HomeMy WebLinkAboutT-5010 - Agreement/Covenant - CC&Rs - 5/25/2004 RECORDING REQUESTED BY:
WHEN RECORDED RETURN TO: IIII III III I III II II IIII I II IIII I VIII I IIII I II II IIII
.lames S. Donegan, Sr. FRESNO County Recorder
Attorney-at-Law Robert C, Werner
777 Campus Commons Road DDC— 2004-0115264
Suite 200 Acct 4-Fidelity National Title Company
Sacramento, California 95825 Tuesday, MAY 25, 2004 08:00:00
Tt 1 Rd $231.00 Nbr-0001488548
rgr/R7/1-75
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
TRACT NO. 5010
FOR
COPPER RIDGE ESTATES
TABLE OF CONTENTS
RECITALS.................................................................................................................................... 1
ARTICLEI.................................................................................................................................... 1
DECLARATION....................................................................................................................... 1
ARTICLE11.................................................................................................................................. 2
DEFINITIONS...........................................................................................................................2
2.1 ARCHITECTURAL COMMITTEE......................................................................................................2
2.2 ARCHITECTURAL RULES. ................................................................................................................2
2.3 ARTICLES.............................................................................................................................................2
2.4 AS-BUILT PLANS................................................................................................................................ 2
2.5 ASSESSMENT(S)..................................................................................................................................2
2.6 ASSOCIATION. ....................................................................................................................................2
2.7 ASSOCIATION RULES........................................................................................................................ 2
2.8 BOARD OF DIRECTORS..................................................................................................................... 3
2.9 BUDGET................................................................................................................................................ 3
2.10 BYLAWS............................................................................................................................................... 3
2.11 CERTIFICATE OF COMPLIANCE...................................................................................................... 3
2.12 CITY....................................................................................................................................................... 3
2.13 COMMON AREA.................................................................................................................................. 3
2.14 COMMON EXPENSE(S). ..................................................................................................................... 3
2.15 CONTRACT BUYER(S). ......................................................................................................................4
2.16 COUNTY. ..............................................................................................................................................4
2.17 DECLARANT........................................................................................................................................4
2.18 DECLARATION.............................................................................:...................................................... 4
2.19 DEVELOPMENT. .................................................................................................................................4
2.20 DIRECTORS..........................................................................................................................................4
2.21 DUE PROCESS REQUIREMENTS......................................................................................................4
2.22 ELIGIBLE MORTGAGE HOLDER(S)................................................................................................. 4
2.23 FINAL SUBDIVISION PUBLIC REPORT. .........................................................................................4
2.24 FISCAL YEAR. .....................................................................................................................................4
2.25 GOVERNING DOCUMENT(S)............................................................................................................4
2.26 IMPROVEMENT(S).............................................................................................................................. 5
2.27 INVITEE(S)........................................................................................................................................... 5
2.28 LOT(S)................................................................................................................................................... 5
2.29 MAJOR COMPONENT(S).................................................................................................................... 5
2.30 MEMBER(S).......................................................................................................................................... 5
2.31 MEMBERSHIP...................................................................................................................................... 5
2.32 MORTGAGE(S); MORTGAGEE(S); INSTITUTIONAL
MORTGAGEE(S); FIRST MORTGAGE(S); AND FIRST
MORTGAGEE(S). ............................................................:................................................................... 5
2.33 NOTICE OF COMPLETION................................................................................................................. 5
2.34 OWNER(S). ...........................................................................................................................................6
2.35 PARTY FENCES...................................................................................................................................6
2.36 PROPERTY............................................................................................................................................ 6
2.37 RECORD; RECORDING; RECORDED; RECORDATION. ...............................................................6
2.38 REGULAR ASSESSMENT(S)..............................................................................................................6
2.39 RESERVE ACCOUNT..........................................................................................................................6
2.40 RESERVE ACCOUNT REQUIREMENTS. .........................................................................................6
2.41 RESERVE FUNDS................................................................................................................................ 6
2.42 RESIDENCE(S)..................................................................................................................................... 6
i
2.43 SPECIAL ASSESSMENT(S)................................................................................................................. 6
2.44 SUBDIVISION MAP............................................................................................................................. 7
2.45 TENANT(S)........................................................................................................................................... 7
2.46 VIOLATION OF A PROVISION OF THE GOVERNING................................................................... 7
ARTICLEIII................................................................................................................................. 7
PROPERTY RIGHTS, RIGHTS OF ENJOYMENT AND EASEMENTS......................... 7
3.1 PERSONS SUBJECT TO THE PROVISIONS OF THE
GOVERNINGDOCUMENTS.............................................................................................................. 7
3.2 NONEXCLUSIVE EASEMENTS......................................................................................................... 7
3.3 BLANKET UTILITY EASEMENT....................................................................................................... 8
3.4 RIGHTS OF ENTRY OR USE..............................................................................................................9
3.5 MINOR ENCROACHMENTS. ........................................................................................................... 10
3.6 POWER TO GRANT EASEMENTS................................................................................................... 10
3.7 PARTY FENCE EASEMENTS........................................................................................................... 11
3.8 OTHER EASEMENTS........................................................................................................................ 11
3.9 EMERGENCY ACCESS AND RIGHT-OF-WAY. ............................................................................ 11
3.10 PUBLIC SERVICE EASEMENT........................................................................................................ 11
3.11 DELEGATION OF USE...................................................................................................................... 11
3.12 FUTURE CONSTRUCTION AND ASSIGNMENT OF
DECLARANT'S RIGHTS. ................................................................................................................. 12
3.13 REQUIREMENTS TO COMPLY WITH DUE PROCESS................................................................. 12
ARTICLEIV............................................................................................................................... 13
COVENANTS AND USE RESTRICTIONS........................................................................ 13
4.1 ANIMALS............................................................................................................................................ 13
4.2 ANTENNA AND EXTERNAL FIXTURES....................................................................................... 14
43 ARCHAEOLOGICAL REQUIREMENTS........................................................................................... 14
4.4 BUILDING HEIGHT RESTRICTION................................................................................................ 15
4.5 CHANGING GRADES, SLOPES, AND DRAINAGE. ...................................................................... 15
4.6 COMPLIANCE WITH LAW............................................................................................................... 15
4.7 FENCES AND WALLS....................................................................................................................... 15
4.8 GAS OR LIQUID STORAGE. ............................................................................................................ 15
4.9 INDEMNIFICATION.......................................................................................................................... 15
4.10 INTERFERENCE WITH LANDSCAPE AREAS ALONG
NORTH CEDAR AVENUE AND EAST COPPER AVENUE............................................................... 16
4.11 LEASING OR RENTING.................................................................................................................... 16
4.12 LEGAL REMEDIES FOR OWNER NONCOMPLIANCE WITH
THE PROVISIONS OF THE GOVERNING DOCUMENTS............................................................ 16
4.13 MACHINERY AND EQUIPMENT.................................................................................................... 17
4.14 MAINTENANCE-OWNER RESPONSIBILITY. ............................................................................ 17
4.15 MONUMENTS.................................................................................................................................... 18
4.17 OUTSIDE LAUNDERING AND DRYING........................................................................................ 18
4.18 PARKING RESTRICTIONS; USE OF GARAGES............................................................................ 18
4.19 RESIDENTIAL USE............................................................................................................................ 19
4.20 RESTRICTION ON FURTHER SUBDIVISION AND
SEVERABILITYOF LOTS................................................................................................................20
4.21 SETBACK MINIMUMS FOR CERTAIN LOTS................................................................................20
4.22 SIGNS. .................................................................................................................................................20
4.23 TEMPORARY LIVING QUARTERS.................................................................................................21
4.24 TIME SHARING PROHIBITED.........................................................................................................21
4.25 TRASH DISPOSAL.............................................................................................................................21
4.26 TREE MAINTENANCE......................................................................................................................22
4.27 UNALLOCATED TAXES. .................................................................................................................22
ii
ARTICLEV................................................................................................................................22
POWERS AND DUTIES OF THE BOARD.........................................................................22
5.1 INCORPORATION. ............................................................................................................................22
5.2 ACTION THROUGH DESIGNATED OFFICERS.............................................................................22
5.3 STATEMENT OF ASSOCIATION POWERS....................................................................................23
5.4 ASSESSMENT RIGHTS.....................................................................................................................23
5.5 THE RIGHT TO ESTABLISH ASSOCIATION RULES. ..................................................................23
5.6 RIGHT TO IMPOSE SANCTIONS FOR A VIOLATION OF A
PROVISION OF THE GOVERNING DOCUMENTS.......................................................................23
5.7 RIGHT OF THE BOARD TO DELEGATE ITS POWERS AND
DUTIES...............................................................................................................................................24
5.8 DUTIES................................................................................................................................................25
5.9 MANAGEMENT AND MAINTENANCE OF THE
DEVELOPMENT................................................................................................................................25
5.10 CONTRACTING FOR GOODS AND SERVICES.............................................................................25
5.11 PAYMENT OF TAXES AND ASSESSMENTS.................................................................................25
5.12 SECURING INSURANCE COVERAGE............................................................................................25
5.13 PREPARATION AND DISTRIBUTION OF FINANCIAL
STATEMENTS, REPORTS, AND COPIES OF THE
GOVERNING......................................................................................................................................25
5.14 ENFORCEMENT OF BONDED OBLIGATIONS. ............................................................................29
5.15 OTHER DUTIES. ................................................................................................................................ 30
5.16 LIMITATIONS ON THE AUTHORITY OF THE BOARD OR
THEASSOCIATION.......................................................................................................................... 30
5.17 LIMITATION ON LIABILITY OF OFFICERS AND
DIRECTORS....................................................................................................................................... 35
5.18 DELIVERY OF DOCUMENTS AND INSPECTION OF
ASSOCIATION BOOKS AND RECORDS. ...................................................................................... 36
5.19 LITIGATION........:...........................................................................................................:.................... 38
ARTICLEVI...............................................................................................................................38
PROVISIONS DECLARING MEMBERSHIP AND VOTING RIGHTS.........................38
6.1. MEMBERSHIP APPURTENANT TO OWNERSHIP........................................................................ 38
6.2 VOTING SYSTEM..............................................................................................................................38
6.3 TWO CLASS SYSTEM; WEIGHTED VOTES.................................................................................. 39
6.4 JOINT OWNERSHIP VOTES.............................................................................................................39
ARTICLEVII.............................................................................................................................39
ASSESSMENTS.......................................................................................................................39
7.1 ASSESSMENTS-AGREEMENT TO PAY.......................................................................................40
7.2 LIMITED EXEMPTION FROM ASSESSMENT DURING
CONSTRUCTION...............................................................................................................................40
7.3 ASSESSMENTS AS THE PERSONAL OBLIGATION OF AN
OWNER...............................................................................................................................................40
7.4 SCOPE OF ASSESSMENT-AUTHORITY......................................................................................41
7.5 ESTABLISHMENT OF REGULAR ASSESSMENTS.......................................................................41
7.6 RESERVE FUNDS..............................................................................................................................42
7.7 SPECIAL ASSESSMENTS-PURPOSE OF AND PROCEDURE
FORLEVYING...................................................................................................................................44
7.8 ALLOCATION OF REGULAR AND SPECIAL
ASSESSMENTS..................................................................................................................................45
7.9 ASSESSMENT PERIOD.....................................................................................................................46
7.10 NOTICE OF INCREASE IN ASSESSMENTS...................................................................................46
7.11 DUE DATE, LATE CHARGES, AND INTEREST............................................................................46
7.12 DELIVERY OF REQUESTED ITEMS...............................................................................................46
iii
7.13 ASSOCIATION'S POWER TO ESTABLISH ASSESSMENT
LIEN....................................................................................................................................................48
7.14 CREATION OF ASSESSMENT LIEN. ..............................................................................................48
7.15 FORECLOSURE UNDER ASSESSMENT LIEN............................................................................... 49
7.16 TRANSFER OF A LOT BY SALE OR FORECLOSURE.................................................................. 50
ARTICLEVIII............................................................................................................................51
INSURANCE ........................................................................................................................... 51
8.1 LIABILITY INSURANCE. ................................................................................................................. 51
8.2 FIRE AND CASUALTY INSURANCE.............................................................................................. 51
8.3 PROVISION APPOINTING TRUSTEE. ............................................................................................ 52
8.4 PROVISION TO ADJUST LOSSES. .................................................................................................. 52
8.5 DIRECTOR AND OFFICER LIABILITY INSURANCE................................................................... 52
8.6 WORKER'S COMPENSATION, DEMOLITION, AND OTHER
ASSOCIATIONINSURANCE........................................................................................................... 53
8.7 OWNER'S LIABILITY INSURANCE. .............................................................................................. 53
8.8 DAMAGE OR DESTRUCTION OF THE COMMON AREA. .......................................................... 53
8.9 DAMAGE OR DESTRUCTION OF A RESIDENCE......................................................................... 54
8.10 INSURANCE REVIEW AND NOTICE.............................................................................................. 54
ARTICLEIX...............................................................................................................................55
CONDEMNATION................................................................................................................. 55
9.1 CONDEMNATION. ............................................................................................................................ 55
ARTICLEX................................................................................................................................ 55
PROTECTION OF MORTGAGEES....................................................................................55
10.1 MORTGAGE PERMITTED................................................................................................................ 55
10.2 SUBORDINATION.....................................:....................................................................................... 55
10.3 MORTGAGEE'S RIGHT TO EXAMINE BOOKS AND
RECORDS...........................................................................................................................................56
10.4 PRIORITY IN DISTRIBUTION OF INSURANCE AND
CONDEMNATION PROCEEDS........................................................................................................ 56
10.5 STATUS OF AMENITIES. ................................................................................................................. 56
10.6 DEFAULT NOTICE REQUIREMENT............................................................................................... 56
10.7 PAYMENT BY MORTGAGEES........................................................................................................ 57
10.8 LIEN NOT INVALIDATED................................................................................................................ 57
10.9 MORTGAGEE NEED NOT CURE A VIOLATION OF A
PROVISION OF THE GOVERNING DOCUMENTS.......................................................................57
10.10 STATUS OF LOAN TO FACILITATE RESALE............................................................................... 57
10.11 RIGHT TO APPEAR AT MEETINGS................................................................................................57
10.12 RIGHT TO FURNISH INFORMATION............................................................................................. 57
10.13 RIGHT OF FIRST REFUSAL INAPPLICABLE TO
MORTGAGE....................................................................................................................................... 58
10.14 NOTICES TO ELIGIBLE MORTGAGE HOLDERS......................................................................... 58
10.15 REQUIREMENTS OF THE VETERANS ADMINISTRATION. ......................................................58
10.16 CONTROL IF MORTGAGEE PROTECTION CONFLICTS
WITH OTHER PROVISIONS OF THE GOVERNING
DOCUMENTS.....................................................................................................................................59
ARTICLEXI...............................................................................................................................59
ARCHITECTURALCONTROL.......................................................................................... 59
11.1 PROVISION FOR ARCHITECTURAL APPROVALS...................................................................... 59
11.2 APPOINTMENT AND MAKEUP OF ARCHITECTURAL
COMMITTEE...................................................................................................................................... 59
iv
11.3 SUBMISSION OF PLANS; ACTION BY THE
ARCHITECTURAL COMMITTEE....................................................................................................60
11.4 STANDARDS AND PROCEDURES FOR THE
ARCHITECTURALRULES...............................................................................................................61
11.5 VARIANCES....................................................................................................................................... 61
11.6 CERTIFICATE OF COMPLIANCE....................................................................................................62
ARTICLEXII..................................................,........................................................................... 62
AMENDMENT OF DECLARATION....................................................................................62
12.1 PROCESS TO AMEND OR REVOKE THE PROVISIONS OF
THEDECLARATION. ....................................................................................................................... 62
12.2 CONTROL IF THE PROVISIONS OF ARTICLE XII
CONFLICT WITH ANY MORTGAGEE PROTECTION OR
OTHER PROVISIONS OF THE DECLARATION............................................................................63
12.3 COMPLIANCE WITH THE PROVISIONS OF BUSINESS AND
PROFESSIONS CODE SECTION 1 1018.7........................................................................................ 63
12.4 RELIANCE ON AMENDMENTS TO OR REVOCATIONS OF
THE PROVISIONS OF THE DECLARATION.................................................................................63
12.5 CONFORMING WITH THE MORTGAGEE REQUIREMENT
PROVISIONS OF THE DECLARATION..........................................................................................64
12.6 ANNEXATION OF ADDITIONAL REAL PROPERTY. .................................................................. 64
ARTICLEXIII............................................................................................................................ 65
GENERALPROVISIONS...................................................................................................... 65
13.1 BINDING EFFECT..............................................................................................................................65
13.2 CONFLICTS WITH OTHER DOCUMENTS..................................................................................... 65
13.3 CUMULATIVE REMEDIES...............................................................................................................65
13.4 EASEMENTS RESERVED AND GRANTED. ...,...............:*,*,*,*,***'***'****...-....*'****'*'*"'***'*,"*******"*1 65
13.5 HEADINGS.......................................................................................................................................... 65
13.6 LIBERAL CONSTRUCTION. ............................................................................................................65
13.7 NO DISCRIMINATORY RESTRICTIONS........................................................................................66
13.8 NO FIXED TERM. ..............................................................................................................................66
13.9 NO REPRESENTATIONS OR WARRANTIES.................................................................................66
13.10 NOTICES AND COMMUNICATION................................................................................................ 66
13.11 NOTIFICATION OF SALE.................................................................................................................66
13.12 NUMBER;GENDER...........................................................................................................................67
13.13 OWNER'S ACCESS TO BOOKS.......................................................................................................67
13.14 SEVERABILITY OF PROVISIONS...................................................................................................67
13.15 VIOLATION OF A PROVISION OF THE GOVERNING
DOCUMENTS AS NUISANCE. ........................................................................................................ 67
ARTICLEXIV............................................................................................................................67
RIGHTS OF THE CITY OF FRESNO................................................................................. 67
v
DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
OF
TRACT NO. 5010
FOR
COPPER RIDGE ESTATES
This Declaration of Covenants, Conditions, and Restrictions of Tract No. 5010 for
Copper Ridge Estates is made on this /,? _ day of ) , 200 11, by
COPPER RIDGE ESTATES, LLC, a California limited liability(company.
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 11 of the Declaration, entitled, "DEFINITIONS."
B. The Declarant is the owner of that certain real property described as lots 1 through
95, inclusive, and "OUTLOT A" all of which are shown, designated, and described on that
certain map entitled "FINAL MAP TRACT NUMBER 5010 A PLANNED UNIT
DEVELOPMENT" that was filed for Record in the office of the County Recorder of Fresno
County, California, on =M.Gu -.2.5 , _2000, in Volume -'20 of Maps at Page
15+ (Q, as Document No. _ 05/25/2004,20040115261
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 together with any additional real
property that may, from time to time, be annexed to the Development and become subject to the
provisions of the Governing Documents and desires to secure the harmonious and uniform
development of the Property in accordance with the Common Plan.
ARTICLE I
DECLARATION
A. 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, easements, covenants, conditions, servitudes, liens, and
charges that are contained in the provisions of the Declaration as well as any amendments
thereto, all of which are declared and agreed to be imposed as equitable servitudes in furtherance
of a planned development as provided for in the provisions of California Civil Code sections
1350 through 1372, 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 enhancing, maintaining, and protecting the value
and attractiveness of the Property.
B. All of such limitations, restrictions, easements, reservations, covenants,
conditions, servitudes, liens, 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.
C. 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
section 1353.
1. In the event California Civil Code section 1353 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.
ARTICLE II
DEFINITIONS
2.1 ARCHITECTURAL COMMITTEE.
"Architectural Committee" shall mean and refer to the committee of persons appointed
and acting pursuant to the provisions of Section 11.2 of the Declaration, entitled,
"APPOINTMENT AND MAKEUP OF ARCHITECTURAL COMMITTEE."
2.2 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 11.4 of the Declaration, entitled, "STANDARDS AND
PROCEDURES FOR THE ARCHITECTURAL RULES," 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.
2.3 ARTICLES.
"Articles" shall mean and refer to the Association's Articles of Incorporation and any
amendments thereto.
2.4 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.
2.5 ASSESSMENT(S).
"Assessment(s)" shall mean and refer to any Regular 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 VII of the Declaration, entitled,
"ASSESSMENTS."
2.6 ASSOCIATION.
"Association" shall mean and refer to the COPPER RIDGE ESTATES
HOMEOWNERS ASSOCIATION, a California nonprofit mutual benefit corporation,
and its successors and assigns, the Members of which shall be the Owners of Lots.
2.7 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.
2
2.8 BOARD OF DIRECTORS.
"Board of Directors" or "Board" shall mean and refer to the Board of Directors of the
Association.
2.9 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.
2.10 BYLAWS.
"Bylaws" shall mean and refer to the Association's bylaws and any amendments thereto.
2.11 CERTIFICATE OF COMPLIANCE.
"Certificate of Compliance" shall mean and refer to that certain certificate that is issued
by the Board or the Architectural Committee, as the case may be, in accordance with the
provisions of Section 11.6 of the Declaration, entitled, "CERTIFICATE OF
COMPLIANCE."
2.12 CITY.
"City" shall mean and refer to Fresno, California, the City in which the Development is
located and its various departments, divisions, employees, and representatives.
2.13 COMMON AREA.
A. "Common Area" shall mean and refer to all of the real property that is owned by
the Association, for the common use and enjoyment of the Members and shall
include, upon conveyance to the Association, those certain plots of which is
shown, designated and described on the Subdivision Map as "OUTLOT A,"
along with any plot of land and/or easement that may later be conveyed to the
Association and designated as "Common Area."
B. 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.
2.14 COMMON EXPENSE(S).
A. "Common Expense(s)" shall mean and refer to any use of the funds of the
Association authorized by the provisions of ARTICLE VII of the Declaration,
entitled, "ASSESSMENTS," and ARTICLE V of the Bylaws, entitled,
"POWERS AND DUTIES OF THE BOARD," and includes, but is not limited
to:
B. 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, the Major
Components.
B. All expenses or charges reasonably incurred to procure insurance for the
protection of the Association, the Members, and/or the Board.
D. Any amounts reasonably necessary for Reserve Funds or to cure a shortfall caused
by the nonpayment of Assessments.
E. 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.
3
2.15 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.
2.16 COUNTY.
"County" shall mean and refer to the County of Fresno, California, the County in which
the Development is located and its various departments, divisions, employees, and
representatives.
2.17 DECLARANT.
"Declarant" shall mean and refer to COPPER RIDGE ESTATES, 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 3.12 of
the Declaration, entitled, "FUTURE CONSTRUCTION AND ASSIGNMENT OF
DECLARANT'S RIGHTS," or if such successor or assign is a Mortgagee acquiring
Declarant's interest in the Development by foreclosure or deed in lieu of foreclosure.
2.18 DECLARATION.
"Declaration" shall mean and refer to the Declaration of Covenants, Conditions, and
Restrictions of Tract No. 5010 for Copper Ridge Estates as it may from time to time be
amended or modified.
2.19 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.
2.20 DIRECTORS.
"Directors" shall mean and refer to the members of the Board of Directors.
2.21 DUE PROCESS REQUIREMENTS.
"Due Process Requirements" shall mean and refer to all of the requirements of the
provisions of Section 3.13 of the Declaration, entitled, "REQUIREMENTS TO
COMPLY WITH DUE PROCESS."
2.22 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
10.14 of the Declaration, entitled, "NOTICES TO ELIGIBLE MORTGAGE
HOLDERS."
2.23 FINAL SUBDIVISION PUBLIC REPORT.
"Final Subdivision Public Report" shall mean and refer to a final subdivision public
report for the Development that has been issued by the Commissioner of the California
Department of Real Estate pursuant to the California Subdivided Lands Act.
2.24 FISCAL YEAR.
"Fiscal Year" shall mean and refer to the twelve (12) month accounting period of the
Association.
2.25 GOVERNING DOCUMENT(S).
"Governing Document(s)" is a collective term that shall mean and refer to the
Declaration, the Articles and the Bylaws, as well as any Architectural and/or Association
Rules.
4
2.26 IMPROVEMENT(S).
"Improvement(s)" includes, but is/are not limited to, the construction, installation,
alteration, or remodeling of any buildings, walls, roofs, foundation, decks, fences,
swimming pools, landscaping, landscape structures, skylights, solar heating equipment,
spas, antennas, utility lines as well as any structure of any kind. In no event shall the
term "Improvement" be interpreted to include projects that are restricted to the interior of
any Residence.
2.27 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.
2.28 LOT(S).
A. "Lot(s)" shall mean and refer to any portion of the Property that is shown,
designated, and described on the Subdivision Map as 1 through 95, inclusive.
B. When appropriate within the context of the provisions of the Governing
Documents, the term ""Lot(s)" shall also include any Residence together with any
other Improvements constructed or to be constructed thereon.
2.29 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, trees, irrigation system, landscaping, gate, fencing, and lighting.
2.30 MEMBER(S)
"Member(s)"shall mean and refer to every person or entity holding a Membership.
2.31 MEMBERSHIP.
"Membership" shall mean and refer to the state or status -of being a Member of the
Association.
2.32 MORTGAGE(S); MORTGAGEE(S); INSTITUTIONAL MORTGAGEE(S); FIRST
MORTGAGE(S);AND FIRST MORTGAGEE(S).
A. "Mortgage(s)" shall mean and refer to a mortgage or deed of trust encumbering a
Lot, the Common Area or any portion thereof.
B. "Mortgagee(s)" shall mean and refer to the beneficiary under a deed of trust and
any guarantor or insurer of a Mortgage.
C. "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.
D. "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.
2.33 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
5
compliance with the provisions of California Civil Code section 3093 or any compatible
superseding statutes.
2.34 OWNER(S).
A. "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.
B. "Ownership" shall not include persons or entities that hold an interest in a Lot
merely as security for the performance of an obligation.
2.35 PARTY FENCES.
"Party Fences" shall mean and refer to any 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.
2.36 PROPERTY.
"Property" shall mean and refer to all of the real property that is shown, designated, and
described in paragraph "B." of the "RECITALS" section of the Declaration together with
any additional real property that may later be annexed to the Development and become
subject to the provisions of the Governing Documents.
2.37 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.
2.38 REGULAR ASSESSMENT(S).
"Regular Assessment(s)" shall mean and refer to any Assessment(s) that is/are levied by
the Board in accordance with the provisions of Section 7.5 of the Declaration, entitled
"ESTABLISHMENT OF REGULAR ASSESSMENTS."
2.39 RESERVE ACCOUNT.
A. "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.
B. The latter funds shall be separately itemized from the Reserve Funds.
2.40 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.
2.41 RESERVE FUNDS.
"Reserve Funds" shall mean and refer to that portion of each annual Regular 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.
2.42 RESIDENCE(S).
"Residence(s)" shall mean and refer to a private, single-family dwelling, including, but
not limited to, any garages associated therewith, that are or are to be constructed on a Lot.
2.43 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 7.7 of the Declaration, entitled
"SPECIAL ASSESSMENTS — PURPOSE OF AND PROCEDURE FOR
LEVYING."
E
2.44 SUBDIVISION MAP.
"Subdivision Map" shall mean and refer to that certain Recorded final Subdivision Map
for the Development, entitled, "FINAL MAP TRACT NO. 5010 A PLANNED UNIT
DEVELOPMENT" and is more fully described in Paragraph "B." of the "RECITALS"
Section of the Declaration.
2.45 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.
2.46 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.
ARTICLE III
PROPERTY RIGHTS, RIGHTS OF ENJOYMENT AND EASEMENTS
3.1 PERSONS SUBJECT TO THE PROVISIONS OF THE GOVERNING DOCUMENTS.
A. 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 applicatiori to one (1) or more of such classes of person, i.e., Owners,
Tenants, Invitees, etc.
B. 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.
3.2 NONEXCLUSIVE EASEMENTS.
A. 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.
B. Each such nonexclusive easement shall be appurtenant to the Owner's respective
Lot and shall pass with the title to such Lot.
C. All such nonexclusive easements shall be subject to the following rights and
restrictions:
1. 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.
7
2. 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.
a. Provided, however, that the rights of any such Mortgagee in said
property shall be subordinate to the rights of the Owners
hereunder; and
b. Further provided that any such indebtedness shall be considered a
Common Expense of the Association for purposes of a Special
Assessment.
3. The right of the Board to assign, rent, license, or otherwise designate and
control the use of any assigned parking and storage spaces within, and any
other Major Components situated upon, the Common Area and charge
reasonable fees for their use.
4. The right of the Association to suspend the prerogative of a Member to use
any Major Component and/or the Common Area as provided for in the
provisions of Section 5.6 of the Declaration, entitled, "RIGHT TO
IMPOSE SANCTIONS FOR A VIOLATION OF A PROVISION OF
THE GOVERNING DOCUMENTS."
5. The right of the Board to adopt and enforce Association Rules concerning
the control and use of the private streets and any emergency 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 access easement.
6. 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 access easement.
7. The private streets and any emergency 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.
3.3 BLANKET UTILITY EASEMENT.
A. There is hereby created a blanket easement through, on, across, over, and under
all of the Property for ingress, egress, installation, replacing, repairing, and maintaining all of the
sidewalks as well as the private and/or public utilities, as the case may be, including, but not
limited to, water, sewer, gas, telephone, drainage, electricity and any master television antenna or
cable television system.
B. 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.
C. 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 of Directors.
8
3.4 RIGHTS OF ENTRY OR USE.
A. Each Lot and/or the Common Area, as the case may be, shall be subject to the
following rights of entry and use:
1. 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 and remedy construction defects. Such entry shall not interfere
with the use or occupancy of any occupied Lot unless authorized by its
Owner, which authorization shall not be unreasonably withheld.
2. 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 Requirements such Owner has not acted to cure such
Violation of a Provision of the Governing Documents.
a. The Board shall be entitled to levy a Special Assessment for its
costs of effecting such cure against the Owner.
b. 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.
3. 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. 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.
4. 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. 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.
b. 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.
5. The right of the Association and the Owners, or their representatives, to
enter upon adjoining Lots for access to slopes and drainage ways located
9
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.
a. 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.
3.5 MINOR ENCROACHMENTS.
A. Each Lot shall have and is hereby granted an appurtenant easement, not to exceed
five (5) feet 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.
B. 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.
C. 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 (5) feet 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.
1. Such appurtenant easements shall be for the purpose of, but not limited to,
overhanging roofs and craves, fireplace structures as well as extended
windows.
3.6 POWER TO GRANT EASEMENTS.
A. 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.
B. Each Owner, in accepting a 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.
C. 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 voting rights of the Class A and Class B Owners as well as their Eligible Mortgage
Holders.
10
3.7 PARTY FENCE EASEMENTS.
A. Each Lot that shares a Party Fence 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 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.
1. 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.
B. 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 that is located upon its, his, her, or their Lot.
C. No Owner shall alter the shape, size, or construction of such Party Fence or use
any materials different from those utilized in the initial construction without the written consent
of the Architectural Committee.
3.8 OTHER EASEMENTS.
A. 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.
3.9 EMERGENCY ACCESS AND RIGHT-OF-WAY.
A. 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 and emergency access easement.
3.10 PUBLIC SERVICE EASEMENT.
A. 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.
3.11 DELEGATION OF USE.
A. 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.
B. 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.
C. 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,
0
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.
D. 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.
E. 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.
F. 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.
3.12 FUTURE CONSTRUCTION AND ASSIGNMENT OF DECLARANT'S RIGHTS.
A. 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.
B. '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.
C. The provisions of this Section 3.12 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.
3.13 REQUIREMENTS TO COMPLY WITH:DUE PROCESS.
A. Before the Board 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:
1. Such Member shall be given a ten (10) day prior written notice, which for
the purposes of this Section 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
12
1�
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.
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.
3. If, after complying with all of the above procedures, the Board decides to
impose such discipline or the Board and/or the Declarant, as the case may
be, 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 the disciplinary action to be taken or the entry to
be made, as the case may be.
4. No disciplinary action shall be taken or 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 3.13.
ARTICLE 1V
COVENANTS AND USE RESTRICTIONS
4.1 ANIMALS.
A. 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.
B. 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.
C. 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
County 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 clean,
sanitary,workable, and attractive condition.
D. Animal owners shall be responsible for the prompt disposal of animal waste
deposited by animals under their control on any portion of the Property.
13
4.2 ANTENNA AND EXTERNAL FIXTURES.
A. Except as provided for in the provisions of Subsections 4.2 C., 4.2D., and 4.2E.,
below, no television antenna, radio pole, antenna, satellite dish, clothesline, basketball standard
or other external fixture other than those originally installed by the Declarant or approved by the
Architectural Committee and any replacement thereto, shall be constructed, erected, or
maintained on or within a Lot or any structure located thereon.
B. No wiring, insulation, air conditioning, solar panel, or other machinery or
equipment other than that originally installed by the Declarant or approved by the Architectural
Committee and their replacements, shall be constructed, erected, or maintained on or within a
Lot or any structure thereon.
C. Each Owner shall have the right to maintain a television and radio antenna within
the completely enclosed portions of its, his, her, or their Residence.
D. One (1) exterior dish antenna apparatus for individual residential use, which is not
more than thirty-six inches (36") in diameter, shall be allowed within any Lot, providing it
complies with all of the following requirements:
1. Location in any street setback is prohibited.
2. Location in any yard adjacent to a street is prohibited unless the antenna is
not visible from a street.
3. Any such antenna, which is higher than an adjacent property line fence
and such fences are not bordering a street, must be located away from such
fences at a distance equal to or greater than the height which the antenna is
above such fence.
E. Roof-mounted solar panels shall be allowed for Residences, provided that they are
designed with minimal visual impact.
1. Architectural design and elevation plans for a project proposing roof-
mounted solar panels shall be reviewed and approved by the Architectural
Committee for architectural compatibility with existing and other planned
developments in the vicinity.
4.3 ARCHAEOLOGICAL REQUIREMENTS.
A. If archaeological and/or animal fossil material is encountered during any
surveying, grading, excavating, or construction, work shall stop immediately.
B. If there arc suspected human remains, the Fresno County Coroner shall be
immediately contacted. If such remains or other archaeological material is possibly Native
American in origin, the Native American Heritage Commission (Phone: 916/653-4082) shall
be immediately contacted, and the California Archaeological Inventory/Southern San Joaquin
Valley Information Center (Phone: 805/644-2289) shall be contacted to obtain a referral list of
recognized archaeologists. An archaeological assessment shall be conducted for the project, the
site shall be formally recorded, and recommendations made to the City as to any further site
investigation or site avoidance/preservation.
C. If animal fossils arc uncovered, the Museum of Paleontology, at the University of
California. Berkeley shall be contacted to obtain a referral list of recognized paleontologists.
An assessment shall be conducted by a paleontologist and, if the paleontologist determines
the material to be significant, it shall be preserved
14
4.4 BUILDING HEIGHT RESTRICTION.
A. The maximum allowable building height is thirty feet (30')
4.5 CHANGING GRADES,SLOPES,AND:DRAINAGE.
A. 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 permitted without the prior written consent of the County and the Board.
B. 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 County.
4.6 COMPLIANCE WITH LAW.
A. 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.
B. 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.
C. 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.
4.7 FENCES AND WALLS.
A. 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.
4.8 GAS OR LIQUID STORAGE.
A. 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.
4.9 INDEMNIFICATION.
A. 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:
1. That any such injury or damage is covered by insurance in favor of the
Association or the indemnified Owner, whichever is applicable; or
2. 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.
15
4.10 INTERFERENCE WITH LANDSCAPE AREAS ALONG NORTH CEDAR AVENUE
AND EAST COPPER AVENUE.
A. Those certain landscape areas along North Cedar Avenue and East Copper Avenue
areas shall be subject to the following conditions:
B. No items of any kind including, but not limited to, buildings, accessory
structures, fences, walls, ornamental screens, sheds, plantings, lawn clippings, oil, chemicals,
trash, fill materials, animal waste, domestic landscaping, irrigation apparatus, or other types of
material shall be erected, placed, or permitted to remain within such landscape areas.
4.11 LEASING OR RENTING.
A. The subdivision 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:
1. No Lot may be leased or rented for a period of less than thirty (30) days;
2. The lease or rental must apply to the entire Lot including its appurtenant
rights excluding only the Owner's voting rights;
3. 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 tinder such agreement;
4. The lease or rental agreement must specifically give the Association, after
compliance with the Due Process Requirements, the right to evict the
Tenant if the Tenant commits a Violation of a Provision of the Governing
Documents;
5. 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
6. 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.
4.12 LEGAL REMEDIES FOR OWNER NONCOMPLIANCE WITH THE PROVISIONS OF
THE GOVERNING DOCUMENTS.
A. Subject to the requirement of the provisions of Section 5.16 of the Declaration,
entitled, "LIMITATIONS ON THE AUTHORITY OF THE BOARD OR THE
ASSOCIATION," Subsections 5.1613. through 5.16P., inclusive, any Owner being in Violation of
a Provision of the Governing Documents shall give rise to a cause of action in the Association
and any aggrieved Owner, as the case may be, for the recovery of damages or for injunctive
relief, or both.
16
B. 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.
C. 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.
D. Said notice shall describe the non-complying condition, 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.
4.13 MACHINERY AND EQUIPMENT.
A. 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.
4.14 MAINTENANCE—OWNER RESPONSIBILITY.
A. Except as provided for in the provisions of Sections 3.7 and 5.9 of the
Declaration, entitled, "PARTY FENCE EASEMENTS" and "MANAGEMENT AND
MAINTENANCE OF THE DEVELOPMENT," respectively, each Owner shall be responsible
for maintaining the structures located upon its, his, her, or their Lot, including the equipment and
fixtures on/or in the structure as well as its walls, roof, ceilings, windows, and doors in a clean,
sanitary, workable, and attractive condition.
B. However, each Owner has complete discretion as to the choice of furniture,
furnishings, and interior decorating; except that windows can be covered only by drapes,
shutters, blinds, or shades and cannot be painted or covered by foil, cardboard, or other similar
materials.
C. 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 Lot as well as repair, replacement and
cleaning of the windows and glass of its, his, her, or their structure.
D. In addition, each Owner shall have the Improvements of its, his, her, or their Lot
periodically inspected for termites and, if their presence is discovered, immediately take
appropriate corrective measures.
E. 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
the Lot and/or any structure on the Lot, the prior written approval of the Architectural Committee
must first (1st) be obtained.
F. Such written approval of the Architectural Committee need not be obtained to
make emergency repairs, provided that the structure so affected is restored to its original
condition at the Owner's expense.
G. 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
17
Documents notwithstanding, any Owner shall maintain the landscaping on its, his, her, or their
Lot in a safe, neat, and orderly manner.
H. 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 4.14,
the Association's agents may, after compliance with the Due Process Requirements, enter the Lot
and perform the necessary maintenance.
1. 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.
4.15 MONUMENTS.
A. 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.
4.16 OFFENSIVE CONDUCT; NUISANCE.
A. No noxious or offensive activities including, but not limited to, the repair of
automobiles or other motorized vehicles, shall be conducted within the Development.
B. 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.
C. 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.
4.17 OUTSIDE LAUNDERING AND DRYING.
A. 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.
4.18 PARKING RESTRICTIONS; USE OF GARAGES.
A. Unless otherwise permitted by the Board or the provisions of this Section 4.18, 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.
B. At no time shall a motor vehicle of any kind be permitted on the front yard
landscaping.
C. Unless screened from the ground level view of a street or any other Lot, 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.
D. On solid waste service days, there shall be no parking of vehicles in the street
along the cul-de-sac frontages of Lots 5, 6, 7, 8, 9, 22, 23, 24, 25, 76, 77, 78, 79, 80, 88, 89, 90,
and 91.
is
E. 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.
F. All of the garages in the Development shall be used and maintained at all times
for the parking of two (2) vehicles and appropriate storage only and shall not be converted for
living, business or recreational activities if doing so would preclude the parking of two (2)
vehicles in same.
G. The Association may, in accordance with the provisions of Vehicle Code section
22658.2, 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.
1. Any such sign shall contain the telephone number of the local traffic law
enforcement agency and shall be not less than seventeen (17) inches by
twenty-two (22) inches in size, with its lettering no less than one (1) inch
in height.
H. 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 screened from the view of any street or other
Lot, provided, however, that the provisions of this Section 4.18, shall not apply to emergency
vehicle repairs.
I. 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.
1. 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.
2. 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.
3. Immediately after any such vehicle has been removed, the Board must
notify the local traffic law enforcement agency of said removal.
4. Any such notice must include a description of the vehicle, the license plate
number and the address from where the vehicle was removed.
5. However, any vehicle may be removed without notice if it is parked in a
marked fire lane, within fifteen (15) feet 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.
4.19 RESIDENTIAL USE.
A. The Lots shall be used solely for the construction of one (1) permanent residential
dwelling together with any customary appurtenances that are designed for single-family purposes
in conformity with the requirements imposed by suburban living, applicable zoning, or other
governmental regulations.
19
U "
B. 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 the following:
1. 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;
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;
e. If so required by local ordinance, the County 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.
D. Provided that, for a period of five (5) years from the date of the closing of the first
(1st) 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.
4.20 RESTRICTION ON FURTHER SUBDIVISION AND SEVERABILITY OF LOTS.
A. 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.
4.21 SETBACK MINIMUMS FOR CERTAIN LOTS.
A. For lots 5, 6, 7. 8, 88, 89, 90, and 91 the front yard setback on each Lot shall be
eighteen feet (18') from front property line of such Lot.
4.22 SIGNS.
A. No advertising signs or billboards shall be displayed on any Lot or posted within
or upon any portion of the Common Area without the written approval of the Board, except that
Owners may display on their Lot any signs which are reasonably located in plain view of the
public, are of reasonable dimensions and design, are in reasonable numbers, do not adversely
affect public safekeeping, including, but not limited to, traffic safety, which advertise the
following:
1. Any information that is required by legal proceedings;
2. That the property is for sale, lease, or exchange by the owner or its, his,
her, or their agent;
3. Directions to the property;
20
ry
4. The owner's or agent's name; or
5. The owner's or agent's address and telephone number.
B. Nothing in this section limits any authority which a person or any appropriate
local governmental entity may have to limit or regulate the display or placement of a sign on a
private or public right-of-way.
C. In addition, such signs as may be used by the Declarant or its designees for the
purpose of developing, selling and improving any Lot shall be permitted, but only for a period of
time not to exceed the date on which the last Lot is sold by the Declarant or five (5) years from
the closing of the first (1") sale of a Lot or the date of Recordation of the Declaration, whichever
is the first to occur.
1. In exercising its rights under the provisions of this Section 4.22, the
Declarant shall not unreasonably interfere with the use of the Common
Area by any Owner.
4.23 TEMPORARY LIVING QUARTERS.
A. No boat, truck, trailer, van, camper, recreational vehicle, or tent shall be used as a
living area while located within the Development.
B. However, trailers or temporary structures 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.
1. Such trailers or structures will be promptly removed upon completion of
all initial construction and all initial sales.
4.24 TIME SHARING PROHIBITED.
A. 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.
B. 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.
C. The provisions of this Section 4.23 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.
4.25 TRASH DISPOSAL.
A. 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.
B. Provided that, prior to 6:00 am the occupants of each Lot shall on solid waste
service days., shall place their solid waste containers approximately four feet (4') apart at the
edge of curb that is located along the front property line of its, his, her or their Lot and do so in
21
rJ `
such a manner so as not block any vehicle accesses that have been provided in accordance with
the City of Fresno's Solid Waste Management Division standards.
C. 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.
D. 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 4.25.
E. 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.
4.26 TREE MAINTENANCE.
A. All of the trees in the Development shall be maintained in good health.
B. 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 may otherwise be
approved by the City Planning and Development Department
4.27 UNALLOCATED TAXES.
A. 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 Assessments 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.
B. Each such installment shall be due thirty (30) days prior to the due date such tax is
to be paid to the taxing authority.
ARTICLE V
POWERS AND DUTIES OF THE BOARD
5.1 INCORPORATION.
A. The Association is a nonprofit mutual benefit corporation formed under the laws
of the State of California.
B. At the Recording of the first (Ist) 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.
5.2 ACTION THROUGH DESIGNATED OFFICERS.
A. 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 5.7
22
of the Declaration, entitled, "RIGHT OF THE BOARD TO DELEGATE ITS POWERS AND
DUTIES."
5.3 STATEMENT OF ASSOCIATION POWERS.
A. The Association shall have all the powers granted to it by the provisions of section
383 of the California Code of Civil Procedure and of sections 1350 through 1373, inclusive, of
the California Civil Code together with all the powers of a nonprofit mutual benefit corporation
that has been organized under the provisions of the General Nonprofit Mutual Benefit
Corporation Law of California, 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.
B. 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 ARTICLE V of the Declaration,
which is entitled "POWERS AND DUTIES OF THE BOARD."
5.4 ASSESSMENT RIGHTS.
A. 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.
5.5 THE RIGHT TO ESTABLISH ASSOCIATION RULES.
A. The Board may adopt, amend; and repeal Association Rules as it considers
appropriate. The Association Rules shall regulate the use and enjoyment of the Development.
B. 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.
C. If any provision of the Declaration, the Articles, or the Bylaws is inconsistent with
or materially alters any Association and/or Architectural Rule, the provisions of the Declaration,
the Articles, or the Bylaws shall control to the extent of any such inconsistency.
5.6 RIGHT TO IMPOSE SANCTIONS FOR A VIOLATION OF A PROVISION OF THE
GOVERNING DOCUMENTS.
A. 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:
1. Impose monetary penalties, including late charges and interest;
2. Suspend voting rights in the Association;
3. Suspend use privileges for the Common Area; and
4. Commence a legal action :for damages, injunctive relief, or both.
B. The determination of whether to impose any of the foregoing sanctions shall be
within the sole discretion of the Board.
23
C. Any legal action may be brought in the name of the Association in its own behalf
as well as in behalf of any Owner who so consents and the prevailing party in such action shall
recover costs and reasonable attorney's fees.
D. 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
($50.00), excluding late charges imposed for delinquent payments, for any Violation of a
Provision of the Governing Documents.
E. The Board, in its sole discretion, may resolve or settle any dispute, including any
legal action under such terms and conditions as it considers appropriate.
F. The Board shall have the power to adopt a schedule of 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.
G. If any Member who is being disciplined so requests, the Board must meet in
executive session and the Member is entitled to attend.
H. 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.
I. The enforcement of monetary penalties is subject to the restrictions described in
the provisions of Section 7.7 of the Declaration, entitled, "SPECIAL ASSESSMENTS —
PURPOSE OF AND PROCEDURE FOR LEVYING."
J. 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
10.6 of the Declaration, entitled, "DEFAULT NOTICE REQUIREMENT," to any Eligible
Mortgage Holder of Record who holds a Mortgage against such Owner's Lot.
5.7 RIGHT OF THE BOARD TO DELEGATE ITS POWERS AND DUTIES.
A. 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:
1. Make expenditures for capital additions or Improvements chargeable
against the Reserve Funds;
2. Conduct hearings concerning compliance by an Owner or its, his, her, or
their Tenant, lessee, or Invitee with the provisions of the Governing
Documents;
3. 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;
4. Make a decision to levy Regular or Special Assessments; or
5. Make a decision to bring suit, Record a claim of lien, or institute
foreclosure proceedings for default in the payment of Assessments.
24
5.8 DUTIES.
A. 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 5.9
through 5.19, inclusive, of the Declaration.
5.9 MANAGEMENT AND MAINTENANCE OF THE DEVELOPMENT.
A. The Board shall 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. No person or entity other than the Association or its duly authorized agents shall
construct, reconstruct, refinish, alter, or maintain any 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.
C. 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.
5.10 CONTRACTING FOR GOODS AND SERVICES.
A. 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.
5.11 PAYMENT OF TAXES AND ASSESSMENTS.
A. 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.
B. 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.
5.12 SECURING INSURANCE COVERAGE.
A. The Board shall obtain and maintain the insurance described in the provisions of
Sections 8.1, 8.2, 8.5, and 8.6 of the Declaration, entitled "LIABILITY INSURANCE," "FIRE
AND CASUALTY INSURANCE," "DIRECTOR AND OFFICER LIABILITY
INSURANCE," and "WORKER'S COMPENSATION, DEMOLITION, AND OTHER
ASSOCIATION INSURANCE," respectively.
5.13 PREPARATION AND DISTRIBUTION OF FINANCIAL STATEMENTS, REPORTS,
AND COPIES OF THE GOVERNING DOCUMENTS.
A. The Board shall prepare and distribute the following financial statement, reports,
and copies of Governing Documents as indicated:
1. A balance sheet rendering as of an accounting date that is the last day of
the month closest in time to six (6) months from the date of the closing of
the first (1st) sale of a Lot in the Development to a purchaser other than
25
the Declarant, hereinafter referred to as the "Accounting Date," and an
operating statement for the period commencing with the date of the
closing of such first (1st) sale and ending on the Accounting Date.
a. Such operating statement shall include a schedule of the total
Assessments received and/or receivable which are identified by the
Lot number and name of the Owner against which and whom such
Assessments have been levied.
b. Copies of such balance sheet and operating statements shall be
distributed to each Owner and any Eligible Mortgage Holder.
2. A Budget for each Fiscal Year shall be distributed not less than forty-five
(45) days nor more than sixty (60) days before the beginning of such
Fiscal Year consisting of at least the following:
a. The estimated revenues and Common Expenses on an accrual
basis;
b. A summary of the Association's reserves based upon the most
recent review or study conducted under the provisions of
California Civil Code section 1365.5, or compatible superseding
statutes, which summary shall be printed in boldface type and
include all of the following:
(1) The current estimated replacement cost, estimated
remaining life, and estimated useful life of each Major
Component.
(2) As of the end of the Fiscal Year for which the study is
prepared:
(a) The current Reserve Account Requirements
necessary to repair, replace, restore, or maintain the
Major Components;
(b) The current amount of Reserve Funds;
(c) If applicable, the amount of funds received from
either a compensatory damage award or settlement
to the Association from any person, for injuries to
property, real or personal, arising out of
construction or design defects and the expenditure
or disposition of any such funds, including the
amounts disbursed for the direct and indirect costs
of repair of any construction or design defects.
(i) These amounts shall be Recorded at the end
of the Fiscal Year for which the study is
prepared, as separate line items under
Reserve Funds, pursuant to the provisions of
Subsection 5.13A.2.b.(2)(ii). In lieu of
complying with the foregoing requirements,
if the Association is obligated to issue a
review of its financial statement, the Board
may include with such review a statement
containing all of the information required by
26
L
the provisions of this Subsection
5.13A.2.b.(2)(iii); and
(d) The percentage of the amount in 5.13A.2.b.(1)
above, that the amount in 5.13A.2.b.(2) above,
represents;
C. A statement as to 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 Reserve Funds for them;
d. A general statement addressing the procedures used for the
calculation establishing Reserve Funds;
e. A general statement regarding the Members' right to have copies of
the minutes of meetings of the Board and how and when these
minutes may be obtained; and
f. Instead of distributing the Budget, the Board may elect to
distribute a summary of the Budget to all of the Members with a
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 at the expense of the Association.
(1) Such notice must be in at least ten (10) point boldface type
and must appear on the front page of the summary of the
Budget.
(2) Any Member who requests a copy of the Budget shall be
provided a copy by the Board, which shall be sent by first-
class United States mail at the Association's expense,
within five (5) days of the date the Board received such
request.
3. Any summary of the Reserve Funds that have been disseminated pursuant
to the provisions of Subsection 5.13A.2.b., above, shall not be admissible
as evidence to show improper financial management of the Association.
4. An annual report, which for the purposes of the provisions of this
Subsection 5.13A.4., shall be hereinafter referred to as the "Annual
Report," consisting of the Association's balance sheet rendered as of the
last day of the preceding Fiscal Year; the Association's operating statement
for such Fiscal Year and a statement of the changes in the Association's
financial position for the Fiscal Year.
a. A copy of the Annual Report shall be distributed to each Owner
and any Eligible Mortgage Holder within one hundred twenty
(120) days after the close of such Fiscal Year.
b. In any Fiscal Year in which the gross income of the Association
exceeds seventy-five thousand dollars ($75,000.00), either a copy
of a review of the Annual Report for such Fiscal Year that has been
prepared by a licensee of the California State Board of
Accountancy in accordance with the generally accepted accounting
principles, or a certificate which has been acknowledged by an
27
authorized officer of the Association that the report was prepared
from the books and records of the Association, without
independent audit or review, shall be distributed with the Annual
Report for such Fiscal Year.
5. A statement of the Association's policies and practices in enforcing its
remedies against Owners for delinquent, Regular or Special Assessments
including, but not limited to, the Recording and foreclosing of liens
against a delinquent Owner's Lot(s).
a. A copy of such statement shall be distributed to each Owner and
any Eligible Mortgage Holder.
6. A copy of the Governing Documents and the statement regarding
delinquent Assessments that is described in the provisions of Section 7.12
of the Declaration, entitled, "DELIVERY OF REQUESTED ITEMS,"
shall be provided to any Owner within ten (10) days of the mailing or
delivery of a written request to the Board for same from such Owner.
a. The Board may impose a fee to provide such materials, which fee
shall not exceed the Association's reasonable cost in preparing and
reproducing such materials.
7. A summary of the provisions of California Civil Code section 1354, or any
compatible superseding statutes, which shall include the following
language:
"Failure by any Member of the Association to comply with
the pre-filing requirements of the provisions of section
1354 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."
8. A summary of the Association's property, general liability, earthquake, and
flood insurance policies, which are, for the purposes of the provisions of
this Section 5.13, individually and collectively hereinafter referred to as
the "Policy" or"Policies," shall be distributed to the Members within sixty
(60) days preceding the beginning of the Fiscal Year.
a. Such summary shall include the following information on such
Policies:
(1) Name of the insurer;
(2) Type of insurance;
(3) Policy limits of the insurance; and
(4) Amount of deductibles, if any.
9. The Board, as soon as reasonably practical, shall notify the Members by
first-class mail if any of the Policies have been cancelled and have not
been immediately renewed or restored or if there is a significant change,
such as a deduction in coverage or limits or an increase in the deductible
for any Policy.
a. If the Association receives any notice of non-renewal of a Policy,
the Board shall immediately notify its Members if replacement
28
coverage will not be in effect by the date the existing coverage will
lapse.
10. To the extent that the information required to be disclosed by the
provisions of this Section 5.13 is specified in the provisions of the Policy
declaration page, the Board may meet its disclosure obligations by making
copies of that page and distributing such copies to all its Members.
11. The summary required in the provisions of these Subsections 5.13A.7.
through 5.13A.9., inclusive, above, shall contain, in at least ten (10) point
boldface type, the following statement:
"This summary of the Association's policies of insurance
provides only certain information as required by the
provisions of subdivision (e) of section 1365 of the Civil
Code and should not be considered a substitute for the
complete policy and conditions contained in the actual
policies of insurance. Any Member, upon request and
reasonable notice, may review the Association's insurance
policies and, upon request and payment of reasonable
duplication charges, may 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 brokers or agents for appropriate additional
coverage."
5.14 ENFORCEMENT OF BONDED OBLIGATIONS.
A. 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:
1. Sixty (60) days after the completion date specified for such Improvement
in the planned construction statement ("Planned Construction Statement")
appended to the Bond; or
2. Thirty (30) days after the expiration of any written extension given by the
Board.
B. 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
29
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.
1. 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.
2. 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.
3. 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.
C. Upon satisfaction of the Declarant's obligation to complete the Common Area
Improvements, the Association shall acknowledge in writing that it approves the release of the
Bond, and shall execute any other documents as may be necessary to effect the release of the
Bond.
1. The Association shall not condition its approval of the release of the Bond
upon the satisfaction of any condition other than the completion of the
Common Area Improvements as described on the Planned Construction
Statement. Any dispute between the Declarant and the Association
regarding the question of satisfaction of the conditions for exoneration or
release of the security shall be submitted to arbitration, at the request of
either party, as provided by 10 California Code of Regulations section
2792.9(b)(2) .
5.15 OTHER DUTIES.
A. 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.
5.16 LIMITATIONS ON THE AUTHORITY OF THE BOARD OR THE ASSOCIATION.
A. 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 constitute a quorum consisting of
fifty-one percent (51%) of the voting power of the Association residing in Members other than
the Declarant.
1. 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:
30
a. Incur aggregate expenditures for capital Improvements to
the Common Area in any Fiscal Year that are in excess of five
percent (5%) of the Budgeted Common Expenses for such Fiscal
Year;
b. Sell, during the Fiscal Year, property of the Association
having an aggregate fair market value greater then five percent
(5%) of the Budgeted Common Expenses for the Fiscal Year;
C. 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
d. Enter into a contract with a third (3rd) person for such
person to furnish goods and/or services for or to, as the case
may be, the Common Area and/or the Association, for a
term longer than one (1) year, with the following
exceptions:
(1) A management contract, the terms of which have
been approved by the Federal Housing
Administration or the Veterans Administration;
(2) 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
tern does not exceed the shortest term for which the
supplier will contract at the regulated rate;
(3) 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;
(4) 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;
(5) 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
of ten percent (10%) or more;
31
(6) 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
(7) 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.
B. Notwithstanding anything herein to the contrary, but subject to the provisions of
Subsection 5.16E., 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 5.16, 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
5.16, is hereinafter referred to as the "Proceedings Notice," of the Association's intentions to
institute such Significant Legal Proceedings.
1. 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
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.
C. For the purposes of this Section 5.16, "Significant Legal Proceeding" shall mean a
legal proceeding in which it is reasonable to anticipate that any of the following events might
occur:
1. The levy of a Special Assessment to fund all or any portion of a legal
proceeding;
2. The expenditure of more than five percent (5%) of the then current
Reserve Funds in connection with a legal proceeding in an amount in
excess;
3. The amount of the claim of a legal proceeding that is or will be in excess
of twenty thousand dollars ($20,000.00); or
4. 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.
D. If the proposed Significant Legal Proceeding is against the Declarant, any other
developer, or any contractor, subcontractor, architect, engineer, or materials supplier, who is or
has been, as the case may be, engaged by or on behalf of the Declarant and/or any other
developer, for the design or alleged damage of or to, as the case may be, the Development or any
32
elements thereof, the notice shall also specify each of the following, unless not required by
reason of the provisions of Civil Code sections 1375(g)(1)(E) or 1375(g)(2)(D), or any
compatible superseding statutes:
1. That a meeting will take place to discuss problems that may lead to the
filing of a Significant Legal Proceeding together with the time and place
of such meeting; and
2. The known options available to address the problems.
E. 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 7.13 of the Declaration, entitled, "ASSOCIATION'S POWER TO
ESTABLISH ASSESSMENT LIEN," or to enforce any Common Area completion Bond as
described in the provisions of Section 5.14 of the Declaration, entitled, "ENFORCEMENT OF
BONDED OBLIGATIONS."
F. 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.
G. If the proposed Significant Legal Proceeding is brought by the Association or any
Owner or any combination of same, against the Declarant, other developer or any contractor,
subcontractor, architect, engineer, or materials supplier, who is or who has been, as the case may
be, engaged by or on behalf of, the Declarant and/or any other developer, for the design or
alleged damage of or to, as the case may be, the Development or any elements thereof, the
Association and/or any Owner or any combination thereof, hereinafter referred to as the
"Complaining Party," shall send the Declarant and/or any other developer, contractor,
subcontractor, architect, engineer, or materials supplier, as the case may be, hereinafter referred
to as the "Responding Party," a thirty (30) day written notice of the nature of the dispute, the
facts giving rise to its claim and its, his, her, or their intent to initiate litigation, hereinafter
referred to as the "Litigation Notice."
H. The Proceedings Notice shall name a mediator.
1. The Responding Party shall be obligated to pay any fee to initiate
mediation; however, the cost of mediation, including any attorney's fees,
shall ultimately be borne as determined by the parties if the mediation
results in a settlement of the dispute.
2. If the Responding Party does not agree with the Complaining Party's
choice of a mediator, the Responding Party, within ten (10) days of the
Responding Party's receipt of the Proceedings Notice, shall request the
American Arbitration Association to select a mediator from its panel.
3. If the Responding Party has not made such a request of the American
Arbitration Association within the ten (10) day time requirement, the
mediator that was selected by the Complaining Party shall serve.
4. Within thirty (30) days after the mediator is chosen, the parties shall
schedule and attend a mediation session and make a good faith effort to
resolve their dispute.
33
I. If the mediation session does not resolve the dispute or if the Responding Party
refuses to attend, the dispute shall be submitted to and conclusively determined by binding
arbitration in accordance with the provisions of Subsections 5.16I. through 5.16P., inclusive,
below.
J. Neutral and impartial individuals shall be appointed to serve as arbitrator(s), with
such arbitrator(s) to be appointed within a reasonable period of time, which in no event shall be
more than sixty (60) days from the administrator's receipt of a written request from a party to
arbitrate a claim or dispute.
1. In selecting the arbitrator(s), the provisions of section 1297.121 of the
Code of Civil Procedure shall apply.
2. An arbitrator may be challenged for any of the grounds listed in the
provisions of the above referenced code section.
K. The arbitration shall be conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association.
L. The arbitration shall be conducted in Fresno County, California.
M. The parties shall submit to the arbitration all written, documentary, or other
evidence, and give any oral testimony that is reasonably necessary for a proper resolution of the
dispute.
1. Copies of all of the written submittals shall be provided to the arbitrator(s)
and the parties on each side.
N. The arbitrator(s) shall conduct such hearings as he, she, or they consider
necessary, may require the submission of briefs or points and authorities, and may submit written
questions to the parties.
1. The parties shall respond to such questions in writing. If a question is
addressed to less than" all of the parties, copies of the question and the
answer thereto shall be served on the other parties.
O. At the arbitration hearing, any party may present any relevant evidence and the
formal rules of evidence applicable to judicial proceeding shall not govern.
1. Evidence shall be admitted or excluded at the sole discretion of the
arbitrator(s).
P. The procedures that are set forth in the provisions of this Section 5.16 for the
resolution of disputes ("Dispute Resolution Procedure") is intended to be implemented in
accordance with the philosophy and intent of the Federal Arbitration Act (9 U.S.C. sections 1-
16), which is designed to encourage the use of alternative methods of dispute resolution that
avoid costly and potentially lengthy traditional court proceedings.
1. Therefore, the Dispute Resolution Procedure is to be interpreted and
enforced as authorized by the above referenced Federal Arbitration Act.
2. Parties interpreting the provisions of this Subsection 5.16P shall follow the
federal court rulings, such as, but not limited to, Allied-Bruce Terminix
Companies, Inc. v. Dobson, 115 S.Ct. 834 (1995), which provide, without
limitation, that the Federal Arbitration Act (1) is a congressional
declaration of a liberal federal policy favoring an alternative to law suits
for the resolution of disputes, notwithstanding substantive or procedural
state policies to the contrary, (2) requires that federal and state courts
rigorously enforce agreements for alternative dispute resolution, and (3)
34
requires that the scope of any issues subject to alternative dispute
resolution be resolved in favor of such alternative dispute resolution.
3. Any references in the provisions of the Governing Documents to
California Code sections are not to be interpreted as a waiver of rights
created under the above referenced federal cases and/or Federal
Arbitration Act.
Q. The arbitration shall proceed with due dispatch and a decision shall be rendered
within a reasonable time after appointment of the arbitrator(s) and presentation of the facts and
evidence.
R. The arbitrator's(s') decision shall be in writing and in a form sufficient for entry
of a judgment in any court of competent jurisdiction in the state of California.
S. The arbitrator(s) shall be authorized to render any and all of the recognized
remedies that are available in the law or equity for any cause of action that is the basis of any
such arbitration.
T. In no event shall an arbitrator's(s') award include a component for punitive or
exemplary damages. The Responding Party shall be obligated to pay any fee that is required to
initiate such arbitration; however, the costs of the arbitration proceeding, including, but not
limited to, any attorney's fees, shall be borne as ultimately determined by the arbitrator(s).
U. Provided that, if the Complaining Party and the Responding Party have entered
into a settlement agreement or the matter has otherwise been resolved, as soon as is reasonably
practical thereafter, the Board shall provide a written notice, which may from time to time be
amended or modified, to each of the current Members of such resolution.
1. Such notice shall include each of the following items:
a. A general description of the damages, as of the date of such notice,
that the Board reasonably believes will be repaired or replaced;
b. A good faith estimate, as of the date of such notice, when the
Board believes that the damage will be repaired or replaced; and
.c. The status of any claims that will not be repaired or replaced and
that were either expressed in a primary list of the defects that
where sent to the Members or that were otherwise claimed and
disclosed to the Members.
5.17 LIMITATION ON LIABILITY OF OFFICERS AND DIRECTORS.
A. Subject to the provisions of Subsection 5.17B., 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 5.17, 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.
B. Without limiting 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
35
V
of the Reserve Accounts, the repair and maintenance of the Common Areas as well as the Major
Components together with the enforcement of the provisions of the Governing Documents.
C. 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:
1. The Board member or officer is an Owner of no more than two (2) Lots;
2. The act or omission was performed within the scope of the volunteer
Director's and/or officer's Association duties;
3. The act or omission was performed in good faith;
4. The act or omission was not willful, wanton, or grossly negligent;
5. The Association maintained and had in effect at the time the act or
omission occurred and at the time a claim was made one (1) or more
policies of insurance 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 ($500,000.00).
D. 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 5.17.
1. 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 nonjudicial
foreclosure proceeding is not a volunteer.
E. The provisions of this Section 5.17 are intended to reflect the protections
accorded to volunteer Directors and officers of community associations under the provisions of
California Civil Code section 1365.7.
1. In the event said Civil Code section 1365.7 is amended or superseded by
another compatible provision of the California statutes, the provisions of
this Section 5.17 shall be deemed amended, without the necessity of
further Owner approval, to correspond to such amended or successor Civil
Code provisions.
5.18 DELIVERY OF DOCUMENTS AND INSPECTION OF ASSOCIATION BOOKS AND
RECORDS.
A. The Declarant and its successors and assigns, shall, commencing no later than
ninety (90) days after the close of escrow on the sale of the first (1st) Lot in the Development,
other than to the Declarant, deliver or cause to be delivered, as soon as they are readily
obtainable, one (1) copy of each of the documents listed in the provisions of Subsection 5.18B.,
below, that have application to the Development, or to the Association, at the Association office
or at such other location as the Board may from time to time designate by written notification to
the Declarant, provided that, such obligation shall terminate upon the earliest to occur of the
following events:
36
I. The conveyance of the last Lot in the Development that is covered by a
Final Subdivision Public Report to an Owner other than the Declarant; or
2. Five (5) years from the date of expiration of the most recent Final
Subdivision Public Report covering the Development or any portion
thereof.
B. The documents to be delivered, if applicable, are:
1. The Recorded Subdivision Map(s) for the Development.
2. The deeds and easements executed by the Declarant conveying the
Common Area or other interest to the Association.
3. The Recorded Declaration, including any amendments thereto.
4. The filed Articles, if any, and any amendments thereto.
5. The Bylaws, including any amendments thereto.
6. Any Architectural and/or. Association Rules together with any other rules
regulating the use of an Owner's interest in the subdivision or use of the
Development, which have been promulgated by the Association.
7. Any plans that have been approved by any agency that has the jurisdiction
to approve same, 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, bear appropriate restrictions on their
commercial exploitation or use and may contain appropriate disclaimers
regarding their accuracy.
8. All Notice of Completion certificates issued for Common Area
Improvements, other than residential structures.
9. Any bond or other security devise of which the Association is the
beneficiary.
10. Any written warranty being transferred to the Association that covers any
of the Common Area equipment, fixtures, Major Components, or
Improvements.
11. Any insurance policy procured for the benefit of the Association, its
officers, the Board, or the Common Area.
12. Any lease, rental,agreement, or contract to which the Association is a
party.
13. The Members register, including mailing addresses and telephone
numbers, books of account and minutes of meetings of the Board and of
committees of the Board.
14. Any other instrument that has not been described above, whose provisions
establish or define the common, mutual and/or reciprocal rights, or
responsibilities of the Members.
C. Any Owner, or such Owner's duly appointed representative, shall have access to
any of the above referenced documents, books of account and minutes from any meeting of the
Owners, the Board, with the exception of any minutes of an executive session of the Board, or
any committee of the Board in order to inspect and copy such records and/or documents for any
purpose reasonably related to its, his, her, or their interest as an Owner.
D. Access shall be at any reasonable time at the office of the Association or such
other place within the Development as the Board prescribes.
37
q3
E. The Board shall establish rules regarding the notice the Owner must give to the
custodian of the records to obtain access, the hours and days of the week when the records may
be inspected and copied and the charges imposed by the Association for copying records
requested by an Owner.
5.19 LITIGATION.
A. Subject to the provisions in Section 5.16 of the Declaration, entitled,
"LIMITATIONS ON AUTHORITY OF THE BOARD OR THE ASSOCIATION," and
California Civil Code section 1354, or any compatible superseding statutes, the Board has the
authority to institute, defend, settle or intervene on behalf of the Association in litigation,
arbitration, mediation, or administrative proceedings in matters pertaining to:
1. The enforcement of the provisions of the Governing Documents;
2. Damage to the Common Area; or
3. Damage to a Lot which arises out of, or is integrally related to, the
Common Area or a Lot that the Association is obligated to maintain or
repair.
ARTICLE VI
PROVISIONS DECLARING MEMBERSHIP AND VOTING RIGHTS
6.1 MEMBERSHIP APPURTENANT TO OWNERSHIP.
A. Each Owner, including the Declarant, shall be a Member.
B. Membership shall be appurtenant to each Lot and the holding of an ownership
interest in the fee title to a Lot shall be the sole qualification for Membership; provided that no
Owner shall hold more than one (1) Membership even though such Owner owns an interest in
more than one (1) Lot.
C. Membership shall terminate automatically when the Owner no longer holds an
ownership interest in a Lot.
D. Membership may not be assigned, transferred, pledged, hypothecated, conveyed,
or alienated in any way except on a transfer of title to a Lot and then only to the transferee.
E. Any attempt to make a prohibited transfer shall be void.
F. Any transfer of title to a Lot shall transfer automatically the appurtenant
Membership to the transferee.
G. Any party that holds an interest in a Lot merely as security for the performance of
an obligation shall not be a Member.
H. Each Member shall have the right, duties, and obligations as set forth in the
provisions of the Governing Documents.
6.2 VOTING SYSTEM.
A. Except as may otherwise be provided for in the provisions of the Governing
Documents, including, but not limited to, the provisions of Section 6.3 of the Declaration,
entitled, "TWO CLASS SYSTEM; WEIGHTED VOTES," all matters requiring approval of
the Members shall be deemed approved if the Members who hold a majority of the total voting
power of the Association assent to them by written consent or, either in person or by proxy, by
their affirmative vote at any duly called regular or special meeting.
38
L
6.3 TWO CLASS SYSTEM; WEIGHTED VOTES.
A. The Association shall have two (2) classes of voting Membership as follows:
1. Class A:
a. The Class A Members shall be all of the Members other than the
Declarant.
b. Subject to the provisions of Subsection 6.3A.1.c., below, each
Class A member shall be entitled to one (1) vote for each Lot in
which it, he, she, or they own(s) an interest in the fee title of such
Lot.
C. If more than one (1) Member owns an interest in a Lot, only one
(1)vote may be cast with respect to such Lot.
2. Class B:
a. The Class B Member shall be the Declarant, who will be entitled to
three (3) votes for each Lot in which the Declarant owns an interest
in the fee title.
b. A Class B Membership shall cease and be irreversibly converted to
a Class A Membership on the occurrence of one (1) of the
following events, whichever is the first (1")to occur:
(1) When the total votes outstanding in the Class A
membership equal the total votes outstanding in the Class B
membership; or
(2) On the second (2nd) anniversary of the first (1")
conveyance of a fee title interest in a Lot.
B. As long as a Class A and a Class B'Membership both exist, any action by the
Association that requires the approval of the Members shall require the approval of the
designated percentage of voting power in each class, except as provided for in the provisions of
Section 5.14, of the Declaration, entitled, "ENFORCEMENT OF BONDED
OBLIGATIONS."
C. Voting rights shall vest either at the time Assessments are levied against a Lot or
as provided for in any subsidization plan that has been approved by the California Department of
Real Estate for use in the Development.
6.4 JOINT OWNERSHIP VOTES.
A. The vote that is attributed to each Lot may not be cast on a fractional basis.
B. If the Lot has more than one (1) Owner and the Owners are unable to agree as to
how the vote should be cast, the vote shall be forfeited on the matter in question.
C. If one (1) Owner casts the vote attributed to a Lot, the vote shall conclusively bind
all of the Owners of that Lot.
D. If more than one (1) Owner casts the vote attributed to a Lot in any manner in
which only one (1) vote could be cast for that Lot, the votes cast by such Owners shall not be
counted and shall be considered void.
ARTICLE VII
ASSESSMENTS
39
0--
7.1 ASSESSMENTS—AGREEMENT TO PAY.
A. Each Owner in including the Declarant by the acceptance of an ownership interest
in the fee title to a Lot, covenants and agrees for each Lot in which such an interest is held, to
pay to the Association any Regular and/or Special Assessments levied in accordance with the
provisions of the Governing Documents, and to allow the Board to enforce any Assessment lien
established in accordance with such provisions by nonjudicial proceedings under a power of sale
or by any other means that may be authorized by law.
7.2 LIMITED EXEMPTION FROM ASSESSMENT DURING CONSTRUCTION.
A. Notwithstanding the provisions of Section 7.1 of the Declaration, entitled,
"ASSESSMENTS — AGREEMENT TO PAY," any Lot 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:
1. Roofs;
2. Exterior maintenance;
3. Walkway and carport lighting;
4. Refuse disposal;
5. Cable television; and
6. Domestic water supply to the Residences.
B. The foregoing exemptions shall be in effect until the earlier to occur of the
following events:
1. 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; or
2. Any such structural Improvement that has been placed in use.
C. 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.
1. 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.
7.3 ASSESSMENTS AS THE PERSONAL 013LIGATION OF AN OWNER.
A. Each Assessment and/or installment, together with any late charge, interest,
collection costs, and/or reasonable attorney's fees that are associated with same, shall be the
personal obligation of the Owner at the time such Assessment, installment, late charge, interest,
collection cost, and/or reasonable attorney's fee is levied.
40
B. If there is more than one (1) Owner of a particular Lot, each Owner shall be
jointly and severally liable.
C. 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.
D. 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.
7.4 SCOPE OF ASSESSMENT—AUTHORITY.
A. 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 Common 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.
7.5 ESTABLISHMENT OF REGULAR ASSESSMENTS.
A. Not more than ninety (90) days nor less than sixty (60) days before the beginning
of each and every Fiscal Year, the Board shall meet for the purpose of establishing a Regular
Assessment for the forthcoming Fiscal Year.
B. 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.
C. After making any adjustments that the Board considers appropriate, the Board,
subject to the restrictions provided for in the provisions of Subsections 7.5E. and 7.5F., below, if
there is an increase in the amount of the Regular Assessment over the Regular Assessment that
was levied for the previous Fiscal Year, having; either complied with the provisions of Section
5.13 of the Declaration which is entitled ":PREPARATION AND DISTRIBUTION OF
FINANCIAL STATEMENTS, REPORTS, AND COPIES OF THE GOVERNING
DOCUMENTS," Subsection 5.13A.2. 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
Assessment for the forthcoming Fiscal Year.
D. The Board may not establish a Regular Assessment for any Fiscal Year that is
more than one hundred and twenty percent (120%) of the Regular Assessment for the
immediately preceding Fiscal Year, with the exception of the Association's first (1st) Fiscal Year,
if it is less than twelve (12) months in duration, without the approval, by vote or written consent,
of the Owners holding fifty-one percent (51%) of the Class A voting rights together with the
approval of the Declarant.
1. If there are just Class A votes, the approval, by vote or written consent, of
the Owners holding fifty-one percent (51%) of the Class A voting rights of
all of the Owners together with the approval, by vote or written consent, of
41
the Owners holding fifty-one percent (51%) of the voting rights of all of
the Owners other than the Declarant.
E. Unless the Association is exempt from federal and state income taxes, including
without limitation an exemption under the provisions of Internal Revenue 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 tax laws to prevent the
Reserve Funds from being taxed as income of the Association, including, but not limited to, if
necessary, maintaining the Reserve Funds in segregated accounts and not commingling such
funds with the general operating funds.
F. 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.
G. The foregoing restrictions on Assessment increase do not apply to increases
necessary for emergency situations. For the purposes of the provisions of this Section 7.5, an
emergency situation is any one (1) of the following:
1. 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.
2. An extraordinary expense necessary to repair or maintain the
Development, or any part of it that the Association is responsible to
maintain, when a threat to personal safety on the Property is discovered.
3. . An extraordinary expense necessary to repair or maintain the
Development, or any portion of it 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 immediately preceding Fiscal
Year, provided that before the imposition or collection of any Assessment
that is to be levied under the provisions of this Subsection 7.5G.3., the
Board must pass a resolution which shall contain written findings as to the
necessity of any such extraordinary expense and why such extraordinary
expense was not or could not have been reasonably foreseen in the Budget
process for the preceding Fiscal Year.
a. The Board shall then distribute such resolution to all of the
Members with the notice of the Regular Assessment.
7.6 RESERVE FUNDS.
A. Each Regular Assessment shall include a portion for the Reserve Funds.
B. 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.
C. 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.
D. 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
4
t)
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.
E. 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.
F. 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.
I. This Special Assessment shall be subject to the Assessment increase
restrictions set forth in the provisions of Section 7.7 of the Declaration,
entitled, "SPECIAL ASSESSMENTS — PURPOSE OF AND
PROCEDURE FOR LEVYING," Subsections 7.717. and 7.7G., and
California Civil Code section 1366 or any compatible superseding statutes.
2. The Board may, at its discretion, extend the date the payment of the
Special Assessment is due.
a. 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.
G. 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.
1. 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.
2. 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
Subsection 7.6G.2a., 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 Subsection
7.6G.2a., 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
Subsection 7.6G.2a., 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.
H. 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
43
the Members in compliance with the provisions of California Corporations Code section 501 b, or
any compatible superseding statutes, notify the Members of such a decision and of the
availability of an accounting of these expenses.
1. The Board shall make an accounting of any expenses related to such
litigation on at least a quarterly basis.
2. The accounting shall be made available for inspections by the Members at
the Association's office.
7.7 SPECIAL ASSESSMENTS—PURPOSE OF AND PROCEDURE FOR LEVYING.
A. Subject to the restrictions described in the provisions of Subsections 7.7F. and
7.7G., below, the Board may levy a Special Assessment if, for any particular Fiscal Year in which
the Board, in its sole discretion, determines that the 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.
B. 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.
C. 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.
D. Unless the Association is exempt from federal or state income taxes, including,
without limitation, any exemption under the provisions of Internal Revenue Code section 528
and 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
segregate 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.
E. 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.
1. 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.
F. Notwithstanding any other provisions in the Governing Documents, the Board
may not levy any Special Assessment that, either by itself or in the aggregate with other Special
Assessments levied for the same Fiscal Year, would be in excess of five percent (5%) of the
Budgeted gross expenses of the Association for such Fiscal Year, without the approval of a
majority of the votes at a meeting of the Members at which a quorum is present.
44
G. The restriction contained in the; provisions of Subsection 7.7F., above, shall not
apply in the following circumstances:
1. An Assessment levied against a particular Lot to reimburse the Association
for any costs incurred. in bringing the Owner and/or the Lot into
compliance with the provisions of the Governing Documents.
2. Increases necessary for emergency situations.
a. An emergency situation is one (1) of the following:
(1) An extraordinary expense required by an order of a court of
law having jurisdiction of the matter for which such
extraordinary expense is occasioned.
(2) 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.
(3) 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 Assessments under the provisions of this
Subsection 7.7G.2.c., the Board must pass a resolution
containing written findings as to the necessity of such an
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
and shall distribute the resolution to all of the Members
with the notice of such Special Assessment.
3. Any Special Assessment levied to restore Reserve Funds under the
provisions of California Civil Code section 1365.5(c), or any compatible
superseding statutes.
7.8 ALLOCATION OF REGULAR AND SPECIAL ASSESSMENTS.
A. Subject to the provisions of Section 7.2 of the Declaration, entitled, "LIMITED
EXEMPTION FROM ASSESSMENT DURING CONSTRUCTION," the Regular and
Special Assessments levied by the Board shall be allocated among the Lots as follows:
1. Except as otherwise provided herein, an Assessment shall 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.
B. 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 Subsection 7.8A.L, above.
45
7.9 ASSESSMENT PERIOD.
A. Unless the Board determines otherwise, the Association's Fiscal Year shall be a
calendar year and the Regular Assessment period shall commence on January 1 of each year and
shall terminate on December 31 of that year, provided that the first (1st) Regular Assessment
period for all of the Lots in the Development shall commence on the first (l st) day of the
calendar month following the date of the closing of the first (1 st) conveyance of a Lot in the
Development to an Owner other than the Declarant and shall terminate on December 31 of that
year.
B. Each Regular Assessment shall be payable in equal monthly installments unless
the Board adopts some other method for payment. The first (1 st) Regular Assessment and all
Special Assessments shall be adjusted according to the number of months remaining in the Fiscal
Year and shall be payable in equal monthly installments unless the Board adopts some other
method of payment.
7.10 NOTICE OF INCREASE IN ASSESSMENTS.
A. The Board shall provide notice by first-class mail to all of the Owners who are
subject to any such Assessments, of any increase in a Regular 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.
7.11 DUE DATE,LATE CHARGES,AND INTEREST.
A. 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 and that is about to commence and the due date, or due
dates if paid installments, as well as the amount of any such installment.
1. Such notice need only be given once for any Assessment that is to be paid
in installments.
2. Unless the Board specifies otherwise, the due date of any installment shall
be the first (1 st) day of each month.
A. 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.
1. There shall be a late charge of ten percent (10%) or ten dollars ($10.00),
whichever is greater, on each delinquent payment.
a. 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.
2. 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.
7.12 DELIVERY OF REQUESTED ITEMS.
A. Within ten (10) days of the mailing or delivery to the Board of a written request
by an Owner to do so, the Board shall provide such requesting Owner with the following items
and information:
1. Copies of the Governing Documents;
46
J
2. Copies of all the current documents that have been distributed in
accordance with the provisions of Section 5.13 of the Declaration, entitled
"PREPARATION AND DISTRIBUTION OF FINANCIAL
STATEMENTS, REPORTS, AND COPIES OF THE GOVERNING
DOCUMENTS;"
-3. Whether, to the knowledge of the Association, the Owner or the Owner's
Lots is/are in Violation of a Provision of the Governing Documents;
4. The amount of Regular and Special Assessments, including installment
payments that have been paid by the Owner during the Fiscal Year the
request is received;
5. A statement in writing from an authorized representative of the Board
showing the amount o1' the Association's current Regular and Special
Assessments and/or fees, any Assessments levied against the Owner
and/or the Owner's Lot that are unpaid on the date of such statement and
any monetary fines or penalties that have been levied against the Owner
and are unpaid as of the date of the statement;
6. A copy or summary of any notice that has been previously sent to the
Owner pursuant to the provisions of California Civil Code section
1363(h), or any compatible superseding statutes, which sets forth an
alleged Violation of a Provision of the Governing Documents, that remains
unresolved at the time of the request.
a. Any such notice will not be deemed a waiver of the Board's right
to enforce any provision of the Governing Documents against the
Owner or the prospective purchaser of the Owner's Lot with
respect to any such Violation of a Provision of the Governing
Documents;
7. A copy of any preliminary list of defects that has been provided to the
Members in compliance with the provisions of California Civil Code
section 1375, or any compatible superseding statutes, unless the parties
later enter into a settlement agreement or otherwise resolve the matter and
the Association complies with the requirements of the provisions of
California Civil Code section 1375.1, or any compatible superseding
statutes.
a. Such list of defects must include a statement that a final
determination has not been made as of the date of such statement
as to whether such list of defects is accurate and complete;
8. A copy of any information that has been provided to the Owner in
compliance with the provisions of Section 5.16 of the Declaration, which
is entitled "LIMITATIONS ON THE AUTHORITY OF THE BOARD
OR THE ASSOCIATION," Subsection 5.16P., above; and
9. A notice of any change in the Association's current Regular and Special
Assessments as well as its fees that have been approved by the Board, but
have not yet become due and payable.
B. The Board may charge the requesting Owner a fee to recover its reasonable costs
of preparing and delivering the requested items and information.
47
C. Any prospective purchaser or Mortgagee of the requesting Owner's Lot or Lots,
as the case may be, may rely on the information that is contained in any statement provided to a
requesting Owner under the provisions of this Section 7.12, provided that reliance may not
extend to any Violation of a Provision of the Governing Documents of which the Board does not
have actual knowledge at the time such items and information was provided to the requesting
Owner.
7.13 ASSOCIATION'S POWER TO ESTABLISH ASSESSMENT LIEN.
A. The Board has the right to collect and enforce Assessments.
B. In addition to the enforcement powers described in the provisions of Section 5.6
of the Declaration, entitled, "RIGHT TO IMPOSE SANCTIONS FOR A VIOLATION OF A
PROVISION OF THE GOVERNING DOCUMENTS," and subject to the restrictions on the
enforcement of monetary penalties described in the provisions of Section 7.7 of the Declaration,
entitled, "SPECIAL ASSESSMENTS — PURPOSE OF AND PROCEDURE FOR
LEVYING," 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 7.14 of the Declaration, entitled, "CREATION OF ASSESSMENT
LIEN," and foreclosing such lien through either judicial proceedings or nonjudicial proceedings
under a power of sale as provided for in the provisions of Section 7.15 of the Declaration,
entitled, "FORECLOSURE UNDER ASSESSMENT LIEN."
C. 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.
D. 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.
7.14 CREATION OF ASSESSMENT LIEN.
A. Subject to the provisions of Section 7.7 of the Declaration, entitled "SPECIAL
ASSESSMENTS — PURPOSE OF AND PROCEDURE FOR LEVYING," the Board may
impose a lien against the Owner's Lot for the amount of any delinquent Assessment or
Assessments as well as any installments thereof, late charges, interest plus any costs of collection
including attorney's fees, by taking the following steps:
1. The Board shall notify the delinquent Owner in writing by certified mail,
of the fee and penalty procedures of the Association and shall provide an
itemized statement of the charges owed by such Owner, including, but not
limited to, items on such statement which indicate the principal owed, any
late charges together with the method of calculation, any attorney fees and
the collection practices used by the Association, including the right of the
Association to the reasonable costs of collection.
2. After compliance with the notice requirements that are provided for in the
provisions of Subsection 7.14A.1., above, the Board may impose a lien
against the delinquent Owner's Lot in the amount of the delinquent
Assessment(s) and/or delinquent installment, as the case may be, plus any
costs of collection, late charges and/or interest by Recording a notice of
48
delinquent Assessment ("Notice of Delinquent Assessment") with the
Fresno County Recorder.
a. The Notice of Delinquent Assessment shall state the following:
(1) The amount of any delinquent Assessment(s) and other
sums that have been imposed in accordance with the
provisions of California Civil Code section 1366 or any
compatible superseding statute;
(2) A legal description of the Lot against which such
delinquent Assessment(s) together with any other sums
have been levied;
(3) The name of the Owner of such Lot; and
(4) If the lien is to be enforced by a nonjudicial foreclosure, the
name and address of the trustee authorized by the Board to
enforce such lien by nonjudicial foreclosure and sale.
b. The Notice of Delinquent Assessment shall be signed by any
officer of the Association or any employee or agent of the
Association who has been authorized to do so by the Board.
C. A copy of the Notice of Delinquent Assessment shall be mailed in
the manner required by the provisions of Civil Code section 2924b,
or any compatible superseding statutes, to all of the Record
Owner(s) of such Lot, no later than ten (10) days after the
Recording of the Notice of Delinquent Assessment.
B. Any payments made on a delinquent Assessment(s) shall be applied first (1st) to
the principal owed and only after the principal owed is paid in full shall payments be applied to
any interest or collection costs.
C. On payment in full of the sums specified in a Notice of Delinquent Assessment,
the Association shall cause to be Recorded with the County Recorder release of the lien that was
created by such Notice of Delinquent Assessment.
7.15 FORECLOSURE UNDER ASSESSMENT LIEN.
A. After the expiration of thirty (30) days following the Recording of the Notice of
Delinquent Assessment, the Board may enforce any 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 nonjudicial foreclosure as provided for in the provisions of California Civil Code
sections 2924, 2924b, 2924f, 2924g, 2924h, and 2924] or any compatible superseding statutes.
B. 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.
C. The Board may bid at the sale and, if it has been the successful bidder, may hold,
lease, mortgage, or convey the acquired Lot.
D. 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.
49
7.16 TRANSFER OFA LOT BY SALE OR FORECLOSURE.
A. The following rules shall govern the Association's rights to enforce its
Assessment collection remedies subsequent to the sale or foreclosure of a Lot:
1. Except as provided for in the provisions of Section 10.2 of the
Declaration, entitled, "SUBORDINATION," 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.
2. 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. A "prior encumbrance" means any Mortgage or lien Recorded
prior to the Association's Assessment lien.
3. Except as provided for in the provisions of Section 10.2 of the
Declaration, entitled, "SUBORDINATION," 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 the lien thereof.
4. 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 7.16 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.
5. 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.
6. The provisions of Section 7.15 of the Declaration, entitled,
"FORECLOSURE UNDER ASSESSMENT LIEN," and this Section
7.16 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 7.16 and the above referenced Section 7.15
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.
50
ARTICLE VIII
INSURANCE
8.1 LIABILITY INSURANCE.
A. 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.
B. The limits of such insurance shall not be less than two million dollars
($2,000,000.00), covering all claims for debt, personal injury, and property damage arising out of
a single occurrence.
C. 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.
8.2 FIRE AND CASUALTY INSURANCE.
A. 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.
1. 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.
2. 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 8.3 of the Declaration, entitled, "PROVISION
APPOINTING TRUSTEE."
B. The policy shall be primary and noncontributing with any other policy of
insurance covering the same loss.
C. The Association shall not carry an earthquake endorsement without the approval
of a majority of the total voting power of the Members.
1. 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.
51
2. 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.
D. 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 8.2 in any manner that the Board, in its sole discretion, considers to be in the best
interests of the Association.
1. If the Board elects to materially reduce the coverage from the coverage
required in the provisions of this Section 8.2, the Board shall 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.
E. The Association, the Board and officers of the Association shall have no liability
to any Owner or Mortgagee if, after a good faith effort:
1. The Board is unable to obtain any insurance required hereunder because
the insurance is no longer available;
2. 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
3. The Members fail to approve any Assessment increase needed to fund the
insurance premiums.
8.3 PROVISION APPOINTING TRUSTEE.
A. All fire and casualty insurance proceeds payable under the provisions of Section
8.2 entitled, "FIRE AND CASUALTY INSURANCE," 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.
B. 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.
C. 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.
8.4 PROVISION TO ADJUST LOSSES.
A. 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.
B. 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 insiurance 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.
8.5 DIRECTOR AND OFFICER LIABILITY INSURANCE.
A. To the extent insurance is available, the Board shall purchase and maintain
insurance in an amount up to one million dollars ($1,000,000.00), on behalf of any Director,
5:2
officer, or member of a committee of the Association, for the purposes of the provisions of this
Section 8.5, 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.
8.6 WORKER'S COMPENSATION, DEMOLITION, AND OTHER ASSOCIATION
INSURANCE.
A. 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.
B. 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.
C. 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
First Mortgagee.
D. 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 First Mortgagee.
8.7 OWNER'S LIABILITY INSURANCE.
A. 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.
8.8 DAMAGE OR DESTRUCTION OF THE COMMON AREA.
A. 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 Class A and the Class B Owners 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.
1. 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 information to the Owners at said
meeting.
B. 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.
I. 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.
53
2. 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 enforced under the lien provisions contained in Sections
7.14 and 7.15 of the Declaration, entitled, "CREATION OF
ASSESSMENT LIEN," and "FORECLOSURE UNDER
ASSESSMENT LIEN," respectively, or in any other manner provided for
in the provisions of the Governing Documents or by law.
8.9 DAMAGE OR DESTRUCTION OF A RESIDENCE.
A. 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.
B. 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.
1. 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.
2. 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.
C. 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.
D. Unless a waiver or modification of these time requirements is obtained from the
Architectural Committee in accordance with the provisions of Section 11.5 of the Declaration,
entitled, "VARIANCES," 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.
8.10 INSURANCE REVIEW AND NOTICE.
A. Notwithstanding anything herein to the contrary, but subject to the provisions of
Sections 5.12 and 5.13 of the Declaration, entitled, "SECURING INSURANCE COVERAGE"
and "PREPARATION AND DISTRIBUTION OF FINANCIAL STATEMENTS,
REPORTS, AND COPIES OF THE GOVERNING DOCUMENTS," respectively, 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.
B. 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.
54
0
ARTICLE IX
CONDEMNATION
9.1 CONDEMNATION.
A. If an action for condemnation of all or any portion of the Common Area is
proposed or threatened by any governmental agency having the right of eminent domain, then,
after approval by the vote or written consent of at least fifty-one percent (51%) of all of the
Owners who are eligible to vote and with the prior written consent of seventy-five percent (75%)
of all of the Eligible Mortgage Holders, the Common Area, or any portion of it, may be sold and
conveyed to the condemning authority by the Board or its designees who is/are acting as the
attorney-in-fact of all of the Owners under an irrevocable power of attorney, which each Owner
by accepting a fee title interest in a Lot, grants to the Board and which shall be coupled with the
interest of all of the other Owners, at a price that is deemed fair and equitable by the Board.
B. On any sale occurring under the provisions of Subsection 9.1A., above, the
proceeds of such sale shall be distributed equally to each Owner and their Mortgagees as their
respective interests may appear.
C If the Common Area, or any portion thereof, is not sold but is instead taken under
a judgment by a court of competent jurisdiction., the award for such a taking shall be apportioned
among the Owners and their respective Mortgagees, by the terms of the judgment of
condemnation and if not so apportioned, then any such award shall be distributed in equal shares
to each Owner.
ARTICLE X
PROTECTION OF MORTGAGEES
10.1 MORTGAGE PERMITTED.
A. Any Owner may encumber its, his, her, or their Lot with a Mortgage.
10.2 SUBORDINATION.
A. 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.
B. 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.
C. 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.
D. 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.
5:i
l�
E. 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.
F. 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 7.7 of the declaration which is entitled, "SPECIAL
ASSESSMENTS - PURPOSE OF AND PROCEDURE FOR LEVYING," Subsection 7.7A.
10.3 MORTGAGEE'S RIGHT TO EXAMINE BOOKS AND RECORDS.
A. 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 data concerning the Association including annual audit reports, Budgets,
and operating statements as furnished to the Owners.
10.4 PRIORITY IN DISTRIBUTION OF INSURANCE AND CONDEMNATION PROCEEDS.
A. The provisions of Section 9.1 of the Declaration, entitled, "CONDEMNATION,"
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.
B. Any provision in the Governing .Documents to the contrary is to such extent void.
C. 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.
10.5 STATUS OF AMENITIES.
A. All of the Common Area and the Major Components, as may be appropriate, shall
be available for the use of the Owners.
B. All such Common Area and/or Major Components shall be owned by the Owners
in undivided interests or by the Association, flee 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 Owners or by the Association, as the case may
be.
10.6 DEFAULT NOTICE REQUIREMENT.
A. 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.
56
10.7 PAYMENT BY MORTGAGEES.
A. Mortgagees of Lots may, jointly or severally, pay taxes or any other charges
which are in default and which may, or have become, a charge against the Common Area.
B. Such Mortgagees may also pay any overdue premiums on insurance policies or
secure new insurance coverage on the lapse of a policy that covers any property of the
Association.
C. Upon making any such payments, such Mortgagees shall be owed immediate
reimbursement from the Association.
D. This provision shall constitute an agreement by the Association for the express
benefit of all Mortgagees and upon request of any Mortgagee the Association shall execute and
deliver to such Mortgagee a separate written agreement embodying the terms of the provisions of
this Section 10.7.
10.8 LIEN NOT INVALIDATED.
A. No Violation of a Provision of the Governing Documents shall invalidate the lien
of any Mortgage that has been made in good faith and for value.
B. Notwithstanding the provisions of Subsection 10.8A., above, all of the covenants,
conditions, and restrictions contained in the Governing Documents shall be binding on any
Owner whose title is derived through foreclosure sales, trustee's sale or otherwise.
10.9 MORTGAGEE NEED NOT CURE A VIOLATION OF A PROVISION OF THE
GOVERNING DOCUMENTS.
A. Any Mortgagee who acquires title to a Lot by foreclosure, by deed in lieu of
foreclosure or by assignment in lieu of foreclosure shall not be obligated to cure any Violation of
a Provision of the Governing Documents that is non-curable or of a type that is not practical or
feasible to cure.
10.10 STATUS OF LOAN TO FACILITATE RESALE.
A. Any First Mortgage given to secure a loan to facilitate the resale of a Lot after
acquisition by foreclosure, by deed in lieu of foreclosure or by any assignment in lieu of
foreclosure shall be deemed to be a loan made in good faith and for value and entitled to all of
the rights and protection of Mortgages under the provisions of the Governing Documents.
10.11 RIGHT TO APPEAR AT MEETINGS.
A. Because of its, his, her, or their as the case may be, financial interest in the
Development, any Mortgagee may appear, but cannot vote, at meetings of the Members as well
as of the Board to draw attention to a Violation of a Provision of the Governing Documents that
has not been corrected or that has been made the subject of remedial proceedings or a Special
Assessment.
10.12 RIGHT TO FURNISH INFORMATION.
A. Any Mortgagee can furnish information to the Board concerning the status of its,
his, her, or their Mortgage.
57
10.13 RIGHT OF FIRST REFUSAL INAPPLICABLE TO MORTGAGE.
A. No right of first (1 st) refusal or similar restriction on the right of an Owner to sell,
transfer, or otherwise convey the Owner's Lot shall be granted to the Association without the
written consent of any subsequent Mortgagee of such Lot.
B. Under any circumstances, a right of first (1st) refusal or option to purchase a Lot
that may be granted to the Association or other person, firm or entity, shall not impair the rights
of any First Mortgagee of such Lot to:
1. Foreclose or take title to a Lot pursuant to the remedies provided for in the
provisions of the Mortgage;
2. Accept a deed or assignment, -in-lieu of foreclosure in the event of default
under the such Mortgage; or
3. Sell or lease a Lot acquired by the Mortgagee through a foreclosure or
pending foreclosure, as the case may be, of its, his, her, or their Mortgage.
10.14 NOTICES TO ELIGIBLE MORTGAGE HOLDERS.
A. An Eligible Mortgage Holder will be entitled to written notice of certain
occurrences upon a request in writing to the .Association from said Eligible Mortgage Holder
identifying its, his, her, or their name and mailing address together with the Lot number(s) or
address(es) of the Lot or Lots encumbered by its, his, her, or their Mortgage, asking that the
Association provide it, him, her, or them, as the case may be, with a notice of the occurrence of
any of the following events:
1. 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;
2. Violation of a Provision of the Governing Documents and/or delinquency
in the payment of an Assessment or charge which is owed by an Owner of
a Lot subject to a Mortgage held by such Eligible Mortgage Holder that
has remained uncured for a period of sixty (60) days;
3. Lapse, cancellation, or material modification of any insurance policy or
fidelity bond maintained by the Association; and
4. Proposed action that would require the consent of a specified percentage
of Eligible Mortgage Holders as delineated in this ARTICLE X.
B. 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 13.10 of the Declaration, entitled, "NOTICES AND
COMMUNICATION."
10.15 REQUIREMENTS OF THE VETERANS ADMINISTRATION.
A. So long as there is a Class B Membership pursuant to the provisions of Section
6.3 of the Declaration, entitled, "TWO CLASS SYSTEM; WEIGHTED VOTES," the
following actions require approval of the Veterans Administration if there are loans in the
Development covered by Mortgages insured by them:
1. Annexation of additional properties;
2. Dedication of the Common Area;
3. Mortgage or sale of the Common Area;
58
4. Levying of any Special Assessments that will affect any Lot that is
encumbered by any such Mortgage; and
5. Material amendment of the Declaration.
10.16 CONTROL IF MORTGAGEE PROTECTION CONFLICTS WITH OTHER
PROVISIONS OF THE GOVERNING DOCUMENTS.
A. In the event of any conflict between any of the provisions of Sections 10.1
through 10.16, inclusive, of the Declaration and any other provisions of the Governing
Documents, the provisions of Sections 10.1 through 10.16, inclusive, of the Declaration shall
control.
ARTICLE XI
ARCHITECTURAL CONTROL
11.1 PROVISION FOR ARCHITECTURAL APPROVALS.
A. Except for the construction of any Improvements in the Development by or at the
direction of the Declarant, no Improvement of any kind shall be commenced, erected or
maintained within the Development, 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 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.
B' It is expressly understood and agreed that the Architectural Committee shall be
entitled to apply both subjective and objective criteria when considering such submitted plans
and specifications, so long as the Architectural Committee does so reasonably and in good faith.
11.2 APPOINTMENT AND MAKEUP OF ARCHITECTURAL COMMITTEE.
A. The Declarant shall appoint all of the original constituents of the Architectural
Committee, which shall be not less than three (3) or more than five (5) persons and any
replacements for them.
B. The appointees do not have to be Members.
C. 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 rights
of each class of Members.
D. The initial appointees and any of their replacements shall hold office until the first
(1st) anniversary of the original issuance of the Final Subdivision Public Report for the
Development.
E. 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, or until the fifth (5th) anniversary of the original issuance of the Final
Subdivision Public Report for the Development, whichever is the first (1st) to occur.
59
F. 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 (5th) anniversary of the issuance of the Final Subdivision Public Report, whichever
is first (1 st) to occur.
G. Thereafter, the Board shall have the power to appoint all of the members of the
Architectural Committee.
H. Any person appointed to the Architectural Committee by the Board must be a
Member.
11.3 SUBMISSION OF PLANS;ACTION BY THE ARCHITECTURAL COMMITTEE.
A. When a proposed work of Improvement is submitted to the Architectural
Committee for review, the Architectural Committee shall grant the requested approval only if the
Architectural Committee, in its sole discretion, finds that all of the foregoing provisions have
been satisfied:
1. The Owner's plans and specifications:
a. Conform to the provisions of the Governing Documents that are in
effect at the time said plans are submitted to the Architectural
Committee;
b. 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
c. Will not interfere with the reasonable enjoyment of any other
Owner ofits, his, her, or their Lot.
2. The proposed Improvem.ent(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.
B. 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.
C. Factors commonly considered by the Architectural Committee in reviewing
proposed Improvements include, but are not limited to, the following:
1. The quality of workmanship and materials to be used in the proposed
Improvement;
2. The harmony of the proposed Improvement's exterior design, finish
materials, and color with that of the existing structure; and
3. The proposed location of the Improvement in relation to existing
topography, finished grade elevations, roads, Common Areas, and other
structures.
D. 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.
60
E. 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:
1. Poor drainage;
2. Visibility from roads, Common Area, or Lots;
3. Proximity to other Residences or Major Components; or
4. A prior adverse experience with the product or design of the proposed
Improvement or any component thereof.
11.4 STANDARDS AND PROCEDURES FOR THE ARCHITECTURAL RULES.
A. The Architectural Committee may, from time to time, subject to review by the
Board, adopt, amend, and repeal the Architectural Rules.
B. 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 features, which are recommended for use within the Development.
C. The Architectural Rules shall not be in derogation of the minimum standards
required by the provisions of the Governing Documents.
D. In the event of any conflict between the Architectural Rules, Declaration,Articles,
and/or Bylaws, the provisions of the Declaration, Articles, and/or Bylaws, whichever is/are
applicable, shall prevail.
11.5 VARIANCES.
A. The Board or the Architectural Committee shall be entitled to allow reasonable
variances with respect to the provisions of this Section 11.5 or any restrictions specified in the
provisions of ARTICLE IV of the Declaration, entitled, "COVENANTS AND. USE
RESTRICTIONS," 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:
1. 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 (100) feet of the Lot to which the variance will
apply.
a. 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 comments, or
objections with respect to such variance.
b. No decision shall be made concerning the proposed variance until
the above reference thirty (30) day period has expired.
2. The Board or the Architectural Committee, whichever is applicable, must
make a good faith determination that:
a. The requested variance does not constitute a material deviation
from the overall plan and scheme of the Development or from any
61
provision of the Governing Documents and that the proposal
allows the overall architectural objectives of the Development to
be substantially achieved despite such variance;
b. The proposed variance relates to a requirement of the provisions of
the Governing Documents that it is unnecessary or burdensome
under the circumstances; and
C. 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.
11.6 CERTIFICATE OF COMPLIANCE.
A. 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:
1. 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 11.5 of the Declaration,
entitled, "VARIANCES;" or
2. 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.
B. 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.
ARTICLE XII
AMENDMENT OF DECLARATION
12.1 PROCESS TO AMEND OR REVOKE THE PROVISIONS OF THE DECLARATION.
A. Before the close of the first (1st) 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.
62
B. After the close of the first (1st) sale of a Lot in the Development to a purchaser
other than the Declarant, the Declaration may be amended or revoked in any respect by the vote
or written consent of a simple majority of the voting power of each class of the Members or, if a
single class of the Members is then in effect, by the vote or written consent of not less than:
1. A simple majority of the voting power of the Association; and
2. A simple majority of the voting power of the Association, excluding the
voting power of the Declarant.
C. 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 sane percentage of such class or classes of the
Members shall be required to amend or revoke such provision.
D. 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.
E. Any amendment or revocation to a provision of the Declaration that is subsequent
to the close of the first (1st) 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 XII, is
appropriately acknowledged and has been Recorded in the Office of the County Recorder of the
County.
12.2 CONTROL IF THE PROVISIONS OF ARTICLE XH CONFLICT WITH ANY
MORTGAGEE PROTECTION OR OTHER PROVISIONS OF THE DECLARATION.
A. To the extent any provision of. Sections 12.1 through 12.6, inclusive, of the
Declaration conflict with the provisions of Sections 10).1 through 10.16, inclusive, or any other
provisions of the Declaration, except those contained in the provisions of Section 12.3 of the
Declaration, entitled, "COMPLIANCE WITH THE PROVISIONS OF BUSINESS AND
PROFESSIONS CODE SECTION 11018.7," the provisions of Sections 10.1 through 10.16,
inclusive, or any other conflicting provisions, shall control.
12.3 COMPLIANCE WITH THE PROVISIONS OF BUSINESS AND PROFESSIONS CODE
SECTION 11018.7.
A. All 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.
12.4 RELIANCE ON AMENDMENTS TO OR REVOCATIONS OF THE PROVISIONS OF
THE DECLARATION.
A. 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.
63
12.5 CONFORMING WITH THE MORTGAGEE REQUIREMENT PROVISIONS OF THE
DECLARATION.
A. 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 the
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.
B. 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.
12.6 ANNEXATION OF ADDITIONAL REAL PROPERTY.
A. Additional real property may be annexed to the Development ("Annexed Real
Property") and made subject to the provisions of the Declaration upon the approval in writing of
the Association, pursuant to the vote, in person or by proxy, or the written consent of a two-thirds
(2/3) majority of the voting power of the Members, other than the Declarant, and all of the
Eligible Mortgage Holders.
B. Upon such approval, the Board may Record a supplement to the Declaration
("Supplement") for the purpose of annexing the Annexed Real Property to the Development and
making such Annexed Real Property subject to the provisions of the Declaration.
C. Any Supplement recorded in compliance with the provisions of this Section 12.6
shall be in conformance with the plan of annexation that was approved by the appropriate
percentage of the voting power of the Members as well as being conclusive in favor of all
persons who relied on it in"good faith.
C. Upon the recording of such Supplement the Annexed Real Property shall be part
of the Development, subject to the provisions of the Declaration, and to the rights and powers of
the Association pursuant to the provisions of the Governing Documents and thereafter, all of the
Owners of a fee title interest in a portion of the Annexed Real Property shall automatically be
Members of the Association, with voting rights commencing on the date Regular Assessments
commence for such annexed Lots
D. Regular and Special Assessments with respect to the Annexed Real Property shall
commence at the time and to the extent described in the provisions of Section 7.5 of the
Declaration, entitled, "ESTAMBLISHMENT OF REGULAR ASSESSMENTS," and the
Assessment ratios described in Section 7.8 of the Declaration, entitled, "ALLOCATION OF
ASSESSMENTS," shall be modified to take into account the Lots being annexed to the
Development, using the same method of calculating such ratios as is described in the provisions
of the above referenced Section 7.5 of the Declaration.
E. The provisions of the Supplement shall expressly reserve for the benefit of all of
the Annexed Real Property that may from time to time be covered by the provisions of the
Declaration, reciprocal easements of use, enjoyment, access, ingress and egress.
1. Such easements may be used by the Declarant, its assigns, successors and
purchasers together with all of the Owners and Invitees, for sidewalks,
walkways, vehicular access, and such other purposes reasonably necessary
to the use and enjoyment of all of the Lots.
64
F. The Supplement may contain complimentary additions, amendments, and
modifications to the provisions of the Declaration necessary to reflect the different character, if
any, of the Annexed Real Property, which are not inconsistent with the general scheme of the
provisions of the Governing Documents or which are required by any Institutional First
Mortgagee to make the annexed Lots eligible for a Mortgage as described in the provisions of
ARTICLE X of the Declaration, which is entitled, "PROTECTION OF
MORTGAPROTECTION OF MORTGAGEES."
ARTICLE XIII
GENERAL PROVISIONS
13.1 BINDING EFFECT.
A. 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.
13.2 CONFLICTS WITH OTHER DOCUMENTS.
A. If there are conflicts or inconsistencies between the provisions of the Declaration
and either the Articles of Incorporation, the Bylaws, the Association Rules, or the Architectural
Rules, the provisions of the Declaration shall prevail.
13.3 CUMULATIVE REMEDIES.
A. 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.
13.4 EASEMENTS RESERVED AND GRANTED.
A. 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.
13.5 HEADINGS.
A. 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.
13.6 LIBERAL CONSTRUCTION.
A. 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.
65
13.7 NO DISCRIMINATORY RESTRICTIONS.
A. 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,
sex, marital status, national ancestry, color, or religion.
13.8 NO FIXED TERM.
A. The Declaration shall continue in full force and effect until the Declaration is
revoked pursuant to ARTICLE XII of the Declaration, entitled, "AMENDMENT OF
DECLARATION."
13.9 NO REPRESENTATIONS OR WARRANTIES.
A. 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 California Department of
Real Estate.
13.10 NOTICES AND COMMUNICATION.
A. 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:
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:
a. 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.
b. If to the Association, to the Copper Ridge Estates 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.
13.11 NOTIFICATION OF SALE.
A. 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.
B. 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.
C. 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
66
duly made and given to the transferee if duly and timely made and given to the transferee's
transferor.
D. Mailing addresses may be changed at any time upon written notification to the
Board.
E. 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.
F. 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.
13.12 NUMBER; GENDER.
A. 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.
13.13 OWNER'S ACCESS TO BOOKS.
A. 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.
13.14 SEVERABILITY OF PROVISIONS.
A. 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.
13.15 VIOLATION OF A PROVISION OF THE GOVERNING DOCUMENTS AS NUISANCE.
A. 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.
ARTICLE XIV
RIGHTS OF THE CITY OF FRESNO
A. Notwithstanding any other provisions of the Declaration to the contrary and in
addition to any standards or provisions set by other applicable codes, ordinances or laws, the following
requirements shall apply:
B. 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.
C. the Association shall have the duty to pay for all utility charges which are not
separately metered and billed to the Lots, including, but not limited to, charges for sewer, water,
gas, electric and waste collection service.
D. The Association shall maintain all landscaping irrigation systems, gates, and walls
along the landscape easement on North Cedar Ave.and East Copper Ave with"OUTLOT A."
67
I. The Association shall not decrease the amount of the Assessments levied
against the Owners, if such decrease will adversely affect the ability of the
Association to perforin above referenced duties.
E. Provide the following minimum landscaped areas:
10 feet of landscaping on North Cedar Avenue
20 feet of landscaping on East Copper Avenue
No structures of any kind may be installed or maintained within the above landscaped
areas. No exposed utility boxed, transformers, meters, piping (excepting the backflow prevention
device), etc., are allowed to be located in the landscape areas or setbacks or on the street
frontages of buildings. All transformers, etc., shall be shown on site plan. The backflow device
shall be screened by landscaping or such other means as may be approved.
Trees shall be maintained in good health. 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 may otherwise be approved by the Development Department.
F. The provisions of this ARTICLE XIV may not be amended without the prior
written consent of the City of Fresno Planning and Development Director.
Declarant has executed the Declaration as of the day of ,
200 . 6117
COPPER RIDGE ESTATES, LLC,
a Californ' ited liability co any
BY: (/,,VX"
ar . McDonald, President
6s
" I
ACKNOWLEDGMENT
STATE OF CALIFORNIA
) SS.
COUNTY OF Fresno
On 5-19-04 , before me,
D. Dillon , a
Notary Public in and for said County and State,
personally appeared
Gary L. McDonald
personally known to me (or proved to me on the basis of
satisfactory evidence)to be the person(s) whose name(s)
is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the sameCOMMD. DILLON#1352900
.
in his/her/their authorized capacity(ies)and that by - NOTARY PUBLIC.CALIFORNIA
his/her/their signature(s)on the instrument the person(s), ~ • FRESNO COUNTY
or the entity upon behalf of which the person(s) acted, My Comm.Expires Apr.22,2006
executed the instrument.
WITNESS my hand and official seal.
\ \-\U--
Signature of Notary
69