing in the Declaration shall require an Eligible Mortgage Holder to collect any
Assessments prescribed by the provisions of Article IV of the Declaration.
15.19.2 The Association shall discharge its obligation to notify an Eligible Mortgage Holder by sending
the written notices required herein to such requesting parties, at the addresses given on its, his, her, or their
current requests for any such notice, in the manner prescribed by the provisions of Section 18.22 of the
Declaration.
15.20 MORTGAGEE INFORMATION. Mortgagees are hereby authorized to furnish information to the
Board concerning the status of any Mortgage.
15.21 CONFLICTS. In the event of any conflict between any of the provisions of this Article XV and
any of the other provisions of the Declaration,the provisions of this Article XV shall control.
15.22 PAYMENT OF TAXES. First 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 Area, unless such taxes or charges
are separately assessed against the Lots, in which case the rights of First Mortgagees shall be governed by the
provisions of their Mortgages. First Mortgagees may, jointly or singly, also pay overdue premiums on hazard
insurance policy, or secure new hazard insurance coverage on the lapse of a policy, for the Common Area, and
First Mortgagees making such payments shall be owed immediate reimbursement therefor from the
Association. Entitlement to such reimbursement shall be reflected in an agreement in favor of any First
Mortgagee which requires the same to be executed by the Association.
15.23 PRIORITY IN DISTRIBUTION OF INSURANCE PROCEEDS. No Owner, or any other party,
shall have priority over any right of institutional First Mortgagees of Lots pursuant to their Mortgages in case of
a distribution of Owner's insurance proceeds or condemnation awards for losses to or a taking of Lots or
Common Area. Any provisions to the contrary of the Declaration or in the By-Laws or other documents relating
to the Development is to such extent void. All applicable fire and all physical loss or extended coverage
insurance policies shall contain loss payable clauses acceptable to the affected institutional First Mortgagees,
naming the Mortgagees as their interests may appear.
15.24 REQUIREMENTS OF FHA/VA.
15.24.1 So long as there is a Class B Membership pursuant to the provisions of Section 3.1 of the
Declaration, the following actions require approval of the Federal Housing Authority or Veterans
Administration if there are loans in the Development covered by Mortgages insured by them:
(a)Annexation of additional properties;
(b)Dedication of the Common Area;
(c)Mortgage or sale of the Common Area;
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(d) Levying of any Special Assessments that will affect any Lot that is encumbered by any such
Mortgage; and
(e)Material Amendments of the Declaration.
END OF ARTICLE XV
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ARTICLE XVI
AMENDMENT OF DECLARA`T'ION
16.1 PROCESS TO AMEND OR REVOKE THE PROVISIONS OF THE DECLARATION.
16.1.1 Before the close of the first sale of a Lot in the Development to a purchaser other than the
Declarant, the provisions of the Declaration as well as any amendments to it, may be amended or revoked, in
any respect, by the execution by the Declarant of an instrument amending or revoking any or all of the provision
of the Declaration. The amending or revoking instrument shall make appropriate reference to the provisions of
the Declaration, as well as any amendments thereto, and shall be properly acknowledged as well as Recorded in
the office of the County Recorder.
16.1.2 After the close of the first sale of a Lot in the Development to a purchaser other than Declarant,
the Declaration (subject to the rights of lenders relating to "material" amendments in Section 15.17 of the
Declaration), may be amended or revoked in any respect in the following manner:
(a)For so long as there are two (2)classes of members, by the vote or written assent of sixty-six
and two-thirds percent(66 2/3%)of the voting power of each class of membership.
(b) Upon the conversion of Class B memberships in the Association to Class A memberships,
by the vote or written assent of members representing sixty-six and two-thirds percent (66 2/3%) of the voting
power of the Association and by a bare majority of the votes of Members other than Declarant.
16.1.3 However, if any provision of the Governing Documents requires a greater or lesser percentage of
the voting power of any class of the Members in order to take affirmative or negative action under such
provision, the same percentage of such class or classes of the Members shall be required to amend or revoke
such provision.
16.1.4 Also, if the consent or approval of any governmental authority, Eligible Mortgage Holder or
other person, firm, agency, or entity is required under the provisions of the Governing Documents with respect
to any amendment to or revocation of any provision of the Declaration, no such amendment or revocation shall
become effective unless such consent or approval is obtained.
16.1.5 Any amendment or revocation to a provision of the Declaration that is subsequent to the close of
the first sale of a Lot to a purchaser other than the Declarant, shall be evidenced by an instrument that has been
certified by the Secretary or other duly authorized officer of the Association, makes the appropriate reference to
the provision of the Declaration that has been amended or revoked, as the case may be, as well as any other prior
amendments to the Declaration that have been made in compliance with the provisions of this Article XVI, is
appropriately acknowledged and has been Recorded in the Office of the County Recorder of the County.
16.2 CONTROL IF THE PROVISIONS OF ARTICLE XVI CONFLICT WITH ANY MORTGAGEE
PROTECTION OR OTHER PROVISIONS OF THE DECLARATION. To the extent any provision of
Sections 16.1 through 16.5, inclusive, of the Declaration conflict with the provisions of Article XV of the
Declaration, or any other provisions of the Declaration, except those contained in the provisions of Section 16.3
of the Declaration, the provisions of Article XV of the Declaration, or any other conflicting provisions, shall
control.
16.3 COMPLIANCE WITH THE PROVISIONS OF BUSINESS AND PROFESSIONS CODE
SECTION 11018.7. An amendments to or revocations of the provisions of the Declaration shall comply with all
of the applicable provisions of California Business and Professions Code Section 11018.7, or any compatible
superseding statutes.
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16.4 RELIANCE ON AMENDMENTS TO OR REVOCATIONS OF THE PROVISIONS OF THE
DECLARATION. Any amendments to and/or revocations of the provisions of the Declaration that have been
perfected in accordance with the provisions of the Declaration, may be presumed valid by anyone relying on
them in good faith.
16.5 CONFORMING WITH THE MORTGAGEE REQUIREMENT PROVISIONS OF THE
DECLARATION.
16.5.1 It is the intent of the Declarant that the provisions of the Governing Documents, together with the
Development in general, shall now and in the future, meet all of (lie requirements necessary to purchase,
guarantee, insure, or subsidize any Mortgage of a Lot by the Federal Home Loan Mortgage Corporation, the
federal National Mortgage Association, the federal Housing Administration, and the Veterans Administration.
The Board and each Owner shall take any action or shall adopt any resolutions required by Declarant or any
Mortgagee to conform the Declaration or the Property to the requirements of any of said entities subject to the
prior approval of the B.R.E.
16.5.2 The Board and each Member shall take any action or shall adopt any resolutions that are
reasonably required by the Declarant or any Mortgagee to conform to the provisions of the Governing
Documents and/or the Development, and to the Mortgage requirements of any of the above referenced entities
or agencies.
END OF ARTICLE XVI
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ARTICLE XVII
MISCELLANEOUS
17.1 ACCEPTANCE OF PROVISIONS BY GRANTEES. The Association and each Grantee of any
part or portion of or interest in the Development, and any purchaser under any grant deed or contract of sale, or
any lessee under any lease covering any part of portion of or interest in the Development, whether from
Declarant or a subsequent Owner, shall accept the same subject to all of the restrictions, conditions, covenants,
reservations, easements, liens and charges set forth in the Declaration; and by such acceptance of himself, his
heirs, personal representatives, successors and assigns, agrees with Declarant and with the grantees and
subsequent Owners of any part or portion of or interest in the Development to keep, observe and comply with
the Declaration, and to perform all obligations on his part thereunder.
17.2 ENFORCEMENT OF DECLARATION. The following persons or entities shall have the right to
enforce, by any proceeding at law or in equity, all restrictions, covenants, conditions and reservations now or
hereafter imposed by the provisions of the Declaration or any amendments 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.
17.2.1 The Declarant, so long as Declarant owns a Lot in the Development,
17.2.2 Any Owner of a Lot within the Development, and
17.2.3 The Association,pursuant to the provisions of Section 14.19 of the Declaration.
17.2.4 The Association shall have the exclusive right to the enforcement of all assessments prescribed
by Article IV of the Declaration.
17.2.5 The failure of any person or entity entitled to enforce the provisions of the Declaration pursuant
to this Article in any certain instance or on any particular occasion, shall not be deemed a waiver of such right
on any future breach of the same covenant, condition or restriction.
17.2.6 The Membership is authorized, subject to compliance with Section 5975 of the California Civil
Code, to institute, defend, settle or intervene on behalf of the Association in litigation, arbitration, mediation, or
administrative proceedings in matters pertaining to (i) enforcement of the Governing Documents, (ii) damage to
the Common Area, (iii) damage to the separate interests which the Association is obligated to maintain or repair,
or (iv) damage to the separate interests which arises out of, or is integrally related to, damage to the Common
Are or separate interests that the Association is obligated to maintain or repair.
17.3 TERM. The Declaration and the covenants, conditions, easements and restrictions contained herein
shall be and remain in full force and effect for a term of sixty (60) years from the date the Declaration is
recorded in the office of the County Recorder, after which time such Declaration and the covenants, provisions,
easements and restrictions contained therein shall be automatically extended for successive periods of ten (10)
years each unless an instrument, signed by percentage of Eligible Mortgage Holders and the voting power of the
Association prescribed by Section 15.15.2 above has been recorded at least one(1)year prior to the end of such
period in the office of the County Recorder,agreeing to change the Declaration in whole or in part.
17.4 NOTIFICATION OF MORTGAGEE. Each Owner of a Lot shall notify the Board, through the
Secretary of the Association, of the name and address of the holders of all First Mortgages, encumbering such
Owner's Lot. Each Owner shall also notify the Board, through the Secretary of the Association, of the release or
discharge of any such First Mortgage. The Board shall maintain a record of the names and addresses of the
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holders of First Mortgages as to which it receives notice pursuant to the provisions of this Section 18.4 and shall
provide the holders of all such First Mortgages as to which it receives notice with the following:
17.4.1 Written notification at least thirty'(30) days prior to the effective date of any change in the
Declaration, the Articles, and the By-Laws.
17.4.2 Written notification of any default by an Owner of the obligations of such Owner established by
the Declaration, the Articles or the By-Laws which is not cured within thirty (30) days after default. The notice
prescribed by this Section 18.4.2 shall be given only to the holders of First Mortgages upon the Lot owned by
the Owner in default.
17.5 DOCUMENTS TO BE PROVIDED TO PROSPECTIVE PURCHASER. The Owner of a Lot in
the Development shall, as soon as practicable before transfer of title to such Lot or execution of a sales contract
for such Lot (as said term is defined in Section 2985 of the California Civil Code) provide the following to the
prospective purchaser:
17.5.1 A copy of the Governing Documents of the Development.
17.5.2 A copy of the most recent financial statement distributed pursuant to Section 5305 of the
California Civil Code.
17.5.3 A true statement in writing from an authorized representative of the Association as to the amount
of the Association's current Regular Monthly and Special Assessments and fees, as well as any assessments
levied upon the Lot which are unpaid on the date of the statement. The statement shall also include true
information on late charges, interest and costs of collection which, as of the date of the statement, are or may be
made a lien on such Lot.
17.5.4 A copy of any notice received by the Owner of any change in the Association's current Regular
Monthly and Special Assessments and fees which have been approved by the Board, but have not become due
and payable as of the date disclosure is provided pursuant to this Section 17.5.
17.5.5 Upon written request, the Association shall, within ten (10) days of the mailing or delivery of the
request,provide the Owner of a Lot in the Development with a copy of the requested items specified in Sections
17.5.1 to 17.5.4 of this Section 17.5. The Association may charge a fee for this service, which shall not exceed
the Association's reasonable cost to prepare and reproduce the requested items.
17.5.6 Nothing in this Section 17.5.6 affects the validity of title to real property transferred in violation
of this Section+17.5. In addition to the requirements of this Section 17.5,the Declarant transferring title to a Lot
in the Development shall comply with the applicable requirements of Section 1133 of the California Civil Code.
17.6 JOINT AND SEVERAL LIABILITY. In the event of joint Ownership of a Lot,the liability of each
of the Owners thereof in connection with the liability and obligations of Owners set forth in or imposed by the
Declaration shall be joint and several.
17.7 DISPUTES. Except as provided in Section 14.17 above relating to Construction Defect Claims,
any disputes, claims or controversies between two (2) or more Owners, or the Association or any Owners, and
the Declarant arising under the Governing Documents or relating to the Development, (except for action taken
by the Association against Declarant or an Owner for delinquent assessments, and any action involving any
Common Area completion bonds) shall be subject to the following provisions:
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C)
17.7.1 The Association, Owners and Declarant hereby agree to submit any and all such disputes, claims
or controversies (except Construction Defect Claims which are subject to Section 14.17 above) to binding
arbitration as provided under the Federal Arbitration Act and California law, subject to the following provisions:
(a)The costs and fees of the arbitration, including ongoing costs and fees of the arbitration shall
be paid as agreed by the parties, and, if the parties cannot agree, as determined by the arbitrator; provided,
however, if the Declarant is a party to the arbitration, then any fee to initiate arbitration shall be paid by
Declarant,but the cost of arbitration shall ultimately be borne as determined by the arbitrator.
(b) A neutral and impartial individual from Judicial Arbitration and Mediation Service
("JAMS") who has at least fifteen (15) years experience in the litigation, arbitration, or mediation of
construction disputes or the subject matter of the parties dispute, as applicable shall be appointed to serve as
arbitrator, with the arbitrator to be selected by mutual agreement of the parties. If the parties are unable to agree
on an arbitrator within thirty (30) days after any party initiates the arbitration, a neutral and impartial arbitrator
shall be selected by the JAMS. In selecting the arbitrator, the provisions of California Code of Civil Procedure
Section 1297.121 shall apply. An arbitrator may be challenged for any of the grounds listed in California Code
of Civil Procedure Sections 1297.121 or 1297.124.
(c)The venue of the arbitration to be in Fresno County, California.
(d) The arbitration shall commence in a prompt and timely manner in accordance with (i) the
Commercial Arbitration Rules of the American Arbitration Association, or if the rules do not specify a date by
which arbitration is to commence, then(ii) by a date agreed upon by the parties, and if they cannot agree as to a
commencement date, (iii) a date determined by the arbitrator. The arbitrator shall have the power to grant all
legal and equitable remedies and award compensatory damages. When the arbitrator is prepared to make the
award, the arbitrator shall first so inform the parties, who shall have ten (10) days to attempt to resolve the
matter by a binding agreement between them. If the parties resolve the matter, the arbitrator shall not make any
award. If the parties do not so resolve the matter within the ten (10) day period, the arbitrator shall make the
award on the eleventh day following the arbitrator's notice of being prepared to make the award.
(e) The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of
the American Arbitration Association.
(f)The arbitration shall be conducted and concluded in a prompt and timely manner.
(g) The arbitrator shall be authorized to provide all recognized remedies available in law or
equity for any cause of action that is the basis of arbitration.
(h) A judgment upon the award rendered by the arbitrator may be entered in any court having
jurisdiction or application may be made to such court for judicial acceptance of the award and an order of
enforcement. The parties agree to be bound by the decision of the arbitrator, which shall be final and non-
appealable.
(i) If state or federal law requires an Owner, the Association or Declarant to take steps or
procedures before commencing an action in arbitration, then the Owner the Association or Declarant must take
such steps or follow such procedures, as the case may be, before commencing the arbitration. Nothing
contained herein shall be deemed a waiver or limitation of the provisions of California Civil Code Sections
5985, 6000 or 6100.
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0)An Owner,the Association and Declarant, to such extent any such party is defending a claim
in the arbitration, may, if it chooses, have all necessary and appropriate parties included as parties to the
arbitration.
17.7.2 Because many of the materials and products incorporated into the improvements within the
development are manufactured in other states, the development and conveyance of any portion of the
Development evidences a transaction involving interstate commerce and the Federal Arbitration Act (9 U.S.C.
Section 1 et seq.) now in effect and as it may be hereafter amended will govern the interpretation and
enforcement of the arbitration provisions set forth in this Article XVII.
17.7.3 BY EXECUTING THE DECLARATION, DECLARANT AND BY ACCEPTING A DEED TO
ANY PORTION OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION SHALL BE DEEMED
TO HAVE AGREED TO HAVE ANY DISPUTE (EXCEPT AS OTHERWISE PROVIDED IN THE
DECLARATION) DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE
CALIFORNIA ARBITRATION ACT IS CONSISTENT WITH THE FEDERAL ARBITRATION ACT, AND
DECLARANT,THE ASSOCIATION AND EACH OWNER ARE GIVING UP ANY RIGHTS DECLARANT,
THE ASSOCIATION AND EACH OWNER MIGHT POSSES TO HAVE THE DISPUTE LITIGATED IN A
COURT OR JURY TRIAL. DECLARANT, THE ASSOCIATION AND EACH OWNER ARE GIVING UP
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY
INCLUDED IN THIS ARTICLE XIX. IF DECLARANT, THE ASSOCIATION OR ANY OWNER
REFUSES TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, DECLARANT,
THE ASSOCIATION OR SUCH OWNER MAY BE COMPELLED TO ARBITRATE UNDER THE
AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
17.8 SINGULAR AND PLURAL. The singular shall include the plural and the plural the singular
unless the context requires the contrary; and the masculine, feminine and neuter shall each include the masculine
or feminine or neuter, as the context requires.
17.9 INTERPRETATION OF RESTRICTIONS. It is not the intent of the Declaration to interfere with
any provisions of any law or ordinance or any rules, regulations or permits previously adopted or issued or
which may be adopted or issued pursuant to law relating to the use of buildings or premises; provided, however,
that where the Declaration imposes a greater restriction upon the use or occupancy of any Residence or the
Common Area, or upon the construction of buildings, structures, or Improvements, or in connection with any
other matters that are imposed or required by such provisions of law or ordinances or by such rules, regulations
or permits,then the provisions of the Declaration shall control.
17.10 LIABILITY AND INDEMNIFICATION. No officer of the Association, or member of the Board
shall be personally liable for any act, error or omission, and the Association shall and hereby does indemnify,
defend and hold harmless said person, provided the action or inaction has been in good faith and within the
scope and performance of his duties as an officer or Board member.
17.11 ASSIGNMENT OF POWERS. Any and all rights and powers of Declarant relative to the
Development provided for in the Declaration, and any modification or amendment thereof, may be delegated,
transferred, assigned, conveyed or released by Declarant to the Association or to any other entity controlled by
Declarant engaged in the Property and the Association or such assignee entity shall accept the same upon the
recording of a notice thereof, and the same shall be effective for the period and to the extent stated therein.
17.12 APPLICABILITY. The Declaration shall apply to all Residences and Lots within the Property,
the Common Area and any easements on the Subdivision Map for the Development.
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17.13 BINDING EFFECT. The Governing Documents shall inure to the benefit of and be binding on
the successors and assigns of the Declarant and the heirs,personal representatives,grantees, tenants, and assigns
of the Owners.
17.14 CONFLICTS WITH OTHER DOCUMENTS. If there are conflicts or inconsistencies between
the provisions of the Declaration and either the Articles of Incorporation, the By-Laws or the Association Rules,
the provisions of the Declaration shall prevail.
17.15 CUMULATIVE REMEDIES. Each remedy provided for in the provisions of the Governing
Documents shall be cumulative and not exclusive. Failure to exercise any remedy provided for in the provisions
of the Governing Documents shall not,under any circumstances, be construed as a waiver of such remedy.
17.16 EASEMENTS RESERVED AND GRANTED. Any easements referred to in the provisions of
the Governing Documents shall be deemed reserved or granted, or both reserved and granted, by reference to the
appropriate provisions of the Governing Documents in any deed to any Lot.
17.17 HEADINGS. The headings used in the provisions of the Declaration are for convenience only
and are not to be used to interpret the meaning of any such provisions.
17.18 INCORPORATION OF EXHIBITS. The exhibits referred to in the text are attached to the
Declaration and by this reference made a part hereof as if once again fully set forth in the provisions of the
Declaration.
17.19 LIBERAL CONSTRUCTION. The provisions of the Governing Documents should be liberally
construed to effectuate their purpose of creating a Common Plan for the development of a Planned Development
and for the maintenance of the Common Area and Lots, as well as the operation of the Association.
17.20 NO DISCRIMINATORY RESTRICTIONS. No Owner shall execute or cause to be Recorded
any instrument that imposes a restriction upon the sale, leasing or occupancy of its, his, her, or their Lot on the
basis of race, color, religion, sex, sexual orientation, gender, gender identity, gender expression, familial status,
marital status, disability, genetic information, national origin, source of income [as defined in Subdivision(P) of
Section 1295 of the California Government Code], or ancestry.
17.21 NO REPRESENTATIONS OR WARRANTIES. No representations or warranties of any kind,
express or implied, have been given or made by the Declarant, or its agents or employees, in connection with the
Property or any portion thereof, including, but not limited to, its physical condition, zoning, compliance with
applicable laws, fitness for intended use or in connection with the subdivision, sale, operation, maintenance, cost
of maintenance, taxes, or regulation thereof as a Common Interest Planned Development, except as specifically
and expressly set forth in the provisions of the Governing Documents and/or as filed by the Declarant from time
to time with the B.R.E.
17.22 NOTICES AND COMMUNICATION. Unless otherwise expressly stated in the provisions of the
Governing Documents, all notices and/or communications that may be required by the provisions of the
Governing Documents shall comply with the following guidelines:
17.22.1 Any communication and/or notice of any kind permitted or required in the provisions of the
Governing Documents shall be in writing and may be served, as an alternative to personal service, by mailing
the notice as follows:
17.22.2 If to a Member, to the street address of such Member's Lot or to such other address that such
Member may from time to time designate in writing to the Board.
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17.22.3 If to the Association, to the Villa Alicante at Copper River Homeowners Association at the
principal office of the Association, or to such other address as the Board may from time to time designate in
writing to the Members.
17.23 NOTIFICATION OF SALE.
17.23.1 Concurrently with the consummation of the sale of any Lot under circumstances where the
transferee becomes an Owner of a fee title interest in a Lot, or within five (5) business days thereafter, the
transferee shall notify the Association in writing of such sale.
17.23.2 Such notification shall set forth the name of such transferee and its, his,her, or their Mortgagee,
if any, the common address of the Lot in which such interest was purchased by the transferee, the transferee's
and the Mortgagee's mailing addresses and the date of the deed conveying such interest in such Lot to the
transferee.
17.23.3 Before the receipt of such notification, any and all communications required or permitted to be
given by the Association, the Board or the Manager, if any, shall be deemed to be duly made and given to the
transferee if duly and timely made and given to the transferee's transferor.
17.23.4 Mailing addresses may be changed at any time upon written notification to the Board.
17.23.5 Notices shall be deemed received forty-eight (48) hours after they have been mailed, if mailed
to the transferee or its, his, her, or their transferor, if the Board has received no notice of transfer, as above
provided, by certified mail, return receipt requested, at the mailing address above specified.
17.23.6 Notices shall also be deemed received twenty-four (24) hours after being sent by telegram or
upon personal delivery to any occupant of the Lot over the age of twelve(12)years.
17.24 NUMBER; GENDER. The singular shall include the plural and the plural the singular unless the
context requires the contrary. The masculine, feminine, and neuter shall each include masculine, feminine, or
neuter as the context requires.
17.25 OWNER'S ACCESS TO BOOKS. Any Owner may, at any reasonable time and upon reasonable
notice to the Board or the Manager, as the case may be, at its, his, her, or their own expense, cause an audit or
inspection to be made of the books and financial records of the Association.
17.26 SEVERABILITY OF PROVISIONS. The provisions of the Declaration shall be deemed
independent and severable and the invalidity, partial invalidity, or unenforceability of any provision or
provisions shall not invalidate any other provisions.
17.27 VIOLATION OF A PROVISION OF THE GOVERNING DOCUMENTS AS NUISANCE.
Every act or omission in Violation of a Provision of the Governing Documents shall constitute a nuisance and,
in addition to all other remedies that may be available, may be abated or enjoined by an Owner, any Director,
the manager, if any, or the Association.
17.28 LIMITATION OF RESTRICTIONS ON DECLARANT. Declarant is undertaking the work of
construction of a planned development and incidental improvements upon the Property. The completion of that
work and the sale, rental, and other disposal of the Lots and Residences is essential to the establishment and
welfare of the Development as a residential community. In order that the work may be completed and the
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Development established as a fully occupied residential community as rapidly as possible, nothing in this
Declaration shall be understood or construed to:
17.28.1 Prevent Declarant, its contractors, or subcontractors from doing on the Property or any Lot,
whatever is reasonably necessary or advisable in connection with the completion of said work; or
17.28.2 Prevent Declarant or its representatives from erecting, constructing and maintaining on the
Property(except upon Lots owned by others) such structures as may be reasonable and necessary for developing
the Property as a residential community and disposing of the same by sale, lease,or otherwise; or
17.28.3 Prevent Declarant from conducting on the Property (except upon Lots owned by others) its
business of completing the work and of establishing a plan of residential ownership and of disposing of the
Property in Lots by sale, lease or otherwise including use of the recreation room, if any, by Declarant as a
sales/construction office; or
17.28.4 Prevent Declarant from maintaining or displaying such signs, pennants, banners and flag(s)
anywhere in the Development (except upon Lots owned by others), as may be necessary for the sale, lease or
disposition thereof for the duration of Declarant's marketing; or
17.28.5 Subject Declarant to the architectural control provisions of Article IX for the construction of
any Residence or other improvements on the Property.
The foregoing rights of Declarant shall terminate upon sale of Declarant's entire interest in the Property,
and until then, this Section 17.28 shall not be amended without Declarant's consent.
So long as Declarant, or its successors and assigns, owns one (1) or more of the Lots described herein,
Declarant, or its successors and assign, shall be subject to the provisions of this Declaration. Declarant shall
make reasonable efforts to avoid disturbing the use and enjoyment of Lots by their Owners and the Common
Area by the Owners, while completing any work necessary to said Lots or Common Area.
END OF ARTICLE XVII
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ARTICLE XVIII
RIGHTS OF CITY OF FRESNO
18.1 CONFLICTS WITH OTHER ARTICLES. In the event of any conflict between this Article XVIII
and any other Article of the Declaration, Article XVIII shall prevail.
18.2 IMMEDIATE ACCESS EASEMENTS. The City is hereby granted the right of immediate access
to all portions of the Common Area for the purpose of preserving the public health, safety, and welfare.
18.3 SEWER, WATER, AND 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.
18.4 UTILITY RESPONSIBILITIES. The Association shall have the duty to pay for all utility and
waste collection which are not separately metered or billed, including, but not limited to, charges for sewer,
water, gas, solid waste, sanitation and electric service.
18.5 PRIVATE PAYMENT REPAIRS. Should public utilities, including, but not limited to, sewer and
water be located underneath private streets, or should the street be public while said utilities be private, the City
shall not be responsible for private pavement repairs beyond the minimum amount this is directly related to the
future utility main repair work.
18.6 ALTERATION, MODIFICATION.OR RECONSTRUCTION OF PARTY WALL. No Owner or
Tenant shall alter, modify, reconstruct, or do any other thing to any party wall 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.
18.7 LANDSCAPE AND MAINTENANCE OF COMMON AREAS. Landscaping shall be provided
and maintained by the Association in the Common Area adjacent to public streets and highways. The
Association shall provide and maintain the landscaping in such areas in a manner compatible with the
requirements of the Fresno Municipal Code, and shall not decrease the amount of assessments charged against
members of the Association if such decrease will adversely affect the ability of the Association to perform this
maintenance.
18.8 STREET SWEEPING/CLEANING. The Association shall be responsible to provide street
sweeping/cleaning within the Common Area. The Association shall be responsible for the cost(s) associated
therewith.
18.9 CITY EASEMENTS.
18.9.1 The Association reserves, for the benefit of the City, non-exclusive easements to enter the
Development for the maintenance, repair and replacement of the public water and sewer mains and lines that are
to be located within the private streets, and other public utility facilities. The Association shall allow the City, at
a minimum, 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. The Association nor any Owner may interfere
with the City's right to exercise the easement referred to in this Section 18.9.1.
18.9.2 Proposed amendments to Section 18.9.1 herein above shall be approved as to form by the City
Attorney prior to the amendments to said Section being valid. No later than the date that is thirty (30) calendar
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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.
18..10 STREET IMPROVEMENTS. The cost of repair and/or replacement of asphalt and other street
improvements within the Development due to repair of public utilities within the streets shall be at the expense
of the Association. These repairs and/or replacement shall be in compliance with applicable City Standards.
18.11 INDEMNITY. 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.
18.12 AMENDMENTS BY THE ASSOCIATION. Any amendment by the Association to the above
provisions or any other provision specifying any right of the City shall require the prior written consent of the
City.
END OF ARTICLE XVIII
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Declarant has executed the Declaration the day and year first above written.
Copper River Ranch Villages, LLC
A Cali limited liability c mpany
By: �..
N me: Steven F. Hertel
Title: Assistant Vice-President
[ATTACH NOTARY ACKNOWLEDGMENT]
2198.012/doc/final/ccts.ClTYc.100217
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ACKNOWLEDGMENT
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 Fresno )
On October 30, 2017 before me, Andrea A. McFadden, Notary Public
(insert name and title of the officer)
personally appeared Steven F. Hertel
who proved to me on the basis of satisfactory evidence to be the person(sl whose name(s) is/aK
subscribed to the within instrument and acknowledged to me that he/s(/tl eexecuted the same in
his/Vr/tW authorized capacity(), and that by his/hdr/t(r signature(�'on the instrument the
personK, or the entity upon behalf of which the person�o 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 m hand and official seal. ANDREA A. MCFADDEN
y COMM. #2056411 z
MY
°� ® Notary Public-California �
Z Fresno County
Comm.Ex ices Jan.31,2018
Signatuc*"
Io1
EXHIBIT A
CONSTRUCTION DEFECTS CLAIMS PROCEDURES
THE PROVISIONS OF THIS EXHIBIT A CONTAIN ALTERNATIVE DISPUTE RESOLUTION
PROCEDURES THAT INCLUDE A WAIVER OF A TRIAL BY A JURY. YOU ARE ADVISED TO
READ THESE PROCEDURES CAREFULLY AND CONSULT WITH LEGAL COUNSEL IF YOU
HAVE ANY QUESTIONS.
ARTICLE I
RECITALS
A. This document describes the procedures for filing claims against the Declarant and certain other
designated parties related to this Development.
B. Unless the context indicates otherwise, the definitions in the provisions of Article I of the
Declaration shall apply to the provisions of this Exhibit A.
C. Any claim, dispute, or other controversy between the Association and/or any Owner(s),
hereinafter collectively referred to as the ("Defect Claimant") and the Declarant or any affiliated general
contractor or affiliated contractor who is a"builder"within the meaning of California Civil Code Section 911 or
any compatible superseding statute, or any director, officer, member, shareholder,partner, employee, or agent of
the Declarant or any such Builder, any nonaffiliated general contractor, nonaffiliated contractor, subcontractor,
material supplier, individual product manufacturer, design professional, or any other person that provided
materials or labor or other services to the Development on behalf of any of the above referenced persons or
entities as the case may be, who, for purposes of the provisions of this Exhibit A, shall be individually and
collectively hereinafter referred to as the "Developers", relating to the provisions of the Declaration, the use,
condition, design, specifications, surveying, grading, construction, installation, budgeting, or operation of any
Major Components that are located within the Development or maintained by the Association, including but not
limited to any claims for violation of the functionality standards that are described in the provisions of
California Civil Code Sections 896 through 897, inclusive, or any compatible superseding statutes, whether
based in contract, tort, or statute violation, individually and collectively hereinafter referred to as the "Defect
Claim(s)"for the purpose of the provisions of this Exhibit A, shall be subject to the claim procedures set forth in
the provisions of this Exhibit A.
D. The procedures in the provisions of this Exhibit A do not apply to the Developers normal
customer service procedures.
1. Owners are strongly encouraged to make every effort to resolve any potential Defect
Claim(s)through the Developers normal customer service procedures.
E. Declarant, the Association and each Owner hereby covenant not to commence any construction
defect litigation without complying with the procedures described in the provisions of this Exhibit A.
1. if any party breaches the provisions of this Section "E.", the other party may obtain an
appropriate order compelling the breaching party to comply with the procedures set forth in the provisions of
this Exhibit A.
F. Except as is expressly authorized by law, nothing in the provisions of this Exhibit A shall
reduce or extend any applicable time frame within which legal action must be commenced, including applicable
statutes of limitation or repose and time frames that are provided for in the provisions of California Civil Code
Sections 896, 897, and 941,or any compatible superseding statutes.
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G. Title 7 of Part 2 of Division 2 of the California Civil Code Civil Code Sections 895 through
945.5, or any compatible superseding statutes, which are commonly known as "SB 800" or the`Builder's Right
to Repair Law" sets forth functionality standards in the provisions of California Civil Code Sections 896 through
897, inclusive, or any compatible superseding statutes, that describe how the Major Components within the
Development should function during certain applicable time periods ("Functionality Standards").
H. The provision of SB 800 affect the legal rights of the Association and each Owner.
I. The Association and Owner have certain rights under the provisions of SB 800 if the Major
Components fail to meet a Functionality Standard during the applicable time periods.
J. These rights may be lost as described in the provisions of California Civil Code Section 945.5,
or any compatible superseding statute including the following:
1. If the Association or Owner:
a. Fails to follow the Developers' or the manufacturer's reasonable
recommendations on inspection and maintenance, including schedules;
b. Fails to follow commonly accepted homeowner maintenance guidelines;
C. Fails to provide the Developers with timely notice after a discovery of the
violation of the Functionality Standard or to allow the Developers reasonable
and timely access for repairs; or
d. Unreasonably fails to minimize or prevent damages in a timely manner.
K. The provisions of California Civil Code Sections 910 through 938, inclusive, or any compatible
superseding statutes, contain certain pre-litigation procedures to resolve a claim of violation of a Functionality
Standards.
L. As authorized by the provisions of California Civil Code Section 914, or any compatible
superseding statutes, the Developers may elect to use these pre-litigation procedures or use appropriate
alternative procedures.
M. The Declarant has elected to use the alternative non-adversarial pre-litigation procedures set
forth in the provisions of Article II of this Exhibit A, which is entitled "Non-Adversarial Prelitigation
Procedure".
ARTICLE R
NON-ADVERSARIAL.PRE-LITIGATION PROCEDURES
2.1 CLAIMS SUBJECT TO PRE-LITIGATION PROCEDURES.
A. Any Defect Claim(s) is subject to the non-adversarial pre-litigation procedures set forth in the
provisions of this Article II.
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2.2 CLAIM NOTICE.
A. The Defect Claimant shall notify ("Defect Claim(s) Notice") the Developers in writing of the
Defect Claim(s).
1. The Defect Claim(s)Notice shall:
a. Contain the Defect Claimant's name and address and preferred method of
contact;
b. State that the Defect Claimant elects to commence the procedures in
compliance with the provisions of this Exhibit A to resolve the Defect Claim(s);
C. Describe the Defect Claim(s) in reasonable detail sufficient to determine the
nature and location,to the extent known, of the claimed violation; and
d. If applicable, state that the Defect Claimant alleges a violation of the
Functionality Standards.
2.3 RIGHT TO INSPECT AND RIGHT TO CORRECTIVE ACTION.
A. Within thirty (30) days after the Developers receipt of the Defect Claim(s) Notice, the Defect
Claimant and the Developers' representatives shall meet at the site of the alleged defect to discuss the Defect
Claim(s).
B. At such meeting or at such other mutually agreeable time, the Developers'representatives shall
have full access to the alleged defect site in order to inspect same and investigate the Defect Claim(s).
C. The parties shall negotiate, in good faith, in an attempt to resolve the Defect Claim(s).
D. If the Defect Claimant and the Developers cannot agree on the validity of the Defect Claim(s),
the corrective action needed, the party to take the corrective action, or any other manner related to the Defect
Claim(s)within sixty (60)days after the Developers receipt of the Defect Claim(s) Notice or such longer time as
may be mutually acceptable to the Defect Claimant and the Developers, either party may commence the
mediation procedures described in the provisions of Section 2.4 of this Exhibit A,which is entitled"Mediation".
E. If the parties agree on any corrective action, the Developers' representatives shall be provided
full access to the alleged defect site to take and complete corrective action.
F. The Developers shall continence the corrective work no later than thirty (30) days after the
Defect Claimant's acceptance of the proposed corrective action, and shall use commercially reasonable efforts to
complete the work within ninety(90) days.
G. If the Developers fails to respond to the Defect Claim(s) Notice or fails to meet with the Defect
Claimant within the time period required in the provisions of this Exhibit A, the Defect Claimant is released
from any further obligation to comply with the non-adversarial procedures that are provided for in this
ARTICLE 1.I and may proceed to initiate the binding adversarial procedures provided for in the provisions of
Section 3.3 of Exhibit A.
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2.4 MEDIATION.
A. If the Defect Claim(s) is not resolved in accordance with the procedures described in the
provisions of Section 2.3 of this Exhibit A and except as may otherwise be provided for in the provisions of
Section 2.3 of this Exhibit A, either the Defect Claimant or the Developers may submit the Defect Claim(s) to
mediation under the mediation procedures adopted by the Judicial Arbitration and Mediation Services (JAMS)
or any successor to JAMS or to any other entity offering mediation services that is acceptable to the Defect
Claimant and the Developers.
B. The parties shall cooperate so that the mediation hearing can be held as soon as practical.
C. If the mediation hearing cannot take place within ninety (90) days after the Developers receipt
of the Defect Claim(s) Notice or such later date as may be acceptable to Defect Claimant and the Developers,
the parties are released from any further obligation under the provisions of this Section 2.4 and either party may
proceed to initiate the binding adversarial procedures described in Section 3.3 of the Exhibit A.
D. Each party shall bear their own mediation expenses except that the initial mediation
administrative fee and the mediator's fee for a maximum of four (4) hours shall be borne by Developers and
thereafter equally by the parties unless they agree otherwise.
E. Any party to the mediation may at any time after a minimum of four(4)hours of
mediation terminate the mediation by notifying the other parties and the mediator in writing of such termination
and may proceed to the binding adversarial procedures described in Section 3.3 of this Exhibit A.
F. No one shall serve as a mediator who has any financial or personal interest in the result of the
mediation, except by the written consent of all parties.
G. Before accepting any appointment, a prospective mediator shall disclose any circumstances
likely to create a presumption of bias or prevent a prompt commencement of the mediation process.
H. Within ten (10) days after the selection of a mediator or within a time frame that has been
established by such mediator, each party to the mediation shall submit a brief memorandum to the selected
mediator setting forth its, his, her, or their position on the issues that need to be resolved.
1. The mediation shall be commenced within ten (10) days after submittal of the above referenced
memorandums.
J. The mediation shall be held in Fresno County, California or in such other location as is
mutually acceptable to the parties.
K. The mediator has discretion to conduct the mediation in the manner in which the mediator
believes is most appropriate for reaching a settlement of the Defect Claim(s).
L. The mediator is hereby authorized to conduct joint and separate meetings with the parties and to
make oral and written recommendations for settlement.
M. Whenever necessary, the mediator may also obtain expert advice on technical aspects of the
Defect Claim(s), as long as the parties agree and assume the expenses of obtaining such advice.
N. The mediator has no authority to impose a settlement on the parties.
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O. The mediation shall be subject to the provisions of California Evidence Code Sections 1115
through 1128, inclusive, or any compatible superseding statutes, except as the parties may otherwise agree in
writing or orally under the provisions of California Evidence Code Section 1118, or any compatible superseding
statute.
P. Persons other than the parties, the parties' representatives, and the mediator may attend
mediation sessions only with the written permission of the parties and the mediator.
Q. 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 outside of the mediation process.
R. All records,reports, or other documents received by the mediator while serving in such capacity
shall be confidential.
S. No stenographic record shall be made of the mediation process.
T. If the Defect Claim(s) is/are not resolved in accordance with the non-adversarial prelitigation
procedures that are set forth in the provisions of this Section 2.4, the Defect Claim(s) shall be resolved in
accordance with the binding adversarial procedures set forth in the provisions of article III of this Exhibit A,
which is entitled`Binding Arbitration".
ARTICLE III
BINDING ARBITRATION
3.1 AUTHORITY TO COMMENCE BINDING ARBITRATION.
A. Either party may commence binding arbitration by submitting the Defect Claim(s) to the
American Arbitration Association for the appointment of a neutral and impartial individual who shall serve as
arbitrator.
3.2 CONDUCT OF ARBITRATION.
A. The arbitration shall be conducted in compliance with the provisions of the Commercial
Arbitration Rules of the American Arbitration Association.
B. The arbitration will be heard by a single arbitrator unless the Defect Claimant and the
Developers otherwise agree in writing.
C. It is hereby understood that the Association, each Owner, and the Declarant acknowledges and
agrees that any Defect Claim(s), including, but not limited to, any Defect Claim(s) under the provisions of
California Civil Code Sections 896 through 897, inclusive, or any compatible superseding statute, involves
interstate commerce and is therefore subject to and governed by the provisions of the Federal Arbitration Act,
notwithstanding any State or local laws or ordinances to the contrary nor the fact the parties have elected to use
the provisions of certain State law arbitration procedures to resolve a Defect Claim(s).
3.3 GOVERNING PROCEDURES.
A. The following provisions and procedures shall apply in all cases unless the parties agree
otherwise in writing:
1. The proceedings shall be heard in Fresno County, California;
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2. The matter shall be heard by a single arbitrator, who shall have at least five (5) years
experience in arbitrating construction defect matters;
3. The fee to initiate the arbitration shall be paid by the Declarant, and the arbitrator's fees
shall be borne equally by the Declarant and the Defect Claimant, unless the Declarant agrees in writing
to advance the arbitrator's fees, except that arbitration costs and fees, including any initiation fee and the
arbitrator's fees, shall ultimately be borne as determined by the arbitrator;
4. Each party shall bear its own attorney fees and costs, including any expert costs, for the
arbitration; and
5. The arbitrator shall be appointed within sixty (60) days after the American Arbitration
Association receives a written request to arbitrate the dispute.
a. In selecting the arbitrator, the provisions of California Code of Civil Procedure
Section 1297.121 or any compatible superseding statute, shall apply;
b. The arbitrator appointed to serve shall be a neutral and impartial individual; and
C. The arbitrator may be challenged for any of the grounds that are listed in the
provisions of California Code of Civil Procedure Sections 1297.121 or 1297.124 or any
compatible superseding statutes.
6. The arbitrator may require one(1) or more pre-hearing conferences.
7. The parties shall be entitled to discovery to the extent allowed by the provisions of
California Code of Civil Procedure Section 1283.05 or any compatible superseding statute.
8. The arbitrator shall be authorized to provide all recognized remedies available in law or
equity.
9. The arbitrator in his or her discretion may award costs, including,but not limited to, the
initiation fee, the arbitrator's fee, and attorney fees to the party that the arbitrator determines was the
prevailing party.
10. The arbitrator's decision shall be final and binding on the parties unless corrected or
validated under the grounds authorized in the provisions of California Code of Civil Procedure Sections
1286.2 or 1286.6 or any compatible superseding statute.
11. The arbitrator's decision may be enforced in any court of competent jurisdiction.
ARTICLE IV
CLAIM NOTICE
4.1 AGENT FOR SERVICES OF DEFECT CLAIM(S)NOTICE.
A. Notice ("Defect Claim(s)Notice") of any Defect Claim(s) against the Developers or any one of
them, affiliated within the meaning of the provisions of the California Civil Code Section 911, and/or Sections
896 through 897, inclusive, or any compatible superseding statutes, requests for information, including requests
for copies of the documents that are described in the provisions of Section 4.2 of Exhibit A, which is entitled
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(fit
"Provided Documents to Subsequent Owners", shall be served on the appropriate Developers' agent by certified
mail, overnight mail, or personal delivery.
1. The name and address of the Developers' agent ("Agent for Defect Claim{s) Notice")
for this purpose is:
B. If a Defect Claim(s) Notice cannot be served on the Developers' agent at the above- referenced
address because such agent is no longer located at said address or such agent has changed and the Developers
have not given the Defect Claimant an updated address or a name or the address of the new agent, the Defect
Claimant may serve the claim notice on the Developer's agent for notice under the provisions of California Civil
Code Section 912(e)or any compatible superseding statute.
C. If the Defect Claim(s)notice is served by mail, it shall be assumed received by the
Developers on the third(3rd)business day after deposit into the U.S. Mail.
D. If delivered by an overnight service it shall be assumed received on the next business day.
E. If delivered personally, it shall be assumed received on the date of personal delivery.
F. These assumptions may be rebutted by the Developers if the Developers did not receive actual
notice.
4.2 PROVIDED DOCUMENTS TO SUBSEQUENT OWNERS.
A. The Developers have provided copies of the following documents ("Defect Claim(s)
Document")to the initial purchasers of a fee title interest in a Lot ("Initial Purchasers").
1. Inspection and maintenance schedules and guidelines;
2. A limited fit and finish warranty and manufacturers products limited warranties; and,
3. A copy of Title 7 of Part 2 of the Civil Code(SB 800).
B. The Initial Purchasers shall retain the Defect Claitn(s) Documents and on the transfer of a fee
title interest in the Initial Purchasers Lot to a subsequent owner shall provide such subsequent owner with the
original or true copy each and every one of the Defect Claim(s) Documents on or before conveyance of such fee
title and instruct such subsequent owner(s) that they are to retain the Defect Claim(s) Documents or true copies
thereof as the case may be, and transfer or provide said copies to any subsequent holders of a fee title interest in
said Lot.
1. Replacement copies of the Defect Claim(s)Documents may be obtained from the Agent
for Defect Claim(s)Notice.
2. The Developers may charge a reasonable fee for providing replacement copies.
NOTE: NON-COMPLIANCE BY THE INITIAL PURCHASERS AND/OR SUBSEQUENT
OWNERS WITH THE INSPECTION AND MAINTENANCE GUIDELINES PROVIDED
FOR IN THE DEFECT CLAIMS DOCUMENTS MAY PROVIDE AN AVAILABLE
DEFENSE TO THE DEVELOPERS FOR ANY CONSTRUCTION DEFECTS CLAIM.
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C. The Declarant declares that the Property is, and shall be, held, conveyed, hypothecated,
encumbered, leased, rented, used, sold, improved, and occupied subject to the declarations, limitations,
restrictions, covenants, conditions, servitudes, and charges that are contained in the provisions of this Exhibit A,
as well as any amendments thereto, all of which are declared and agreed to be imposed as equitable servitudes in
furtherance of the plan for Construction Defect Claim(s) resolution as provided for in the provisions of
California Civil Code Sections 4000 through 6000, inclusive, or any compatible superseding statutes, for the
subdivision, improvement, protection, maintenance, and sale of Lots within the Property, and all of which are
declared and agreed to be for the purpose of providing an alternative dispute resolution procedure for such
Construction Defect Claim(s).
D. All of such limitations, restrictions, reservations, covenants, conditions, servitudes, and charges
shall run with the land, shall be binding on and inure to the benefit of all of the parties having or acquiring any
right, title or interests in the Property, are for the benefit of the Property and shall be binding on and inure to the
benefit of the successors in interests of such parties.
4.3 AMENDMENTS.
A. Despite anything in the Declaration to the contrary:
1. The provisions in this Exhibit A may not be modified or waived without the prior
written consent of the Declarant; and
2. The provisions in this Exhibit A may be modified or waived with respect to any
particular Defect Claim(s) with the written consent of the Declarant and the Defect Claimant or
Defect Claimants that made such Defect Claim(s).
3. The Board of Directors shall have full power and authority to approve any
modifications or waivers with Declarant on any Defect Claim(s) made by the Association.
4. In addition, the provisions in this Exhibit A may be modified with respect to any
property owned by Declarant by filing an amendment to this Exhibit A in the records of the
County in which the Development is located.
5. Such amendment shall affect only Lots owned by Declarant at the time the
amendment is recorded, and such other Lots whose Owners consent to the amendment in
writing.
4.4 DEFECT CLAIM(S)FILING PERIOD.
A. Nothing in the provisions of this Exhibit A extends any time periods in which
a Defect Claim(s) must be filed under Civil Code Section 896 or Section 897 or any compatible superseding
statutes, or otherwise extends any applicable statutes of limitations or statutes of repose, except as expressly
authorized by law.
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