T-6130 - Agreement/Covenant - DCC&Rs - 11/15/2017 C
I�
IIII III I IIII II II II IIII IIII I II III III I II IIII II III II
WHEN RECORDED RETURN TO: FRESNO County Recorder
BN 5499 L.P. Paul DictosC.P.A.
c/o John A. Bonadelle DCC— 2617-0147625
7030 N. Fruit Ave. , Suite 101 Acct 8017-First American Title - Fresno SPL
Fresno, CA 93711 Wednesday, NOV 15, 2017 08:00:00
Tt 1 Pd $371.00 Rcpt # 0004885285
RGR/R6/2-112
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS & EASEMENTS
TRACT NO. . 6130
CANYON CREEK FRESNO
PLANNED DEVELOPMENT
(INCLUDING SUBORDINATION)
NOTICE:
ARTICLE XVI AT PAGES 93 THROUGH 97, INCLUSIVE, OF THIS
DECLARATION CONTAIN A BINDING ARBITRATION PROVISION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT. ARBITRATION
INCLUDES A WAIVER OF THE CONSTITUTIONAL RIGHT TO A JURY. OWNER
SHOULD READ THE ARBITRATION PROVISION CAREFULLY AND CONSULT
INDEPENDENT LEGAL COUNSEL OF OWNER' S CHOOSING WITH ANY
QUESTIONS.
INDEX TO
DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS & EASEMENTS
TRACT NO. 6130
CANYON CREEK FRESNO
PLANNED DEVELOPMENT
DESCRIPTION PAGE
PREAMBLE
ARTICLE I DEFINITIONS 5
ARTICLE II MEMBERSHIP 9
ARTICLE III VOTING RIGHTS 10
ARTICLE IV ASSESSMENTS 12
ARTICLE V OWNERSHIP OF RESIDENCE LOTS
AND COMMON AREA 27
ARTICLE VI OCCUPANCY AND USE OF RESIDENCE LOTS
AND COMMON AREA 28
ARTICLE VII COVENANT AGAINST PARTITION 37
ARTICLE VIII LABOR AND MATERIALMAN'S LIENS 38
ARTICLE IX ARCHITECTURAL CONTROL 39
ARTICLE X INSURANCE 44
ARTICLE XI MAINTENANCE, REPAIR AND RESTORATION 50
ARTICLE XII DESTRUCTION OR CONDEMNATION 56
ARTICLE XIII EASEMENTS AND ENCROACHMENTS 61
ARTICLE XIV POWERS AND DUTIES OF ASSOCIATION 67
ARTICLE XV RIGHTS OF LENDERS 80
ARTICLE XVI MISCELLANEOUS 87
ARTICLE XVII ANNEXATION 99
ARTICLE XVIII RIGHTS OF CITY OF FRESNO 102
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DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS & EASEMENTS
TRACT NO. 6130
CANYON CREEK FRESNO
PLANNED DEVELOPMENT
This DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS &
EASEMENTS, TRACT NO. 6130 CANYON CREEK FRESNO PLANNED DEVELOPMENT,
is made this '�6 ' day of October, 2017 by BN 5499 L. P. , a
California limited partnership, hereinafter referred to as
"DECLARANT") , with reference to the following recitals :
1 . DECLARANT is the owner of certain parcels of real
property situate in the City of Fresno, County of Fresno, State of
California, more particularly described as follows :
LOTS 1 through 23, inclusive, LOTS 85 through
94, inclusive, LOTS 111 through 126,
inclusive, together with OUTLOTS G, H, I, J
and L as said LOTS and OUTLOTS are described
and depicted upon the Map for Tract No. 6130,
recorded on AjAVeAgb'eC /$ 2017, in Volume 3 of
Plats at Pages t,{q -}�rU S� inclusive,
records of said County.
Said parcels of real property are collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 1".
2 . DECLARANT is also the owner of certain parcels of real
property situate in the City of Fresno, County of Fresno, State of
California, more particularly described as follows :
LOTS 24 through 39, inclusive, LOTS 134
through 154, inclusive, together with OUTLOTS
B and D, as said LOTS and OUTLOTS are
described and depicted upon the Map for Tract
No. 6130, recorded on N V=joax /.,y, 2017, in
Volume Z7 of Plats at Pages !�9 Niru . _.
inclusive, records of said County.
Said parcels of real property are collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 2" .
3 . DECLARANT is also the owner of certain parcels of real
property situate in the City of Fresno, County of Fresno, State of
California, more particularly described as follows :
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LOTS 40 through 70, inclusive, together with
OUTLOTS A, E and M, as said LOTS and OUTLOTS
are described and depicted upon the Map for
Tract No. 6130, recorded on NoVe(Al, f 15. 2017,
in Volume of Plats at Pages
49 a ,,� inclusive, records of said
County.
Said parcels of real property are collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 3" .
4 . DECLARANT is also the owner of certain parcels of real
property situate in the City of Fresno, County of Fresno, State of
California, more particularly described as follows :
LOTS 71 through 84, inclusive, LOTS 95 through
99, inclusive, together with OUTLOT F, as said
LOTS and OUTLOTS are described and depicted
upon the Map for Tract No. 6130, recorded on
JV(jjjeer / , 2017, in Volume ff2 of Plats at
Pages . q 9 J� Sa inclusive, records of
said County.
Said parcels of real property are collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 4" .
5 . DECLARANT is also the owner of a certain parcel of
real property situate in the City of Fresno, County of Fresno,
State of California, more particularly described on Exhibit "A"
attached hereto and made a part hereof.
Said parcel of real property is collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 5", "PHASE 611,
and "PHASE 7" .
6. DECLARANT is also the owner of certain parcels of
real property situate in the City of Fresno, County of Fresno,
State of California, more particularly described as follows :
LOTS 100 through 110, inclusive, LOTS 127
through 133, LOT 155 and LOT 156, together
with OUTLOT K, as said LOTS and OUTLOT are
described and depicted upon the Map for Tract
No . 6130, recorded on A/2Ve.M6er /�, 2017, in
Volume a of Plats at Pages q q rU SA
inclusive, records of said County.
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Said parcels of real property are collectively sometimes
hereinafter referred to for brevity' s sake as "PHASE 8" .
7 . Said PHASE 2, PHASE 3, PHASE 4, PHASE 5, PHASE 6,
PHASE 7 and PHASE 8 are sometimes hereinafter referred to for
brevity' s sake collectively as the "SUBSEQUENT PHASES" .
8 . PHASE 1 and the SUBSEQUENT PHASES are collectively
sometimes hereinafter referred to for brevity' s sake as "THE
PROJECT" or "THE PROPERTY" . Said PHASE 1, PHASE 2, PHASE 3, PHASE
4, PHASE 5, PHASE 6, PHASE 7 and PHASE 8 are sometimes hereinafter
referred to individually as a "PHASE" or collectively as the
"PHASES . "
9. DECLARANT intends to subdivide and develop PHASE 1
as a Planned Development under the laws of the State of California
containing by constructing thereon forty-nine (49) single-family
RESIDENCES together with the PHASE 1 of THE PROJECT COMMON AREA
(OUTLOTS G, H, I, J and L) , in accordance with the map for said
P
impose TRACT NO. 6130 . DECLARANT intends to upon said PHASE 1 the
covenants, conditions, restrictions and easements set forth herein
below herein below for the benefit of said PHASE 1 and all
RESIDENCES to be constructed thereon, as well as the future OWNERS
thereof.
10 . DECLARANT intends, but is not required, to develop
and subdivide all or part of the SUBSEQUENT PHASES, as additional
Planned Developments under the laws of the State of California by
developing not more than two hundred seventeen (217) residential
LOTS together with related COMMON AREA in one or more increments or
phases in the SUBSEQUENT PHASES, and if any such PHASE, or any part
thereof, is or are to be so developed, to make such PHASE so
developed subject to and impose thereon each and all the covenants,
conditions, restrictions and easements created hereby, and to annex
said PHASE or portion thereof so developed for the purposes and in
the manner set forth in Article XVII -of this DECLARATION, so that
PHASE 1 and such part or portion of SUBSEQUENT PHASES, if annexed,
shall be operated, controlled and administered as a single
integrated project under the name of "CANYON CREEK FRESNO", and
marketed under the name "CANYON CREEK", with a maximum of two
hundred fifty (266) total RESIDENCES .
11 . DECLARANT desires to impose THE PROPERTY with
certain reciprocal easements and mutually beneficial covenants all
as hereinafter set forth.
NOW, THEREFORE, DECLARANT hereby declares that it intends
to create a planned development as defined in Section 4175 of the
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California Civil Code and that THE PROPERTY, and every part
thereof, shall be held, conveyed, hypothecated, encumbered, leased,
rented, occupied and improved subject to the following limitations, '
covenants, conditions, restrictions, reservations and easements,
all of which are declared and agreed to be in furtherance of a plan
for the subdivision of THE PROPERTY as a single integrated project
and are established and agreed upon for the purpose of enhancing
and protecting the security, value, desirability and attractiveness
of THE PROJECT, and every part thereof. All of the restrictions,
covenants, limitations and easements set forth herein shall run
with THE PROPERTY, and every part thereof, and shall be binding on
all persons having .or acquiring any right, title or interest
therein or thereto and shall be for the benefit of each OWNER of
any portion thereof, and shall inure to the benefit of and be
binding upon any successor in interest of such OWNERS.
Notwithstanding the foregoing, and subject to the
provisions of Section 2792 . 15 of Title 10 of the California Code of
Regulations, for a period ending on the earlier of five (5) years
after the close of escrow of the first LOT in the last PHASE
annexed to THE PROJECT, or the close of escrow of the last LOT in
THE PROJECT, whichever occurs first, no provisions of this
DECLARATION shall be construed as to prevent or limit DECLARANT ' S
right to complete the development of THE PROPERTY and the
construction of improvements thereon, nor DECLARANT'S right to
maintain sales or leasing offices or similar facilities on THE
PROPERTY nor DECLARANT' S right to post signs incidental to
construction, sales or leasing.
END OF RECITALS
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N
ARTICLE I
DEFINITIONS
Unless the context otherwise specifies or requires, the
terms defined in this DECLARATION shall, for all purposes have the
following meanings :
1 . 01 ARCHITECTURAL COMMITTEE. "ARCHITECTURAL COMMITTEE
shall mean the committee described in Article IX of this
DECLARATION.
1 . 02 ARTICLES/ARTICLES OF INCORPORATION. "ARTICLES"
and/or "ARTICLES OF INCORPORATION" shall mean the Articles of
Incorporation of CANYON CREEK FRESNO HOMEOWNERS ASSOCIATION, a
California non-profit mutual benefit corporation, as the same may
be amended from time to time .
1 . 03 ASSOCIATION. "ASSOCIATION" shall mean CANYON CREEK
FRESNO HOMEOWNERS ASSOCIATION, a California non-profit mutual
benefit corporation, or its successor, an owners association as
defined in Section 4080 of the California Civil Code. The purpose
of the ASSOCIATION is to operate THE PROJECT in accordance with the
provisions of this DECLARATION.
1 . 04 ASSOCIATION RULES . "ASSOCIATION RULES" shall mean
the rules governing the use and occupancy of THE PROJECT from time
to time in effect, pursuant to the provisions of the BY-LAWS of the
ASSOCIATION and this DECLARATION.
1 . 05 BOARD. "BOARD" shall mean the Board of Directors of
the ASSOCIATION.
1 . 06 BY-LAWS . "BY-LAWS" shall mean the BY-LAWS of the
ASSOCIATION, as such BY-LAWS may be amended from time to time .
1 . 07 CITY/COUNTY. "CITY" shall mean and refer to the
City of Fresno, and "COUNTY" shall mean and refer to the County of
Fresno, State of California.
1 . 08 COMMON AREA. "COMMON AREA" shall mean all real and
personal property owned by the ASSOCIATION for the common use and
enjoyment of the OWNERS.
1 . 08 . 1 The COMMON AREA of PHASE 1 to be owned by the
ASSOCIATION shall be OUTLOTS G, H, I, J and L of TRACT NO. 6130,
together with (except as otherwise provided in this DECLARATION)
all amenities, structures and improvements located therein,
including without limitation, landscaping and irrigation systems
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located on the aforesaid OUTLOTS, all onsite sewer, water and storm
drainage facilities, walkways, cluster mailboxes, entry monument
sign on OUTLOT J and masonry block walls and masonry block
retaining walls along OUTLOTS G, H, I, J and L, and five (5) stall
concrete open parking area.
1 . 08 . 2 OUTLOTS located within the SUBSEQUENT PHASES,
together with (except as otherwise provided in this DECLARATION)
all amenities, structures and improvements located therein, will
also be COMMON AREA, should all or any part of the SUBSEQUENT
PHASES containing OUTLOTS be annexed to THE PROJECT pursuant to
Article. XVII of this DECLARATION.
1 . 09 DECLARANT. "DECLARANT" shall mean BN 5499 L. P . , a
California limited partnership, its successors and assigns, if such
successors and assigns are assigned the right of DECLARANT under
the DECLARATION or if such successor or assign acquires DECLARANT ' S
interest in THE PROJECT by foreclosure or by deed in lieu of
foreclosure of a MORTGAGE .
1 . 10 DECLARATION. "DECLARATION" shall mean and refer to
this Declaration of Covenants, Conditions, Restrictions &
Easements, Tract No. 6130 Canyon Creek Fresno Planned Development
(Including Subordination) .
1 . 11 FISCAL YEAR. "FISCAL YEAR" shall refer to the
accounting year of the ASSOCIATION which shall be a calendar year.
1 . 12 INSTITUTIONAL MORTGAGEE . "INSTITUTIONAL MORTGAGEE"
shall mean and refer to a MORTGAGEE which is a bank or savings and
loan association or an established mortgage company or other entity
chartered under federal or state law; any corporation or insurance
company, any federal or state agency or other institution specified
by the BOARD in a recorded instrument .
1 . 13 MAJORITY OF MEMBERS. "MAJORITY OF MEMBERS" shall
mean:
1 . 13 . 1 Those members of the ASSOCIATION holding fifty-
one percent - (51o) of the votes of each class of membership for so
long as there are two (2) classes of memberships in the ASSOCIATION
pursuant to Article III of this DECLARATION.
1 . 13 .2 Upon the conversion of Class B memberships into
Class A- memberships pursuant to said Article III those members of
the ASSOCIATION holding fifty-one percent (510) of the votes .
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1 . 14 MEMBER. "MEMBER" shall mean and refer to those
persons entitled to membership in the ASSOCIATION as provided in
this DECLARATION.
1 . 15 MORTGAGE. "MORTGAGE" shall mean and refer to a
MORTGAGE or deed of trust encumbering a RESIDENCE LOT in THE
PROJECT. The term "FIRST MORTGAGE" shall mean and refer to a
MORTGAGE which has priority over any other MORTGAGE encumbering a
specific RESIDENCE LOT.
1 . 16 MORTGAGEE. "MORTGAGEE" shall mean the holder of a
deed of trust as well as a MORTGAGE or contract lender under a
recorded contract of sale of a RESIDENCE LOT in THE PROJECT or
contract vendor under a recorded contract of sale of a RESIDENCE
LOT in THE PROJECT.
1 . 17 OWNER. "OWNER" shall mean and refer to the record
owner or owners, if more than one, (including DECLARANT) of the
recorded fee simple title to any RESIDENCE LOT which is a part of
THE PROJECT, (or contract vendee under a recorded contract of sale
of a RESIDENCE LOT in THE PROJECT) , excluding those persons or
entities having such interest merely as security for the
performance of an obligation.
1 . 18 THE PROJECT . "THE PROJECT" shall mean and refer to
PHASE 1, as well as the SUBSEQUENT PHASES, should all or any part
of the SUBSEQUENT PHASES be annexed pursuant to ARTICLE XVII
hereof, to be developed as a Planned Development, including COMMON
AREA, RESIDENCE LOTS and each RESIDENCE thereon.
1 . 19 RESIDENCE. "RESIDENCE" shall mean and refer to the
single family dwelling constructed upon each RESIDENCE LOT.
1 . 20 RESIDENCE LOT/LOT. "RESIDENCE LOT" or "LOT" shall
mean and refer to each LOT within PHASE 1 (LOTS 1 through 23,
inclusive, LOTS 85 through 94, inclusive, and LOTS 111 through 126,
inclusive) of TRACT NO. 6130, and shall not include the PHASE 1
COMMON AREA OUTLOTS G, H, I, J and L of TRACT NO. 6130, unless
otherwise expressly provided herein. "RESIDENCE LOT/LOT" shall
also mean and refer to each numbered LOT in the SUBSEQUENT PHASES,
should all or any part thereof be annexed pursuant to Article XVII
of this DECLARATION.
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1 . 21 STRUCTURES . "STRUCTURES" shall mean and refer to
all buildings, garages, sheds, or other outbuildings or auxiliary
buildings (other than a RESIDENCE) constructed or maintained upon
a LOT in THE PROJECT .
END OF ARTICLE I
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ARTICLE II
MEMBERSHIP
2 . 01 QUALIFICATIONS . Each OWNER of a RESIDENCE LOT,
including DECLARANT, shall be a MEMBER of the ASSOCIATION. If a
given RESIDENCE LOT is owned by more than one OWNER, all such
OWNERS shall be members of the ASSOCIATION.
2 . 02 TRANSFER OF MEMBERSHIP. The ASSOCIATION membership
of .each OWNER (including DECLARANT) shall be appurtenant to the
RESIDENCE LOT giving rise to such membership, and shall not be
assigned, transferred, pledged, conveyed or alienated in any way
except upon the transfer of title to said RESIDENCE LOT and then
only to the transferee of title- to such RESIDENCE LOT. Any attempt
to make a prohibited, transfer shall be void. Any transfer of title
to a RESIDENCE LOT shall operate automatically to transfer the
membership in the ASSOCIATION appurtenant thereto to the new OWNER
thereof.
2 . 03 MEMBERSHIP RIGHTS . The rights, duties, privileges
and obligations incidental to membership in the ASSOCIATION shall
be exercised and imposed in accordance with this DECLARATION and
the BY-LAWS of the ASSOCIATION.
2 . 04 TERMINATION OF MEMBERSHIP. An OWNER'S membership
in the ASSOCIATION shall cease upon the termination of his status
as an OWNER, whether by sale, assignment or conveyance of the
RESIDENCE LOT giving rise to such membership.
END OF ARTICLE II
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ARTICLE III
VOTING RIGHTS
3 . 01 VOTING RIGHTS . The ASSOCIATION shall have two (2)
classes of voting memberships, specifically, Class A voting members
and Class B voting members .
3 . 01 . 1 Each RESIDENCE LOT, other than a RESIDENCE LOT
owned by the DECLARANT during such time as Class B voting rights
are in existence, shall have Class A voting rights entitling such
RESIDENCE LOT to one (1) vote, regardless of the number of OWNERS
thereof. There shall be as many Class A votes as there are
RESIDENCE LOTS in THE PROJECT; provided, however, that during such
time as Class B votes shall be in existence, there shall be as many
Class A votes as there are RESIDENCE LOTS not owned by DECLARANT.
3 . 01 .2 DECLARANT shall have Class B voting rights
entitling it to three (3) votes for each RESIDENCE LOT in THE
PROJECT owned by DECLARANT. Class B voting rights shall be
converted to Class A voting rights and shall forever cease to exist
on the occurrence of the first to occur of the following:
(a) The second anniversary of the first conveyance
of a LOT in the most recent PHASE of THE PROJECT, or
(b) The fourth anniversary of the first conveyance
of a LOT in PHASE 1 of the PROJECT.
3 . 02 VESTING OF VOTING RIGHTS. The voting rights
prescribed with respect to each RESIDENCE LOT within THE PROJECT
pursuant to this Article III shall not vest with respect to such
RESIDENCE LOT until the first day following the initial levy of the
regular monthly assessment against such RESIDENCE LOT by the
ASSOCIATION pursuant to Article IV of this DECLARATION.
3 . 03 APPLICATION. Whenever this DECLARATION or the BY-
LAWS of the ASSOCIATION require the vote, assent or presence of a
stated number of OWNERS or MEMBERS entitled to vote on a matter or
at a meeting with regard to the taking of any action or any other
matter whatsoever, the provisions of this Article III shall govern
as to the total number of available votes, the number of votes an
OWNER is entitled to cast at the meeting, and the manner in which
the vote attributable to a RESIDENCE LOT having more than one OWNER
shall be cast.
3 . 04 JOINT OWNER DISPUTES . The vote for each RESIDENCE
LOT shall be cast only as a unit, and fractional votes shall not be
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allowed. In the event that joint OWNERS are unable to agree among
themselves as to how their vote or votes shall be cast, they shall
lose their right to vote on the matter in question. If any OWNER
or OWNERS cast a vote representing a certain RESIDENCE LOT, it will
thereafter be conclusively presumed for all purposes that he or
they were acting with the authority and consent of all other OWNERS
of the same RESIDENCE LOT . In the event more than one vote is cast
for a particular RESIDENCE LOT, none of said votes shall be counted
and all of said votes shall be deemed void.
3 . 05 CUMULATIVE VOTING. In any election of the BOARD
the vote attributable to a given RESIDENCE LOT may be cumulated by
the OWNER or OWNERS thereof as prescribed by Section 3 . 14 of the
BY-LAWS .
3 . 06 DECLARANT VOTING RIGHTS . Any provision of this
DECLARATION, the BY-LAWS or the regulations of the State of
California, Bureau of Real Estate ("B.R.E") (except Section 2792 . 4,
Title 10 of the California Code of Regulations) for action to be
taken by a prescribed majority of the voting power of MEMBERS other
than DECLARANT shall be subject to the following provisions :
3 . 06. 1 Where two (2) classes of membership in the ASSO-
CIATION are in existence, the approval of MEMBERS of action by the
ASSOCIATION shall require the vote or written assent of a bare
majority of the Class B voting power as well as the vote or written
assent of the prescribed majority of the Class A voting power.
3 . 06.2 Where two (2) classes of membership no longer
exist, approval of the MEMBERS of action by the ASSOCIATION shall
require the vote or written assent of a bare majority of the total
voting power of the ASSOCIATION as well as the vote or written
assent of the prescribed majority of the total voting power of
MEMBERS other than the DECLARANT.
END OF ARTICLE III
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�3
ARTICLE IV
ASSESSMENTS
4 . 01 CREATION OF LIEN AND OBLIGATION OF ASSESSMENTS . The
DECLARANT, for each RESIDENCE LOT owned by it within THE PROJECT
hereby covenants, and each OWNER of a RESIDENCE LOT within THE
PROJECT, by acceptance of a deed therefor, is deemed to covenant
and agree to pay to the ASSOCIATION the following assessments :
4 . 01 . 1 REGULAR MONTHLY ASSESSMENTS;
4 . 01 . 2 SPECIAL ASSESSMENTS; and
4 . 01 . 3 INDIVIDUAL ASSESSMENTS .
Certain REGULAR and SPECIAL ASSESSMENTS provided for by
this DECLARATION, (not INDIVIDUAL ASSESSMENTS prescribed by Section
4 . 07 hereof) together with such interest thereon and the cost for
collection thereof shall be a charge on the RESIDENCE LOT against
which each assessment is made, which lien shall be created and
enforced in accordance with the provisions of this Article IV,
together with interest and the cost of collection thereof, shall
further be the joint and several personal obligation of each person
who was an OWNER of such RESIDENCE LOT at the time when such
assessment fell due .
4 . 02 REGULAR MONTHLY ASSESSMENT. The "REGULAR MONTHLY
ASSESSMENTS" levied by the ASSOCIATION pursuant to this Article IV
shall be used by the ASSOCIATION to promote the health, safety,
benefit, recreation and welfare of the OWNERS and for the
improvement and maintenance of the COMMON AREA and, to the extent
provided in this DECLARATION, of the RESIDENCES and the RESIDENCE
LOTS in THE PROJECT. The term "'REGULAR MONTHLY ASSESSMENT" as used
herein shall mean and refer to the following assessments .
4 . 02 . 1 INITIAL REGULAR MONTHLY ASSESSMENT. The first
day of the calendar month immediately following the date of the
first conveyance of a RESIDENCE LOT under authority of the final
subdivision public report for THE PROJECT shall be hereinafter
referred to as the "INITIATION DATE" . Until January 1 of the
FISCAL YEAR immediately following the INITIATION DATE the REGULAR
MONTHLY ASSESSMENT shall be the amount set forth in the final
subdivision public report for PHASE 1 issued by the B.R.E.
4 . 02 . 2 REGULAR MONTHLY ASSESSMENT. Not less than forty-
five (45) days nor more than sixty (60) days prior to the beginning
of each FISCAL YEAR following the INITIATION DATE, the ASSOCIATION
shall estimate the net cash requirements for the ensuing FISCAL
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YEAR for the ASSOCIATION to operate and maintain THE PROJECT,
including reasonable reserves for the replacement or repair of all
improvements comprising the COMMON AREA, in accordance with the
ASSOCIATION' S duties as set forth in this DECLARATION and the BY-
LAWS. Such pro-forma operating statements shall be distributed to
each MEMBER of the ASSOCIATION not less than forty-five (45) days
nor more than sixty (60) days before the commencement of the FISCAL
YEAR pursuant to Section 4 . 02 . 10 of the BY-LAWS.
The amount of the estimated net cash requirements for the
ensuing FISCAL YEAR for the ASSOCIATION, as determined pursuant to
this Section 4 . 02 .2, shall constitute the REGULAR MONTHLY
ASSESSMENT for such FISCAL YEAR, and each RESIDENCE LOT in THE
PROJECT shall be assessed for its share of the REGULAR MONTHLY
ASSESSMENT pursuant to the provisions of Section 4 . 07 of this
DECLARATION.
All REGULAR MONTHLY ASSESSMENTS shall continue in effect
until the end of the FISCAL YEAR during which they became
effective, and for each FISCAL YEAR' thereafter unless increased or
decreased in accordance with and at the time and in the manner
provided for by this DECLARATION.
4 . 02 . 3 PARTIAL ASSESSMENT EXEMPTION FOR UNCOMPLETED
COMMON AREA. All OWNERS including DECLARANT shall be exempt from
the payment of that portion of any REGULAR ASSESSMENT which is for
the purpose of defraying expenses and reserves directly
attributable to the existence and use of any COMMON AREA
improvement that is not completed at the time assessments commence .
The assessment exemption provided by this subparagraph shall be in
effect only until the earliest of the following events : (i) a
notice of completion of the COMMON AREA has been recorded; or (ii)
the COMMON AREA has been placed in use.
4 . 02 . 4 CERTIFICATE OF PAYMENT. The ASSOCIATION shall
upon demand, furnish to any OWNER liable for any assessment a
certificate in writing signed by an officer of the ASSOCIATION,
setting forth whether the assessments on a specified RESIDENCE LOT
have been paid, and the amount of the delinquency, if any. A
charge of $10 . 00 per certificate may be made by the BOARD for the
issuance of those certificates . Such certificates shall be
conclusive evidence of payment of any assessment therein stated to
have been paid.
4 . 03 INCREASE IN REGULAR MONTHLY ASSESSMENTS BY BOARD.
The ASSOCIATION shall at all times levy assessments sufficient to
perform its obligations under this DECLARATION and under the
California Davis-Stirling Common Interest Development Act. The
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BOARD must comply with the provisions of Sections 5605 and 5610 of
the California Civil Code prior to any increase in REGULAR MONTHLY
ASSESSMENTS .
4 . 04 SPECIAL ASSESSMENTS. The BOARD, at any time, may
levy a SPECIAL ASSESSMENT in order to raise funds for unexpected
operating or other costs, insufficient operating funds, defraying,
in whole or in part, the cost of any construction, reconstruction
or unexpected repair or replacement of a capital improvement upon
the COMMON AREA, including any personal property related thereto.
The BOARD may not levy SPECIAL ASSESSMENTS without complying with
the provisions of Sections 5605, 5610, 5615, 5620 and 5650 of. the
California Civil Code
4 . 05 QUORUM. For purposes of Sections 4 . 03 and 4 . 04 of
this Article IV, a quorum means more than fifty percent (50%) of
the MEMBERS of the ASSOCIATION.
4 . 06 EMERGENCY ASSESSMENTS . Notwithstanding any other
provision contained in Sections 4 . 03 and 4 . 04 of this Article IV,
the BOARD may increase assessments necessary for emergency
situations pursuant to Section 5610 of the California Civil Code .
4 . 07 INDIVIDUAL ASSESSMENTS . A REGULAR MONTHLY ASSESSMENT
or SPECIAL ASSESSMENT and any late charges, reasonable costs of
collection, and interest, as assessed in accordance with California
Civil Code Section 5600, shall be a debt of the owner of the
separate interest at the time the assessment or other sums are
levied. Before an ASSOCIATION may place a lien upon the separate
interest of an OWNER to collect a debt which is past due under this
subdivision, the ASSOCIATION shall notify the OWNER inwriting by
certified mail of the fee and penalty procedures of the
ASSOCIATION, provide an itemized statement of the charges owed by
the OWNER, including items on the statement which indicate the
assessments owed, any late charges and the method of calculation,
any attorney' s fees, and the collection practices used by the
ASSOCIATION, including the right of the ASSOCIATION to the
reasonable costs of collection. In addition, any payments toward
that debt shall first be applied to the assessments owed, and only
after the principal owed is paid in full shall the payments be
applied to interest or collection expenses .
The amount of the assessment, plus any costs of
collection, late charges, and interest assessed in accordance with
California Civil Code Sections 5600 and 5650, shall be a lien on
the OWNER' S interest in the common interest development from and
after the time the ASSOCIATION causes to be recorded with the
county recorder of the COUNTY, a notice of delinquent assessment,
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14
1�
which shall state the amount of the assessment and other sums
imposed in accordance with California Civil Code Section 5660, a
legal description of the RESIDENCE LOT against which the assessment
and other sums are levied, the name of the record owner of the
RESIDENCE LOT against which the lien is imposed, and, in order for
the lien to be enforced by nonjudicial foreclosure as provided in
subdivision (e) the name and address of the trustee authorized by
the ASSOCIATION to enforce the lien by sale. The notice of
delinquent assessment shall be signed by the person designated in
the declaration or by the ASSOCIATION for that purpose, or if no
one is designated, by the president of the ASSOCIATION, and mailed
in the manner set forth in California Civil Code Section 2924b, to
all record owners of the RESIDENCE LOT no later than ten (10)
calendar days after recordation. Upon payment of the sums
specified in the notice of delinquent assessment, the ASSOCIATION
shall cause to be recorded a further notice stating the
satisfaction and release of the lien thereof. A monetary penalty
imposed by the ASSOCIATION as a means of reimbursing the
ASSOCIATION for costs incurred by the ASSOCIATION in the repair of
damage to the COMMON AREA and facilities for which the MEMBER or
the MEMBER' S guests or tenants were responsible shall become a
lien against an OWNER' S RESIDENCE LOT by the sale of the, RESIDENCE
LOT under California Civil Code Section 2924, 2924b, and 2924c,
provided the authority to impose a lien is set forth in the
DECLARATION, the ARTICLES, the BY-LAWS, and the ASSOCIATION RULES
(collectively the "Governing Documents") .
Except as indicated in the immediately preceding
paragraph, a monetary penalty imposed by the ASSOCIATION as a
disciplinary measure for failure of a member to comply with the
governing instruments, except for the late payments, shall not be
characterized nor treated as an assessment which may become a lien
against an OWNERS' S RESIDENCE LOT subdivision interest enforceable
by the sale of the RESIDENCE LOT under California Civil Code
Section 2924, 2924b, and 2924c. Further, a lien created pursuant
to the immediately preceding paragraph shall be prior to all other
liens recorded subsequent to the notice of assessment, except that
the declaration may provide for the subordination thereof to any
other liens and encumbrances .
After the expiration of thirty (30) days following the
recording of a lien created pursuant to this Section 4 . 07, the lien
may be enforced in any manner permitted by law, including sale by
the court, sale by the trustee designated in the notice of
delinquent assessment, or sale by a trustee substituted pursuant to
California Civil Code Section 2934a. Any sale by the trustee shall
be conducted in accordance with the provisions of California Civil
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15
Code Sections 2924, 2924b, and 2924c applicable to the exercise of
powers of sale in mortgages and deeds of trust .
4 . 08 ASSESSMENT LIEN.
A REGULAR or SPECIAL ASSESSMENT and any late charges,
reasonable costs of collection, and interest, as assessed in
accordance with California Civil Code Sections 5600 and 5650, shall
be a debt of the OWNER of the separate interest at the time the
assessment or other sums are levied. Before the ASSOCIATION can
record a lien upon the RESIDENCE LOT, it must comply with the
requirements of Section 4 . 15 . 5 below.
The amount of the assessment, plus any costs of
collection, late charges, and interest assessed in accordance with
California Civil Code Sections 5600 and 5650 shall be a lien on the
OWNER' S RESIDENCE LOT from and after the time the ASSOCIATION
causes to be recorded with the county recorder of the COUNTY, a
notice of delinquent assessment, which shall state the amount of
the assessment and other sums imposed in accordance with California
Civil Code Section 5660, a legal description of the RESIDENCE LOT
against which the assessment and other sums are levied, and the
name of the record OWNER of the RESIDENCE LOT against which the
lien is imposed. The itemized statement of the charges owed by the
OWNER [as described in Section 4 . 15 . 5 (b) below] , shall be recorded
together with the notice of delinquent assessment. In order for
the lien to be enforced by nonjudicial foreclosure as provided in
this Section 4 . 08, the notice of delinquent assessment shall state
the name and address of the trustee authorized by the ASSOCIATION
to enforce the lien by sale . The notice of delinquent assessment
shall be signed by the person designated in THE DECLARATION or by
the ASSOCIATION for that purpose, or if no one is designated, by
the president of the ASSOCIATION, and mailed in the manner set
forth in California Civil Code Section 2924b, to all record OWNERS
of the RESIDENCE LOT no later than ten (10) calendar days after
recordation. Within twenty-one (21) days of the payment of the
sum specified in the notice of delinquent assessment, the
ASSOCIATION shall record or cause to be recorded in the office of
the COUNTY recorder in which the notice of delinquent assessment is
recorded, a lien release or notice of rescission and provide the
OWNER of the RESIDENCE LOT with a copy of the lien release or
notice that the delinquent assessment has been satisfied.
A monetary penalty imposed by the ASSOCIATION as a means
of reimbursing the ASSOCIATION for costs incurred by the
ASSOCIATION in the repair of damage to the COMMON AREA and
facilities for which the MEMBER or the MEMBER' S guests or tenants
were responsible or as a disciplinary measure for failure of a
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16
MEMBER to comply with the governing instruments, except for the
late payments, shall not be characterized nor treated as an
assessment which may become a lien against an OWNERS' S RESIDENCE
LOT subdivision interest enforceable by the sale of the RESIDENCE
LOT under California Civil Code Section 2924, 2924b, and 2924c.
Subject to the limitations set forth in California Civil
Code Sections 5700, 5710 and 5735, after the expiration of thirty
(30) days following the recording of a lien created pursuant to
this Section 4 . 08, the lien may be enforced in any manner permitted
by law, including sale by the court, sale by the trustee designated
in the notice of delinquent assessment, or sale by a trustee
substituted pursuant to California Civil Code Section 2934a. Any
sale by the trustee shall be conducted in accordance with the
provisions of California Civil Code Sections 2924, 2924b, and 2924c
applicable to the exercise of powers of sale in mortgages and deeds
of trust.
4 . 09 DAMAGES TO COMMON AREA. Each OWNER of a RESIDENCE
LOT shall also be assessed from time to time for all fines,
penalties and damages to which the OWNER is subject as a result of
any damages caused to the COMMON AREA by the negligence or willful
misconduct of such OWNER; provided, however, that an assessment
levied pursuant to this Section 4 . 09 may not be treated as an
assessment which may become a lien against the OWNER' S RESIDENCE
LOT enforceable by sale of the interest pursuant to Section 4 . 15 . 2
herein below.
4 . 10 COLLECTION DATE. REGULAR MONTHLY ASSESSMENTS shall
be collected on a monthly basis unless the BOARD directs otherwise;
SPECIAL ASSESSMENTS may be collected in one (1) payment or
periodically as the BOARD shall direct. INDIVIDUAL ASSESSMENTS and
EMERGENCY ASSESSMENTS shall be paid in full within thirty (30) days
from notice thereof.
4 . 11 UNIFORM RATE OF ASSESSMENT. REGULAR MONTHLY and
SPECIAL ASSESSMENTS must be fixed at a uniform rate for all
RESIDENCE LOTS in THE PROJECT. REGULAR MONTHLY and SPECIAL
ASSESSMENTS shall be collected on a monthly basis and INDIVIDUAL
ASSESSMENTS shall be paid in full within thirty (30) days from
notice thereof. If a SPECIAL ASSESSMENT is assessed in accordance
with Section 4 . 04 of this Article IV, the amount thereof shall be
pro-rated over the number of months remaining in the FISCAL YEAR in
which it is so assessed.
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17
4 . 12 DATE OF COMMENCEMENT: DUE DATE. The REGULAR
MONTHLY ASSESSMENT shall commence on the INITIATION DATE as to all
RESIDENCE LOTS in THE PROJECT, including those owned by the
DECLARANT. REGULAR MONTHLY ASSESSMENTS and SPECIAL ASSESSMENTS for
each RESIDENCE LOT in any SUBSEQUENT PHASE annexed to THE PROJECT
pursuant to Article XVII shall commence as to each such RESIDENCE
LOT in a PHASE on the first day of the first calendar month
immediately following the first conveyance of a RESIDENCE LOT in
such SUBSEQUENT PHASE under authority of the final subdivision
public report for such SUBSEQUENT PHASE. For each FISCAL YEAR
commencing January 1 of the year following the INITIATION DATE, the
BOARD may increase the amount of the REGULAR MONTHLY ASSESSMENT for
such year against each RESIDENCE LOT in THE PROJECT as provided by
Section 4 . 03 of this Article IV in the manner and upon the notice
prescribed therein. REGULAR MONTHLY and SPECIAL ASSESSMENTS shall
be due and payable in advance on the first day of each month
regardless of the lack of any monthly notice thereof.
4 . 13 ALLOCATION OF ASSESSMENT FUNDS .
4 . 13 . 1 REGULAR MONTHLY AND SPECIAL ASSESSMENTS . All
REGULAR MONTHLY ASSESSMENTS and SPECIAL ASSESSMENTS shall be
segregated by the BOARD as to the purpose for which they were
assessed. Following such segregation, such funds shall be
transferred and held in trust by the BOARD in an operating trust
fund and a capital reserve trust fund. That portion of such
assessments for operating purposes shall be deposited with banks or
savings and loan associations selected by the BOARD in an account
or accounts designated "CANYON CREEK FRESNO HOMEOWNERS ASSOCIATION
OPERATION AND MAINTENANCE TRUST FUND ACCOUNT" and the funds held
therein shall be used by the BOARD to discharge the expenses for
the annual operation, repair and maintenance of the COMMON AREA of
THE PROJECT, and to the extent permitted by the DECLARATION, the
RESIDENCE LOTS and RESIDENCES within THE PROJECT. That portion of
all assessments collected for capital reserve shall be designated
"CANYON CREEK FRESNO HOMEOWNERS ASSOCIATION CAPITAL RESERVE TRUST
FUND ACCOUNT" and the funds held therein shall be used by the BOARD
solely for the purpose of defraying the cost of the future repair
or replacement of or additions to, those major components of the
COMMON AREA. and facilities which the ASSOCIATION is obligated to
maintain.
The BOARD shall not expend funds designated as reserve
funds for any purpose other than the repair, restoration,
replacement, or maintenance of, or litigation involving the repair,
restoration, replacement, or maintenance of, major components of
the COMMON AREA and facilities which the ASSOCIATION is obligated
to repair, restore, replace, or maintain and for which the reserve
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18
fund was established. However, the BOARD may authorize the
temporary transfer of money from a reserve fund to the
ASSOCIATION' S general operating fund to meet short-term cash-flow
requirements or other_ expenses, provided the BOARD has made a
written finding in its minutes as required by California Civil Code
Section 5515 . The transferred funds shall be restored to the
reserve fund within one (1) year of the date of the initial
transfer, except that the BOARD may, upon making a finding
supported- by documentation that a temporary delay would be in the
best interests of THE PROJECT, temporarily delay the restoration
until the time which the BOARD reasonably determines to be
necessary. The BOARD shall exercise prudent fiscal management in
delaying restoration of such funds and in restoring the expended
funds to the reserve account, and shall, if necessary, levy a
SPECIAL ASSESSMENT to recover the full amount of the expended funds
within the time limits required herein.
When the decision is made to use reserve funds or to
temporarily transfer money from the reserve fund to pay for
litigation, the ASSOCIATION shall notify the MEMBERS of that
decision in the next available mailing to all MEMBERS pursuant to
Section 5016 of the California Corporations Code, and of the
availability of an accounting of those expenses . The ASSOCIATION
shall make an accounting of expenses. related to the litigation on
at least a quarterly basis . The accounting shall be made available
for inspection by MEMBERS of the ASSOCIATION at the ASSOCIATION ' S
office.
Unless the ASSOCIATION is exempt from federal or state
income taxes, including without limitation an exemption under
Internal Revenue Code Section 528 and California Revenue and
Taxation Code Section 23701t, all reserve funds to the extent
possible, shall be designated and accounted for 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.
4 . 13 .2 SIGNATURE ON ACCOUNTS. The reserve account or
accounts of the ASSOCIATION shall require the signature of at least
two Directors of the ASSOCIATION or the signature of one Director
and one Officer, who is not a Director, for the withdrawal of funds
therefrom. The operating accounts of the ASSOCIATION shall require
the signature of the Chief Financial Officer and one other officer
designated by the BOARD, unless operating responsibilities are
contracted by the ASSOCIATION to a managing agent, in which case
the prospective managing agent shall make written disclosure to the
BOARD pursuant to California Civil Code Section 5375 . Moreover, a
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19
managing agent that accepts or receives ASSOCIATION funds shall
comply with the requirements of California Civil Code Sections
4158, 5380 and 5385 .
4 . 13 . 3 SPECIAL ASSESSMENTS . All SPECIAL ASSESSMENTS
shall be segregated by the BOARD and held in a special account and
shall be used by the BOARD for the purpose or purposes for which
the SPECIAL ASSESSMENT was levied pursuant to Section 4 . 04 hereof.
4 . 14 EFFECT OF NONPAYMENT OF ASSESSMENTS. Every OWNER,
including DECLARANT, shall be deemed to covenant and agree to pay
the assessments provided for in this DECLARATION, and further agree
to the enforcement of such assessments in the manner provided for
in Section 4 . 15 .
4 . 15 DELINQUENCY.
4 . 15 . 1 Any assessment provided for in this DECLARATION
that is not paid shall become delinquent fifteen (15) days after it
becomes due . If an assessment is delinquent, the ASSOCIATION may
recover all of the following:
(a) Reasonable costs incurred in collecting the
delinquent assessment, including reasonable attorney' s fees;
(b) A late charge not exceeding ten percent (100)
of the delinquent assessment or ten dollars ($10 . 00) , whichever is
greater; and,
(c) Interest on all sums imposed by this Section
4 . 15 . 1, including the delinquent assessment, reasonable costs of
collection (including attorney' s fees). and late charge, at an
annual percentage rate of twelve percent (12.0) interest, commending
thirty (30) days after the delinquent assessment became due .
4 . 15 . 2 The failure to pay ASSOCIATION assessments may
result in the loss of an OWNER' S RESIDENCE LOT through foreclosure .
Foreclosure may occur either as a result of a. court action, known
as judicial foreclosure or without court action, often referred to
as nonjudicial foreclosure. The ASSOCIATION may not use judicial or
nonjudicial foreclosure to enforce the lien recorded against a
RESIDENCE LOT if the amount of the delinquent assessments or dues,
exclusive of any accelerated assessments, late charges, fees,
attorney' s fees, interest, and costs of collection, is less than
one thousand eight hundred dollars ($1, 800) . If the delinquent
assessment is in excess of one thousand eight hundred dollars
($1, 800) or more than twelve (12) months delinquent, the
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20
ASSOCIATION may use judicial or nonjudicial foreclosure subject to
the conditions set forth in Section 5270 of the California Civil
Code. When using judicial or nonjudicial foreclosure, the
ASSOCIATION records a lien on the OWNER' S RESIDENCE LOT. The
OWNER' S RESIDENCE may be sold to satisfy the lien if the amounts
secured by the lien are not paid.
4 . 15 . 3 In a judicial or non judicial foreclosure, the
ASSOCIATION may recover assessments, reasonable costs of
collection, reasonable attorney' s fees, late charges, and interest.
The ASSOCIATION may not use nonjudicial foreclosure to collect
fines or penalties, except for costs to repair COMMON AREA damaged
by a MEMBER or a MEMBER' S invitees or guests .
4 . 15 . 4 The ASSOCIATION must comply with the requirements
of Sections 4040, 5650, 5660, 5655, 5665, 5670, 5673, 5675, 5685,
5700, 5705, 5710, 5725, 5735, and 5740 of the California Civil Code
when collecting delinquent assessments . If the ASSOCIATION fails to
follow these requirements, the ASSOCIATION may not record a lien on
the OWNER' S RESIDENCE LOT until it has satisfied those
requirements . Any additional costs that result from satisfying the
requirements are the responsibility of the ASSOCIATION.
4 . 15 . 5 At least thirty (30) days prior to recording a
lien on an OWNER' S RESIDENCE LOT, the ASSOCIATION shall notify the
OWNER in writing by certified mail of the following:
(a) A general description of the ASSOCIATION' S
collection and lien enforcement procedures and the method of
calculation of the amount, a statement that the OWNER has the right
to inspect the ASSOCIATION records, pursuant to Section 8333 of the
Corporations Code, and the following statement in 14-point boldface
type, if printed, or in capital letters, if typed:
"IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST
IS PLACED IN FORECLOSURE BECAUSE YOU ARE
BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD
WITHOUT COURT ACTION. "
(b) An itemized statement of the assessments and
additional charges owed by the OWNER, including items on the
statement which indicate the amount of any delinquent assessments,
the fees and reasonable costs of collection, reasonable attorney' s
fees, any late charges, and interest, if any.
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(c) A statement that the OWNER shall not be liable
to pay the charges interest, and costs of collection, if it is
determined the assessment was paid on time to the ASSOCIATION.
(d) The right to request a meeting with the BOARD by
submitting a written request to meet with the BOARD to discuss a
payment plan for payment of the assessments and additional charges .
(e) The right of the OWNER to dispute the assessment
and additional charges by submitting a written request for dispute
resolution to the ASSOCIATION pursuant to the ASSOCIATION' S "meet
and confer" program.
(f) The right of the OWNER to request alternative
dispute resolution with a neutral third party before the
ASSOCIATION may initiate foreclosure against the OWNER' S LOT,
except that binding arbitration shall not be available if the
ASSOCIATION intends to initiate a judicial foreclosure .
4 . 15 . 6 If a lien is recorded against an OWNER' S
RESIDENCE LOT in error, the person who recorded the lien is
required to record a lien release within twenty-one (21) days, and
provide the OWNER with a DECLARATION that the lien filing or
recording was in error and a copy of the lien release or notice of
recision.
4 . 15 . 7 The collection practices of the ASSOCIATION may
be governed by the state and federal laws regarding fair debt
collection.
4 . 15. 8 When an OWNER makes a payment, he or she may
request a receipt, and the ASSOCIATION shall provide it . On the
receipt, the ASSOCIATION shall indicate the date of payment and the
person who received it. The ASSOCIATION shall inform OWNERS of a
mailing address for overnight payments .
4 . 15 . 9 Any OWNER may dispute an assessment debt by
submitting a written request for dispute resolution to the
ASSOCIATION as set forth in Section 5900 et seq. of the California
Civil Code. In addition, the ASSOCIATION may not initiate a
foreclosure without participating in alternative dispute resolution
with a neutral third party as set forth in Section 5925 et seq. of
the California Civil Code, if so requested by the OWNER. Binding
arbitration shall not be available if the ASSOCIATION intends to
initiate a judicial foreclosure.
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22
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4 . 15 . 10 An OWNER shall not be liable for charges,
interest, and costs of collection, if it is established that the
assessment was paid properly on time .
4 . 15 . 11 An OWNER shall have the right to request the
ASSOCIATION to consider a payment plan to satisfy a delinquent
assessment. The ASSOCIATION shall inform OWNERS of the standards
for payment plans, if any exist .
4 . 15 . 12 The BOARD shall meet with an OWNER who makes a
proper written request for a meeting to discuss a payment plan when
the OWNER has received a notice of a delinquent assessment. These
payment plans shall conform with the payment plan standards of the
ASSOCIATION, if any exist.
4 . 15 . 13 A MEMBER of the ASSOCIATION may provide written
notice by facsimile transmission or United States mail to the
ASSOCIATION of a secondary address . If a secondary address is
provided, the ASSOCIATION shall send any and all correspondence and
legal notices required pursuant to this Section 4 . 15 . 13 to both the
primary and the secondary address .
4 . 15 . 14 The ASSOCIATION shall distribute the written
notice described in Sections 4040 (b) and 5730 of the California
Civil Code entitled "Notice of Assessment and Foreclosure" to each
MEMBER of the ASSOCIATION during the 60-day period immediately
preceding the beginning of the ASSOCIATION' s FISCAL YEAR. The
Notice shall be printed in at least 12-point type.
4 . 15 . 15 If the ASSOCIATION seeks to collect delinquent
regular or special assessments of an amount less than one thousand
eight hundred dollars ($1, 800) , not including any accelerated
assessments, late charges, fees and costs of collection, attorney' s
fees, or interest, it shall not be permitted to collect that debt
through judicial or nonjudicial foreclosure, but may attempt to
collect or secure that debt in any of the following ways :
(a) By a civil action in small claims court,
pursuant to Chapter 5 . 5 (commencing with Section 116. 110) of Title
1 of the California Code of Civil Procedure. If the ASSOCIATION
chooses to proceed by an action in small claims court, and
prevails, the ASSOCIATION may enforce the judgment as permitted
under Section 116 . 810 et seq. of the California Code of Civil
Procedure . The amount that may be recovered in small claims court
to collect upon a debt for delinquent assessments may not exceed
the jurisdictional limits of the small claims court and shall be
the sum of the following:
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2-5
(i) The amount owned as of the date of filing
the complaint -in the small claims court proceeding.
(ii) In the discretion of the court, an
additional amount to that described in subparagraph (i) above equal
to the amount owed for the period from the date the complaint is
filed until satisfaction of the judgment, which total amount may
include accruing unpaid assessments and any reasonable late
charges, fees and costs of collection, attorney' s fees, and
interest, up to the jurisdictional limits of the small claims
court.
(b) By recording a lien on the OWNER' S separate
interest upon which the ASSOCIATION may not foreclose until the
amount of the delinquent assessments secured by the lien, exclusive
of any accelerated assessments, late charges, fees and costs of
collection, attorney' s fees, or interest, equals or exceeds one
thousand eight hundred dollars ($1, 800) or the assessments are more
than twelve (12) months delinquent . If the ASSOCIATION chooses to
record a lien under these provisions, prior to recording the lien,
the ASSOCIATION shall offer the OWNER and, if so requested by the
OWNER, participate in dispute resolution as set forth in California
Civil Code Section 5900 et seq.
(c) Any other manner provided by law; except for
judicial or nonjudicial foreclosure.
4 . 15 . 16 If the ASSOCIATION seeks to collect delinquent
regular or special assessments of an amount of one thousand eight
hundred dollars ($1, 800) or more, not including any accelerated
assessments, late charges, fees and costs of collection, attorney' s
fees, or interest, or any assessments that are more than twelve
(12) months delinquent, then the ASSOCIATION may use judicial or
nonjudicial foreclosure subject to the following conditions :
(a) Prior to initiating a foreclosure on an OWNER' S
RESIDENCE LOT, the ASSOCIATION shall offer the OWNER and, if so
requested by the OWNER, participate in dispute resolution pursuant
to the ASSOCIATION' s "meet and confer" program required in
California Civil Code Section 5900 et seq. or alternative dispute
resolution as set forth in California Civil Code Section 5925 et
seq. The decision to pursue dispute resolution or a particular
type of alternative dispute resolution shall be the choice of the
OWNER, except that binding arbitration shall not be available if
the ASSOCIATION intends to initiate a judicial foreclosure.
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(b) The decision to initiate foreclosure of a lien
for delinquent assessments that has been validly recorded shall be
made only by the BOARD of the ASSOCIATION and may not be delegated
to an agent of the ASSOCIATION. The BOARD shall approve the
decision by a majority vote of the BOARD MEMBERS in an executive
session. The BOARD shall record the vote in the minutes of the
next meeting of the BOARD open to all MEMBERS. The BOARD shall
maintain the confidentiality of the OWNER or OWNERS of the separate
interest by identifying the matter in the minutes by the parcel
number of THE PROPERTY, rather than the name of the OWNER or
OWNERS. A vote by the BOARD to approve foreclosure of a lien shall
take place at least thirty (30) days prior to any public sale.
(c) The BOARD shall provide notice by personal
service to an OWNER of the RESIDENCE LOT who occupies the RESIDENCE
LOT or to the OWNER' S legal representative, if the BOARD votes to
foreclosure upon the separate interest. The BOARD shall provide
written notice to an OWNER of a RESIDENCE LOT who does not occupy
the RESIDENCE LOT by first-class mail, postage prepaid, at the most
current address shown on the books of the ASSOCIATION. In the
absence of written notification by the OWNER to the ASSOCIATION,
the address of the OWNER' S separate interest may be treated as the
OWNER' S mailing address .
(d) A nonjudicial foreclosure by the ASSOCIATION to
collect upon a debt for delinquent assessments shall be subject to
a right of redemption. The redemption period within which the
separate interest may be redeemed from a foreclosure sale under
this subsection (d) ends ninety (90) days after the sale .
4 . 16 PRIORITY OF LIEN. The lien created pursuant to
Article IV of this DECLARATION upon the recordation of a notice of
delinquent assessments shall be prior and superior to all liens
except:
4 . 16. 1 All taxes, bonds, assessments and other similar
levies which by law would be superior thereto, and
4 . 16.2 The rights of lenders as prescribed by Article XV
of this DECLARATION.
4 . 17 FAILURE TO PAY ASSESSMENTS . Failure to pay
assessments does not constitute a default under an insured FIRST
MORTGAGE .
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25
4 . 18 NO CHARGE FOR TRANSFER OF TITLE . The ASSOCIATION
shall not impose or collect any assessment, penalty, or fee in
connection with a transfer of title to a LOT in THE PROPERTY or any
other interest in a LOT in THE PROPERTY except the ASSOCIATION' S
actual cost to change its records to reflect such transfer.
END OF ARTICLE IV
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ARTICLE V
OWNERSHIP OF RESIDENCE LOTS
AND COMMON AREA
The ownership of the RESIDENCE LOTS and the COMMON AREA
of THE PROJECT shall be as follows :
5 . 01 OWNERSHIP OF LOTS AND COMMON AREA. Each LOT in THE
PROJECT is to be owned by the OWNER in fee simple. The COMMON AREA
of THE PROJECT is to be owned by the ASSOCIATION for the benefit of
all OWNERS . Prior to the conveyance of a LOT in any PHASE of THE
PROJECT, the DECLARANT shall convey the COMMON AREA of the PHASE of
THE PROJECT to the ASSOCIATION by grant deed, free and clear of all
liens and encumbrances, except conditions, easements and
restrictions of record, including those set forth in this
DECLARATION.
5 . 02 ENCUMBRANCE OF COMMON AREA. The COMMON AREA cannot
be MORTGAGED or conveyed by the ASSOCIATION without the prior
written consent of at least sixty-six and two-thirds percent ('66
2/30) of the OWNERS (excluding the votes of the DECLARANT) . No
such conveyance or encumbrance shall be prior to the easements
granted or reserved by Article XIII of this DECLARATION.
END OF ARTICLE V
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�v\
ARTICLE VI
OCCUPANCY AND USE OF
RESIDENCE LOTS AND COMMON AREA
In addition to all other covenants contained herein, the
occupancy and use of THE PROJECT and each RESIDENCE and RESIDENCE
LOT therein and the . COMMON AREA is subject to the following:
6. 01 RESIDENCE . There shall be no more than one (1)
RESIDENCE constructed upon each RESIDENCE LOT.
6. 02 USE AND OCCUPANCY OF RESIDENCE. No RESIDENCE in
THE PROJECT shall be used for other than residential purposes .
6 . 03 BUSINESS USAGE PROHIBITED. There shall be no
gainful occupation, profession, or trade maintained upon or in any
RESIDENCE or the COMMON AREA without the express permission of the
ASSOCIATION and the CITY, if a special use permit is required for
such use; provided, however, that this provision shall in no way
limit or restrict DECLARANT in its activities prior to and during
the sale of RESIDENCES within THE PROJECT or pursuant to rental
listing agreements entered into between OWNERS and DECLARANT for
therental of RESIDENCES in THE PROJECT; and provided further,
,
P
however, that this provision shall not prohibit the maintenance of
use of "home offices" within a RESIDENCE, where the maintenance and
use of such "home office" does not impose any greater burden on the
COMMON AREA than does the use of a RESIDENCE for exclusively
residential purposes, and where the maintenance and use of such
"home office" does not detract from the residential character of
THE PROJECT.
6. 04 NOXIOUS OR OFFENSIVE ACTIVITIES. No noxious or
offensive activity or nuisance shall be carried on or maintained
within THE PROJECT, nor shall anything be done or placed upon any
property within THE PROJECT which shall cause unreasonable
embarrassment, disturbance or annoyance to other OWNERS .
6. 05 SIGNS . No commercial signs, posters, displays,
flags or banners shall be permitted to be placed/posted or
displayed on in a RESIDENCE LOT at any time: Except as required
for the public health or safety or if the posting or display would
violate a local, state or federal law, no noncommercial signs,
posters, flags or banners may be posted or displayed on or in a
RESIDENCE LOT. For purposes of this Section 6. 05, a noncommercial
sign, poster, flag, or banner may be made of paper, cardboard,
cloth, plastic, or fabric, and may be posted or displayed from the
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yard, window, door, balcony, or outside wall of the RESIDENCE LOT,
but may not be made of lights, roofing, siding, paving materials,
flora, or balloons, or any other similar building, landscaping, or
decorative component, or include the painting of architectural
surfaces . Notwithstanding the immediately preceding sentence,
noncommercial signs or posters shall not be more than nine (9)
square feet in size, and noncommercial flags or banners that are
more than fifteen (15) square feet in .size. This provision is not
applicable to signs used by the DECLARANT, or its agents, in
connection with the original construction and sale of RESIDENCE
LOTS in THE PROJECT.
6. 05 . 1 DECLARANT may place signs for the use by
DECLARANT and its agents in connection with the original
construction and sale of RESIDENCE LOTS in THE PROJECT, and
6. 05 . 2 An OWNER may place one sign on his LOT of
customary size and shape in the community, not to exceed 3 . 75
square feet of surface area, advertising a RESIDENCE or a RESIDENCE
LOT for sale, lease or exchange, the name of the OWNER or his
agent, and the OWNER' S or agent ' s address and telephone number.
6. 05 . 3 Except as permitted DECLARANT in Section 6 . 05 . 1
herein above, OWNERS may not place any signs in the COMMON AREA;
except that the BOARD may establish one common sign facility in the
COMMON AREA at the entrance to THE PROJECT for use by individual
OWNERS.
6 . 06 PETS . Subject to the ASSOCIATION RULES, as may be
adopted from time to time, only domesticated pets, as defined in
California Civil Code Section 4715, shall be kept in any RESIDENCE
or on any RESIDENCE LOT, provided, however, that the same shall not
be kept, bred, raised or maintained for commercial purposes . No
reptiles, insects, livestock, or poultry of any kind shall be kept,
bred, maintained or raised in any RESIDENCE or upon any RESIDENCE
LOT. No animals shall be permitted outside of any RESIDENCE LOT,
except on a leash and under the control of a responsible person.
No unleashed dogs are permitted within the COMMON AREA. OWNERS
must prevent their dog (s) and/or cat (s) from continuously barking,
meowing, and/or making other loud noises, and/or defecating in the
COMMON AREA or on LOTS not owned by the OWNER of the pet .
Likewise, OWNERS must prevent any other pet, as defined in Section
4715 of the California Civil Code, from continuously making loud
noises . OWNERS shall not allow feces to accumulate on their own
LOTS in such a manner as to become obnoxious to neighboring OWNERS,
or as to constitute a health hazard. Animals which are either (a)
in violation of this Subsection, or (b) found by the BOARD to be
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vicious by nature or temperament shall be removed from THE PROJECT
by their OWNER, and if not removed by their OWNER, may be removed
by the BOARD and delivered to a pound, animal shelter, or animal
control officer, without liability to the BOARD or to the
ASSOCIATION. Each OWNER, or other person, bringing or keeping a
dog or dogs and/or cat (s) in a RESIDENCE or on a RESIDENCE LOT
shall be solely responsible for the conduct of such pet (s) .
Neither the ASSOCIATION, the BOARD, or their officers, employees,
or agents shall have any liability (whether by virtue of this
DECLARATION or otherwise) to any OWNER, their family members,
guests, invitees, tenants or contract purchasers, for any damage or
injury to persons or property caused by any such pet (s) .
6 . 07 STORAGE . There shall be no storage of any item in
or upon the RESIDENCE LOT except in an enclosed area not visible
from adjoining streets, the COMMON AREA or other RESIDENCE LOTS .
Storage or other uses within a garage upon a RESIDENCE LOT shall
not interfere or conflict with the use of such garage for the
parking of vehicles . Storage in the COMMON AREA shall be limited
to the storage by the BOARD or the manager, if any, of equipment or
materials for use solely in connection with the COMMON AREA.
6. 08 GARAGE. Each garage shall be used and maintained
only for the purpose of storing motor vehicles, boats and trailers;
the interior perimeter of each garage may be used for the storage
of other items and for uses normally associated with a garage .
Storage or other uses within a garage shall not, however, interfere
or conflict with the use of such garage for the parking of
vehicles .
No garage shall be converted to a residential living
space or any other use except as set forth in this DECLARATION.
Garage doors shall not be opened except for the movement of
vehicles and goods .
6. 09 STRUCTURAL CHANGES . No RESIDENCE, STRUCTURE, or
other improvement may be constructed or installed on any RESIDENCE
LOT without the prior written consent of the ARCHITECTURAL
COMMITTEE.
No OWNER shall make or cause to be made structural
alterations or modifications to the exterior of his RESIDENCE or
any improvements upon his RESIDENCE LOT without the prior written
consent of the ARCHITECTURAL COMMITTEE.
No work required to be performed on a RESIDENCE or on the
RESIDENCE LOT by the OWNER thereof pursuant to this DECLARATION,
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3Y
including routine maintenance and repairs, which may result in
changes to the exterior appearance of any RESIDENCE or RESIDENCE
LOT shall be undertaken without the prior written consent of the
ARCHITECTURAL COMMITTEE. For purposes of this Section 6. 09, window
hangings, awnings, sunshades, screen doors, solar panels,
basketball hoops and backboards, satellite t.v. dishes (subject to
Section 6. 13 below) , fences and similar additions to a RESIDENCE or
a RESIDENCE LOT shall be deemed to alter the exterior appearance
thereof.
The restrictions set forth in this Section 6 . 09 shall not
apply to the initial construction of buildings and improvements by
DECLARANT. All RESIDENCES constructed in THE PROJECT shall conform
to the architectural style established by DECLARANT with the
initial construction of RESIDENCES in THE PROJECT
6 . 10 LAUNDRY. No laundry or wash shall be dried or hung
upon any RESIDENCE LOT so as to be visible from view of a
neighboring LOT; public streets or the COMMON AREA.
6. 11 PARKING.
Automobiles and other vehicles (including boats,
trailers, and the like) belonging to the OWNER, members of his
family, his guests, tenants, invitees or servants, shall ordinarily
be parked inside the garage of the RESIDENCE LOT or in the fenced
side yard adjacent to the garage. Vehicles ordinarily shall not
be parked outside the garage or side yard unless all spaces in the
garage are occupied by such vehicles .
Vehicles used for regular personal transportation,
including automobiles, motorcycles and/or light duty pick-up trucks
may be parked outside the garage or fenced side yard area either in
the driveway of the RESIDENCE LOT, up to forty-eight (48) hours
for temporary or guest purposes without obtaining permission from
the BOARD; however, no such vehicle may be left outside without
being moved for more than forty-eight (48) hours without permission
from the BOARD.
Vehicles used for regular personal transportation,
including automobiles, motorcycles and/or light duty pick-up trucks
may be parked outside the garage or fenced side yard area either in
the driveway of the RESIDENCE LOT, up to forty-eight (48) hours
for temporary or guest purposes without obtaining permission from
the BOARD; however, no such vehicle may be left outside without
being moved for more than forty-eight (48) hours without permission
from the BOARD.
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No vehicles shall be parked on the street where the curb is
painted red or designated by signage as a "no parking" area by the
CITY.
Parking of vehicles of any kind shall be prohibited in
driveways less than eighteen (18) feet in length, when measured
from the exterior of the garage door to the back of the sidewalk,
to prohibit parking over the sidewalk. Any violation of the
provisions of this paragraph shall constitute a violation of the
DECLARATION subject to enforcement by the ASSOCIATION.
6. 12 NON-STANDARD VEHICLES. Except to the extent
desired by the DECLARANT to be used during the development and sale
of RESIDENCE LOTS within THE PROJECT, where reasonably required for
the delivery or moving of household furnishings, or whererequired
temporarily in connection with the construction of RESIDENCES in
THE PROJECT, no motor home, travel trailer, truck, camper, house
trailer, boat, boat trailer, or similar item of equipment, shall be
kept, parked, stored, or maintained within THE PROJECT, except
within the confines of a garage upon a RESIDENCE LOT or within the
fenced side yard area adjacent to the garage, screened from ground-
level-view of neighboring LOTS; however, subject -to the advice of
the ARCHITECTURAL COMMITTEE, the BOARD may permit storage of such
items within the fenced side yard area that are not completely
screened from such ground-level-view, if the BOARD finds that such
partial visibility is not harmful to the aesthetic qualities of THE
PROJECT. No such vehicle so placed shall be used for living
purposes . No stripped down, wrecked or junked motor vehicle shall
be kept, parked, stored or maintained within THE PROJECT, except
within the confines of a garage upon a RESIDENCE LOT. Further, the
ASSOCIATION shall be responsible for preventing accumulation of
abandoned vehicles within the PROJECT, including but not limited to
the COMMON AREA and the front yard of each RESIDENCE LOT.
6. 13 ANTENNAE AND MECHANICAL DEVICES. No television
antenna or antennae, poles, wires, machines, equipment, air
conditioning units or similar objects shall be allowed on the
exterior or roofs of any RESIDENCE, or any part thereof, except
such as are installed as part of the initial construction of THE
PROJECT by the DECLARANT, or replacements to the initial
construction, or such as are approved in writing by the
ARCHITECTURAL COMMITTEE. No video or television antenna or
satellite dish having a diameter or diagonal measurement greater
than 36 inches is allowed; and any such antenna or dish measuring
36 inches or less may be installed only upon demonstration to the
Architectural Committee that the antenna or dish, as installed, is
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screened from the ground level view of neighboring LOTS and
streets .
6 . 14 EQUIPMENT. No power equipment, hobby shop, or
carpenter shop shall be maintained on THE PROJECT, except within
the confines of a garage or upon the prior approval of the BOARD.
No automobile overhaul or maintenance work other than emergency
work, shall be permitted in THE PROJECT, except within the confines
of a garage.
6. 15 EXTERIOR LIGHTING. No exterior lighting other than
that which is a part of the original construction or reconstruction
of THE PROJECT by the DECLARANT shall be installed or maintained on
.any RESIDENCE LOT by the OWNER without the prior written consent of
the ARCHITECTURAL COMMITTEE. The ARCHITECTURAL COMMITTEE shall not
approve exterior lighting that is unreasonably intrusive, invasive
or annoying to neighboring OWNERS. For purposes of this section,
ordinary light fixtures attached to the RESIDENCE utilizing non-
directional white or yellow incandescent bulbs of 100 watts or less
are presumed to be reasonable, subject to the discretion of the
ARCHITECTURAL COMMITTEE.
6. 16 DAMAGE TO COMMON AREA. Each OWNER shall be liable
to the ASSOCIATION for any damage to the COMMON AREA or any
improvements, landscaping or equipment thereon or any landscaping
or gardening upon the RESIDENCE LOT which is the obligation of the
ASSOCIATION to maintain pursuant to this DECLARATION, which may be
sustained by reason of the negligence or willful misconduct of the
OWNER, his family, guests, tenants, servants or invitees . The
BOARD shall levy an INDIVIDUAL ASSESSMENT against said OWNER
pursuant to Article IV of this DECLARATION for the costs of the
repair or replacement thereof, together with costs and attorneys
fees .
6. 17 EXPLORATION FOR MINERALS. No oil drilling, oil
development operations, oil refining, quarrying, or mining
operations of any kind shall be permitted upon or in THE PROJECT or
any portion thereof, nor shall oil wells, tanks, tunnels, or
mineral excavations or shafts be permitted upon the surface of any
portion of THE PROJECT.
6 . 18 TEMPORARY BUILDINGS . No out building, basement,
tent, shack, or shed or other temporary building or improvement of
any kind shall be placed upon any portion of THE PROJECT either
temporarily or permanently, except such sheds or construction
shacks as may be maintained by the DECLARANT upon the COMMON AREA
in connection with its development of THE PROJECT.
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6. 19 COMMON AREA. The COMMON AREA of THE PROJECT,
subject to this DECLARATION and the ASSOCIATION RULES, shall be
improved, maintained and used for the following purposes :
6. 19. 1 The use of the COMMON AREA shall be available
for, and limited to OWNERS or lessees of a RESIDENCE and their
accompanying guests .
6. 19.2 Affording and controlling vehicular parking and
vehicular and pedestrian movement within THE PROJECT, including
access to the RESIDENCES.
6 . 19. 3 Affording recreational activity within THE
PROJECT subject to and in accordance with ASSOCIATION RULES.
6 . 19. 4 Affording such landscaping and other beautifi-
cation to THE PROJECT as the BOARD may deem necessary from time to
time .
6 . 19. 5 Affording easements in order to facilitate the
service of utilities to RESIDENCE LOTS and the COMMON AREA.
6 . 19. 6 Enhancing the security of OWNERS and residents by
limiting access to THE PROJECT through a gated entry.
6. 20 TAXES. Each OWNER shall pay the real and personal
property taxes separately assessed against his RESIDENCE, RESIDENCE
LOT and such OWNER' S membership in the ASSOCIATION. The
ASSOCIATION shall pay all taxes levied or assessed against the
COMMON AREA, if not separately assessed to the OWNERS .
6 . 21 UTILITY CHARGES. Each OWNER shall pay any and all
utility charges (including garbage removal) separately metered or
charged against his RESIDENCE and RESIDENCE LOT, and such payment
shall be made by each OWNER in addition to and separately from any
assessments otherwise payable by such OWNER to the ASSOCIATION
pursuant to the terms and provisions of this DECLARATION. If the
ASSOCIATION is required to pay any utility charges separately
metered to a RESIDENCE LOT which the OWNER thereof is required to
pay pursuant to this Section 6 .21 or pursuant to Section 14 . 03 . 4 of
this DECLARATION, the ASSOCIATION shall levy an INDIVIDUAL
ASSESSMENT against such OWNER pursuant to the provisions of Section
4 . 07 hereof to cover the costs of such charges .
6 . 22 LEASE OF RESIDENCE. All leases or tenancies of a
RESIDENCE must be in writing and must provide that the lease, or
tenancy is subject in all respects to the provisions of the
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�Y1.
DECLARATION, the BY-LAWS, and the ARTICLES, and that the failure of
the Lessee or tenant to comply with any of the terms and provisions
of said documents shall constitute a default under the lease or
tenancy. No OWNER may lease less than his entire RESIDENCE, and
all such leases or tenancies must be for a period of not less than
thirty (30) days . Any lease or rental agreement must include the
following language:
"The undersigned, as lessee or tenant, acknowledges that
he is familiar with all of the provisions governing the use and
occupancy of the RESIDENCE as contained in the DECLARATION, the
ARTICLES and the BY-LAWS, and agrees to abide by them. "
6. 23 GARBAGE, RUBBISH AND TRASH. Rubbish, trash and
garbage shall not be allowed to accumulate on the RESIDENCE LOT or
upon the COMMON AREA.
6. 23 . 1 All rubbish, trash, garbage and recyclables shall
be kept in refuse toters and recycling bins (collectively "Toters
and Bins") furnished by the CITY. All Toters and Bins shall be
placed at the curb line within THE PROJECT. In general, the
designated location for each LOT shall be at the curb line in front
of that LOT. Except for a reasonable time prior to and after
collection of such rubbish, trash, garbage and recyclable material
all Toters and Bins used by the OWNER of each LOT in THE PROJECT
shall not be visible from neighboring LOTS, the adjacent streets,
or any part of the COMMON AREA.
6. 23 . 2 Each OWNER shall be responsible for bagging and
placing all green waste material from their LOT in central
collection points within THE PROJECT in accordance with a green
waste covenant with the CITY.
6 . 24 DRAINAGE. Notwithstanding any other provisions of
this DECLARATION, with respect to storm drainage, each LOT and the
COMMON AREA of THE PROJECT shall be developed, occupied and
maintained so as to provide adequate drainage as required by the
CITY. No portion of any LOT or the COMMON AREA may be used in such
a manner that impairs adequate drainage across the boundary lines
of the individual LOT.
6. 25 CHANGE OF LOT TOPOGRAPHY. Except the DECLARANT in
connection with the original subdivision and development of THE
PROPERTY, no OWNER shall have the right to construct, reconstruct,
refinish, alter, or do any act that would affect the finished
grade, drainage of any LOT established in accordance with the
GRADING PLAN, unless such OWNER first obtains .a permit from the
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CITY and obtains the prior written approval of the ARCHITECTURAL
COMMITTEE. This DECLARATION also provides notice to OWNER, and any
subsequent OWNER, of any LOT in THE PROJECT that if existing
drainage patterns or swales established on any LOT and/or around
any RESIDENCE are interrupted or altered in any way, serious damage
may result. OWNER, and any subsequent OWNER, of any LOT in THE
PROJECT shall hold DECLARANT harmless from any liability in any
claims, demands, damages, or costs arising out of or resulting from
any OWNER, or subsequent OWNER, of any LOT in THE PROJECT, or their
employees, agents, or representatives altering or changing the
grade, drainage, or slope of any LOT established by the GRADING
PLAN (including any changes resulting from the installation or
alteration of landscaping which alters or interferes with the flow
of water) or from removing, damaging, clogging or failing to
properly maintain any area drains located on any LOT in THE
PROJECT.
6 . 26 FRONT YARD LANDSCAPING. DECLARANT intends to
install, as part of the purchase price, front yard landscaping only
on each LOT in THE PROJECT, purchased directly from DECLARANT, the
extent of which shall be determined by DECLARANT, from time-to-
time, in its sole and absolute discretion.
6 . 27 USE OF FRONT YARD AREAS BY OWNERS . Unless there has
been prior written approval by the ARCHITECTURAL COMMITTEE, no
OWNER shall make or permit any alteration of the front yard area of
his or her LOT and shall, specifically not create any excavation or
fill, change the drainage, destroy or remove any tree, shrub or
other vegetation, or plant any tree, shrub or other vegetation upon
ow within any portion of any front yard area.
6 . 28 FRONT PORCH AND FRONT AREA DECORATIONS . The BOARD
shall have the right to limit the number, size, material, type and
color of all pots and other decorations displayed on the front
porch, the front door, the front entry way and all areas in the
front of the RESIDENCES within THE PROJECT.
END OF ARTICLE VI
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ARTICLE VII
COVENANT AGAINST PARTITION
7 . 01 PARTITION. Except as maybe authorized under Article
XI of this DECLARATION, no OWNER shall bring any action for
partition of the COMMON AREA, it being agreed that this restriction
is necessary in order to preserve the rights of the OWNERS with
respect to the operation and management of THE PROJECT. Nothing
herein contained shall prevent the partition or division of
interests between joint or common owners of one RESIDENCE LOT.
END OF ARTICLE VII
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1
ARTICLE VIII
LABOR AND MATERIALMAN'S LIENS
8 . 01 OWNERS. Each OWNER covenants that no labor,
material or services furnished at his request or that of his agent,
contractor, subcontractor., materialman, employee or servant shall
result in a lien upon another RESIDENCE or RESIDENCE LOT or upon
the COMMON AREA, unless such other OWNER, or the ASSOCIATION
expressly consent to such labor, material or services being
furnished.
8 . 02 ASSOCIATION. The ASSOCIATION may employ and
authorize labor, services and material for the benefit of THE
PROJECT. All OWNERS are hereby deemed to have given the express
consent of the ASSOCIATION to employ and contract for such labor,
services and materials for the benefit of THE PROJECT and all
RESIDENCES and STRUCTURES thereon, consistent with the rights and
obligations of the ASSOCIATION described in this DECLARATION.
END OF ARTICLE VIII
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l L�
ARTICLE IX
ARCHITECTURAL CONTROL
9. 01 APPOINTMENT OF ARCHITECTURAL COMMITTEE. The
DECLARANT shall initially appoint an ARCHITECTURAL COMMITTEE
consisting of the following three members :
NAME ADDRESS
John A. Bonadelle 7030 North Fruit Avenue, Suite 101
Fresno, CA 93711
Dean H. Pryor 7030 North Fruit Avenue, Suite 101
Fresno, CA 93711
John Bonadelle 7030 North Fruit Avenue, Suite 101
Fresno, CA 93711
The initial ARCHITECTURAL COMMITTEE consisting of three
(3) MEMBERS shall remain in office until the expiration of one (1)
year from the issuance of the final subdivision public report for
PHASE 1 of THE PROJECT. Upon the expiration of one (1) year from
the issuance of such final subdivision public report for PHASE 1 of
THE PROJECT, DECLARANT shall appoint two (2) members of the
ARCHITECTURAL COMMITTEE and the BOARD shall appoint one (1) member
of the ARCHITECTURAL COMMITTEE and such members shall remain in
office until :
(a) Five (5) years from the date of the original
issuance of the final subdivision public report for PHASE 1; or
(b) The recordation of deeds evidencing the
conveyance by DECLARANT of ninety percent (900) of the LOTS in THE
PROJECT, whichever shall first occur.
From and after such time or event, as the case may be,
the ARCHITECTURAL COMMITTEE shall be appointed by the BOARD and
shall consist of not more than five (5) , nor less than three (3)
members, as determined by the BOARD, with each member to serve for
a period of three (3) years . The name and address of each member of
the ARCHITECTURAL COMMITTEE shall be sent to each MEMBER of the
ASSOCIATION.
The ARCHITECTURAL COMMITTEE may designate a
representative of the ARCHITECTURAL COMMITTEE to act on its behalf.
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9. 02 MEMBERSHIP OF ARCHITECTURAL COMMITTEE. Members of
the ARCHITECTURAL COMMITTEE appointed by the DECLARANT need not be
MEMBERS of the ASSOCIATION. Members, of the ARCHITECTURAL COMMITTEE
appointed by the Board of Directors shall be MEMBERS of the
ASSOCIATION. Members of the ARCHITECTURAL COMMITTEE appointed by
the DECLARANT may be removed without cause by DECLARANT. Members
of the ARCHITECTURAL COMMITTEE appointed by the BOARD may be
removed without cause by the BOARD. In the event of the death,
resignation or removal of any member of the committee prior to the
expiration of his term, the DECLARANT or BOARD who appointed such
deceased, removed or resigning member shall have the power to
appoint his successor.
9. 03 MEETINGS OF COMMITTEE. The ARCHITECTURAL COMMITTEE
shall meet from time to time as may be necessary to perform its
duties hereunder. Any action taken by the ARCHITECTURAL COMMITTEE
shall require the written approval of a majority of its members .
9 . 04 RULES, REGULATIONS AND REQUIREMENTS .
9. 04 . 1 The ARCHITECTURAL COMMITTEE shall have the power
by a majority of its members to adopt such reasonable rules and
regulations governing the organization and administration of its
duties .
9. 04 . 2 The ARCHITECTURAL COMMITTEE shall annually
provide its members with notice of any requirements for
ARCHITECTURAL COMMITTEE approval of physical changes to PROPERTY.
The notice shall describe the types of changes that require
ARCHITECTURAL COMMITTEE approval and shall include a copy of the
procedure used to review and approve or disapprove a proposed
change .
9. 05 AUTHORITY. No construction, alteration, addition,
modification or reconstruction of an improvement in THE PROJECT
shall be commenced or maintained, until the plans and
specifications therefor showing the nature, kind, shape, height,
width, color, materials and location thereof shall have been
submitted to the ARCHITECTURAL COMMITTEE and approved in writing by
the ARCHITECTURAL COMMITTEE. The ARCHITECTURAL COMMITTEE shall
approve plans and specifications submitted for its approval only if
it deems that the construction, alterations, addition or
modifications contemplated thereby in the locations indicated will
be in architectural harmony with THE PROJECT. The ARCHITECTURAL
COMMITTEE will not approve any bizarre, weird, jarring or
discordant designs, including "flat" or "box" designs, or designs
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that are out of scale for THE PROJECT. In exercise of its
authority, the ARCHITECTURAL COMMITTEE may:
9 . 05 . 1 Condition its approval of proposals and plans and
specifications on such changes or conditions thereto as it deems
appropriate.
9. 05 .2 Require submission of additional plans and
specifications or other information prior to approval or disap-
proval of the proposed construction, alterations or additions .
9. 05 . 3 Require a nominal fee payable to the ASSOCIATION
to accompany each application for approval, together with the fees
of any professional architect that may be retained by the
ARCHITECTURAL COMMITTEE to assist and advise the ARCHITECTURAL
COMMITTEE in its review of such plans .
9 . 06 FUTURE CONSTRUCTION. Nothing in this. DECLARATION
shall limit the right of DECLARANT to complete construction of
improvements to the COMMON AREA and all LOTS owned by DECLARANT or
to alter them or construct additional improvements as DECLARANT
deems advisable before completion and sale of . all LOTS within THE
PROPERTY. . The rights of DECLARANT in this DECLARATION may be
assigned by DECLARANT to any successor to all or any part of any of
DECLARANT' S interest, and shall automatically be assigned to a
successor who acquires DECLARANT' S interest in THE PROPERTY by
foreclosure or by deed in lieu of foreclosure of a MORTGAGE.
Provided, however, the rights reserved by DECLARANT for itself, its
successors in interest and assigns pursuant to this section shall
expire on the first to occur of the following events : (a) three (3)
years after the close of escrow of the first LOT in the most recent
PHASE in THE PROJECT, or (b) the close of escrow of the last LOT in
THE PROJECT. Provided, however, such use by the DECLARANT, their
agents, representatives, successors in interest and assigns shall
not restrict the MEMBERS of their use and enjoyment of the COMMON
AREA.
9 . 07 ARCHITECTURAL ADVISER. The ARCHITECTURAL COMMITTEE
may designate an architect practicing in the COUNTY to advise the
ARCHITECTURAL COMMITTEE on such matters relating to the
ARCHITECTURAL COMMITTEE ' S duties as may from time to time be
required. Such architect may be employed by the BOARD as a
consultant and his compensation may be paid by the BOARD from the
REGULAR MONTHLY ASSESSMENT.
9. 08 DECISIONS OF COMMITTEE. Decisions of the
ARCHITECTURAL COMMITTEE and the reason therefore shall be trans-
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41
—1
mitted by the ARCHITECTURAL COMMITTEE to the applicant within
thirty (30) days after receipt by the ARCHITECTURAL COMMITTEE . Any
application submitted pursuant to this DECLARATION shall be deemed
approved, unless written disapproval or a request for additional
information or materials by the ARCHITECTURAL COMMITTEE shall have
been transmitted to the applicant within thirty days after the date
of receipt by the ARCHITECTURAL COMMITTEE of all required
materials .
9 . 09 APPEAL. Any decision of the ARCHITECTURAL
COMMITTEE may be appealed by the applicant to the BOARD by written
notice of appeal filed with the BOARD within fifteen days following
the receipt of the ARCHITECTURAL COMMITTEE ' s decision by the
applicant. Such notice of appeal shall state the reasons therefor
and shall be heard by the BOARD in accordance with the provisions
of Article VI of the BY-LAWS and California law.
9 . 10 COMPENSATION . The members of the ARCHITECTURAL
COMMITTEE shall receive no compensation for their services rendered
hereunder, other than reimbursement for expenses incurred by them
in the performance of their duties hereunder.
9. 11 INSPECTION. Inspection of work and correction of
defects therein shall proceed as follows :
9. 11 . 1 The ARCHITECTURAL COMMITTEE may at any time
inspect any improvement for which approval of plans is required
under the DECLARATION; provided, however; that the ARCHITECTURAL
COMMITTEE ' S right of inspection shall terminate sixty (60) days
after the work of improvement shall have been completed and the
respective OWNERS shall have given written notice to the
ARCHITECTURAL COMMITTEE of such completion. If, as a result of
such inspection, the ARCHITECTURAL COMMITTEE finds, that such
improvement was done without obtaining the approval of the plans
therefore or was not done in substantial compliance with the plans
approved by the ARCHITECTURAL COMMITTEE, it shall notify the OWNER
in writing of the failure to comply with the DECLARATION within
sixty days from the inspection, specifying the particulars of
noncompliance. The ARCHITECTURAL COMMITTEE shall have the
authority to require the OWNER to take such actions as may be
necessary to remedy the noncompliance .
9. 11 .2 If upon the expiration of sixty (60) days from
the date of such notification, the OWNER shall have failed to
remedy such noncompliance, the Committee shall notify the BOARD in
writing of such failure. The BOARD shall, upon fifteen (15) days
written notice to the OWNER, conduct a hearing upon the COMMON AREA
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in accordance with the provisions of Article VI of the BY-LAWS of
the ASSOCIATION for the purpose of determining whether there is a
noncompliance and, if so, the nature thereof and the estimated
costs of correcting or removing the same. If a noncompliance
exists, the OWNER shall remedy or remove the same within a period
of not more than forty-five (45) days from the date that notice of
the BOARD ruling is given, in writing, to the OWNER. If the OWNER
does not comply with the BOARD ruling within such period, the BOARD
shall have the right to levy an INDIVIDUAL ASSESSMENT against such
OWNER pursuant to the provisions of Section 4 . 07 of this
DECLARATION to cover the costs to remedy or correct such noncom-
pliance, and the BOARD shall cause the work to be done .
9 . 12 VARIANCE. The ARCHITECTURAL COMMITTEE may
authorize variances from compliance with any of the Architectural
provisions of this DECLARATION when circumstances such as topo-
graphy, natural obstructions, hardship, aesthetic, or environmental
considerations require. Such variance must be evidenced in writing
and must be signed by at least two (2) members of the ARCHITECTURAL
COMMITTEE. If variances are granted, no violation of the
DECLARATION shall be deemed to have occurred with respect to the
matter for which the variance was granted. The granting of such
variance shall not operate to waive any of the terms and provisions
of the DECLARATION for any purpose except as to the particular
improvement and particular provision hereby covered by the
variance, nor shall it affect in any way the OWNER' S obligation to
comply with all governmental laws and regulations affecting his use
of all or any portion of THE PROJECT.
9. 13 LIABILITY OF COMMITTEE MEMBERS . Neither DECLARANT,
the ARCHITECTURAL COMMITTEE, the BOARD nor their duly authorized
representatives shall be liable to the ASSOCIATION, or to any OWNER
for any loss, damage or injury arising out of or in any way
connected with the performance of the Committee ' s duties under this
DECLARATION, unless due to the willful misconduct or bad faith of
the Committee or any member thereof.
9. 14 NOTICE TO COMMITTEE. All notices to be given to
the ARCHITECTURAL COMMITTEE pursuant to this Article IX may be
given to the Secretary of the ASSOCIATION in the manner prescribed
by Sections 16 . 10 and 16. 10 . 3 of this DECLARATION.
END OF ARTICLE IX
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ARTICLE X
INSURANCE
10 . 01 ASSOCIATION INSURANCE. The ASSOCIATION shall
purchase, carry and at all times maintain in force with such
carriers, in such amounts, in such policy form, and with such
deductibles as the BOARD and the federal agencies and corporations
described in Section 10 . 04 herein below, may from time to time
determine or establish insurance as follows :
10 . 01 . 1 PUBLIC LIABILITY. A comprehensive policy of
public liability insurance covering all of the COMMON AREA of THE
PROJECT, providing coverage for general liability of the
ASSOCIATION and all of its MEMBERS. The amount of coverage shall
be determined by the BOARD from time to time so as to provide such
coverage as the BOARD may deem prudent, provided, however, that the
minimum amounts of coverage shall be $2, 000, 000 . 00 during such time
as THE PROJECT consists of one hundred (100) or fewer LOTS, and not
less than $3,000, 000 . 00 during such time as THE PROJECT consists of
more than one hundred (100) LOTS, or such greater limits as may be
required by Section 5805 of the California Civil Code. Such
coverage shall include protection against water damage liability,
liability for non-owned and hired automobiles, liability for
property of others and such other risks as are customarily covered
in similar projects .
10 . 01 .2 FIRE AND EXTENDED COVERAGE. Fire and extended
insurance on all improvements owned by or leased to the ASSOCIA-
TION, the amount of such insurance to be not less than one hundred
percent (1000) of current "replacement cost" (meaning actual
replacement value, exclusive of the cost of land, excavations,
foundations and footings) . Such coverage to include :
(a) Agreed amount endorsement or its equivalent if
available, or an inflation guard endorsement requested or required
by any agency described in Section 10 . 04 hereof, demolition and
contingent liability from operation of building laws endorsements,
and increased costs of building endorsement and such other
endorsements as the ASSOCIATION may deem necessary or as may be
required by any agency described in Section 10 . 04 hereof.
(b) Earthquake damage endorsement, if the
ASSOCIATION deems such endorsement necessary or if any agency
described in Section 10 . 04 hereof requires such endorsement .
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(c) Loss or damage by fire and other hazards
covered by the standard extended coverage endorsement, and by
sprinkler leakage, debris removal, cost of demolition, vandalism,
malicious mischief, windstorm, and water damage;
(d) Such other risks customarily covered in similar
projects .
(e) Such policy or policies shall also name the
OWNERS and the MORTGAGEES of the OWNERS as their respective
interests may appear and shall provide for the issuance of
certificates of such endorsements evidencing the insurance as may
be required by any insured. The BOARD shall select such deducti-
ble, franchise or franchise deductible provisions which, in its
opinion, are consistent with good business practices and the
requirements of this Section 10 . 01 .2 .
10 . 01 . 3 FIDELITY BOND. If any of the agencies described
in Section 10 . 04 is a MORTGAGEE, OWNER, or insures or guarantees a
MORTGAGE within THE PROJECT, the requirements of this Section have
not been waived by said .agencies, the ASSOCIATION shall maintain,
a fidelity bond in the penal amount of not less than one hundred
percent of the estimated annual operating expenses for THE PROJECT,
including reserves, insuring against dishonest acts by the
ASSOCIATION, Directors, officers, and employees, and all others who
are responsible for handling funds of the ASSOCIATION, including
employees of any property management firm retained by the
ASSOCIATION to manage all or any part of THE PROJECT. Such
fidelity bonds must meet the following minimum requirements :
(a) All shall name the ASSOCIATION as an obl-igee;
(b) All shall contain waivers of any defense based
on the exclusion of persons who serve without compensation from any
definition of "employee" or similar expressions;
(c) All shall provide that they may not be canceled
or substantially modified (including cancellation from non-payment
of premium) without at least thirty (30) days prior written notice
to the agencies described in Section 10 . 04 herein below who are a .
MORTGAGEE in THE PROJECT.
(d) All shall provide that they may not be canceled
or substantially modified (including cancellation for non-payment
of premium) without at least ten (10) days prior written notice to
the ASSOCIATION.
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4A
10 . 01 . 4 ADDITIONAL INSURANCE. Such additional insurance
as the BOARD may in its discretion deem necessary or appropriate,
including workman ' s compensation insurance, errors and omissions
coverage of the BOARD, officers and employees of the ASSOCIATION,
fidelity bonds, insurance on commonly owned personal property and
demolition insurance; provided, however, that the BOARD shall in
any event purchase and maintain Directors and Officers liability
insurance with coverage in the amount of at least $500, 000 . 00
during such time as THE PROJECT consists of one hundred (100) or
fewer LOTS, and at least $1, 000, 000 . 00 during such time as THE
PROJECT consists of more than one hundred (100) LOTS, or such
greater limits as may be required by Section 5800 of the California
Civil Code.
10 . 01 . 5 ADDITIONAL INSURANCE BY VOTE OF MEMBERS . By the
vote of seventy-five percent (75°) of the MEMBERS, (excluding the
vote of the DECLARANT) , at any regular or special meeting of the
membership of the ASSOCIATION, the ASSOCIATION may be authorized to
acquire a "master" or "blanket" policy of property insurance equal
to the full replacement value (1000 of current "replacement cost"
exclusive of land, foundation, excavation and other items normally
excluded from such coverage) of all RESIDENCES and improvements on
each RESIDENCE LOT in THE PROJECT with an Agreed Amount Endorsement
or its equivalent if available, or Inflation Guard Endorsement and,
if required by any INSTITUTIONAL MORTGAGEE, demolition and contin-
gent liability from operation of lien laws endorsements and
increased costs of construction endorsement, and earthquake damage
endorsement and such other endorsement as may be necessary in the
opinion of such INSTITUTIONAL MORTGAGEE. Such coverage must afford
protection against at least the following:
(a) Loss and damage by fire and other hazards
covered by the standard extended coverage endorsement, and by
sprinkler leakage, debris removal, cost of demolition, vandalism,
malicious mischief, windstorm and water damage;
(b) Such other risks as are customarily covered in
similar projects .
(c) Such action authorized in the adoption of such
blanket policy shall specify the type of coverage and the
allocation of premium payments on a per-RESIDENCE LOT basis to all
OWNERS in THE PROJECT. All such coverage shall be for the benefit
of each OWNER, and their respective MORTGAGEES, in accordance with
their interests, and it shall provide for a separate loss payable
endorsement in favor of the MORTGAGEE or MORTGAGEES of each
RESIDENCE LOT, if any. Within five (5) days after it has obtained
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46
such insurance policy for the benefit of the OWNERS, the
ASSOCIATION shall give each OWNER written notice thereof. Within
fifteen (15) days thereafter, the OWNER of each RESIDENCE LOT shall
execute any and all documents necessary to effectuate fully such
coverage with respect to such OWNER'S RESIDENCE, including
cancellation of any existing coverage which may, in the opinion of
the BOARD, by operation of co-insurance or other clauses, serve to
affect or reduce the coverage or potential recovery under any such
blanket policy. Such policy or policies and any endorsement
thereon shall be in the form and content and for such term and with
such company or companies as may be satisfactory to the
INSTITUTIONAL MORTGAGEE, and if more than one INSTITUTIONAL
MORTGAGEE exists, such policy and all such endorsements shall meet
the maximum standards of such INSTITUTIONAL MORTGAGEES .
10 . 01 . 6 USE OF PROCEEDS . All insurance proceeds payable
under this Section 10 . 01 shall be paid to the BOARD, as trustee, to
be held for the benefit of the ASSOCIATION, the OWNERS, MORTGAGEES
and such other persons as their respective interests shall appear.
Such insurance proceeds shall be paid by the ASSOCIATION in
accordance with Article XII of this DECLARATION.
10 . 01 . 7 PREMIUMS . Except for insurance obtained by the
ASSOCIATION pursuant to Section 10 . 01 . 5 herein above, all insurance
contracted by the ASSOCIATION pursuant to this DECLARATION shall
be paid from the REGULAR MONTHLY ASSESSMENT. Premiums payable upon
insurance acquired by the ASSOCIATION pursuant to Section 10 . 01 . 5
herein above shall be allocated by the ASSOCIATION on a per
RESIDENCE LOT basis 'as prescribed by Section 10 . 01 . 5 (c) herein
above.
10 . 01 . 8 AUTHORITY OF BOARD. Each of the OWNERS, and
every other person named or covered as an insured in connection
with any of the policies purchased by the BOARD hereby irrevocably
delegates to the BOARD any authority which he, it or they may
otherwise have to negotiate any such loss settlements with the
appropriate insurance carriers . The BOARD shall have the sole and
exclusive authority and right to negotiate any such loss
settlements relating to insurance purchased by the BOARD pursuant
to this Section 10 . 01 . Provided, however, that any execution of a
loss claim form and release form in connection with the settlement
of a loss claim shall be binding on all of the OWNERS, and upon any
other person named as an insured on such policy or policies only
upon the execution thereof by a majority of the members of the
BOARD.
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47
10 . 01 . 9 ANNUAL INSURANCE REVIEW. The BOARD shall
annually determine whether the amounts and types of insurance it
has obtained provide adequate coverage in light of increased
construction costs, inflation, practice in the COUNTY, or any other
factor which tends to indicate that either additional insurance
policies or increased coverage under existing policies are
necessary or desirable to protect the interest of the OWNERS,
INSTITUTIONAL MORTGAGEES, and the ASSOCIATION. If the BOARD deter-
mines that increased coverage or additional insurance is appro-
priate, it shall obtain the same.
10 . 02 OWNER INSURANCE. During such period that the
ASSOCIATION shall not be authorized to insure structures and
improvements upon RESIDENCE LOTS pursuant to Section 10 . 01 . 5
hereof, each OWNER shall maintain, at his sole cost and expense,
fire insurance with special form coverage included, insuring all
structures and improvements upon his RESIDENCE LOT in an amount at
least equal to ninety percent (900) of the full insurable value
thereof, or more, together with, at each OWNERS option,
comprehensive public liability insurance in minimum amounts of
$300, 000. 00 for personal injury to any one person, $500, 000 . 00 for
any one accident or occurrence and $100, 000 . 00 for property damage,
or so-called "homeowners" or "tenants forms" personal liability
each occurrence limit of not less than $500, 000 . 00 . Each OWNER
shall promptly furnish to the BOARD a certificate from his
insurance carrier or carriers certifying that such insurance
coverage is in existence and in full force and effect, and that it
is evidenced by a policy with premiums payable at not less than
annual intervals and that it cannot be canceled without ten (10)
days prior written notice to the BOARD. In the event any OWNER
shall fail to maintain the insurance coverage prescribed by this
Section 10 . 02, the BOARD may obtain such coverage and levy an
INDIVIDUAL ASSESSMENT pursuant to Article IV hereof, against the
RESIDENCE of such the OWNER for the cost of such insurance .
10 . 03 ADDITIONAL OWNERS INSURANCE . Each OWNER may, in
addition to the coverage prescribed by Section 10 . 02 herein above,
maintain such additional insurance upon his furniture, furnishings
and other personal property situate upon his RESIDENCE LOT,
together with any so-called "homeowners" or other type of personal
insurance coverage upon his RESIDENCE, RESIDENCE LOT or his
interest in THE PROJECT.
10 . 04 REQUIREMENTS OF FEDERAL AGENCIES AND CORPORATIONS .
Notwithstanding the other provisions of this Article X, the ASSO-
CIATION shall continuously maintain in effect such casualty, flood
and liability insurance and a fidelity bond meeting the insurance
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48
t
and fidelity bond requirements for Planned Development Projects
established by Federal National Mortgage Association, Government
National Mortgage Association, Federal Home Loan Mortgage
Corporation, Federal Housing Authority or Veterans Administration
so long as any of said entities is a MORTGAGEE, OWNER, or insures
or guarantees a MORTGAGE within THE PROJECT, except to the extent
such coverage is not available or has been waived in writing by the
foregoing entities .
10 . 05 ABANDONMENT OF REPLACEMENT COST INSURANCE. Unless
seventy-five percent (75%) of the FIRST MORTGAGEES based on one
vote for each FIRST MORTGAGE held have given their prior written
approval, the ASSOCIATION shall not fail to maintain the extended
coverage fire and casualty insurance required by Section 10 . 01 . 2 of
this Article X on less than one hundred percent (1000) of the
current replacement cost value thereof.
END OF ARTICLE X
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ARTICLE XI
MAINTENANCE, REPAIR AND RESTORATION
11 . 01 MAINTENANCE, REPAIR AND RESTORATION. Notwith-
standing the provisions for insurance in Article X of this
DECLARATION, the ASSOCIATION and the OWNERS shall have the
obligations of maintenance, repair and restoration as set forth
herein. Provided, however, that all expenses to the extent covered
by insurance shall be paid from such insurance proceeds :
11 . 01 . 1 OWNERS . Except for those portions of THE
PROJECT and the RESIDENCE LOTS which the ASSOCIATION is to
maintain, repair, replace, landscape and restore hereunder, each
OWNER shall, at his sole cost and expense:
(a) RESIDENCE. Maintain (including graffiti
removal) , repair, replace, restore, rebuild and decorate his
RESIDENCE and all improvements situate upon and within his
RESIDENCE LOT, in a neat, sanitary, workable and attractive
condition as may be reasonably necessary to protect and preserve
the appearance and value of THE PROJECT.
(b) Landscaping. Maintain all landscaping installed
upon his or her RESIDENCE LOT, except the landscaping in the front
yard area which shall be maintained by the ASSOCIATION.
(c) Water Drainage Lines . Each OWNER is responsible
for maintaining, repairing and replacing the water drainage lines
from their backyard out to the street and the ASSOCIATION shall
have no responsibility for these water drainage lines .
(d) Alteration and Decoration of Masonry Block
Walls and Retaining Walls . No OWNERS of LOTS within THE PROJECT
shall do anything which may alter, damage or impair the structural
integrity of the masonry block wall (s) or retaining wall (s) , if any,
situated on OUTLOTS adjacent to his/her/their LOT. As such, the
OWNERS of LOTS shall not drill or drive any nails, screws, mollie
screws, bolts, or other objects into, or install, mount or hang any
object or STRUCTURE on, the masonry block wall (s) or retaining
wall (s) situated on his/her/their LOT. Further, no OWNER of said
LOTS shall allow any vines or other plants to grow or adhere to the
masonry block wall (s) or retaining wall (s) situated on OUTLOTS
adjacent to his/he.r/their LOT.
(e) Damage to Masonry Block Walls and Retaining
Walls . In the event the masonry block wall (s) or retaining
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5ti
wall (s) , if any, on an OWNER' S LOT are damaged or destroyed through
the act of an OWNER or his/her/their family members, invitees,
guests or agents (whether or not such act is negligent or
intentional) , then such OWNERS shall, forthwith proceed to rebuild
and repair the masonry block wall and/or retaining wall located on
his/her/their respective LOT to as good a condition as previously
existed, at his/her/their sole cost and expense .
(f) Consequential Damage . Each OWNER is responsible
for the cost of repair of those portions of the OWNER' s LOT and
RESIDENCE, including fixtures and personal property, which are
required to be maintained by the OWNER, even if the cause of the
. damage originates from a source maintained by the ASSOCIATION,
unless the cause is the gross negligence of the ASSOCIATION or its
agents . As an. example, water damage to a RESIDENCE that is caused
by an ASSOCIATION maintained irrigation system is the
responsibility of the OWNER even though the repair of the
irrigation system is the responsibility of the ASSOCIATION.
Further, any repair or replacement to a driveway or private walkway
that is damaged due to irrigation, sewer, plumbing or landscaping
system failures, to include tree roots, shall be the sole
responsibility of the OWNER. Further, any repair or replacement to
a foundation that is damaged due to irrigation, sewer, plumbing or
landscaping system failures, to include tree roots, shall be the
sole responsibility of the OWNER.
11 . 01 .2 THE ASSOCIATION. The ASSOCIATION shall, as an
ASSOCIATION expense, and subject to the provisions of this
DECLARATION:
(a) COMMON AREA. Maintain, repair and restore
(including removal of graffiti) the COMMON AREA.
(b) Non-Standard Entry and Exit Improvements .
Maintain, repair and restore the improvements installed within the
public right-of-way immediately adjacent to the entrance and exits
to THE PROJECT that are, essentially, continuations of the
improvements installed within THE PROJECT, landscaping and related
improvements .
(c) Graffiti Removal. Remove all graffiti from the
perimeter masonry block walls located on OUTLOTS G, H, I, J and L
and, except as otherwise provided in this DECLARATION, all other
structures within THE PROJECT within twenty-four (24) hours of the
time the graffiti is applied or notification thereof by officials
of the CITY.
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51
J�
(d) Maintenance of Front yard Landscaping. The term
"front yard areas" herein shall mean and refer to that portion of
each LOT which is generally visible from any street within THE
PROJECT and would commonly be referred to as a front yard or side
yard. Front yard area shall not include those portions of a LOT
which are covered by structural improvements or which are enclosed
for the private use of an OWNER. The precise area of each LOT
which constitutes front yard area shall be determined by actual
location of the RESIDENCE and fence improvements constructed
thereon. The ASSOCIATION shall maintain or , provide for the
landscape maintenance of all front yard areas in good order and
repair, shall maintain or provide for the maintenance of sprinkler
systems in the front yard areas and shall be responsible for
maintenance around the mailboxes . The ASSOCIATION shall not,
however, be obligated to maintain driveways, roofs, entry walks,
garage doors, walls, rear yards, fences, atriums or patios . Nor
shall the ASSOCIATION maintain drainage lines or any OWNER
installed improvements . The ASSOCIATION' s responsibility does no.t
extend to removal, repair or replacement of driveways and/or
private walkways due to irrigation, sewer, plumbing or landscaping
system failures or damage caused by tree roots . The ASSOCIATION
shall provide all necessary landscaping and gardening to generally
maintain and periodically replace when necessary the trees, shrubs,
vines, plants, hedges, ground cover, grass and vegetation
originally placed in front yard areas of the LOTS, and the
ASSOCIATION shall maintain the same in a neat and attractive
manner. Nothing in this DECLARATION shall impose any obligations
on the ASSOCIATION with respect to the structural integrity or
replacement of RESIDENCES or fences . The ASSOCIATION shall not be
responsible for damage caused by falling trees, flying branches or
shingles . Each OWNER' s use and maintenance of the front yard area
on his or her LOT shall be restricted as set forth in Sections 6.27
and 6.28 above.
11 . 02 DEFAULT OF OWNER. In the event any OWNER fails to
maintain, repair or replace his RESIDENCE in such manner as may be
deemed necessary in the judgement of the BOARD to preserve and
protect the attractiveness, appearance and value of THE PROJECT,
the BOARD shall give written notice to such OWNER, stating with
particularity the work of maintenance, repair or replacement which
the BOARD finds to be required, and requesting the same to be
carried out within a period of ninety (90) days from the giving of
such notice. If such OWNER fails to carry out such maintenance,
repair or restoration within the period specified by the notice,
the ASSOCIATION, after approval by two-thirds (2/3rds) votes of the
BOARD, shall have the right upon reasonable notice to the OWNER,
and in compliance with the provisions of this DECLARATION, through
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52
its agents and employees, contractors or subcontractors, to enter
the RESIDENCE LOT and to repair, maintain and restore the LOT and
the exterior of the RESIDENCE and any other improvements erected
thereon. The cost of such exterior maintenance shall be added to
and become a part of the assessment to which such LOT is subject.
11 . 03 OWNER LIABILITY. Each OWNER- shall be liable to
the ASSOCIATION for any damage to the COMMON AREA, including any
structures, improvements, equipment, and personal property thereon,
and for any damage. to the landscaping or gardening of any part of
THE PROJECT which the ASSOCIATION is to landscape and garden
pursuant to this Article XI, which may be sustained by reason of
the negligence or willful misconduct of the OWNER, his family,
guests, tenants, servants, or invitees . Such maintenance, repair,
restoration or replacement of such damage shall be made by the
ASSOCIATION at the expense of the OWNER.
11 . 04 APPORTIONMENT OF EXPENSES. In the event repairs
or restoration or extraordinary maintenance of the COMMON AREA, or
any improvements or structures thereon, or any portion of the
RESIDENCE LOTS of THE PROJECT which the ASSOCIATION is required to
garden or landscape pursuant to this Article, is required as a
result of the acts or omissions of more than one OWNER, the costs
of such work shall be conclusively apportioned by the ASSOCIATION.
11 . 05 To the extent PARTY IMPROVEMENTS masonry block
retaining walls and fences built as part of the original
construction of a RESIDENCE in THE PROJECT and placed on THE
PROPERTY line between two (2) RESIDENCE LOTS in THE PROJECT are not
maintained by the ASSOCIATION, as an ASSOCIATION expense, the
maintenance, repair, replacement or restoration of such masonry
block walls and fences .shall be governed by the general rules of
California Law regarding party walls and liability for property
damage due to negligence or willful acts or omissions shall apply
to such improvements .
11 . 05 . 1 The cost of reasonable maintenance of such
masonry block retaining walls and fences shall be borne equally by
the OWNERS of the RESIDENCE LOTS sharing such improvements .
11 . 05 . 2 The right of any OWNER of a RESIDENCE LOT to
contribution from any other OWNER under this Section 11 . 05 shall be
appurtenant to such RESIDENCE' LOT.
11 . 05 . 3 Any dispute between OWNERS regarding the
allocation of the expenses of such maintenance, repair, restoration
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{
or replacement shall be determined pursuant to the provisions of
Section 16. 14 hereof .
11 . 06 APPROVAL OF PLANS . No work .provided for in this
Article or elsewhere in this DECLARATION shall be commenced and no
structure or improvement in THE PROJECT shall be painted or
repainted on the exterior thereof or constructed, altered or
repaired until complete plans and specifications for the work,
including color schemes, shall have been submitted to and approved
by the ARCHITECTURAL COMMITTEE. All such repair, replacement or
reconstruction pursuant to this Article shall be substantially in
accordance with the original plans and specifications for THE
PROJECT.
11 . 07 TIMING AND COMPLETION. If any work required of an
OWNER by this Article is not commenced within thirty (30) days
after written notice by the ASSOCIATION to the OWNER or OWNERS
involved of the need therefor, or if the work once commenced is not
diligently pursued to completion within the period prescribed by
Section 11 . 02 of this Article XI, the ASSOCIATION may, by written
notice to the OWNER or OWNERS involved, elect to undertake the work
on behalf of and at the expense of said OWNER or OWNERS .
11 . 08 INDIVIDUAL ASSESSMENTS. If the ASSOCIATION
undertakes any work which is at the expense of the OWNER pursuant
to the provisions of this Article, the ASSOCIATION shall levy an
INDIVIDUAL ASSESSMENT against such OWNER pursuant to the provisions
of Article IV, Section 4 . 07 of this DECLARATION, to cover the costs
of such expense.
11 . 09 LIMIT ON INDIVIDUAL ASSESSMENT. Any INDIVIDUAL
ASSESSMENT made against an OWNER or OWNERS by the ASSOCIATION in
order to allow the ASSOCIATION to undertake any work which is to be
at the expense of the OWNER, shall be reduced by any amount paid by
the OWNER for such work and by the amount of any insurance proceeds
paid to the ASSOCIATION as a 'result of the damage to be repaired or
replaced.
11 . 10 ASSOCIATION DUTY OF' MAINTENANCE. The BOARD, or
its duly appointed agent, including the manager, if any, shall have
the exclusive right to paint, decorate, repair, replace, maintain
and alter or modify all structures and improvements in the COMMON
AREA, and no OWNER of a RESIDENCE LOT shall be permitted to do, or
have done, any such work.
11 . 11 STRUCTURAL CHANGE . No OWNER shall alter, modify,
reconstruct or do any other thing to any party wall or to any
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plumbing, electrical or mechanical fixtures located along or within
any such wall which would impair the integrity of the party wall as
a fire separation unit without the review and approval of the
ARCHITECTURAL COMMITTEE.
END OF ARTICLE XI
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ARTICLE XII
DESTRUCTION OR CONDEMNATION
12 . 01 DESTRUCTION OF COMMON AREA.
12 . 01 . 1 RECONSTRUCTION WITHOUT ELECTION BY OWNERS . In
the event that all or any part of the COMMON AREA of THE PROJECT is
destroyed or damaged by any cause and if the available proceeds of
the insurance carried by the BOARD pursuant to this DECLARATION is
sufficient to cover not less than ninety percent (900) of the cost
of the repair or reconstruction thereof, the same shall be promptly
repaired and rebuilt unless, within one hundred twenty (120) days
from the date of such destruction, not less than seventy-five
percent (750) of the MEMBERS determines that such reconstruction
shall not take place. Any meeting of MEMBERS called for such
purpose shall be deemed a "special meeting" of MEMBERS and shall be
called and conducted in accordance with the BY-LAWS of the
ASSOCIATION.
12 . 01 . 2 RECONSTRUCTION BY CONSENT OF OWNERS. In the
event that all or any part of the COMMON AREA of THE PROJECT is
destroyed or damaged by any cause and if the available proceeds of
the insurance carried by the BOARD pursuant to this DECLARATION is
less than ninety percent (900) of the cost of the reconstruction or
repair thereof, such reconstruction or repair may nevertheless take
place if a MAJORITY OF MEMBERS elect by vote or written assent to
rebuild. Any meeting of MEMBERS called to approve such recon-
struction or repair pursuant to this Section 12 . 01 .2 shall be
deemed a "special meeting" of MEMBERS and shall be called and
conducted in accordance with the BY-LAWS of the ASSOCIATION.
12 . 01 . 3 OBLIGATION OF BOARD. Within sixty (60) days
following the damage or destruction of the COMMON AREA, the BOARD
shall cause plans and specifications for the reconstruction or
repair of the COMMON AREA contemplated by this Article to be
prepared in compliance with Section 11 . 06 of Article XI and within
thirty (30) days after the preparation of such plans the BOARD
shall obtain bids for the reconstruction or repair contemplated by
this Article XII from at least two reputable contractors, and if
either Section 12 . 01 . 1 or 12 . 01 .2 of this Article XII is complied
with, the BOARD shall award the reconstruction or repair work to
the lowest bidder; provided, however, that the BOARD shall not be
required to authorize or award any such contract until it has
sufficient monies, whether from insurance and/or the collection of
the SPECIAL and/or INDIVIDUAL ASSESSMENT with which to pay the
costs of reconstruction or repair as reflected by the bid which has
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been accepted by the BOARD. The BOARD, upon awarding said bid
shall thereafter be authorized to disburse monies to the contractor
in accordance with the contract terms from the proceeds from the
insurance and the assessments held by the BOARD for such
reconstruction or repair. It shall be the obligation of the BOARD '
to take all steps necessary to assure the commencement and
completion of such reconstruction or repair at the earliest
possible date.
12 . 01 . 4 USE OF PROCEEDS . The use of the proceeds of any
insurance maintained by the ASSOCIATION upon the COMMON AREA
improvements pursuant to Article X hereof shall be used by the
BOARD pursuant to this Section 12 . 01 subject to the prior rights of
MORTGAGEES whose interests may be protected by said policies .
12 . 01 . 5 DETERMINATION NOT TO REPLACE COMMON AREA. In
the event of a determination not to replace, repair or restore the
COMMON AREA improvements pursuant to Sections 12 . 01 . 1 and 12 . 01 . 2
of this Article XII, the ASSOCIATION may, upon the approval of a
MAJORITY OF MEMBERS clear the destroyed or damaged part of the
COMMON AREA of THE PROJECT and landscape or otherwise improve such
area for project use, including adequate vehicular and pedestrian
rights of way, with the costs thereof paid from the insurance
proceeds and from SPECIAL ASSESSMENTS, if necessary. Should any
excess insurance proceeds remain, the BOARD shall retain such sums
in the general funds of the ASSOCIATION.
Notwithstanding anything to the contrary contained in
this Section 12 . 01, the distribution or any insurance proceeds for
any damage or destruction to the COMMON AREA of THE PROJECT shall
be subject to the prior rights of the INSTITUTIONAL MORTGAGEES .
12 . 02 DESTRUCTION OF RESIDENCE. In the event that all
of a RESIDENCE or damaged by any cause the OWNER or OWNERS thereof
shall diligently commence the repair or reconstruction of such
RESIDENCE as nearly as possible to the condition immediately prior
to such damage or destruction and in substantial conformance with
the original plans thereof pursuant to Section 11 . 06 of Article XI
of
this DECLARATION.
Notwithstanding the foregoing, however, any OWNER of
a
damaged or destroyed RESIDENCE may request permission from the
ARCHITECTURAL COMMITTEE to reconstruct or repair his RESIDENCE in
accordance with revisions in the plans and specifications . The
ARCHITECTURAL COMMITTEE shall grant such request only in the event
that the proposed change or deviation will. materially benefit and
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enhance the entire PROJECT in a manner generally consistent with
the original plans and development thereof.
12 . 02 . 1 FENCES ON PROPERTY LINES . To the extent the
reconstruction or repairs herein described requires the repair or
reconstruction of the fences described in Section 11 . 05 above, the
OWNERS of the two (2) RESIDENCE LOTS sharing such fences shall bear
one-half (%�) of the expenses thereof.
12 . 02 . 2 APPORTIONMENT OF EXPENSES. If two or more
OWNERS cannot agree on the apportionment of expenses of mainte-
nance, repair or restoration, such expenses shall be conclusively
apportioned by the ASSOCIATION. If the ASSOCIATION is involved in
dispute over the apportionment of such expenses, then the dispute
shall be settled as provided in Sections 16. 14 and 16. 15 herein
below.
12 . 03 COMPLETION BY ASSOCIATION. If any repair or
reconstruction required of an OWNER by this Article is not
commenced within sixty (60) days after written notice by the ASSO-
CIATION to the OWNER or OWNERS of the RESIDENCE involved of the
need therefor, or if the work once commenced is not diligently
pursued to completion, the ASSOCIATION may, by written notice to
such OWNER or OWNERS elect to undertake the work on behalf of and
at the expense of said OWNER or OWNERS . If the ASSOCIATION
undertakes any repair or reconstruction which this Article requires
an OWNER to undertake, the ASSOCIATION shall assess an INDIVIDUAL
ASSESSMENT against the OWNER pursuant to Article IV of this
DECLARATION; provided, however, that the INDIVIDUAL ASSESSMENT
shall be reduced by any amount paid by the OWNER for such work and
by the amount of any insurance proceeds paid to the ASSOCIATION as
a result of the damage or destruction to be repaired or replaced.
12 . 04 CONDEMNATION.
12 . 04 . 1 COMMON AREA. If an action for condemnation of
all or a portion of the COMMON AREA is proposed or threatened by
any governmental agency having the right of eminent domain, then,
after approval by vote or written consent of at least fifty-one
percent (510) of all the OWNERS and with the prior written consent
of seventy-five percent (750) of all INSTITUTIONAL FIRST
MORTGAGEES, the COMMON AREA, or a portion of it may be sold and
conveyed to the condemning authority by the ASSOCIATION or its
designees acting as the attorney-in-fact of all OWNERS under an
irrevocable power of attorney, which OWNER by accepting a deed to
a LOT in THE PROJECT grants to the BOARD and which shall be coupled
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with an interest of all other OWNERS, for a price deemed fair and
equitable by the BOARD.
On a sale occurring under this section, the proceeds
shall be distributed equally to each OWNER and their MORTGAGEES as
their respective interests may appear .
If the COMMON AREA, or a portion of it, is not sold but
is instead taken, the award shall be apportioned among the OWNERS
and their respective MORTGAGEES by the terms of the judgment of
condemnation, and if not so apportioned, then the award shall be
distributed equally to each OWNER and their MORTGAGEES as their
respective. interests may appear.
If less than all of the COMMON AREA is taken, then the
reconstruction or replacement of the remaining COMMON AREA, and
improvements thereon shall be determined according to the rules
established in the event of the destruction of a portion of the
COMMON AREA, as set forth in Section 12 . 01 of this DECLARATION.
12 . 04 . 2 RESIDENCE/RESIDENCE LOT (PARTIAL) . Where part
of a RESIDENCE and/or RESIDENCE LOT has been taken by condemnation
or by eminent domain (or by deed in lieu of such proceedings) and
the RESIDENCE and/or RESIDENCE LOT remaining is capable of being
repaired or reconstructed substantially in accordance with the
original plans and specifications therefore, the OWNER or OWNERS of
such RESIDENCE and/or RESIDENCE LOT shall arrange for the repair or
restoration of such RESIDENCE and/or RESIDENCE LOT in the manner
prescribed by Section 12 . 02 of this Article XII with respect to the
to the repair or restoration of damage or destruction of a
RESIDENCE.
12 . 04 . 3 RESIDENCE/RESIDENCE LOT (TOTAL OR SUBSTANTIAL
. TAKE) . Should an entire RESIDENCE LOT (or a substantial portion
thereof so as to render the repair or restoration of the RESIDENCE
thereon or the construction of a new RESIDENCE on such LOT in
architectural harmony with the remaining PROJECT impracticable) ,
the RESIDENCE and/or RESIDENCE LOT so taken shall cease to be part
of THE PROJECT; the RESIDENCE LOT remaining shall become a part of
the COMMON AREA of THE PROJECT, and the OWNER or OWNERS of such
RESIDENCE and/or RESIDENCE LOT shall cease to be a MEMBER of the
ASSOCIATION.
12 . 04 . 4 PAYMENT OF AWARD. All compensation, damages or
other proceeds constituting awards in condemnation or eminent
domain or payments in lieu of condemnation or eminent domain for
the taking of or injury to the RESIDENCE and/or RESIDENCE LOT, or
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any portion or portions thereof, so taken shall be equitably
apportioned by the ASSOCIATION, following the receipt thereof,
among the ASSOCIATION and the OWNERS and their MORTGAGEES of the
RESIDENCE or RESIDENCE LOT so affected by the taking, as their
interests may appear. No OWNER, or any other party, shall have
priority over any right of INSTITUTIONAL FIRST MORTGAGEES of LOTS
in THE PROJECT pursuant to their MORTGAGES in case of a
distribution by the ASSOCIATION of insurance proceeds or
condemnation awards for losses to or a taking of LOTS or COMMON
AREA in THE PROJECT. The part of the award apportioned to the
ASSOCIATION, if any, shall be applied by the ASSOCIATION to
discharge the costs and expenses of restoration of the COMMON AREA
damaged as a result of the taking of such RESIDENCE LOT.
12 . 05 SPECIAL ASSESSMENT. In the event of a determin-
ation to repair or reconstruct pursuant to this Article XII, the
BOARD shall levy a SPECIAL ASSESSMENT in compliance with the terms
and provisions of Section 4 . 04 of this DECLARATION, in order to
secure such funds as may be necessary to pay for the costs of such
repair or reconstruction, including all plans, specifications and
permits deemed necessary by the BOARD therefor, over and above all
sums paid and received for such purposes from insurance, eminent
domain awards or an INDIVIDUAL ASSESSMENT.
END OF ARTICLE XII
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b
ARTICLE XIII
EASEMENTS AND ENCROACHMENTS
13 . 01 APPURTENANT EASEMENTS. There shall be the
following easements appurtenant to each RESIDENCE LOT:
13 . 01 . 1 Reciprocal easements between adjacent RESIDENCE
LOTS for the maintenance, replacement and repair of all PARTY
fences situate upon the common boundary of said adjacent RESIDENCE
LOTS .
13 . 01 .2 Reciprocal easements between adjacent RESIDENCE
LOTS for encroachments due to the placement or settling or shifting
of any improvements constructed, reconstructed, replaced or altered
thereon pursuant to the original plans and in accordance with the
terms of this DECLARATION to a distance of not more than five feet
as measured from any point on the common boundary between said
adjacent RESIDENCE LOTS along a line perpendicular to such boundary
at such point; provided, however, that except as hereinafter
provided, no such easements for any encroachment shall exist if
such encroachment shall occur due to the willful conduct on the
part of an OWNER of a RESIDENCE LOT, any tenant of such LOT or the
ASSOCIATION.
13 . 01 . 3 Reciprocal easements between each RESIDENCE LOT
and such portion or, portions of the COMMON AREA adjacent thereto
for encroachments due to the placement, settling or shifting of any
improvements constructed, reconstructed, replaced or altered
thereon in accordance with the original plans and with the terms of
this DECLARATION to a distance of not more than five feet, as
measured from any point on the common boundary between each
RESIDENCE LOT and the adjacent portions of the COMMON AREA along a
line perpendicular to such boundary at such point; provided,
however, in no event shall an easement for encroachment exist if
such encroachment occurs due to the willful conduct on the part of
an OWNER of a RESIDENCE LOT, any tenant of such LOT or the ASSOCIA-
TION.
13 . 01 . 4 An easement of encroachment appurtenant to each
RESIDENCE LOT for any encroachments upon the air space of any part
of the COMMON AREA by any part of the RESIDENCE or other
improvements originally constructed, reconstructed, replaced,
repaired and/or maintained upon such RESIDENCE LOT pursuant to the
original plans thereof, and with the consent of the ARCHITECTURAL
COMMITTEE to a distance of not more than three feet (3 ' ) , as
measured from any point on the common boundary between each such
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RESIDENCE LOT and the adjacent portion of the COMMON AREA along a
line perpendicular to such boundary at such point.
13 .01 . 5 In the event that there shall be located within
any RESIDENCE LOT pipes, vents, outlets, wires or other structures
serving another or more than one RESIDENCE LOT, the OWNER of each
RESIDENCE LOT so served shall have and enjoy a perpetual easement
appurtenant to his RESIDENCE LOT for the maintenance and use of any
such pipe, vent, outlet, wire or other structure .
13 . 02 OWNER' S EASEMENT OF ENJOYMENT. Every OWNER, and
his tenants, servants, family members, guests and invitees, to the
extent permitted by such OWNER, shall have a non-exclusive easement .
of access to, use and enjoyment of, and ingress and egress through
the COMMON AREA and such easement shall be appurtenant. to and shall
pass with the title to every RESIDENCE LOT subject to the following
provisions :
13 . 02 . 1 The right of the ASSOCIATION to reasonably limit
the number of guests of OWNERS using the COMMON AREA.
13 . 02 .2 The right of the BOARD to establish ASSOCIATION
RULES pertaining to the use of the COMMON AREA.
13 .02 . 3 The right of the ASSOCIATION in accordance with
this DECLARATION, its ARTICLES and BY-LAWS, to borrow money for the
purpose of improving the COMMON AREA and facilities therein.
13 . 02 . 4 The right of the ASSOCIATION to suspend the
voting rights of an OWNER for any period during which any assess-
ment against such OWNER' S RESIDENCE LOT remains unpaid and
delinquent as provided for by this DECLARATION .
13 . 02 . 5 Subject to the provisions of this DECLARATION,
the right of the ASSOCIATION to dedicate, release, alienate or
transfer all or any part of the COMMON AREA to any public agency,
authority or utility for such purposes and subject to such
conditions as may be agreed upon by the MEMBERS .
No such dedication, release, alienation or transfer shall
be effective unless an instrument signed by sixty-six and two-
thirds percent (.66 2/30) of the votes of both classes of MEMBERS of
the ASSOCIATION agreeing to such dedication, release, alienation or
transfer has been recorded in the office of the COUNTY Recorder .
13 . 02 . 6 The right of the DECLARANT, their agents and
representatives, to the non-exclusive use of the COMMON AREA and
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the facilities, thereof, without charge, for sales, display,
access, ingress, egress and exhibit purposes in connection with the
sale or lease of all or any portion of THE PROPERTY, which rights
DECLARANT hereby expressly reserves . Provided, however, that such
use shall not be for any period of more than either (a) two (2)
years after the date of the original issuance of the final
subdivision public report for THE PROPERTY, or (b) three (3) years
from and after the date of the recordation of this DECLARATION,
whichever event shall be the first to occur; provided, however,
that such use by DECLARANT or their agents and representatives
shall not restrict the MEMBERS in their use and enjoyment of the
COMMON AREA.
13 . 02 . 7 The right of the ASSOCIATION to reconstruct,
replace or refinish any improvement or portion thereof upon the
COMMON AREA, in accordance with the original design, finish or
standard of construction of such improvement, or the general
improvements within THE PROJECT, as the case may be .
13 . 02 . 8 The right of the ASSOCIATION to garden and
landscape the COMMON AREA and front yard portion of each LOT.
13 . 03 RIGHTS OF ASSOCIATION. There is expressly
reserved to the ASSOCIATION an easement, to which the entire
PROJECT shall be subject, of entry and access for the performance
generally of its rights and duties as provided in this DECLARA-
TION. Entry into the RESIDENCE of an OWNER pursuant to this
easement shall be restricted to reasonable times and must be
preceded by reasonable notice to the occupant, unless entry is
required by an _emergency. Any damage caused to a RESIDENCE,
RESIDENCE LOT or to the COMMON AREA by the exercise of the rights
of the ASSOCIATION granted pursuant to this Section shall be
repaired by the ASSOCIATION. The ASSOCIATION shall have an
easement in, on, over and under THE PROJECT as reasonably necessary
to maintain and repair the private street (OUTLOT "A") and any
other improvements that the ASSOCIATION is obligated to maintain
within THE PROJECT. In addition, DECLARANT hereby reserves non-
exclusive easements for the benefit of the ASSOCIATION over LOTS in
THE PROJECT as appropriate, for the purposes set forth in Section
11 . 01 (e) above .
13 . 04 CONSTRUCTION EASEMENT. The DECLARANT, its agents,
representatives, successors in interest and assigns shall have a
non-exclusive easement and right-of-way for ingress and egress over
and upon the COMMON AREA to and from any portion of THE PROPERTY
and for temporary storage of construction materials, equipment and
vehicles thereon, until construction and development of THE
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PROPERTY is completed. Provided, however, the rights reserved by
DECLARANT for themselves, their successors in interest and assigns
pursuant to this Section 13 . 04 shall expire on the first to occur
of the following events: (a) three (3) years after the close of
escrow of the first LOT in the most recent PHASE of THE PROJECT, or
(b) the close of escrow .of the last LOT in THE PROJECT. Provided,
however, such use by the DECLARANT, its agents, representatives,
successors in interest and assigns shall not restrict the MEMBERS
in their use and enjoyment of the COMMON AREA.
13 . 05 VEHICULAR TRAFFIC. There shall be, and DECLARANT
hereby expressly reserves and covenants for themselves, the future
OWNERS of RESIDENCE LOTS in THE PROJECT, and all future OWNERS of
THE PROPERTY, or any part thereof, and every such OWNER shall have
a non-exclusive easement appurtenant to such property or RESIDENCE
LOT for purposes of ingress and egress to and from such property or
RESIDENCE LOT over all road, and other private streets within THE
PROPERTY.
13 . 06 PUBLIC SERVICE USE . DECLARANT hereby reserves and
covenants for themselves, each OWNER, and the OWNERS of all or any
portion of THE PROPERTY, easements of immediate access to all
portions of the COMMON AREA for the CITY, the COUNTY, the State of
California, and the government of the United States, and any
department, bureau or agency thereof, for the purpose of preserving
the public health, safety and welfare .
13 . 07 UTILITY SERVICE. There is reserved for the
benefit of each OWNER, the ASSOCIATION, and all utilities, persons
and municipalities rendering services to THE PROJECT, an easement
over, under, upon and through each RESIDENCE, RESIDENCE LOT and the
COMMON AREA for the installation, maintenance and repair of each
and every utility service, including but not limited to sewage,
storra drainage, water, electricity, gas, telephone and television
service for THE PROJECT, and all necessary meters and gauges
registering the use of such services, (including the incidental
easement of ingress and egress for the purpose of reading such
meters) ; provided, however, that the exercise of this easement
shall not result in damage to existing improvements upon any
RESIDENCE LOT or the COMMON AREA, including RESIDENCES, lawns,
shrubbery or trees unless adequate compensation is made for any
such damage by the OWNER, the utility, the municipality or the
ASSOCIATION exercising the rights granted by this Section 13 . 07 .
No STRUCTURE, planting or material shall be placed or
permitted to remain which may damage or interfere with the
installation and maintenance of utilities, or which may damage,
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I
interfere or change the direction or flow of drainage facilities in
the COMMON AREA. The easement areas in the COMMON AREA and all
improvements located thereon, shall be .maintained by the
ASSOCIATION, except for those improvements for which a public
authority or. utility company is responsible.
Utility easements in the COMMON AREA shall at all times
be open and accessible to public and quasi-public utility corpor-
ations and other persons erecting, constructing, or servicing such
utilities and to DECLARANT and their successors and assigns, all of
whom shall have the right of ingress and egress thereto and
therefrom, and the right and privilege of doing whatever may be
necessary in, under and upon said locations for the carrying out of
any of the purposes for which said easements, reservations and
rights-of-way are reserved or granted.
13 . 08 ADDITIONAL EASEMENTS . Additional easements may be
granted to the ASSOCIATION by DECLARANT, to reflect the fences,
walls, landscaping and irrigation systems installed along the
perimeter of THE PROJECT, and within the entry areas of THE
PROJECT, as installed by DECLARANT without the necessity of
amending this DECLARATION.
13 . 09 ENCROACHMENT FOR MASONRY BLOCK WALLS . The masonry
block walls installed by DECLARANT on OUTLOTS adjacent to LOTS in
THE PROJECT, if any, may encroach onto said LOTS approximately
eighteen inches (18") inside the property line of said LOTS, not
including footings, as determined by DECLARANT . The OWNERS of said
LOTS (other than DECLARANT) shall not move, remove, relocate or
reposition the masonry block walls on their LOTS . Further, the
OWNERS of said LOTS shall not do anything which may alter, damage
or impair the structural integrity of the masonry block walls
situated upon said LOTS.
13 . 10 ENCROACHMENT FOR MASONRY BLOCK RETAINING WALLS .
The masonry block retaining walls installed by DECLARANT on OUTLOTS
adjacent to LOTS in THE PROJECT, if any, may encroach onto said
LOTS approximately eighteen inches (18") inside the property line
of said LOTS, not including footings, as determined by DECLARANT.
The OWNERS of said LOTS (other than DECLARANT) shall not move,
remove, relocate or reposition the masonry block retaining walls on
their LOTS . Further, the OWNERS of said LOTS shall not do anything
which may alter, damage or impair the structural integrity of the
masonry block retaining wall upon their LOTS. The masonry block
retaining walls located on LOTS in THE PROJECT shall be maintained,
repaired and replaced by the OWNERS of the LOTS upon which the
masonry block retaining walls are located, at the OWNER' S sole cost
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and expense, subject to the provisions of Section 11 . 05 of this
DECLARATION.
13 . 11 ENCROACHMENT FOR WOOD FENCES. The wood fences,
including footings, installed by DECLARANT on LOTS in THE PROJECT,
may encroach upon said LOTS. The exact location of the wood fences
shall be determined by DECLARANT. The wood fences located on LOTS
in THE PROJECT shall be maintained, repaired and replaced by the
OWNERS of the LOTS upon which . the wood fences are located, at the
OWNER' S sole cost and expense, subject to the provisions of Section
11 . 05 of this DECLARATION.
END OF ARTICLE XIII
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ARTICLE XIV
POWERS AND DUTIES OF ASSOCIATION
14 . 01 ADMINISTRATION OF PROJECT. The OWNERS, and each
of them, together with all parties bound by this DECLARATION
covenant and agree that the administration of THE PROJECT shall be
in accordance with the provisions of this DECLARATION, the
ARTICLES, the BY-LAWS and such rules and regulations as may be
adopted by the BOARD, and all amendments and modifications as may
be adopted from time to time . In the event of any inconsistency
between the provisions of this DECLARATION and the provisions of
the ARTICLES, the BY-LAWS or said rules and regulations, the
provisions of this DECLARATION shall prevail .
The primary purpose of the ASSOCIATION is to further and
promote the common interests and welfare of the OWNERS and to
provide ownership, management, maintenance, preservation and
control of the COMMON AREA and maintenance, preservation and
control of the RESIDENCES and RESIDENCE LOTS . The ASSOCIATION
shall have such powers as are set forth in this DECLARATION, the
ARTICLES, and BY-LAWS and afforded it by law. The ASSOCIATION
shall also be the sole and exclusive means for the regulation and
enforcement of all rules necessary to govern the use and enjoyment
of private roads, walkways, recreational facilities and the entire
COMMON AREA of THE PROJECT.
14 . 02 ORGANIZATIONAL MEETING OF ASSOCIATION. The
MEMBERS of the ASSOCIATION shall hold an organizational meeting no
later than the expiration of six (6) months following the
recordation of a deed evidencing the initial sale of a RESIDENCE
LOT within THE PROJECT. DECLARANT shall call the organizational
meeting and give notice of the time thereof in the manner set forth
in the BY-LAWS. Thereafter, annual and special meetings of the
MEMBERS of the ASSOCIATION shall be held as provided in the BY-
LAWS .
14 . 03 AUTHORITY OF BOARD. Prior to the initial
organizational meeting of MEMBERS and thereafter until their
successors are elected, the initial BOARD named in the ARTICLES or
their duly appointed successors shall manage the affairs of the
ASSOCIATION. The BOARD as constituted from time to time, shall at
all times be responsible for the day to day operation and
management of the affairs of the ASSOCIATION and shall have the
sole power and duty to perform and carry out the powers and duties
of the ASSOCIATION as set forth in this DECLARATION and the BY-
LAWS, except for the ARTICLES or as required by B.R.E. , requiring
the vote or assent of the MEMBERS of the ASSOCIATION or a given
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percentage thereof. Without limiting the generality of the
foregoing, the BOARD, on behalf of the ASSOCIATION, shall have the
following powers and duties :
14 . 03 . 1 To accept as MEMBERS all persons described in
Article II .
14 . 03 . 2 Immediately prior to any dissolution of the
ASSOCIATION, to convey all property vested in the ASSOCIATION to
the OWNERS, as their interests in THE PROJECT may appear, or in
such other manner as may be agreed upon by the vote or written
assent of seventy-five percent (750) of both classes of MEMBERS of
the ASSOCIATION. Any meeting of MEMBERS called to approve such
distribution of the COMMON AREA shall be deemed a "special meeting"
of MEMBERS and shall be called and conducted in accordance with the
BY-LAWS of the ASSOCIATION.
14 . 03 . 3 To maintain, repair and restore the COMMON AREA,
and the RESIDENCES .and RESIDENCE LOTS as provided in Article XI
hereof and to acquire for the ASSOCIATION and to pay from the
assessments levied and collected in accordance with this
DECLARATION for such services, furnishings, equipment, maintenance,
replacement and repairs as it may determine to be necessary in
order to keep and maintain the. COMMON AREA and all improvements and
easements therein and thereon in a state of good condition and
repair.
14 . 03 . 4 To acquire and pay for out of the assessments
levied and collected in accordance with this DECLARATION, sewer,
water, refuse collection, telephone, gas and electric power,
gardening service and other utilities and services for the COMMON
AREA; to also acquire and pay for out of the assessments levied and
collected in accordance herewith any sewer, water, refuse
collection, gas and electric services and other utilities rendered
to RESIDENCE LOTS in THE PROJECT not separately metered or billed
to individual RESIDENCE LOTS. To the extent any such utilities or
services are separately metered or separately rendered to the
RESIDENCE LOTS, the OWNERS of such RESIDENCE LOTS shall be
primarily responsible for the payment thereof as prescribed by
Section 6.21 of this DECLARATION.
14 . 03 . 5 Except as to taxes, bonds, levies and assess-
ments levied separately and against individual RESIDENCE LOTS
and/or the OWNER or OWNERS thereof, the BOARD shall pay all taxes,
real and personal, and assessments, bonds and levies which are or
would become a lien on THE PROJECT or the COMMON AREA.
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14 . 03 . 6 To employ a manager, or other persons and
contract with the DECLARANT, independent contractors or managing
agents who have professional experience in the management of
developments similar to THE PROJECT to perform all or any part of
the duties and responsibilities of the ASSOCIATION; provided,
however, that any such contract shall be terminable by either party
without cause and without the payment of any termination fee on
ninety (90) days written notice; shall be terminable by the BOARD
for cause on thirty (30) days written notice; and shall have a term
of not more than one (1) year and with the vote or written assent
of a MAJORITY OF MEMBERS (excluding the votes or assents of the
DECLARANT) may contain a provision for successive one (1) year
renewal periods upon mutual agreement of the parties .
14 . 03 . 7 To establish by the vote of a majority of the
BOARD, ASSOCIATION RULES with respect to the use and occupancy of
the COMMON AREA by the OWNERS and their family members, servants,
tenants, guests and invitees, and the conduct of such persons with
respect to vehicles, parking, bicycles, use of recreational
facilities, control of pets and other activities which if not so
regulated might detract from the appearance of THE PROJECT or
offend or be offensive to or cause inconvenience, noise or danger
to persons residing in or visiting THE PROJECT.
All ASSOCIATION RULES shall be posted in a conspicuous
place in the COMMON AREA and the BOARD shall send a copy of such
rules and regulations, together with amendments and additions
thereto to each OWNER within fifteen (15) days of the adoption of
such rules and regulations or amendments and additions thereto.
14 . 03 . 8 To levy assessments against the OWNERS and
enforce the payment thereof all in the manner and subject to the
limitations set forth in this DECLARATION.
14 . 03 . 9 Without liability to any OWNER, to enter into
any RESIDENCE, RESIDENCE LOT or the COMMON AREA for the purpose of
enforcing ASSOCIATION RULES, this DECLARATION, or for the purpose
of maintaining any RESIDENCE or RESIDENCE LOT if for any reason
whatsoever any OWNER fails to maintain such RESIDENCE or RESIDENCE
LOT as required by the DECLARATION, and for the purpose of removing
any improvements constructed on such RESIDENCE or RESIDENCE LOT
contrary to the provisions of the DECLARATION.
14 . 03 . 10 To commence and maintain legal proceedings to
restrain and enjoin the breach or threatened breach of ASSOCIATION
RULES or the DECLARATION and to seek redress therefor.
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14 . 03 . 11 To have the power to perform such other acts,
whether expressly authorized by this DECLARATION or .the BY-LAWS as
may be reasonably necessary to enforce any of the provisions of
this DECLARATION, the BY-LAWS or ASSOCIATION RULES, or to carry out
and perform its powers and responsibilities .
14 . 03 . 12 To delegate to committees, officers, employees
or agents any of its duties and powers under the DECLARATION, the
ARTICLES and BY-LAWS; provided, however, no such delegation shall
relieve the ASSOCIATION of its obligations to perform such
delegated duties .
14 . 03 . 13 To delegate to committees, officers, employees
or agents any of its duties and powers under the DECLARATION, the
ARTICLES and BY-LAWS; provided, however, no such delegation shall
relieve the ASSOCIATION of its obligations to perform such
delegated duties . Notwithstanding the immediately preceding
sentence, the BOARD shall not delegate its responsibility to:
(1) make expenditures for capital additions or
improvements chargeable against the capital reserves;
(2) conduct hearings, concerning compliance by an
Owner or his or her tenant, lessee, guest or invitee with the
DECLARATION, BY-LAWS or ASSOCIATION RULES promulgated by the BOARD;
(3) make a decision to levy monetary fines, levy
reimbursement charges, temporarily suspend an OWNER' S rights as a
MEMBER of the ASSOCIATION or otherwise impose discipline;
(4) make a decision to levy REGULAR ASSESSMENTS or
SPECIAL ASSESSMENTS; or
(5) make a decision to bring suit, record a claim
of lien or institute foreclosure proceedings for default in payment
of assessments .
14 . 03 . 14 Subject any more restrictive provision
contained in this DECLARATION, to dedicate or transfer all or any
part of the COMMON AREA to any public agency, authority or utility
or any other person or entity for such purposes and subject to such
conditions as may be agreed to by the ASSOCIATION; provided,
however, that no such dedication or transfer shall be effective
unless (i) such dedication or transfer is approved by a majority of
the voting power of each class of MEMBERS, and (ii) an instrument
in writing is signed by the Secretary of the ASSOCIATION certifying
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that such dedication or transfer has been approved by the required
vote or written assent.
14 .04 PERSONAL LIABILITY. No member of the BOARD or of
any committee of the ASSOCIATION, or any officer of the
ASSOCIATION, or the DECLARANT, or the manager, if any, shall be
personally liable to any OWNER, or to any other party, including
the ASSOCIATION, for any damage or loss suffered or claimed on
account of any act, omission, error or negligence of the
ASSOCIATION, the BOARD, manager or any other representative or
employee of the ASSOCIATION, the DECLARANT, the ARCHITECTURAL
COMMITTEE, or any other committee, or any officer of the ASSO-
CIATION, provided that such. person has, upon the basis of such
information as may be possessed by him, acted in good faith, and
without willful or intentional misconduct.
14 . 05 LIMITATION ON POWERS. In the exercise of the
powers granted to the BOARD by this DECLARATION, the approval of
any of the following action by the BOARD must first be obtained by
the vote or written assent of a MAJORITY OF MEMBERS (excluding the
votes or assents of the DECLARANT) .
14 . 05 . 1 Entering into a contract or agreement for the
furnishing of goods or services, including any contract with the
DECLARANT for a term in excess of one (1) year with the exception
of the following:
(a) A management contract, the terms of which have
been approved by the Federal Housing Administration or Veterans
Administration.
(b) A contract with a public utility company if the
rate charged for the materials or services are regulated by the
Public Utilities Commission provided, however, that the term of the
contract shall not exceed the shortest term for which the supplier
will contract at the regulated rate.
(c) Prepaid casualty, fire and/or liability
insurance policies of not to exceed three years duration provided
that the policies permit for short rate cancellation by the
insured.
(d) A lease agreement for laundry room fixtures and
equipment for a term of not to exceed five (5) years provided that
the lessor under such lease is not an entity in which the DECLARANT
has a direct or indirect ownership interest of ten percent (100) or
more .
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(e) Agreements for cable television service and
equipment or satellite dish television services and equipment of
not to exceed five (5) years duration provided that the supplier is
not an entity in which the DECLARANT has a direct or indirect
ownership interest of ten percent (10%) or more.
(f) Agreements for sale or lease of burglar and
fire alarm equipment, installation and services of not to exceed
five (5) years duration provided that the supplier or suppliers are
not entities in which the DECLARANT has a direct or indirect
ownership interest of ten percent (10%) or more.
(g) A contract for a term not to exceed three (3)
years that is terminable by the ASSOCIATION after no longer than
one (1) year without cause, penalty, or other obligation upon
ninety (90) days written notice of termination to the other party.
14 . 05 . 2 Incurring aggregate expenditures for capital
improvements to the COMMON AREA in any FISCAL YEAR in excess of
five percent ' (5%) of the total of the REGULAR MONTHLY ASSESSMENT
established for such FISCAL YEAR.
14 . 05 . 3 Selling during any FISCAL YEAR property of the
ASSOCIATION having an aggregate fair market value in excess of five
percent (5%) of the total of the REGULAR MONTHLY ASSESSMENT
established for such FISCAL YEAR.
14 . 05 . 4 Levying an increase in the REGULAR MONTHLY
ASSESSMENT and certain of the SPECIAL ASSESSMENTS pursuant to
Article IV of this DECLARATION, in cases where the approval of
MEMBERS is required under said Article IV.
14 . 05 . 5 Paying any compensation to members of the Board
of Directors or to officers of the ASSOCIATION for services
performed in the conduct of the ASSOCIATION' S business . A member
of the BOARD or an officer of the ASSOCIATION may, however, be
reimbursed for expenses incurred in carrying on the business of the
ASSOCIATION without. obtaining the vote or written assent of a
MAJORITY OF MEMBERS pursuant to this Section 14 . 05 . 5 .
14 . 05 . 6 Filling of a vacancy on the BOARD created by
removal of a BOARD MEMBER.
14 . 06 FINANCIAL STATEMENTS. The BOARD shall prepare or
cause to be prepared and mailed to all OWNERS such notices of
assessments, budgets and financial statements as may be prescribed
by the DECLARATION, the BY-LAWS, California Civil Code Section
5300, or by the B.R.E. , from time to time.
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14 . 07 AUDIT. The BOARD upon the written request of any
holder, insurer or guarantor of a FIRST MORTGAGE, shall provide an
audited financial statement of the ASSOCIATION for the immediately
preceding FISCAL YEAR free of charge to the party requesting such
statement. Any audited financial statement requested pursuant to
this Section 14 . 07 shall be furnished within a reasonable time
following such request.
14 . 08 BOOKS AND RECORDS . Commencing not later than
ninety (90) days after the annexation of the SUBSEQUENT PHASES to
the subdivision, copies of those documents listed under subdivision
(a) which are applicable to that SUBSEQUENT PHASE, shall, as soon
as readily obtainable, be delivered by the subdivider to the
governing body of the ASSOCIATION at the office of the ASSOCIATION,
or at such other place as the governing body of the ASSOCIATION
shall prescribe . The obligation to deliver such documents shall
apply to any documents obtained by DECLARANT no matter when
obtained, provided, however, that such obligation shall terminate
upon the earlier of (1) the conveyance of the last LOT covered by
a final subdivision public report or (3) three years (3) after the
expiration of the most recent final subdivision public report
applicable to the sale of LOTS in THE PROJECT:
(1) The recorded subdivision map or maps for THE
PROJECT.
(2) The recorded condominium plan, if any, and all
amendments thereto.
(3) The deeds and easements executed by the
DECLARANT conveying the COMMON AREA or other interest to the-
ASSOCIATION, to the extent applicable .
(4) The recorded DECLARATION, including all
amendments and annexations thereto.
(5) The ASSOCIATION' S filed ARTICLES OF
INCORPORATION, if any, and all amendments thereto.
(6) The ASSOCIATION ' S BY-LAWS and all amendments
thereto.
(7) All architectural guidelines and all other
rules regulating the use of an OWNER' S interest in the subdivision
or use of the COMMON AREA which have been promulgated by the
ASSOCIATION.
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(8) The plans approved by the local agency or
county where THE PROJECT is located for the construction or
improvement of facilities that the ASSOCIATION is obligated to
maintain or repair; provided, however, that the plans need not be
as-built plans and that the plans may bear appropriate restrictions
on their commercial exploitation or use and may contain appropriate
disclaimers regarding their accuracy.
(9) All notice of completion certificates issued
for COMMON AREA improvements (other than residential structures) .
(10) Any bond or other security device in which the
Association is the beneficiary.
(11) Any written warranty being transferred to the
ASSOCIATION for COMMON AREA equipment, fixtures or improvements .
(12) Any insurance policy procured for the benefit
of the ASSOCIATION, its BOARD or the COMMON AREA.
(13) Any lease or contract to which the ASSOCIATION
is a party.
(14) The membership register, including mailing
addresses and telephone numbers, books of account and minutes of
meetings of the MEMBERS, of the ASSOCIATION and of committees of
the ASSOCIATION.
(1) The recorded subdivision map or maps for THE
PROJECT.
(2) The recorded condominium plan, if any, and all
amendments thereto.
(3) The deeds and easements executed by the
DECLARANT conveying the COMMON AREA or other interest to the
ASSOCIATION, to the extent applicable .
(4) The recorded DECLARATION, including all
amendments and annexations thereto.
(5) The ASSOCIATION'S filed ARTICLES OF
INCORPORATION, if any, and all amendments thereto.
(6) The ASSOCIATION' S BY-LAWS and all amendments
thereto.
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tl w.
(7) All architectural guidelines and all other
rules regulating the use of an OWNER' S interest in the subdivision
or use of the COMMON AREA which have been promulgated by the
ASSOCIATION.
(8) The plans approved by the local agency or
county where THE PROJECT is located for the construction or
improvement of facilities that the ASSOCIATION is obligated to
maintain or repair; provided, however, that the plans need not be
as-built plans and that the plans may bear appropriate restrictions
on their commercial exploitation or use and may contain appropriate
disclaimers regarding their accuracy.
(9) All notice of completion certificates issued
for COMMON AREA improvements (other than residential structures) .
(10) . Any bond or other security device in which the
Association is the beneficiary.
(11) Any written warranty being transferred to the
ASSOCIATION for COMMON AREA equipment, fixtures or improvements .
(12) Any insurance policy procured for the benefit
of the ASSOCIATION, its BOARD or the COMMON AREA.
(13) Any lease or contract to which the ASSOCIATION
is a party.
(14) The membership register, including mailing
addresses and telephone numbers, books of account and minutes of
meetings of the MEMBERS, of the ASSOCIATION and of committees of
the ASSOCIATION.
(15) Any instrument referred to in Section
11018 . 6 (d) of the California Business and Professions Code but not
described above which establishes or defines the common, mutual or
reciprocal rights or responsibilities of MEMBERS of the
ASSOCIATION.
(a) The BOARD shall maintain current copies of
the DECLARATION, BY-LAWS, ARTICLES, ASSOCIATION RULES, a membership
register, including mailing address and telephone numbers, books of
account and minutes of meetings of the MEMBERS and of the BOARD and
of committees of the BOARD, financial statements of the ASSOCIATION
as required by the BY-LAWS or as may from time-to-time be required
by the B.R.E . The BOARD shall make all such documents, books and
records available for inspection and copying by any MEMBER of the
ASSOCIATION or by his duly appointed representative at any
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reasonable time and for a purpose reasonably related to .such
OWNER'S interest as a MEMBER, at the office of the ASSOCIATION or
at such other place within THE PROJECT as the BOARD shall prescribe
and, upon thirty (30) days written request, to lenders and to the
holders, insurers or guarantors of any FIRST MORTGAGEE .
(b) In the case of the minutes, minutes proposed
for adoption that are marked to indicate draft status, or a summary
of the minutes of any meeting of the BOARD, other than an executive
session, shall be available to members within thirty (30) days of
the meeting and shall be distributed to only MEMBERS upon request
and payment of cost of reproducing copies of the documents
requested. In addition, at the time of distribution of the
proforma operating budget required pursuant to Section 2792 . 22 (a)
of the Regulations of the California Real Estate Commissioner, or
at the time of any general mailing, MEMBERS of the ASSOCIATION
shall be notified in writing of their right to have copies of the
minutes of meetings of the BOARD and as to how and where those
minutes may be obtained and the cost of obtaining such copies .
(c) The BOARD shall establish reasonable rules
with respect to:
(1) Notice to be given to the custodian of the
records by the MEMBER desiring to make the inspection.
(2) Hours and days of the week when such an
inspection may be made.
(3) Payment of the cost of reproducing copies of
the documents requested by a MEMBER.
(d) Every Director shall have the absolute
right at any reasonable time to inspect all books, records and
documents of the ASSOCIATION and the physical properties owned or
controlled by the ASSOCIATION. The right of inspection by a
Director includes the right to make extracts and copies of
documents .
14 . 09 IMPROVEMENTS TO COMMON AREA. The ASSOCIATION
shall have the right from time to time to construct improvements
upon the COMMON AREA, provided such improvements are approved by a
MAJORITY OF MEMBERS, and by the ARCHITECTURAL COMMITTEE, and
provided further that the cost of such improvements during any
FISCAL YEAR shall not exceed twenty-five percent . (25%) of the total
REGULAR MONTHLY ASSESSMENT for such year.
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14 . 10 AGREEMENTS WITH LENDERS . The ASSOCIATION may
enter into such agreements as may be necessary in order to
facilitate the financing of RESIDENCE LOTS within THE PROJECT as
may be required by prospective lenders, and holders, insurers or
guarantors .
14 . 11 GRANT EASEMENTS. The ASSOCIATION shall have the
power to grant permits, licenses and easements over the COMMON AREA
for utilities, roads and/or other purposes. reasonably necessary or
useful for the proper maintenance or operation of THE PROJECT.
14 . 12 ENFORCEMENT OF BONDED OBLIGATIONS . In the event
that (a) the COMMON AREA improvements of THE PROJECT are not
completed prior to the issuance of a final subdivision public
report for THE PROJECT, and (b) the ASSOCIATION is the obligee
under a bond or other arrangement ("BOND", herein) required by the
B.R.E. to secure the performance of the commitment of DECLARANT to
complete such COMMON AREA improvements, the following provisions
will be applicable :
14 . 12 . 1 The BOARD shall consider and vote on the
question of action by the ASSOCIATION to enforce the obligations
under the BOND, with respect to any such improvements for which a
notice of completion has not been filed, within sixty (60) days.
after the completion date specified for that improvement in the
"Planned Construction Statement appended to the BOND. If the
ASSOCIATION has given an extension to the DECLARANT in writing for
the completion of any such COMMON AREA improvement, the BOARD shall
be directed to consider and vote on the said question, if a notice
of completion has not been filed for such COMMON AREA improvement,
within thirty (30) days after the expiration of the extension.
14 . 12 . 2 A special meeting of MEMBERS called pursuant to
the provisions of the BY-LAWS of the ASSOCIATION, for the purpose
of voting to override a decision by the BOARD not to initiate legal
proceedings to enforce the obligations under the BOND or on the
failure of the BOARD to consider the vote on the question, shall be
held no less than thirty-five (35) days nor more than forty-five
(45) days after receipt by the BOARD of a petition for such a
meeting signed by MEMBERS, representing five percent (5%) of the
total voting power of the ASSOCIATION. At such special meeting, a
vote by MEMBERS of the ASSOCIATION, other than DEVELOPER, shall be
had. The vote of a majority of the voting power of the ASSOCIATION
residing in MEMBERS other than DECLARANT to institute legal
proceedings to enforce the obligations under the BOND shall be
deemed to be the decision of the ASSOCIATION, and the BOARD shall
thereafter implement such decision by initiating and pursuing
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appropriate legal proceedings in the name of the ASSOCIATION for
the enforcement of such BOND.
14 . 13 VIOLATION OF GOVERNING DOCUMENTS . The BOARD shall
have the power to adopt a schedule of reasonable fines and
penalties for violations of the terms of the DECLARATION and
ASSOCIATION RULES by any OWNER, his family, guests, licensee,
lessee or invitee. All such fines authorized by this Section shall
constitute an INDIVIDUAL ASSESSMENT under Article IV Any schedule
of penalties so adopted shall include the power of the ASSOCIATION
to suspend the rights of an OWNER, his family, guests, lessees or
invitees to use the recreational facilities upon the COMMON AREA of
THE PROJECT . All such fines and penalties shall be levied or
assessed only after notice and opportunity for hearing as required
by law, including Section 7341 of the California Corporations Code.
14 . 13 . 1 If the BOARD adopts or has adopted a policy
imposing any monetary penalty, including any fee, on any MEMBER for
a violation of the Governing Documents or rules of ,the ASSOCIATION,
including any monetary penalty relating to the activities of a
guest or invitee of a MEMBER, the BOARD shall adopt and distribute
to each member, by personal delivery or first-class mail, a
schedule of the monetary penalties that may be assessed for those
violations, which shall be in accordance with authorization for
MEMBER, discipline contained in the Governing Documents . The BOARD
shall not be required to distribute any additional schedules of
monetary penalties unless there are changes from the schedule that
was adopted and distributed to the MEMBERS pursuant to this Section
14 . 13 . 1 .
14 . 13 .2 When the BOARD is to meet to consider or impose
discipline upon a MEMBER, the BOARD shall notify the MEMBER, in
writing, by either personal delivery or first-class mail, at least
ten (10) days prior to the meeting. The notification shall
contain, at a minimum, the date, time, and place of the meeting,
the nature of the alleged violation for which a MEMBER may be
disciplined, and a statement that the MEMBER has a right to attend
and may address the BOARD at the meeting. The BOARD shall meet in
executive session if requested by the MEMBER being disciplined.
14 . 13 . 3 If the BOARD imposes discipline on a MEMBER,
the BOARD shall provide the MEMBER a written notification of the
disciplinary action by either personal delivery or first-class
mail, within fifteen (15) days following the action . A disciplinary
action shall not be effective against a MEMBER unless the BOARD
fulfills the requirements of this Section 14 . 13 . 3 .
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14 . 14 100% APPROVAL REQUIRED. In the exercise of the
powers granted to the BOARD by this DECLARATION, the approval of
any of the following actions by the BOARD must first be obtained by
the vote or written assent of one hundred percent (100%) of each
class of MEMBERS:
14 . 14 . 1 The transfer of all or substantially all the
assets of the ASSOCIATION.
14 . 14 .2 The filing of a Certificate of Dissolution.
14 . 15 BOARD TO PROVIDE CALIFORNIA CIVIL CODE 4525
DOCUMENTS . The BOARD upon the written request of an OWNER shall,
within ten (10) days of the mailing or delivery of such request,
provide the OWNER of a LOT in THE PROPERTY with a copy of the
documents specified in California Civil Code Section 4525 which
have been requested by such OWNER. The items required to be made
available pursuant to California Civil Code Sections 4525 and 4530
may be maintained in electronic form and requesting parties shall
have the option of receiving them by electronic transmission on
machine readable storage media if the ASSOCIATION maintains those
items in electronic form. The BOARD may charge a fee for this
service, which shall not exceed the ASSOCIATION'S reasonable cost
to prepare and reproduce the requested items .
END OF ARTICLE XIV
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_bll�
ARTICLE XV
RIGHTS OF LENDERS
15 . 01 ELIGIBLE MORTGAGEE/INSURER DEFINED. For purposes
of this Article XV the following terms shall have the following
meanings :
15 . 01 . 1 ELIGIBLE MORTGAGEE . "ELIGIBLE MORTGAGEE" shall
mean and refer to the holder of a FIRST MORTGAGE on a RESIDENCE LOT
who has served a written request upon . the ASSOCIATION pursuant to
Section 15 . 02 of this Article XV.
15 . 01 .2 ELIGIBLE INSURER OR GUARANTOR. "ELIGIBLE
INSURER" or "ELIGIBLE GUARANTOR" as used herein, shall mean an
insurer or governmental guarantor of a FIRST MORTGAGE who has
served a written request upon the ASSOCIATION pursuant to Section
15 . 02 of this Article XV.
15 . 01 . 3 PERCENTAGE OF ELIGIBLE MORTGAGEES. Whenever the
approval of a specified percentage of ELIGIBLE MORTGAGEES is
required pursuant to this Article, it shall be deemed to mean the
approval of a specified percentage of only the MORTGAGEES who have
served the written notice upon the ASSOCIATION pursuant to Section
15 . 02 herein below.
15 . 02 NOTICE OF ACTION. A FIRST MORTGAGEE upon filing
a written request upon the ASSOCIATION identifying the name and
address of the FIRST MORTGAGEE, and the name and address of the
insurer or governmental guarantor of such FIRST MORTGAGEE together
with the LOT number of the RESIDENCE LOT the subject of such FIRST
MORTGAGEE' S MORTGAGE shall qualify such MORTGAGEE as an ELIGIBLE
MORTGAGEE, as defined in Section 15 . 01 . 1 of this Article XV and
such INSURER or GUARANTOR as an ELIGIBLE INSURER or GUARANTOR, as
defined in Section 15 . 01 .2 herein above . Upon giving such request,
any ELIGIBLE MORTGAGEE, or ELIGIBLE INSURER or GUARANTOR will be
entitled to timely written notice of:
15 . 02 . 1 CONDEMNATION. Any condemnation loss or any
casualty loss which affects a material portion of THE PROJECT or of
any RESIDENCE on which there is a FIRST MORTGAGE held, insured, or
guaranteed by such ELIGIBLE MORTGAGEE or ELIGIBLE INSURER or
ELIGIBLE GUARANTOR.
15 . 02 .2 DELINQUENCY OF ASSESSMENTS. Any delinquency in
the payment of assessments or charges owed by an OWNER of a
RESIDENCE LOT subject to a FIRST MORTGAGE held, insured or
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guaranteed by such ELIGIBLE MORTGAGEE or ELIGIBLE INSURER or
ELIGIBLE GUARANTOR, which remains uncured for a period of sixty
days .
15 . 02 . 3 CANCELLATION OF INSURANCE . Any lapse, cancell-
ation or material modification of any insurance policy or fidelity
bond required to be maintained by the ASSOCIATION pursuant to
Article X of this DECLARATION.
15 . 02 . 4 ACTION REQUIRING PERCENTAGE OF MORTGAGEES. Any
proposed action which would require the consent of a specified
percentage of ELIGIBLE MORTGAGEES pursuant to this Article .
15 . 03 PRIORITY RESERVED. Except as provided in Section
15 . 02 herein above, a MORTGAGEE 'S -rights pursuant to this DECLAR-
ATION including, without limitation, the priority of the lien of
MORTGAGEES over the lien of assessments levied by the ASSOCIATION
pursuant to Article IV of this DECLARATION shall not be affected by
the failure to deliver the notice prescribed by said Section 15 . 02 .
15 . 04 PRIORITY OF MORTGAGE LIEN. No breach of the
covenants, conditions or restrictions herein contained, nor the
enforcement of any lien provisions pursuant to Article IV of this
DECLARATION, shall affect, impair, defeat or render invalid the
lien or charge of any MORTGAGE made in good faith and for value
encumbering any RESIDENCE LOT, but all of said covenants,
conditions and restrictions shall be binding upon and effective
against any OWNER whose title is derived through foreclosure,
trustee ' s sale, or otherwise, with respect to a RESIDENCE LOT.
15 . 05 CURING DEFAULTS. A MORTGAGEE or the immediate
transferee of such -MORTGAGEE, who acquires title by judicial
foreclosure, deed in lieu of foreclosure or trustee ' s sale shall
not be obligated to cure any breach of the provisions of this
DECLARATION which is non-curable or of a type which is not prac-
ticable or feasible to cure. The determination of the BOARD made
in good faith as to whether a breach is non-curable or not feasible
to cure shall be final and binding on all MORTGAGEES.
15 . 06 RESALE. It is intended that any loan to facili-
tate the resale of any RESIDENCE LOT after judicial foreclosure,
deed in lieu of foreclosure or trustee ' s sale is a loan made in
good faith and for value and entitled to all of the rights and
protection afforded to MORTGAGEES under this DECLARATION.
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15 . 07 RELATIONSHIP WITH ASSESSMENT LIENS .
15 . 07 . 1 The lien prescribed by Section 4 . 15 . 15 (b) of
Article IV of this DECLARATION for payment of assessments shall be
subordinate to the lien of any FIRST MORTGAGE which was recorded
prior to the date of the recordation of the notice of delinquent
assessment as prescribed by California Civil Code Sections 5640 and
5660 and pursuant to said Section 4 . 15 . 15 (b) ("PRIOR MORTGAGE",
herein) .
15 . 07 .2 FORECLOSURE. If any RESIDENCE LOT subject to a
monetary lien created by any provision of Article IV ("ARTICLE IV
LIEN", herein) -shall be subject to the lien of a PRIOR MORTGAGE:
(i) the foreclosure of any ARTICLE IV LIEN shall not operate to
affect or impair the lien of said PRIOR MORTGAGE; and (ii) the
foreclosure of the lien of said PRIOR MORTGAGE, or the sale under
power of sale included in such MORTGAGE ("FORECLOSURE", herein)
shall not operate to affect or impair the ARTICLE IV LIEN;
provided, however, that any person who obtains an interest in a
RESIDENCE LOT in THE PROJECT through FORECLOSURE, and their
successors in interest, shall take title to such RESIDENCE LOT free
of .the ARTICLE IV LIEN or any personal obligation for any charges
or assessments pursuant to said ARTICLE IV which have accrued up to
the time of FORECLOSURE (except for claims for a pro-rata share of
such assessments or charges to all RESIDENCE LOTS in THE PROJECT,
including the mortgaged RESIDENCE LOT, that shall accrue upon such
RESIDENCE LOT subsequent to FORECLOSURE) .
15 . 07 . 3 OWNER LIABLE. Nothing in this Section shall be
construed to release any OWNER from his obligations to pay for any
assessments levied pursuant to Article IV of the DECLARATION, while
such OWNER is an OWNER as defined in Section 1 . 17 of the
DECLARATION.
15 . 08 CONSENT FOR RESTORATION OR REPAIR. Any restora-
tion or repair of THE PROJECT, after a partial condemnation or
partial damage due to an insurable hazard, shall be performed
substantially in accordance with the DECLARATION and the original
.plans and specifications, unless other action is approved by not
less than fifty-one percent (51%) of the ELIGIBLE MORTGAGEES .
15 . 09 TERMINATION OF PROJECT.
15 . 09 . 1 ELECTION TO TERMINATE (CONDEMNATION/DESTRUCTION)
.
Any election to terminate the legal status of THE PROJECT as a
Planned Development after substantial destruction or a .substantial
taking in condemnation of PROJECT property must have the approval
of fifty-one percent (510) of the ELIGIBLE MORTGAGEES.
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15 . 09 . 2 AMENDMENTS OR ELECTION TO TERMINATE FOR OTHER
REASONS. After the conveyance of a LOT to an OWNER other than . the
DECLARANT, unless sixty-seven percent (670) of the total voting
power of the ASSOCIATION or at least sixty-seven percent (670) of
all ELIGIBLE MORTGAGEES (based upon one vote for each ELIGIBLE
MORTGAGE owned) have given their prior written approval, neither
the ASSOCIATION nor the OWNERS shall be entitled to:
(a) By act or omission, seek to abandon, partition,
subdivide, encumber, sell or transfer the COMMON AREA. However,
the granting of easements for public utilities or for other public
purposes consistent with the intended use of such COMMON AREA by
the ASSOCIATION shall not be deemed a transfer within the meaning
of this clause;
(b) Change the method of determining the obliga-
tions, assessments, dues or other charges which may be levied
against an OWNER;
(c) By act or omission change, waive or abandon the
provisions of this DECLARATION, or the enforcement of them,
pertaining to the architectural design or, control of the exterior
appearance of RESIDENCES, the exterior maintenance of RESIDENCES,
the maintenance of the COMMON AREA, including party walls, party
walks, common fences and driveways, or the upkeep of lawns and
plantings in THE PROJECT;
(d) Fail to maintain fire and extended coverage on
insurable COMMON AREA property on a current replacement cost basis
in an amount not less than one hundred percent (1000) of the
insurable value (based on current replacement costs) ;
(e) Use hazard insurance proceeds for losses to any
ASSOCIATION property, including COMMON AREA for other then the
repair, replacement or reconstruction of such COMMON AREA.
15 . 10 TERMINATION OF PROFESSIONAL MANAGEMENT. When
professional management has been required by any ELIGIBLE MORTGAGEE
or ELIGIBLE INSURER or ELIGIBLE GUARANTOR, whether such entity
became an ELIGIBLE MORTGAGEE or ELIGIBLE INSURER or ELIGIBLE
GUARANTOR at that time or later, any decision to establish self-
management by the ASSOCIATION shall require the prior consent of
not less than sixty-seven percent (67%) of the voting power of the
ASSOCIATION and the approval of not less than fifty-one percent
(510) of the ELIGIBLE MORTGAGEES .
15 . 11 MATERIAL AMENDMENTS . In addition to the
requirements of Section 16 . 04 . 2 of this DECLARATION, and unless a
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�g
greater percentage is expressly required by this DECLARATION, the
ARTICLES, the BY-LAWS, or by-law, the prior written consent - (or
deemed consent as provided below in this Section) of ELIGIBLE
MORTGAGEES of LOTS that have at least fifty-one percent (510) of
the votes of all LOTS encumbered by ELIGIBLE MORTGAGES, and the
approval of MEMBERS who represent sixty-seven percent (67%) of the
total allocated votes in the ASSOCIATION shall be required to add
or amend any material provision of this DECLARATION, the BY-LAWS,
the ARTICLES or the subdivision map which establish, provide for,
govern or regulate any of the following:
15 . 11 . 1 Voting;
15 . 11 . 2 Assessments, collection of assessments,
assessment liens or subordination of such liens;
15 . 11 . 3 Reserves for maintenance, repair and replacement
of the COMMON AREA and all improvements located on it;
15 . 11 . 4 Casualty and liability insurance or fidelity
bonds;
15 . 11 . 5 Rights to use of the COMMON AREA;
15 . 11 . 6 Responsibility for maintenance and repair of
LOTS and COMMON AREA and all improvements thereon;
15 . 11 . 7 Expansion or contraction of the PROJECT for the
addition, annexation, or withdrawal of property to or from the
PROJECT;
15 . 11 . 8 The interest or rights of the ASSOCIATION or
OWNERS in and to the COMMON AREA;
15 . 11 . 9 Convertibility of LOTS into COMMON AREA or of
COMMON AREA into LOTS;
15 . 11 . 10 Imposition of any right of first refusal or
similar restriction on the right of an OWNER to sell, transfer, or
otherwise convey his or her RESIDENCE LOT.
15 . 11 . 11 Any provisions which are for express benefit of
FIRST MORTGAGEES, ELIGIBLE MORTGAGEES or ELIGIBLE INSURERS or
GUARANTORS .
An addition or amendment to the aforementioned documents
shall not be considered material if it is for the purpose of
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correcting technical errors, or for clarification only. Any FIRST
MORTGAGEE who receives a written request to consent to additions or
amendments requiring consent under this provision who does not
deliver or post to the requesting party a negative response within
thirty (30) days after such receipt shall be deemed to have .
consented to such request.
15 . 12 RIGHT OF FIRST REFUSAL. Unless this DECLARATION
shall be amended pursuant to Section 15 . 11 of this Article XV, the
right of an OWNER to sell, transfer, or otherwise convey his
RESIDENCE LOT shall not be subject to any right of first refusal or
similar restriction. Any right of first refusal which may be added
to this DECLARATION or any other management documents shall not
impair the rights of a FIRST MORTGAGEE to:
15 . 12 . 1 Foreclose or take title to a RESIDENCE LOT
pursuant to the remedies provided in the MORTGAGE, or
15 . 12 .2 Accept a deed (or assignment) in lieu of
foreclosure in the event of default by a MORTGAGER, or
15 . 12 . 3 Sell or lease a RESIDENCE LOT acquired by the
MORTGAGEE.
15 . 13 OTHER RIGHTS OF FIRST MORTGAGEES. Any FIRST
MORTGAGEE shall upon written request to the ASSOCIATION, be
entitled to:
15 . 13 . 1 Receive an annual audited financial statement of
the ASSOCIATION at the times and subject to the conditions
prescribed by Section 14 . 07 herein above.
15 . 13 . 2 Receive written notice of all annual and special
meetings of the MEMBERS or of the BOARD. The FIRST MORTGAGEES
shall further be entitled to designate a representative to attend
all such meetings in order to, among other things, draw attention
to violations of this DECLARATION which have not been corrected or
made the subject of remedial action by the ASSOCIATION; provided,
however, nothing contained in this Section 15 . 13 shall give a FIRST
MORTGAGEE the right to call a meeting of the BOARD or of the
MEMBERS for any purpose or to vote at any such meeting; and
15 . 13 . 3 Receive written notification from the ASSOCIA-
TION of any default in the performance of the obligations imposed
by this DECLARATION by the OWNER whose RESIDENCE LOT is encumbered
by such FIRST MORTGAGE, which default has not been cured within
sixty (60) days of a request therefore by the ASSOCIATION.
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15 . 13 . 4 Nothing in this DECLARATION shall require a
FIRST MORTGAGEE to collect any assessments prescribed by the
provisions of Article IV of this DECLARATION.
15 . 14 MORTGAGEE INFORMATION. MORTGAGEES are hereby
authorized to furnish information to the BOARD concerning the
status of any MORTGAGE .
15 . 15 CONFLICTS. In the event of any conflict between
any of the provisions of this Article XV and any of the other
provisions of this DECLARATION, the provisions of this Article XV
shall control .
15 . 16 PAYMENT OF TAXES . FIRST MORTGAGEES may jointly or
singly, pay taxes or other charges which are in default and which
may or have become a charge against the COMMON AREA, unless such
taxes or charges are separately assessed against the RESIDENCE
LOTS, in which case the rights of FIRST MORTGAGEES shall be
governed by the provisions of their MORTGAGES . FIRST MORTGAGEES
may, jointly or singly, also pay overdue premiums on hazard
insurance policy, or secure new hazard insurance coverage on the
lapse of a policy, for the COMMON AREA, and FIRST MORTGAGEES making
such payments shall be owed immediate reimbursement therefor from
the ASSOCIATION. Entitlement to' such reimbursement shall be
reflected in an agreement in favor of any FIRST MORTGAGEE which
requires the same to be executed by the ASSOCIATION.
15 . 17 PRIORITY IN DISTRIBUTION OF INSURANCE PROCEEDS. No
OWNER, or any other party, shall have priority over any right of
institutional FIRST MORTGAGEES of LOTS pursuant to their MORTGAGES
in case of a distribution of OWNER' S of insurance proceeds or
condemnation awards for losses to or a taking of LOTS or COMMON
AREA. Any provisions to the contrary of this DECLARATION or in the
BY-LAWS or other documents relating to THE PROJECT is to such
extent void. All applicable fire and all physical loss or extended
coverage insurance policies shall contain loss payable clauses
acceptable to the affected institutional FIRST MORTGAGEES, naming
the MORTGAGEES as their interests may appear.
END OF ARTICLE XV
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ARTICLE XVI
MISCELLANEOUS
16 . 01 ACCEPTANCE OF PROVISIONS BY GRANTEES. The
ASSOCIATION and each GRANTEE of any part or portion of or interest
in the PROJECT, and any purchaser under any grant deed or contract
of sale, or any lessee under any lease covering any part of portion
of or interest in the PROJECT, whether from DECLARANT or a
subsequent OWNER, shall accept the same subject to all of the
restrictions, conditions, covenants, reservations, easements, liens
and charges set forth in this DECLARATION; and by such acceptance
of himself, his heirs, personal representatives, successors and
assigns, agrees with DECLARANT and with the grantees and subsequent
OWNERS of any part or portion of or interest in THE PROJECT to
keep, observe and .comply with this DECLARATION, and to perform all
obligations on his part thereunder.
16 . 02 ENFORCEMENT OF DECLARATION. The following persons
or entities shall have the right to enforce, by any proceeding at
law or in equity, all restrictions, covenants, conditions and
reservations now or hereafter imposed by the provisions of this
DECLARATION or any amendments thereto, including the right to
prevent the violation of any such restrictions, conditions,
covenants or reservations and the right to recover damages or other
dues for such violation.
. 16 . 02 . 1 The DECLARANT, so long as DECLARANT owns a
RESIDENCE LOT in THE PROJECT;
16 . 02 . 2 Any OWNER of a RESIDENCE LOT within THE PROJECT,
and
16 . 02 . 3 The ASSOCIATION.
16 . 02 . 4 The ASSOCIATION shall. have the exclusive right
to the enforcement of all assessments prescribed by Article IV of
this DECLARATION.
16 . 02 . 5 The failure of any person or entity entitled to
enforce the provisions of this DECLARATION pursuant to this Article
in any certain instance or on any particular occasion, shall not be
deemed a waiver of such right on any future breach of the same
covenant, condition or restriction.
16 . 03 TERM. This DECLARATION and the covenants,
conditions, easements and restrictions contained herein shall be
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and remain in full force and effect for a term of sixty (60) years
from the date this DECLARATION is recorded in the office of the
COUNTY Recorder, after which time such DECLARATION and the
covenants, provisions, easements and restrictions contained therein
shall be automatically extended for successive periods of ten (10)
years each unless an instrument, signed by percentage of ELIGIBLE
MORTGAGEES and the voting power of the ASSOCIATION prescribed by
Section 15 . 09 . 2 herein above has been recorded at least one (1)
year prior to the end of such period in the office of the COUNTY
Recorder, agreeing to change this DECLARATION in whole or in part .
16 . 04 AMENDMENTS .
16 . 04 . 1 BEFORE CLOSE OF FIRST SALE. Before the close of
the first sale of a LOT in THE PROJECT to a purchaser other than
DECLARANT, the DECLARATION and any amendments to it may be amended
in any respect or revoked by the execution by DECLARANT and any
MORTGAGEE of record of an instrument amending or revoking this
DECLARATION. The amending or revoking instrument shall make
appropriate reference to this DECLARATION and its amendments and
shall be acknowledged and recorded in the office of the COUNTY
Recorder.
16 . 04 ..2 AFTER CLOSE OF FIRST SALE . After the close of
the first sale of a LOT in THE PROJECT to a purchaser other than
DECLARANT, this DECLARATION (subject to the rights of lenders
relating to "material" amendments in Section 15 . 11 herein below)
may be amended or revoked in any respect in the following manner:
(a) For so long as there are two (2) classes of
members, by the vote or written assent of sixty-six and two-thirds
percent (66 2/30) of the voting power of each class of membership.
(b) Upon the conversion of Class B memberships in
the ASSOCIATION to Class A memberships, by the vote or written
assent of members representing sixty-six and two-thirds percent (66
2/3%) of the voting power of the ASSOCIATION and by a bare majority
of the votes of MEMBERS other than DECLARANT.
(c) The percentage of the voting power necessary to
amend a specific clause or provision of this DECLARATION shall not
be less than the percentage of affirmative votes prescribed for
action to be taken under that clause or provision.
(d) Any amendment or revocation of this DECLARATION
subsequent to the close of such first sale shall be evidenced by an
instrument certified by the Secretary or other duly authorized
officer of the ASSOCIATION which certificate shall make appropriate
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reference to this DECLARATION and its amendments and shall be
acknowledged and recorded in the office of the COUNTY Recorder.
(e) If the consent or approval of any governmental
authority, MORTGAGEE or other persons, firm, agency or entity is
required under this DECLARATION with respect to any amendment or
revocation of any provision of this DECLARATION, no such amendment
or revocation shall become effective unless such consent or
approval is obtained.
(f) All amendments or revocations of this
DECLARATION shall comply with the provisions of California Business
and Professions Code 11018 . 7 to the extent said Section is
applicable.
(g) To the extent any provision of this Article XVI
is in conflict with Article XV of this DECLARATION entitled "RIGHTS
OF LENDERS" or any other provision of this DECLARATION, the
provisions of said Article XV entitled "RIGHTS OF LENDERS" or such
other provision shall control .
(h) It is the intent of DECLARANT that this
DECLARATION and the ARTICLES and BY-LAWS of the ASSOCIATION and THE
PROJECT in general, shall now and in the future meet all
requirements necessary to purchase, guarantee, insure, or subsidize
any MORTGAGE of a RESIDENCE LOT in THE PROJECT by the Federal Home
Loan Mortgage Corporation, the Federal National Mortgage
Association, and the Federal Housing Administration . The BOARD and
each OWNER shall take any action or shall adopt any resolutions
required by DECLARANT or any MORTGAGEE to conform this DECLARATION
or THE PROJECT to the requirements of any of said entities .
16 . 05 CONSTRUCTION. The provisions of this DECLARATION
shall be liberally construed to effectuate its purpose of creating
a uniform plan for the operation of a Planned Development upon all
property, the subject of this DECLARATION, and this DECLARATION
shall be construed and governed in accordance with California law.
16 . 06 NOTIFICATION OF MORTGAGEE . Each OWNER of a
RESIDENCE LOT shall notify the BOARD, through the Secretary of the
ASSOCIATION, of the name and address of the holders of all FIRST
MORTGAGES, encumbering such OWNER'S RESIDENCE LOT. Each OWNER
shall also notify the BOARD, through the Secretary of the
ASSOCIATION, of the release or discharge of any such FIRST
MORTGAGE. The BOARD shall maintain a record of the names and
addresses of the holders of FIRST MORTGAGES as to which it receives
notice pursuant to the provisions of this Section 16. 06 and shall
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provide the holders of all such FIRST MORTGAGES as to which it
receives notice with the following:
16 . 06. 1 Written notification at least thirty (30) days
prior to the effective date of any change in this DECLARATION, the
ARTICLES, and the BY-LAWS.
16 . 06 .2 Written notification of any default by an OWNER
of the obligations of such OWNER established by this DECLARATION,
the ARTICLES or the BY-LAWS which is not cured within thirty (30)
days after default. The notice prescribed by this subsection
16. 06 .2 shall be given only to the holders of FIRST MORTGAGES upon
the RESIDENCE LOT owned by the OWNER in default.
16 . 07 SEVERABILITY. The provisions of this DECLARATION
shall be deemed independent and severable . The invalidity or
partial invalidity or unenforceability of any of the provisions of
the DECLARATION shall not affect the validity of the remaining
provisions .
16 . 08 SUCCESSORS AND ASSIGNS. This DECLARATION shall
inure to the benefit of and be binding upon the successors and
assigns of DECLARANT, and to the heirs, personal representatives,
grantees, lessees, successors and assigns of the OWNERS .
16 . 09 REMEDIES CUMULATIVE. Each remedy provided for by
this DECLARATION for the breach of any of the covenants,
conditions, restrictions, reservations, easements, liens or charges
contained herein shall be in addition to any other available remedy
whether provided for by law or in equity, and all of such remedies
whether provided for by this DECLARATION or otherwise shall be
cumulative and not exclusive .
16 . 10 DELIVERY OF NOTICES AND DOCUMENTS . Any written
notice or other document relating to or required by this DECLARA-
TION may be delivered personally or by mail. If by mail, such
notice, unless expressly provided herein or in the BY-LAWS to the
contrary with regard to the type of notice to be given, shall be
deemed to have been delivered and seventy-two (72) hours after a
copy thereof is deposited in the United States mail, first class or
registered, postage and fees prepaid, addressed as follows :
16 . 10 . 1 If to an OWNER, other than DECLARANT, to the
address of any RESIDENCE LOT in THE PROJECT owned by him, in whole
or in part, or to the address last furnished by such OWNER to the
Secretary of the ASSOCIATION for the purpose of giving notice and
delivering documents . Each OWNER, other than DECLARANT, shall file
in writing with the BOARD promptly upon becoming an OWNER his
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address for the purpose of giving notice and delivering documents,
and shall promptly notify the BOARD in writing of any subsequent
change of address .
16 . 10 .2 If to the DECLARANT, whether in its capacity as
an OWNER, or in any other capacity:
BN 5499 L. P.
7030 N. Fruit Ave, #101
Fresno, CA 93711
16 . 10 . 3 If to the ARCHITECTURAL COMMITTEE, to the
Secretary of the ASSOCIATION.
16 . 10 . 4 Prior to the initial organizational meeting of
the MEMBERS, notices to the BOARD shall be addressed to the address
set forth in this Section 16. 10 . 4 for the giving of notices to the
DECLARANT. Thereafter, notices to the BOARD shall be addressed to
the Secretary of the ASSOCIATION, and the BOARD shall cause the
address of the Secretary of the ASSOCIATION to be posted at all
times in a conspicuous place upon the COMMON AREA of THE PROJECT.
Notice of the address of the Secretary of the ASSOCIATION shall be
given by the BOARD to each OWNER within a reasonable time after the
BOARD has received actual notice of such OWNER' S purchase of a
RESIDENCE LOT.
16 . 11 NOTIFICATION OF SALE OF RESIDENCE LOT. Concur-
rently with the consummation of the sale of any RESIDENCE LOT under
circumstances whereby the transferee becomes an OWNER thereof, the
transferee shall notify the BOARD in writing of such sale . Such
notification shall set forth (i) the name of the transferee and his
transferor, (ii) the street address or unit number of the RESIDENCE
LOT purchased by the transferee, (iii) the transferee ' s mailing
address, and (iv) the date of sale. Prior to receipt of such
notification, any and all communication required or permitted to be
given by DECLARANT, the BOARD, the ASSOCIATION, or the
ARCHITECTURAL COMMITTEE shall be deemed to be duly made and given
to the transferee if duly and timely made and given to said
transferee ' s transferor.
16 . 12 DOCUMENTS TO BE PROVIDED TO PROSPECTIVE PURCHASER.
The OWNER of a LOT in THE PROJECT shall, as soon as practicable
before transfer of title to such LOT or execution of a sales
contract for such LOT (as said term is defined in Section 2985 of
the California Civil Code) provide the following to the prospective
purchaser:
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(a) A copy of the Governing Documents of THE
PROJECT.
(b) If there is a restriction in the Governing
Documents limiting the occupancy, residency, or use of a residence
on the basis of age in any manner different from that provided in
Section 51 . 3 of the California Civil Code, a statement that the
restriction is only enforceable to the extent permitted by said
Section 51 . 3 and a statement specifying the applicable provisions
of said Section 51 . 3 .
(c) A copy of the most recent financial statement
distributed pursuant to Section 5305 of the California Civil Code.
(d) A true statement in writing from an authorized
representative of the ASSOCIATION as to the amount of the .
ASSOCIATION' S current REGULAR and SPECIAL ASSESSMENTS and fees, as
well as any assessments levied upon the LOT which are unpaid on the
date of the statement . The statement shall also include true
information on late charges, interest and costs of collection
which, as of the date of the statement, are or may be made a lien
on such LOT.
(e) A copy of any notice received by the OWNER of
any change in the ASSOCIATION' S current REGULAR and SPECIAL
ASSESSMENTS and fees which have been approved by the BOARD, but
have not become due and payable as of the date disclosure is
provided pursuant to this Section 16. 12 .
Upon written request, the ASSOCIATION shall, within ten
(10) days of the mailing or delivery of the request, provide the
OWNER of a LOT in THE PROJECT with a copy of the requested items
specified in Section (a) to (e) of this Section 16 . 12 . The
ASSOCIATION may charge a fee for this service, which shall not
exceed the ASSOCIATION' S reasonable cost to prepare and reproduce
the requested items .
Any person or entity who willfully violates this shall be
liable to the buyer of a LOT in THE PROJECT for actual damages
occasioned thereby and, in addition, shall pay a civil penalty in
an amount not to exceed $500 . 00 . In an action to enforce this
liability, the prevailing party shall be awarded reasonable
attorney' s fees .
Nothing in this Section 16. 12 affects the validity of
title to real property transferred in violation of this Section
16. 12 .
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In addition to the requirements of Section 16 . 12 of this
DECLARATION, an OWNER transferring title to a LOT in THE PROJECT
shall comply with the applicable requirements of Sections 1133 and
1134 of the California Civil Code.
16 . 13 JOINT AND SEVERAL LIABILITY. In the event of
joint ownership of a RESIDENCE LOT, the liability of each of the
OWNERS thereof in connection with the liability and obligations of
OWNERS set forth in or imposed by this DECLARATION shall be joint
and several .
16.14 PRE-ARBITRATION DISPUTE RESOLUTION PROCEDURES.
DECLARANT, EACH OWNER AND THE ASSOCIATION AGREE TO FOLLOW THE PRE-
ARBITRATION DISPUTE RESOLUTION PROCEDURES SET FORTH BELOW:
16.14 . 1 NOTIFICATION. EACH OWNER AND THE ASSOCIATION
AGREE TO PROVIDE DECLARANT WITH WRITTEN NOTICE OF ANY MATTERS
RELATING TO A DISPUTE AS SOON AS IS REASONABLY POSSIBLE AFTER ANY
OWNER OR THE ASSOCIATION BECOMES AWARE, OR SHOULD HAVE BECOME
AWARE, OF SUCH MATTERS AND DISPUTES. NOTICE TO DECLARANT UNDER
THIS SUBSECTION 16.14. 1 DOES NOT CONSTITUTE NOTICE OF A CLAIM, OR
ANY OTHER NOTICE, UNDER CIVIL CODE SECTIONS 895 ET SEQ. , FOUND AT
TITLE 7 OF THE CALIFORNIA CIVIL CODE, ENTITLED "REQUIREMENTS FOR
ACTIONS FOR CONSTRUCTION DEFECTS" .
16 . 14 .2 COOPERATION.. EACH OWNER AND THE ASSOCIATION
AGREE TO PROVIDE DECLARANT AND ITS REPRESENTATIVES WITH PROMPT,
REASONABLE COOPERATION, IN ORDER TO FACILITATE DECLARANT' S
INVESTIGATION REGARDING THE DISPUTE, INCLUDING WITHOUT LIMITATION,
FOR PURPOSES OF INSPECTING, TESTING, REPAIRING, REPLACING,
CORRECTING OR OTHERWISE ADDRESSING MATTERS RELATED TO THE DISPUTE.
16. 14 .3 MEDIATION. UPON THEIR MUTUAL AGREEMENT,
DECLARANT, EACH OWNER AND THE ASSOCIATION AGREE TO VOLUNTARY
MEDIATION OF THE DISPUTE BEFORE A MUTUALLY-AGREEABLE NEUTRAL
MEDIATOR, IN WHICH CASE, DECLARANT AGREES TO PAY THE MEDIATOR' S
FEES FOR A ONE-HALF DAY MEDIATION SESSION. A DECISION TO MEDIATE
OR NOT TO MEDIATE BY ANY PARTY IS WITHOUT PREJUDICE TO THAT PARTY' S
RIGHTS.
16. 15 ARBITRATION OF DISPUTES.
16.15. 1 SCOPE OF DISPUTES. BY EXECUTING THIS
DECLARATION DECLARANT, AND BY ACCEPTING A DEED TO ANY PORTION OF
THE PROPERTY, EACH OWNER AND THE ASSOCIATION, SHALL BE DEEMED TO
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HAVE AGREED TO HAVE ANY AND ALL CLAIMS, CONTROVERSIES, BREACHES OR
DISPUTES (EACH A "DISPUTE") BY OR BETWEEN DECLARANT, ANY OWNER OR
THE ASSOCIATION (COLLECTIVELY THE "PARTIES") HERETO ARISING OUT OF
OR RELATED TO A CLAIM FOR DEFECTS IN DESIGN OR CONSTRUCTION OF
. IMPROVEMENTS WITHIN THE PROJECT OR BASED UPON CLAIMS FOR
DECLARATORY RELIEF OR ENFORCEMENT OF THIS DECLARATION, THE BY—LAWS
OR THE ASSOCIATION RULES, WHETHER SUCH DISPUTE IS BASED ON
CONTRACT, TORT, STATUTE, OR EQUITY, INCLUDING WITHOUT LIMITATION,
ANY DISPUTE OVER (1) BREACH OF CONTRACT, (2) NEGLIGENT OR
INTENTIONAL MISREPRESENTATION OR FRAUD, (3) NONDISCLOSURE, (4)
BREACH OF ANY ALLEGED DUTY OF GOOD FAITH AND FAIR DEALING, (5)
ALLEGATIONS OF LATENT OR PATENT CONSTRUCTION DEFECTS OR DESIGN
DEFECTS PERTAINING TO THE PROJECT, INCLUDING WITHOUT LIMITATION,
THE PLANNING, SURVEYING, DESIGN, ENGINEERING, GRADING,
SPECIFICATIONS, CONSTRUCTION OR OTHER DEVELOPMENT OF THE PROJECT,
INCLUDING ANY CLAIM UNDER CALIFORNIA CIVIL CODE SECTIONS 895 ET
SEQ. , OR (6) ANY OTHER MATTER ARISING OUT OF OR RELATED TO THE
INTERPRETATION OF ANY TERM OR PROVISION OF THIS DECLARATION, THE
BY—LAWS, THE ASSOCIATION RULES OR THIS SECTION 16.15, OR ANY
DEFENSE GOING TO THE FORMATION OR VALIDITY OF THIS DECLARATION, THE
BY—LAWS, THE ASSOCIATION RULES, OR THIS SECTION 16.15, INCLUDING,
WITHOUT LIMITATION, ALLEGATIONS OF UNCONSCIONABILITY, FRAUD IN THE
INDUCEMENT, OR FRAUD IN THE EXECUTION SHALL BE SUBJECT TO BINDING
ARBITRATION AS SET FORTH IN THIS SECTION 16.15.
16.15.2 SELF—EXECUTING NATURE. THIS SECTION 16. 15 SHALL
BE DEEMED TO BE A SELF—EXECUTING ARBITRATION AGREEMENT. ANY
DISPUTE CONCERNING THE INTERPRETATION OR THE ENFORCEABILITY OF THIS
SECTION 16.15, INCLUDING, WITHOUT LIMITATION, ITS REVOCABILITY OR
VOIDABILITY FOR ANY CAUSE, ANY CHALLENGES TO THE ENFORCEMENT OR THE
VALIDITY OF THIS DECLARATION, THE BY—LAWS, THE ASSOCIATION RULES,
OR THIS SECTION 16. 15, OR THE SCOPE OF ARBITRAL ISSUES UNDER THIS
SECTION 16. 15, AND ANY DEFENSE RELATING TO THE ENFORCEMENT OF THIS
SECTION 16.15, INCLUDING, WITHOUT LIMITATION, WAIVER, ESTOPPEL, OR
LACHES, SHALL BE DECIDED BY AN ARBITRATOR IN ACCORDANCE WITH THIS
SECTION 16.15 AND NOT BY A COURT OF LAW.
16.15.3 FORUM FOR ARBITRATION. ALL DISPUTES SHALL BE
SUBMITTED TO BINDING ARBITRATION BY AND PURSUANT TO THE STREAMLINED
ARBITRATION RULES AND PROCEDURES OF JAMS IN EFFECT AT THE TIME OF
THE INITIATION OF THE ARBITRATION. IN THE EVENT JAMS IS FOR ANY
REASON UNWILLING OR UNABLE TO SERVE AS THE ARBITRATION SERVICE, THE
PARTIES SHALL SELECT ANOTHER REPUTABLE ARBITRATION SERVICE. IF THE
PARTIES ARE UNABLE TO AGREE ON AN ALTERNATIVE SERVICE, THEN EITHER
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PARTY MAY PETITION ANY COURT OF COMPETENT JURISDICTION IN THE
COUNTY IN WHICH THE ' PROPERTY IS LOCATED TO APPOINT SUCH AN
ALTERNATIVE SERVICE, .WHICH SHALL BE BINDING ON THE PARTIES. THE
RULES AND PROCEDURES OF SUCH ALTERNATIVE SERVICE IN EFFECT AT THE
TIME THE REQUEST FOR ARBITRATION IS SUBMITTED SHALL BE FOLLOWED.
16. 15. 4 GENERAL ARBITRATION PROVISIONS.
(a) THE PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT
THIS DECLARATION, THE BY-LAWS, THE ASSOCIATION RULES, THE PROJECT
AND THIS SECTION 16.15 INVOLVE AND CONCERN INTERSTATE COMMERCE AND
ARE GOVERNED BY THE PROVISIONS OF THE FEDERAL ARBITRATION ACT (9
U.S .C. §1, ET SEQ. ) NOW IN EFFECT AND AS THE SAME MAY FROM TIME TO
TIME BE AMENDED, TO THE EXCLUSION OF ANY DIFFERENT OR INCONSISTENT
STATE OR LOCAL LAW, ORDINANCE, REGULATION, OR JUDICIAL RULE.
ACCORDINGLY, EXCEPT AS SET FORTH HEREIN, ANY AND ALL DISPUTES SHALL
BE ARBITRATED - WHICH ARBITRATION SHALL BE MANDATORY AND BINDING -
PURSUANT TO THE FEDERAL ARBITRATION ACT.
(b) THIS SECTION 16.15 SHALL INURE TO THE BENEFIT
OF, AND BE ENFORCEABLE BY, DECLARANT IS CONTRACTORS, SUBCONTRACTORS,
AGENTS, VENDORS, SUPPLIERS, DESIGN PROFESSIONALS, INSURERS AND ANY
OTHER PERSON WHOM DECLARANT, ANY OWNER AND/OR THE ASSOCIATION
CONTEND IS RESPONSIBLE, IN WHOLE OR IN PART, FOR ANY DISPUTE,
INCLUDING WITHOUT LIMITATION, ANY ALLEGED DEFECT IN OR TO THE
PROJECT, OR ANY IMPROVEMENT OR APPURTENANCE THERETO. THE PARTIES
CONTEMPLATE THE INCLUSION OF SUCH PARTIES IN ANY ARBITRATION OF A
DISPUTE AND AGREE THAT THE INCLUSION OF SUCH PARTIES WILL NOT
EFFECT THE ENFORCEABILITY OF THIS ARBITRATION AGREEMENT.
(c) IN THE EVENT ANY DISPUTE IS SUBMITTED TO
ARBITRATION, EACH PARTY TO THE ARBITRATION SHALL BEAR ITS OWN
ATTORNEYS' FEES AND COSTS (INCLUDING EXPERT COSTS) FOR THE
ARBITRATION.
(d) THE ARBITRATOR SHALL BE AUTHORIZED TO PROVIDE
ALL RECOGNIZED REMEDIES AVAILABLE IN LAW OR IN EQUITY FOR ANY CAUSE
OF ACTION THAT IS THE BASIS OF THE ARBITRATION. THE DECISION OF
THE ARBITRATOR SHALL BE FINAL AND BINDING. DECLARANT, THE OWNERS
AND THE ASSOCIATION EXPRESSLY AGREE THAT AN APPLICATION TO CONFIRM,
VACATE, MODIFY OR CORRECT AN AWARD RENDERED BY THE ARBITRATOR SHALL
BE FILED IN ANY COURT OF COMPETENT JURISDICTION IN THE COUNTY IN
WHICH THE PROJECT IS LOCATED.
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(e) TO THE EXTENT THAT ANY STATE OR LOCAL LAW,
ORDINANCE, REGULATION, OR JUDICIAL RULE IS INCONSISTENT WITH ANY
PROVISION OF THE RULES OF THE ARBITRATION SERVICE UNDER WHICH THE
ARBITRATION PROCEEDING SHALL BE CONDUCTED, THE LATTER RULES SHALL
GOVERN THE CONDUCT OF THE PROCEEDING.
(f) THE PARTICIPATION BY ANY PARTY, OR ANY PARTY
WHOM DECLARANT, ANY OWNER AND/OR THE ASSOCIATION CONTEND IS
RESPONSIBLE FOR A DISPUTE, IN ANY JUDICIAL PROCEEDING CONCERNING
THIS ARBITRATION AGREEMENT, OR A DISPUTE, OR ANY MATTER ARBITRAL
HEREUNDER, SHALL NOT BE ASSERTED OR ACCEPTED AS A REASON TO DELAY
OR STAY ARBITRATION, TO REFUSE TO PARTICIPATE IN ARBITRATION, TO
REFUSE TO ENFORCE THIS ARBITRATION AGREEMENT, OR TO REFUSE TO
COMPEL ARBITRATION, INCLUDING WHERE THE JUDICIAL PROCEEDING
INVOLVES PARTIES NOT SUBJECT TO THIS ARBITRATION AGREEMENT AND/OR
WHO CANNOT OTHERWISE BE COMPELLED TO ARBITRATE.
(g) THE FEES TO INITIATE THE ARBITRATION SHALL BE
ADVANCED BY THE DECLARANT AND SUBSEQUENT FEES AND COSTS OF THE
ARBITRATION AND/OR THE ARBITRATOR SHALL BE BORNE EQUALLY BY THE
PARTIES TO THE ARBITRATION; PROVIDED, HOWEVER, THAT THE FEES AND
COSTS OF THE ARBITRATION AND/OR THE ARBITRATOR SHALL ULTIMATELY BE
BORNE AS DETERMINED BY THE ARBITRATOR.
(h) THE ARBITRATOR APPOINTED TO SERVE SHALL BE A
NEUTRAL AND IMPARTIAL INDIVIDUAL.
(i) THE VENUE OF THE ARBITRATION SHALL BE IN THE
COUNTY WHERE THE PROJECT IS LOCATED UNLESS THE PARTIES AGREE IN
WRITING TO ANOTHER LOCATION.
(j) IF ANY PROVISION OF THIS SECTION 16. 15 SHALL BE
DETERMINED TO BE UNENFORCEABLE OR TO HAVE BEEN WAIVED, THE
REMAINING PROVISIONS SHALL BE DEEMED TO BE SEVERABLE THEREFROM AND
ENFORCEABLE ACCORDING TO THEIR TERMS.
NOTICE: BY EXECUTING THIS DECLARATION DECLARANT, AND BY ACCEPTING
A DEED TO ANY PORTION OF THE PROPERTY, EACH OWNER AND THE
ASSOCIATION, SHALL BE DEEMED TO HAVE AGREED THAT DECLARANT, EACH
OWNER AND THE ASSOCIATION IS/ARE GIVING UP ANY RIGHTS THE
DECLARANT, EACH OWNER OR THE ASSOCIATION MIGHT POSSESS TO HAVE THE
DISPUTE LITIGATED IN A COURT OR JURY TRIAL. FURTHER, BY EXECUTING
THIS DECLARATION DECLARANT, AND BY ACCEPTING A DEED TO ANY PORTION
OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION IS/ARE GIVING UP
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JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN SECTION 16.15 OF THIS DECLARATION. IF THE
DECLARANT, ANY OWNER OR THE ASSOCIATION REFUSES TO SUBMIT TO
ARBITRATION AFTER AGREEING TO THIS PROVISION, THEY MAY BE COMPELLED
TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE.
16 . 16 SINGULAR AND PLURAL. The singular shall include
the plural and the plural the singular unless the context requires
the contrary; and the masculine, feminine and neuter shall each
include the masculine or feminine or neuter, as the context
requires .
16 . 17 TITLES. All titles used in this DECLARATION are
intended solely for convenience of reference, and the same shall
not affect that which is set forth in this DECLARATION nor the
meaning thereof.
16 . 18 INTERPRETATION OF RESTRICTIONS . It is not the
intent of this DECLARATION to interfere with any provisions of any
law or ordinance or any rules, regulations or permits previously
adopted or issued or which may be adopted or issued pursuant to law
relating to the use of buildings or premises; provided, however,
that where this DECLARATION imposes a greater restriction upon the
use or occupancy of any RESIDENCE or the COMMON AREA, or upon the
construction of buildings or structures, or in connection with any
other matters that are imposed or required by such provisions of
law or ordinances or by such rules, regulations or permits, then
the provisions of this DECLARATION shall control .
16 . 19 LIABILITY AND INDEMNIFICATION. No officer of the
ASSOCIATION, or member of the BOARD shall be personally liable for
any act, error or omission, and the ASSOCIATION shall and hereby
does indemnify, defend and hold harmless said person, provided the
action or inaction has been in good faith and within the scope and
performance of his duties as an officer or BOARD member.
16 . 20 ASSIGNMENT OF POWERS . Any and all rights and
powers of DECLARANT relative to the PROJECT provided for in this
DECLARATION, and any modification or amendment thereof, may be
delegated, transferred, assigned, conveyed or released by DECLARANT
to the ASSOCIATION or to any other entity controlled by DECLARANT
engaged in THE PROJECT and the ASSOCIATION or such assignee entity
shall accept the same upon the recording of a notice thereof, and
the same shall be effective for the period and to the extent stated
therein.
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16 . 21 APPLICABILITY. This DECLARATION shall apply to
all RESIDENCES and RESIDENCE LOTS within THE PROJECT, the COMMON
AREA and any easements on the Subdivision Map for THE PROJECT.
16 . 22 FHA/VA APPROVAL. As long as DECLARANT has Class
B voting rights, and so long as either the Federal Housing
Authority or the Veterans Administration has jurisdiction over any
loan secured by a deed of trust, mortgage, land sale contract, or
similar security instrument on any LOT in THE PROJECT, then the
following actions will require the prior approval of the Federal
Housing Authority or the Veterans Administration: annexation of
additional properties, dedication of COMMON AREA, and amendment of
this DECLARATION. The term "amendment" as used herein shall not be
deemed to apply to the correction of technical errors or changes
for clarification purposes only.
END OF ARTICLE XVI
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ARTICLE XVII
ANNEXATION
17 . 01 DECLARANT plans to develop forty-nine (49) LOTS
together with the PHASE 1 COMMON AREA in the development of PHASE
1 . DECLARANT intends, but is not required, to develop not to
exceed two hundred seventeen (217) additional RESIDENCES in the
development of SUBSEQUENT PHASES (a total of 266 RESIDENCES for THE
PROJECT) .
17 . 02 If DECLARANT should desire to develop all or
any portion of the LOTS within the SUBSEQUENT PHASES, in increments
or PHASES, DECLARANT shall have the right to annex any such LOTS so
developed to THE PROJECT making each such LOTS so annexed subject
to the provisions of this DECLARATION; provided, however, that:
17 . 02 . 1 Each RESIDENCE and LOT within the SUBSEQUENT
PHASES to be annexed must have been developed in substantial
architectural harmony with the development of PHASE 1 .
17 . 02 .2 No such annexation shall substantially increase
the REGULAR ASSESSMENT assessed against LOTS in THE PROJECT prior
to such annexation.
17 . 02 . 3 No annexation shall_ result in an overburdening
of the COMMON AREA.
17 . 02 . 4 The rights of the DECLARANT to annex any LOTS
within the SUBSEQUENT PHASES without the vote or written assent of
the MEMBERS shall terminate upon the expiration of three (3) years
from the date of the issuance of the final subdivision public
report for the immediately preceding PHASE by the B.R.E.
17 . 02 . 5 The proposed annexation shall be in substantial
conformance with the plan of phased development submitted to the
B.R.E . with the application for a final subdivision public report
for PHASE 1 .
17 . 03 Should DECLARANT fail to annex any LOTS or
COMMON AREA within the SUBSEQUENT PHASES within the time period
prescribed by Section 17 . 02 . 4 herein above, then, and in such
event, annexation of any such LOTS within the SUBSEQUENT PHASES not
yet annexed shall require the vote or written assent of sixty-six
and two thirds percent (66 2/3°) of the voting power of the
ASSOCIATION (excluding the votes of the DECLARANT) .
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17 . 04 All rights to annex any LOTS or COMMON AREA
within the SUBSEQUENT PHASES or any part thereof without the vote
of MEMBERS pursuant to this DECLARATION shall be transferred with
the grant of the fee title to the SUBSEQUENT PHASES or any portion
thereof as shall not have yet been annexed.
17 . 05 Annexation shall occur by recordation in the
office of the COUNTY Recorder prior to the conveyance of a LOT
within the PHASE (or a portion thereof) which is to be annexed, of
a Declaration of Annexation which shall include the description of
the LOTS and COMMON AREA to be annexed, and the declaration that
the LOTS and COMMON AREA to be annexed are annexed pursuant to the
provisions of this Article XVII and that such LOTS and COMMON AREA
shall be subject to all the conditions, covenants, restrictions and
easements created by this DECLARATION.
17 . 06 Annexation of a. PHASE (or any part thereof) to
THE PROJECT pursuant to Section 17 . 02 of this Article XVII may be
made'by the DECLARANT without the consent of the ASSOCIATION, the
BOARD, a MORTGAGEE or an OWNER.
17 . 07 The recordation of the Declaration of
Annexation, in addition to all other provisions therein contained,
shall impose upon each LOT and the COMMON AREA annexed all of the
covenants, conditions, restrictions and easements contained in this
DECLARATION.
17 . 08 In order to facilitate the DECLARANT' S intent
that the COMMON AREA of THE PROJECT shall be occupied, maintained,
used and enjoyed as a single COMMON AREA (despite the ownership
thereof) by the ASSOCIATION, all OWNERS, their guests, tenants,'
family .members and invitees, DECLARANT expressly reserves hereby
for itself, the ASSOCIATION, and all OWNERS, their successors in
interest and assigns, a non-exclusive easement over the COMMON
AREA, appurtenant to any portion of any SUBSEQUENT PHASES which is
annexed to THE PROJECT, for access, recreational, utilities, health
and safety purposes . DECLARANT further intends that the OWNERS of
PHASE I shall have a non-exclusive easement over the COMMON AREA of
any portion of any SUBSEQUENT PHASE as may be annexed pursuant to
this Article XVII for such purposes .
17 . 09 If any portion of SUBSEQUENT PHASES is not
annexed as provided in this Article XVII, and if the property not
annexed requires ingress and egress access over private streets
located within THE PROJECT and access to and use • of common
utilities, then easements in favor of the property not annexed
shall exist for reasonable vehicular and pedestrian traffic and
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reasonable use of the common utilities for residential developments
of comparable size and density; provided, however, that the
property not annexed [and the owner (s) thereof] shall be obligated
to pay their equitable share of the cost of maintenance and repair
of such private streets and utilities, and shall be subject to a
lien or liens for said maintenance and repair costs, as provided in
Article IV of this DECLARATION.
END OF ARTICLE XVII
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ARTICLE XVIII
RIGHTS OF CITY OF FRESNO
18 . 01 CONFLICTS WITH OTHER ARTICLES. In the event of
any conflict between this Article XVIII and any other Article of
the DECLARATION, Article XVIII shall prevail.
i
18 . 02 IMMEDIATE ACCESS EASEMENTS. The CITY is hereby
granted the right of immediate access to all portions of the COMMON
AREA for the purpose of preserving the public health, safety, and
welfare.
18 . 03 SEWER, WATER, AND DRAINAGE LINES . The
ASSOCIATION shall have the duty to maintain and repair all on-site
sewer, water and storm drainage facilities, unless the CITY or
flood control district have determined that a particular facility
should be public to provide necessary system completion or
otherwise protect public health, safety, sand welfare.
I
18 . 04 UTILITY RESPONSIBILITIES. The ASSOCIATION
shall have the duty to pay for all utility and waste collection
which are not separately metered or billled, including, but not
limited to, charges for sewer, water, gas, solid waste, sanitation
and electric service .
18 . 05 PRIVATE PAYMENT REPAIRS . Should public
utilities, including, but not limited to, sewer and water be
located underneath private streets, or should the street be public
while said utilities be private, the CITY shall not be responsible
for private pavement repairs beyond thel minimum amount this is
directly related to the future utility main repair_ work.
i .
18 . 06 ALTERATION, MODIFICATION OR RECONSTRUCTION OF
PARTY WALL. No OWNER or tenant shall alter, modify, reconstruct,
or do any other thing to any party wall or to any plumbing,
electrical, or mechanical fixture located along such wall which
will impair the integrity of the wall as a; fire separation without
the review and approval of the Building Official of the CITY.
18 . 07 FIRE AND EXTENDED INSURANCE . The ASSOCIATION
shall provide fire and extended insurance on all improvements owned
by or leased to the ASSOCIATION pursuant to Section 10 . 01 . 2 of this
DECLARATION.
I
18 . 08 LANDSCAPE AND MAINTENANCE OF COMMON AREAS .
Landscaping shall be provided and maintained by the ASSOCIATION in
those COMMON AREAS adjacent to public streets and highways . The
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ASSOCIATION shall provide and maintain the landscaping in such
areas in a manner compatible with the requirements of the Fresno
Municipal Code, and shall not decrease the amount of assessments
charged against members of the ASSOCIATION if such decrease will
adversely affect the ability of the ASSOCIATION to perform this
maintenance .
18 . 09 STREET SWEEPING/CLEANING. The ASSOCIATION
shall be responsible to provide street sweeping/cleaning within the
COMMON AREA. The ASSOCIATION shall be responsible for the
cost (s) associated therewith.
18 . 10 CITY EASEMENTS .
18 . 10 . 1 The ASSOCIATION reserves, for the benefit of
the CITY, non-exclusive easements to enter THE PROJECT for the
maintenance, repair and replacement of the public water and sewer
mains and lines that are to be located within the private streets,
and other public utility facilities . The ASSOCIATION shall allow
the CITY, at a minimum, to engage in any and all traffic control
measures necessary to preserve public health and safety during such
maintenance, repair and replacement of the facilities . The
ASSOCIATION nor any OWNER may interfere with the CITY' s right to
exercise this easement.
18 . 10 . 2 Proposed amendments to Section 18 . 10 . 1 herein
above shall be approved as to form by the CITY Attorney prior to
the amendments to said Section being valid. No later than the date
that is thirty (30) calendar days after its receipt of a proposed
amendment, the CITY shall deliver written notice of its approval or
disapproval of the proposed amendment to the party who delivered
the proposed amendment to the CITY . If the CITY fails to deliver
such written notice within such thirty (30) calendar day period,
the CITY shall be deemed to have approved the proposed amendment.
18 . 11 STREET IMPROVEMENTS . The cost of repair and/or
replacement of asphalt and other street improvements within THE
PROJECT due to repair of public utilities within the streets shall
be at the expense of the ASSOCIATION. These repairs and/or
replacement will be to CITY Standards .
18 . 12 INDEMNITY . To the furthest extent allowed by
law, the ASSOCIATION shall indemnify, hold harmless and defend CITY
and each of its officers, officials, employees, agents and
volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at
any time and property damage) incurred by CITY, ASSOCIATION or any
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other person, and from any and all claims, demands and actions in
law or equity (including attorney ' s fees and litigation expenses) ,
arising or alleged to have arisen directly or indirectly out of
CITY' s maintenance, repair or replacement of utilities or related
replacement of asphalt or street or other improvements .
ASSOCIATION' s obligations under the preceding sentence shall apply
regardless of whether CITY or any of its officers, officials,
employees, agents or volunteers are passively negligent, but shall
not apply to any loss, liability, fines, penalties, forfeitures,
costs or damages caused by the active or sole negligence, or the
willful misconduct, of CITY or any of its officers, officials,
employees, agents or volunteers .
18 . 14 AMENDMENTS BY THE ASSOCIATION. Any amendment
by the ASSOCIATION to the above provisions or any other provision
specifying any right of the CITY shall require the prior written
consent of the CITY.
END OF ARTICLE XVIII
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IN WITNESS WHEREOF, the DECLARANT, has executed this
DECLARATION the day and year first above written, at Fresno,
California.
"DECLARANT"
BN 5499 L.P. ,
A California limited partnership
By: Bonadelle Homes, Inc. , a
California corporation,
Its General Part r
B y:
Dean H. Pryor, FO
(ATTACH APPROPRIATE ACKNOWLEDGMENT)
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
STATE OF California )SS
COUNTY OF Fre§m )
On October 26, 2017 before me, Arm M. Rm-ia , Notary Public, personally appeared
Dem H. Pryor
who proved to me on the basis of satisfactory evidence to be the person(g) whose name() is/art subscribed to the within
instrument and acknowledged to me that he/s4eoFiey executed the same in his/hc*ohe+r authorized capacity(", and that by
his/hertttT* signature(. on the instrument the person(, or the entity upon behalf of which the person(►) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNES h d and offci I al.
ANNA M.RENNA
•�" NO'ARV PUBLIC•CALIFORNIA _
Signat ® ioMMISSION*2122084 E
° FRESNO COUNTY
My comm.Exp.August 90.
2018
This area for official notarial seal.
OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT
CAPACITY CLAIMED BY SIGNER
Though statute does not require the Notary to fill in the data below, doing so may prove invaluable to persons relying on the
documents.
0 INDIVIDUAL
❑ CORPORATE OFFICERS) TITLE(S)
❑ PARTNER(S) ❑ LIMITED ❑ GENERAL
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
0 GUARDIAN/CONSERVATOR
0 OTHER
SIGNER IS REPRESENTING:
Name of Person or Entity Name of Person or Entity
OPTIONAL SECTION - NOT PART OF NOTARY ACKNOWLEDGEMENT
Though the data requested here is not required by law, it could prevent fraudulent reattachment of this form.
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW
TITLE OR TYPE OF DOCUMENT:
NUMBER OF PAGES DATE OF DOCUMENT
SIGNER(S) OTHER THAN NAMED ABOVE
Reproduced by First American'ritle Company 11/2007
SUBORDINATION
The undersigned, as holder of the beneficial interest in
and under that certain Deed of Trust recorded on November 20, 2009,
in the office of the Fresno County Recorder, as Document No. 2009--
0159250, and any subsequent modifications thereto, which Deed of
Trust is by and between BN 5499 L. P. , a California limited
partnership, as Trustor, First American Title Company, a California
corporation, as Trustee, and U.S. Bank National Association, d/b/a
Housing Capital Company, as Beneficiary, hereby expressly
subordinates said Deed of Trust and its beneficial interest thereto
and thereunder to the foregoing Declaration of Covenants,
Conditions, Restrictions & Easements, Tract 6130 Canyon Creek
Fresno Planned Development (Including Subordination)
("Declaration") , that the lien of the above referenced Deed of
Trust shall be junior and subordinate and subject to the
Declaration and that said Declaration shall have the same force and
effect as though it had been recorded prior to the recordation of
said Deed of Trust .
DATED: October 2J, 2017
U.S. BANK NATIONAL ASSOCIATION,
d/b/a HOUSING CAPITAL COMPANY
By.:
�gSON SUalq
Its : SUQ
[Attach Notary Acknowledgment]
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\v \
ACKNOWLEDGMENT
A,not1qEy'Dublic or other;officer::colllpleting-1 lis`
certificate verifies°;only the is eut ty of_the
uidividua -vvlio:.siQileci:tlie;ciociuiieiit to. `vl icli this.
ceitificate:is attached: aiicl�iiot`flien-iitlifiliiess:
acctuacy. of' validityof:tliat<'dociuYie it.:
STATE OF CALIFORNIA
COUNTY OF FRESNO
On October 27, 201.7, before me, Lori Beckman, a Notary Public, personally
appeared Jason Subia who proved to me on the basis of satisfactory evidence to be the
persons) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. .. .
WITNESS my hand and official seal.
Signature
[SEAL]
----------
LORI BECKMAN
NOTARY PUBLIC.CALIFORNIA
c^? COMMISSION#2187863 E .
• FRESNO COUNTY
My Comm.Exp.March 24,2021
EXHIBIT "A"
TO DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS 6
EASEMENTS - TRACT NO. 6130
CANYON CREEK FRESNO PLANNED DEVELOPMENT
PARCEL B OF LOT LINE ADJUSTMENT NO. 2005-01, APPROVED JULY 14,
2005, BEING DESCRIBED AS FOLLOWS:
THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE EAST
HALF OF THE NORTHWEST QUARTER OF SECTION 3, TOWNSHIP 14 SOUTH,
RANGE 21 EAST, MOUNT DIABLO BASE AND MERIDIAN, ACCORDING TO THE
OFFICIAL GOVERNMENT PLAT THEREOF, EXCEPTING THEREFROM THAT PORTION
DESCRIBED AS FOLLOWS :
BEGINNING AT THE NORTHWEST CORNER OF SAID NORTHWEST. QUARTER OF
SAID SECTION 3; THENCE SOUTH 000 32 ' 16" WEST ALONG THE WEST LINE
OF SAID NORTHWEST QUARTER, A DISTANCE OF 499. 98 FEET; THENCE SOUTH
890 19 ' 43" EAST, A DISTANCE OF 553 . 91 FEET; THENCE SOUTH 450 40 '
42" EAST, A DISTANCE OF 981 . 48 FEET; THENCE SOUTH 890 33 ' 43" EAST,
ALONG A LINE PARALLEL WITH AND 8 . 00 FEET NORTH OF THE NORTH LINE OF
THE SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 3,
A DISTANCE OF 69. 48 FEET; THENCE SOUTH 000 36' 26" WEST, ALONG A
LINE PARALLEL WITH AND 8 . 00 FEET EAST OF THE EAST LINE OF THE
SOUTHWEST ' QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 3, A
DISTANCE OF 66 . 63 FEET; THENCE SOUTH 450 40 ' 42" EAST, A DISTANCE
OF- 1021 . 01 FEET; THENCE SOUTH 000 40 ' 02" WEST, A DISTANCE OF
307 . 34 FEET TO A POINT ON THE CENTERLINE OF FANCHER CREEK; THENCE
ALONG SAID CENTERLINE THE FOLLOWING NINE COURSES :
1 . ) NORTH 730 16 ' 20" EAST, A DISTANCE OF 8 . 66 FEET;
2 . ) NORTH 570 53 ' 21" EAST, A DISTANCE OF 53 . 76 FEET;
3 . ) NORTH 62° 42 ' 16" EAST, A DISTANCE OF 135 . 42 FEET
4 . ) NORTH 710 12 ' 01" EAST, A DISTANCE OF 38 . 13 FEET;
5 . ) NORTH 710 12 ' 01" EAST, A DISTANCE OF 23 . 50 FEET;
6 . ) NORTH 76° 37 ' 12" EAST, A DISTANCE OF 74 . 04 FEET;
7 . ) NORTH 84° 26 ' 16" EAST, A DISTANCE OF 133 .24 FEET;
8 . ) NORTH 850 39 ' 55" EAST, A DISTANCE OF 110 . 52 FEET;
9 . ) NORTH 680 38 ' 27" EAST, A DISTANCE OF 33 . 92 FEET TO A
POINT ON THE EAST LINE OF THE NORTHWEST QUARTER OF SAID SECTION 3;
THENCE NORTH 000 40 ' 02" EAST, ALONG SAID EAST LINE, A DISTANCE OF
2085 .28 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF
SAID SECTION 3; THENCE NORTH 890 19 ' 43" WEST ALONG THE NORTH LINE
OF THE NORTHWEST QUARTER OF SAID SECTION 3, A DISTANCE OF 2650 . 44
FEET, TO THE POINT OF THE BEGINNING.
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EXCEPTING FROM THAT PORTION LYING WITHIN THE NORTHWEST '-4 OF
THE NORTHWEST '-4 OF SAID SECTION 3, AN UNDIVIDED 1/ INTEREST IN AND
TO ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERALS WITHIN OR
UNDERLYING SAID LAND, AS RESERVED BY A.J. PRETZER ET UX IN DEED
RECORDED JANUARY 4, 1944 IN BOOK 2134 PAGE 194 OF OFFICIAL RECORDS .
TOGETHER WITH OUTLOT A OF TRACT NO. 3748, RECORDED IN VOLUME
45 OF PLATS, AT PAGES 6, 7 AND 8, OF FRESNO COUNTY RECORDS, IN THE
CITY OF FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA.
SAID LEGAL DESCRIPTION IS PURSUANT TO VOLUNTARY PARCEL MERGER
2007-07, RECORDED APRIL 3, 2008 AS INSTRUMENT NO. 2008-0048782 OF
OFFICIAL RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM ALL THAT PORTION LYING WITHIN THE
BOUNDARIES OF TRACT 6130, CITY OF FRESNO, STATE OF CALIFORNIA,
RECORDED IN BOOK JD , OF MAPS, PAGES THROUGH 'U, INCLUSIVE,
FRESNO COUNTY RECORDS .
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