HomeMy WebLinkAboutPA2017-248_20191106_Mariners Square CCRs_11-06-2019 2-56-28 PMFrom:
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����������John Thomas <John.Thomas@sheahomes.com>
Sent:
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������������Wednesday, November 6, 2019 2:56 PM
To:
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����������������Crager, Chelsea
Subject:
������������������������������
������Mariners Square CC&Rs
Attachments: �������������������������Mariner's Square
CCRs.docx
Chelsea,
Thank you for meeting with me the other day. Attached is a digital copy of the CC&R�s that I
submitted on Monday.
Please let me know if you need anything else or have any questions.
Thank you and have a great day.
John Thomas | Community Development Manager | SHEA HOMES
john.thomas@sheahomes.com | O: 949.526.8842
2 Ada, Suite 200, Irvine, CA 92618
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RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
SHEA HOMES
2 Ada, Suite 200
Irvine, CA 92618
Attn: Ms. Brooke Doi
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND ESTABLISHMENT OF EASEMENTS
OF
MARINER SQUARE
NOTICE: A SEPARATE DOCUMENT ENTITLED "SUPPLEMENTAL DECLARATION OF COVENANTS
AND RESTRICTIONS AND AGREEMENT ESTABLISHING DISPUTE RESOLUTION PROCEDURES
FOR MARINER SQUARE,” A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT “C,” REQUIRES
THAT ANY DISPUTES BETWEEN DECLARANT UNDER THIS DECLARATION ON ONE HAND AND
AN OWNER, BOTH AS AN OWNER OF A RESIDENTIAL UNIT AND AS A MEMBER OF THE
ASSOCIATION, OR THE ASSOCIATION ON THE OTHER BE RESOLVED IN THE APPROPRIATE
COURT OF LAW; PROVIDED, HOWEVER, SAID DOCUMENT REQUIRES, AMONG OTHER MATTERS,
THAT IF AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUCH DISPUTES SHALL FIRST
BE SUBMITTED TO AND RESOLVED BY THE ALTERNATIVE DISPUTE RESOLUTION PROCEDURES
SET FORTH THEREIN. THE ALTERNATIVE DISPUTE RESOLUTION PROCEDURES DO NOT UTILIZE
A JURY.
IN ADDITION, ANY GUEST BUILDER DISPUTES (AS DEFINED HEREIN) SHALL BE RESOLVED
PURSUANT TO THE PROVISIONS SET FORTH IN EXHIBIT “D” ATTACHED HERETO. SUCH GUEST
BUILDER DISPUTE RESOLUTION PROCEDURES REQUIRE THAT ANY GUEST BUILDER DISPUTES
BETWEEN GUEST BUILDER UNDER THIS DECLARATION ON ONE HAND AND AN OWNER, BOTH
AS AN OWNER OF A RESIDENTIAL UNIT AND AS A MEMBER OF THE ASSOCIATION, OR THE
ASSOCIATION ON THE OTHER BE RESOLVED BY THE ALTERNATIVE DISPUTE RESOLUTION
PROCEDURES SET FORTH THEREIN. THE GUEST BUILDER ALTERNATIVE DISPUTE RESOLUTION
PROCEDURES DO NOT UTILIZE A JURY.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ............................................................................................................................ 2
1.1 “Additional Charges” ........................................................................................................... 2
1.1 “ADR Declaration” ............................................................................................................... 2
1.2 “Applicable Laws” ................................................................................................................ 2
1.3 “Applicable Rate” ................................................................................................................. 2
1.4 “Articles” .............................................................................................................................. 2
1.5 “Assessments” .................................................................................................................... 3
1.6 “Association” ....................................................................................................................... 3
1.7 “Association Maintenance Manual” ..................................................................................... 3
1.8 “Association Property” ......................................................................................................... 3
1.9 “Association Rules” ............................................................................................................. 3
1.10 “Board” ................................................................................................................................ 3
1.11 “Budget” .............................................................................................................................. 3
1.12 “Bylaws” .............................................................................................................................. 3
1.13 “City” .................................................................................................................................... 3
1.14 “City Agreements” ............................................................................................................... 3
1.15 “Common Area” ................................................................................................................... 3
1.16 “Common Expenses” .......................................................................................................... 3
1.17 “Community” ........................................................................................................................ 4
1.18 “Community Entitlements” ................................................................................................... 4
1.19 “Condominium” .................................................................................................................... 4
1.20 “Condominium Building” ...................................................................................................... 4
1.21 “Condominium Plan” ........................................................................................................... 4
1.22 “County” .............................................................................................................................. 4
1.23 “Declarant” .......................................................................................................................... 4
1.24 “Declarant Party” or “Declarant Parties”.............................................................................. 5
1.25 “Declarant Condominium Buildings” ................................................................................... 5
1.26 “Declaration” ........................................................................................................................ 5
1.27 “Design Guidelines”............................................................................................................. 5
1.28 “Design Review Committee” ............................................................................................... 5
1.29 “DRE” .................................................................................................................................. 5
1.30 “Eligible Holder” ................................................................................................................... 5
1.31 “Emergency” ........................................................................................................................ 5
1.32 “Exclusive Use Easement or Exclusive Use Easement Area” ............................................ 5
1.33 "Exclusive Use Balcony Areas" ........................................................................................... 5
1.34 “Exclusive Use Patio Areas” ............................................................................................... 5
1.35 “Federal Agencies” .............................................................................................................. 5
1.36 “Final Map(s)” ...................................................................................................................... 5
1.37 “Fire Life Safety Systems” ................................................................................................... 5
1.38 “First Mortgage” ................................................................................................................... 6
1.39 “First Mortgagee” ................................................................................................................. 6
1.40 “First Purchaser” ................................................................................................................. 6
1.41 “Fiscal Year” ........................................................................................................................ 6
1.42 “Governing Documents” ...................................................................................................... 6
1.43 “Governmental Agencies” ................................................................................................... 6
1.44 "Guest Builder" .................................................................................................................... 6
1.45 “Guest Builder Condominium Buildings” ............................................................................. 6
1.46 “Guest Builder Disputes” ..................................................................................................... 6
1.47 “Guest Builder Property” ..................................................................................................... 6
1.48 “Hazardous Materials” ......................................................................................................... 6
1.49 “Improvements” ................................................................................................................... 6
1.50 “Institutional Mortgagee” ..................................................................................................... 7
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1.51 “Invitee” ............................................................................................................................... 7
1.52 “Lease” ................................................................................................................................ 7
1.53 “Lessee” .............................................................................................................................. 7
1.54 "Limited Use Solar Area"..................................................................................................... 7
1.55 “Limited Warranty” ............................................................................................................... 7
1.56 “Maintenance Obligations” .................................................................................................. 7
1.57 “Maintenance Responsibility Chart” .................................................................................... 7
1.58 “Member” ............................................................................................................................. 7
1.59 “Mortgage” ........................................................................................................................... 7
1.60 “Mortgagee” ......................................................................................................................... 7
1.61 “Module” .............................................................................................................................. 7
1.62 “Notice and Hearing” ........................................................................................................... 8
1.63 “Occupant” .......................................................................................................................... 8
1.64 “Official Records” ................................................................................................................ 8
1.65 “Offsite Maintenance Areas” ............................................................................................... 8
1.66 “Owner” ............................................................................................................................... 8
1.67 “Owner Maintenance Manual” ............................................................................................. 8
1.68 “Person” .............................................................................................................................. 8
1.69 “Phase” ................................................................................................................................ 8
1.70 “Private Streets” .................................................................................................................. 8
1.71 “Property” ............................................................................................................................ 8
1.72 “Public Report” .................................................................................................................... 8
1.73 “Residential Unit” ................................................................................................................. 8
1.74 "Solar Easement Agreement " ............................................................................................ 9
1.75 “Solar Energy System" ........................................................................................................ 9
1.76 "Solar Rights Act" ................................................................................................................ 9
1.77 "Solar Shade Control Act" ................................................................................................... 9
1.78 “Storm Drain and Water Quality Improvements” ................................................................. 9
1.79 “Supplementary Declaration(s)” .......................................................................................... 9
1.80 “Utility Facilities” .................................................................................................................. 9
1.81 “Voting Power ...................................................................................................................... 9
ARTICLE 2 OWNERSHIP AND EASEMENTS ........................................................................................... 10
2.1 Ownership of Condominium .............................................................................................. 10
2.2 Title to Association Property ............................................................................................. 10
2.3 Commencement of Easements ......................................................................................... 10
2.4 Easements and Rights of Use in Favor of Owners ........................................................... 10
2.5 Encroachment Easements ................................................................................................ 11
2.6 Storm Water Drainage and Utility Easements .................................................................. 11
2.7 Development and Other Easements and Rights in Favor of Declarant and Guest
Builder ............................................................................................................................... 12
2.8 Assignment of Limited Use Solar Area for Attached Condominium Buildings.................. 13
2.9 Limitations on Easements and License Rights ................................................................. 13
2.10 Rights of Invitees and Occupants ..................................................................................... 14
2.11 Easements Reserved by Declarant and Guest Builder .................................................... 14
2.12 Duration of Easement Rights ............................................................................................ 14
2.13 Light, Air and View ............................................................................................................ 14
2.14 No Separate Conveyance ................................................................................................. 14
2.15 Delegation of Use .............................................................................................................. 14
ARTICLE 3 THE ASSOCIATION ................................................................................................................ 15
3.1 The Organization ............................................................................................................... 15
3.2 Association Action; Board of Directors and Officers; Members’ Approval ........................ 15
3.3 Powers of the Association ................................................................................................. 15
3.4 Duties of the Association .................................................................................................. 17
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3.5 Limitations on Authority of Board ...................................................................................... 19
3.6 Indemnification of Management Parties ........................................................................... 21
3.7 Additional Provisions ......................................................................................................... 21
ARTICLE 4 MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION .................................................... 21
4.1 Membership ...................................................................................................................... 21
4.2 Number of Votes ............................................................................................................... 22
4.3 Declarant’s Right to Select Director .................................................................................. 22
4.4 Joint Owner Votes ............................................................................................................. 22
ARTICLE 5 ASSESSMENTS ...................................................................................................................... 23
5.1 Creation of Lien and Personal Obligation for Assessments ............................................. 23
5.2 Funds Held in Trust ........................................................................................................... 23
5.3 Purpose of Assessments .................................................................................................. 23
5.4 Regular Assessments ....................................................................................................... 24
5.5 Special Assessments ........................................................................................................ 24
5.6 Capital Improvement Assessment .................................................................................... 24
5.7 Compliance Assessments ................................................................................................. 25
5.8 Changes to Assessments ................................................................................................. 25
5.9 Allocation of Assessments to Residential Units ................................................................ 26
5.10 Date of Commencement of Regular Assessments ........................................................... 26
5.11 Notice and Assessment Due Dates .................................................................................. 26
5.12 Estoppel Certificate ........................................................................................................... 27
5.13 Collection of Assessments; Liens ..................................................................................... 27
5.14 Additional Charges ............................................................................................................ 28
5.15 Waiver of Exemptions ....................................................................................................... 28
5.16 Subordination of Lien to First Mortgages .......................................................................... 28
5.17 No Offsets ......................................................................................................................... 28
5.18 Personal Liability of Owner ............................................................................................... 28
5.19 Transfer of Condominiums ................................................................................................ 29
5.20 Failure to Fix Assessments ............................................................................................... 29
5.21 Property Exempt From Assessments ............................................................................... 29
5.22 Uncompleted Facilities ...................................................................................................... 29
5.23 Association Property Improvements ................................................................................. 29
ARTICLE 6 USE RESTRICTIONS .............................................................................................................. 30
6.1 Residential Use ................................................................................................................. 30
6.2 Commercial Use ................................................................................................................ 30
6.3 Rental of Condominiums ................................................................................................... 30
6.4 Further Subdivision ........................................................................................................... 30
6.5 Time Sharing ..................................................................................................................... 30
6.6 Animals ............................................................................................................................. 31
6.7 Antenna Restrictions ......................................................................................................... 31
6.8 Solar Requirements .......................................................................................................... 31
6.9 Signs and Displays............................................................................................................ 32
6.10 Parking and Vehicular Restrictions ................................................................................... 33
6.11 Installations ....................................................................................................................... 34
6.12 Community Entitlements ................................................................................................... 34
6.13 Trash Disposal, Pickup and Recycling .............................................................................. 35
6.14 View Impairment ............................................................................................................... 35
6.15 Offensive Conduct, Nuisances .......................................................................................... 35
6.16 Window Coverings ............................................................................................................ 35
6.17 Fire Prevention and Fire Sprinkler Systems ..................................................................... 35
6.18 Drainage and Erosion Control ........................................................................................... 35
6.19 Rights of Disabled ............................................................................................................. 36
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6.20 Solar Energy System ........................................................................................................ 36
6.21 Compliance With Requirements Regarding Storm Water Pollution ................................. 36
6.22 Post Tension Slab ............................................................................................................. 37
6.23 Compliance with Laws, Etc ............................................................................................... 37
6.24 Notice of Airport in Vicinity ................................................................................................ 37
6.25 Exemption of Declarant and Guest Builder ....................................................................... 37
ARTICLE 7 MAINTENANCE RESPONSIBILITIES .................................................................................... 37
7.1 Maintenance ...................................................................................................................... 37
7.2 Maintenance Obligations of Owners ................................................................................. 38
7.3 Maintenance Obligations of the Association ..................................................................... 39
7.4 Duty to Protect Against Mechanics’ Liens......................................................................... 40
7.5 Liability to Declarant and Guest Builder ............................................................................ 41
7.6 Inspection of the Community ............................................................................................ 41
7.7 Future Construction........................................................................................................... 42
ARTICLE 8 DESIGN REVIEW .................................................................................................................... 42
8.1 Non-Applicability to Declarant and Guest Builder ............................................................. 42
8.2 Scope of Review ............................................................................................................... 43
8.3 Design Guidelines ............................................................................................................. 43
8.4 Approval of Solar Energy System ..................................................................................... 43
8.5 Approval of Plans and Specifications................................................................................ 43
8.6 Approval of Modifications to Accommodate Disabled Owners ......................................... 44
8.7 Compliance With California Civil Code Section 4765 ....................................................... 44
8.8 Inspection and Correction of Work .................................................................................... 44
8.9 Diligence in Construction .................................................................................................. 45
8.10 Fee for Review and Inspection of Improvements ............................................................. 45
8.11 Interpretation ..................................................................................................................... 45
8.12 Waiver ............................................................................................................................... 45
8.13 Estoppel Certificate ........................................................................................................... 45
8.14 Liability .............................................................................................................................. 45
8.15 Variances .......................................................................................................................... 46
8.16 Appointment of Design Review Committee ...................................................................... 46
8.17 Compensation ................................................................................................................... 46
ARTICLE 9 DEVELOPMENT RIGHTS ....................................................................................................... 46
9.1 Limitations of Restrictions ................................................................................................. 46
9.2 Size and Appearance of Community ................................................................................ 47
9.3 Marketing Rights ............................................................................................................... 47
9.4 Title Rights ........................................................................................................................ 48
9.5 Declarant Representative ................................................................................................. 48
9.6 Declarant and Guest Builder Exemptions ......................................................................... 48
9.7 Supplementary Declarations ............................................................................................. 48
ARTICLE 10 INSURANCE .......................................................................................................................... 49
10.1 Association’s Insurance Obligations ................................................................................. 49
10.2 Owners’ Insurance Obligations ......................................................................................... 52
10.3 Copies of Policies .............................................................................................................. 52
10.4 General Policy Requirements ........................................................................................... 53
10.5 Review of Insurance.......................................................................................................... 53
10.6 Board’s Authority to Revise Insurance Requirements ...................................................... 53
ARTICLE 11 DESTRUCTION OF IMPROVEMENTS AND CONDEMNATION ......................................... 53
11.1 Restoration Defined .......................................................................................................... 53
11.2 Restoration Proceeds for Association Property ................................................................ 54
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11.3 Rebuilding Contract........................................................................................................... 55
11.4 Authority to Effect Changes .............................................................................................. 55
11.5 Minor Repair and Reconstruction ..................................................................................... 56
11.6 Damage or Destruction to a Residential Unit .................................................................... 56
11.7 Condemnation of Association Property............................................................................. 56
11.8 Condemnation of a Residential Unit ................................................................................. 57
ARTICLE 12 PARTITION AND SEVERABILITY OF INTERESTS ............................................................. 57
12.1 Suspension ....................................................................................................................... 57
12.2 Partition ............................................................................................................................. 57
12.3 Distribution of Proceeds .................................................................................................... 57
12.4 Power of Attorney .............................................................................................................. 58
12.5 Prohibition Against Severance .......................................................................................... 58
12.6 Conveyances .................................................................................................................... 58
ARTICLE 13 RIGHTS OF MORTGAGEES ................................................................................................ 58
13.1 Conflict .............................................................................................................................. 58
13.2 Liability for Unpaid Assessments ...................................................................................... 58
13.3 Payment of Taxes and Insurance ..................................................................................... 59
13.4 Notice to Mortgagees ........................................................................................................ 59
13.5 Reserve Fund .................................................................................................................... 59
13.6 Inspection of Books and Records ..................................................................................... 59
13.7 Financial Statements......................................................................................................... 59
13.8 Actions Requiring Eligible Holder Approval ...................................................................... 60
13.9 Votes for Termination of Community ................................................................................ 60
13.10 Condemnation or Destruction ........................................................................................... 60
13.11 Self-Management .............................................................................................................. 60
13.12 Mortgagee Protection ........................................................................................................ 61
13.13 Distribution of Insurance and Condemnation Proceeds ................................................... 61
13.14 Voting Rights on Default ................................................................................................... 61
13.15 Foreclosure ....................................................................................................................... 61
13.16 Non-Curable Breach ......................................................................................................... 61
13.17 Loan to Facilitate ............................................................................................................... 61
13.18 Appearance at Meetings ................................................................................................... 61
13.19 Right to Furnish Information .............................................................................................. 61
13.20 Inapplicability of Right of First Refusal to Mortgagee ....................................................... 62
13.21 Written Notification to Mortgagees or Guarantors of First Mortgages .............................. 62
ARTICLE 14 AMENDMENTS ..................................................................................................................... 62
14.1 Amendment Before the Conveyance of First Condominium ............................................ 62
14.2 Amendments After Conveyance of First Condominium .................................................... 62
14.3 Approval of Material Amendments .................................................................................... 63
14.4 Additional Approvals ......................................................................................................... 64
14.5 Reliance on Amendments ................................................................................................. 64
14.6 Conflict with Article 13 or Other Provisions of this Declaration ......................................... 64
14.7 Business and Professions Code Section 11018.7 ............................................................ 64
14.8 Notice to Eligible Holder .................................................................................................... 64
14.9 Mergers or Consolidations ................................................................................................ 64
14.10 De-Annexation .................................................................................................................. 65
ARTICLE 15 TERM AND ENFORCEMENT ............................................................................................... 65
15.1 Term .................................................................................................................................. 65
15.2 Rights of Enforcement of Governing Documents ............................................................. 65
15.3 Enforcement of Non Payment of Assessments ................................................................ 66
15.4 Enforcement of Bonded Obligations ................................................................................. 66
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15.5 Disputes Involving Declarant ............................................................................................ 66
15.6 Guest Builder Disputes ..................................................................................................... 66
15.7 Construction Defect Disputes Related to Declarant Condominium Buildings and/or
Guest Builder Condominium Buildings ............................................................................. 66
15.8 Relinquishment of Control ................................................................................................. 67
ARTICLE 16 GENERAL PROVISIONS ...................................................................................................... 68
16.1 Headings ........................................................................................................................... 68
16.2 Severability ........................................................................................................................ 68
16.3 Cumulative Remedies ....................................................................................................... 68
16.4 Violations as Nuisance ...................................................................................................... 68
16.5 No Racial Restriction......................................................................................................... 68
16.6 Access to Books ................................................................................................................ 68
16.7 Liberal Construction .......................................................................................................... 68
16.8 Notification of Sale of Condominium ................................................................................. 68
16.9 Provision of Governing Documents to Prospective Purchasers ....................................... 69
16.10 Number, Gender ............................................................................................................... 69
16.11 Exhibits ............................................................................................................................. 69
16.12 Binding Effect .................................................................................................................... 69
16.13 Easements Reserved and Granted ................................................................................... 69
16.14 Statutory References ........................................................................................................ 69
16.15 Applicability of FNMA Regulations .................................................................................... 69
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DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND ESTABLISHMENT OF EASEMENTS
OF
MARINER SQUARE
This DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS OF MARINER SQUARE (“Declaration”) is made this ____ day of
___________, 20___, by Shea Homes Limited Partnership, a California limited partnership (“Declarant”)
with reference to the facts set forth below.
RECITALS
All initially capitalized terms used but not defined in the Recitals shall have the meanings set forth
in Article 1.
A. Property To Be Owned by Declarant. Declarant is the Owner of certain real property
located in the City of Newport Beach, County of Orange, as more particularly described on Exhibit “A”
(“Property”). Declarant intends to convey a portion of the Property to Intracorp SW LLC, a Delaware limited
liability company (“Intracorp”) for development of a residential community commonly known as “Mariner
Square” (“Community”). If developed as planned, the Community may consist of approximately ninety-two
(92) attached Condominiums, together with Private Streets and other private amenities.
B. Association. Declarant has formed or will form the Mariner Square Owners Association,
a California nonprofit mutual benefit corporation (“Association”) to manage and govern the Community and
to perform certain maintenance obligations and provide certain services for the benefit of the Community.
A primary responsibility of the Association will be to maintain the areas designated as Association Property
in this Declaration and in Supplementary Declarations. In addition, the Association will provide design
review and other services for the benefit of the Owners and the Community as provided in the Governing
Documents.
C. Guest Builder. Intracorp SW LLC, a Delaware limited liability company will construct the
real property depicted on the attached Site Plan as “Guest Builder Property.” Declarant is anticipated to
construct the remainder of the real property depicted on the Site Plan. As a Guest Builder within the
Community, Intracorp will have certain rights and exemptions as set forth herein.
D. Nature of Community. Declarant intends to establish a plan of condominium ownership
and to develop the Property as a condominium project in accordance with California Government Code
Section 66427(e) and within the meaning of California Business and Professions Code Section 11004.5(c)
and California Civil Code Section 4125 to conform with the provisions of the California Subdivided Lands
Law (California Business and Professions Code Section 11000, et seq.) and to subject the Property to
certain limitations, restrictions, conditions and covenants as hereinafter set forth, in accordance with the
provisions of California Civil Code Sections 4000, et seq.
E. Description of Community. Declarant intends to develop the Community in multiple
Phases. Declarant makes no guarantee that the Community will be constructed as presently proposed.
Owners of a Condominium in each Phase will receive title to a Residential Unit plus an undivided fractional
interest as tenant in common to the Common Area located within the Phase in which the Residential Unit
is located. In addition, certain Owners of a Condominium will receive the exclusive right of use and
occupancy of a portion of the Association Property designated as an appurtenant Exclusive Use Easement,
all as shown on the Condominium Plan covering that Phase. Each Owner of a Condominium will also
receive an easement for ingress, egress and recreational use over the Association Property of the Phase
in which the Condominium is situated and within each other Phase, effective upon annexation and
conveyance of the first Condominium in each such subsequent Phase to a First Purchaser, subject to the
terms of the Governing Documents. Each Condominium shall have appurtenant to it a membership in the
Association.
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F. Dispute Resolution Procedures. A separate Supplemental Declaration of Covenants
and Restrictions and Agreement Establishing Dispute Resolution Procedures for Mariner Square will be
recorded against the Property and will set forth, among other matters, Declarant's binding alternative
dispute resolution procedures, including those in lieu of the Chapter 4 Procedures; a copy of the
Supplemental Declaration of Covenants and Restrictions and Agreement Establishing Dispute Resolution
Procedures for Mariner Square is also attached hereto as Exhibit “C.” The procedures set forth in the ADR
Declaration will be utilized for all disputes other than Guest Builder Disputes. Guest Builder Disputes shall
be resolved in accordance with the procedures set forth on Exhibit “D” attached hereto and incorporated
herein.
DECLARATION
NOW, THEREFORE, Declarant declares that the Property is, and shall be, held, conveyed,
encumbered, leased and improved subject to the covenants, conditions, restrictions, easements, liens and
charges set forth in this Declaration, all of which are declared and agreed to be in furtherance of a plan of
condominium ownership as described in California Civil Code Section 4000, et seq. for the subdivision,
improvement, protection, maintenance, and for the sale of Condominiums and all of which are agreed to
be for the purpose of enhancing, maintaining and protecting the value and appearance of the Property and
which shall run with the land, shall be binding on and inure to the benefit of Declarant, Guest Builder and
all Owners having or acquiring any right, title or interest in the Property and shall be binding on and inure
to the benefit of the successors in interest of such parties. Declarant further declares that it is the express
intent that this Declaration satisfy the requirements of California Civil Code Section 5975.
Throughout this Declaration, there are summaries (like this summary), which appear in italics, to
aid the reader’s comprehension and use of this Declaration. In the event of a conflict between any summary
and the text of any of the Governing Documents, the text shall control. In the event of any question as to
interpretation of the summaries, the text of the Governing Documents shall control.
ARTICLE 1
DEFINITIONS
The defined terms set forth in this Article are used throughout this Declaration and in many of the
Governing Documents. The definitions in this Article will assist in reading and reviewing the balance of this
Declaration.
Unless the context otherwise specifies or requires, the terms defined in this Article shall, for all
purposes of this Declaration, have the meanings specified below.
1.1 “Additional Charges” has the meaning set forth in Section 5.11.1.
1.1 “ADR Declaration” means that certain Supplemental Declaration of Covenants and
Restrictions and Agreement Establishing Alternative Dispute Resolution Procedures for Mariner Square
recorded concurrently herewith in the Official Records, a copy of which is attached hereto as Exhibit “C,”
as it may from time to time be amended or supplemented
1.2 “Applicable Laws” means the Community Entitlements and/or any law, regulation, rule,
order and ordinance of any Governmental Agencies which are applicable to the Community, or any portion
thereof now in effect or as hereafter promulgated.
1.3 “Applicable Rate” means the rate of interest chargeable under this Declaration equal to
the rate established by the Association from time to time, but not to exceed the maximum rate allowed by
Applicable Laws.
1.4 “Articles” means the Articles of Incorporation of the Association, as they may from time
to time be amended, which are or shall be filed in the Office of the California Secretary of State.
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1.5 “Assessments” means the assessments which are levied to cover the Common
Expenses under Article 5 or other Assessments permitted to be levied by the Association under this
Declaration and the other Governing Documents, which include the Assessments described below.
1.5.1 “Capital Improvement Assessments” means the Capital Improvement
Assessments that are levied by the Association pursuant to Section 5.6.
1.5.2 “Compliance Assessments”means the Compliance Assessments that are levied
by the Association pursuant to Section 5.7.
1.5.3 “Regular Assessments”means the Regular Assessments that are levied by the
Association pursuant to Section 5.4.
1.5.4 “Special Assessments” means the Special Assessments that are levied by the
Association pursuant to Section 5.5.
1.6 “Association” means the Mariner Square Owners Association, a California nonprofit
mutual benefit corporation, and any successor entity.
1.7 “Association Maintenance Manual” means the manual which may be prepared by
Declarant (as to all Association maintained Improvements other than such Association maintained
Improvements located within the Guest Builder Condominium Buildings) and/or Guest Builder (as to
Association maintained Improvements located within the Guest Builder Condominium Buildings) setting
forth the standards and requirements for maintenance of the Association Property by the Association.
1.8 “Association Property” means all real property owned from time to time, in fee title by
the Association and/or designated as Association Property by Declarant or a Guest Builder. The
Association Property in a Phase shall be described in the Supplementary Declaration designating such
Phase.
1.9 “Association Rules” means the rules and regulations adopted by the Board from time to
time.
1.10 “Board” means the board of directors of the Association.
1.11 “Budget” means the budget for the Association which sets forth all of the Common
Expenses to be allocated among the Owners.
1.12 “Bylaws” means the bylaws of the Association, as they may be amended from time to
time, which are or shall be adopted by the Board.
1.13 “City” means the City of Newport Beach, California.
1.14 “City Agreements” means any agreements entered into or required to be entered into by
Declarant or any other Person pursuant to the Community Entitlements, which impose obligations to be
satisfied by the Association. City Agreements may be, but shall not be required to be, identified in a
Supplementary Declaration.
1.15 “Common Area” means the three-dimensional portion of each Phase consisting of
airspace, which Common Area is owned in equal undivided interests by the Owners of the Residential Units
in such Module. The lateral and vertical boundaries of the Common Area are shown on the applicable
Condominium Plan.
1.16 “Common Expenses” means the actual and estimated costs and expenses incurred or
to be incurred by the Association including, without limitation, the following: expenses for maintenance,
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management, operation, repair and replacement of the Association Property; expenses incurred in
performing the duties and obligations of the Association set forth in this Declaration and the other Governing
Documents; expenses incurred in complying with the Community Entitlements and Applicable Laws;
expenses incurred in administering any committees formed by the Association; expenses incurred to cover
due but unpaid Assessments; expenses for management and administration of the Association, including,
without limitation, compensation paid by the Association to managers, accountants, attorneys, architects
and consultants; expenses incurred in maintaining the legal status and qualifications of the Association as
an entity in good standing and entitled to do business in the State of California; expenses of any inspections
required or deemed appropriate by the Association; expenses, if any, required for the maintenance of any
areas required by any Governmental Agencies or the Community Entitlements to be maintained by the
Association; expenses for any utilities and other services benefiting the Owners and their Condominiums
to the extent such services are paid for by the Association; expenses of insurance and/or fidelity bonds
maintained by the Association; reasonable reserves as deemed appropriate by the Board or otherwise
required pursuant to the Governing Documents or Applicable Laws; expenses of bonding of the members
of the Board and any professional managing agent or any other person handling the funds of the
Association; taxes and assessments paid by the Association; expenses incurred by the Association for the
discharge of any lien or encumbrance levied against the Association Property or portions thereof; and any
other expenses incurred by the Association in connection with the operation and/or maintenance of the
Association Property, or in furtherance of the purposes or the discharge of any obligations imposed on the
Association by the Governing Documents.
1.17 “Community” means all of the Property together with all Improvements situated thereon.
1.18 “Community Entitlements” means all governmental approvals, permits and
authorizations issued in connection with the approval of the development of the Community including,
without limitation, the tentative map, the Final Map, development agreements, conditions of approval and
project permits.
1.19 “Condominium” means an estate as defined in California Civil Code Section 4125
consisting of an undivided interest as a tenant-in-common in all or any portion of the Common Area,
together with a separate fee interest in a Residential Unit as described in this Declaration, the Condominium
Plan and/or in the deed conveying the Condominium.
1.20 “Condominium Building” means each building in which the Condominiums are located
as shown on the Condominium Plan.
1.21 “Condominium Plan” means the recorded plan, as currently in effect, for a Phase
consisting of (a) a description or survey map of the Phase or portion thereof, which shall refer to or show
monumentation on the ground, (b) a three dimensional description of the Phase or portion thereof, one or
more dimensions of which may extend for an indefinite distance upwards or downwards in sufficient detail
to identify the Association Property, Common Area and each Residential Unit, and (c) a certificate
consenting to the recordation thereof signed and acknowledged by the record owner of fee title to the Phase
or portion thereof, and by either the trustee or the Mortgagee of each recorded Mortgage encumbering the
Phase or portion thereof.
1.22 “County” means the County of Orange, California.
1.23 “Declarant” means SHEA HOMES LIMITED PARTNERSHIP, a California limited
partnership (“Shea”) and shall include those successors and assigns of Shea who acquire or hold title to
any part or all of the Property for purposes of development and are expressly named as a successor
Declarant to all or a portion of Declarant’s rights in an Assignment of Declarant’s Rights (“Assignment of
Declarant’s Rights”) executed by Declarant or a successor Declarant, and recorded in the Official Records
assigning the rights and duties of Declarant to such successor Declarant, and such successor Declarant
accepts the assignment of such rights and duties. A successor Declarant shall also be deemed to include
the beneficiary under any deed of trust securing an obligation from a then existing Declarant encumbering
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all or any portion of the Property, which beneficiary has acquired any such portion of the Property by
foreclosure power of sale or deed in lieu of such foreclosure or sale.
1.24 “Declarant Party” or “Declarant Parties” means Declarant and its current and future
affiliates, and the respective current and future directors, officers, employees, members, managers,
partners, trustees, trust beneficiaries, agents and representative of Declarant.
1.25 “Declarant Condominium Buildings” means all Condominium Buildings within the
Community other than the Guest Builder Condominium Buildings.
1.26 “Declaration” means this Declaration of Covenants, Conditions and Restrictions and
Establishment of Easements of Mariner Square as said Declaration may from time to time be amended or
supplemented.
1.27 “Design Guidelines” means the design criteria adopted by the Board pursuant to
Article 8.
1.28 “Design Review Committee” means the committee which may be appointed by the Board
pursuant to Article 8.
1.29 “DRE” means the California Department of Real Estate and any successor agency.
1.30 “Eligible Holder” means any Mortgagee who has given written notice to the Association
specifying its name and the address of the Condominium subject to the Mortgage and requesting written
notice of any or all of the events to which such Eligible Holder is entitled to notice specified in this
Declaration. For so long as is required by FNMA’s legal requirements for project acceptance, all references
to “Eligible Holder” herein shall be deemed to include all guarantors of First Mortgages.
1.31 “Emergency” means any situation, condition or event which threatens substantial
imminent damage or injury to Person or property.
1.32 “Exclusive Use Easement or Exclusive Use Easement Area” means those portions of
the Association Property over which exclusive easements are reserved and granted for the benefit of certain
Owners in accordance with California Civil Code Section 4145, described in this Declaration and shown on
the Condominium Plan.
1.33 "Exclusive Use Balcony Areas" means those areas within the Association Property
designated as "Exclusive Use Balcony Areas" on the Condominium Plan over which exclusive easements
are reserved for the benefit of certain Owners for balcony purposes.
1.34 “Exclusive Use Patio Areas” means those areas within the Association Property
designated as “Exclusive Use Patio Areas” on the Condominium Plan over which exclusive easements are
reserved for the benefit of certain Owners for patio purposes.
1.35 “Federal Agencies” means collectively one or more of the following agencies and the
following letter designation for such agencies shall mean and refer to, respectively, the agency specified
within the parentheses following such letter designation and any successors to such agencies: Federal
Home Loan Mortgage Corporation (“FHLMC”), Federal National Mortgage Association (“FNMA”), and
Government National Mortgage Association (“GNMA”).
1.36 “Final Map(s)” means the final subdivision or parcel map(s) covering all or any portion of
the Property and any corrections, modifications and/or lot line adjustments to such maps.
1.37 “Fire Life Safety Systems” means all fire life safety equipment, components, fixtures and
facilities (excluding fire extinguishers and smoke detectors located within a Residential Unit) located within
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or serving a Condominium Building, including, without limitation, sprinkler heads, control valves, pipes,
drains alarms those designated from time to time by the City or County Fire Department, as applicable.
||Intracorp to confirm if the fire life safety systems for their buildings will be required to be HOA
maintained.||
1.38 “First Mortgage” means a Mortgage that is first in priority under the recording statutes of
the State of California over all other Mortgages encumbering a specific Condominium in the Community.
1.39 “First Mortgagee” means the Mortgagee of a First Mortgage.
1.40 “First Purchaser” means the Owner of a Condominium who acquired the Condominium
under authority of a Public Report from Declarant or a Guest Builder.
1.41 “Fiscal Year” means the fiscal accounting and reporting period of the Association selected
by the Board.
1.42 “Governing Documents” means collectively this Declaration, the Articles, the Bylaws,
Design Guidelines, Association Rules and any Supplementary Declarations.
1.43 “Governmental Agencies” means any federal, state, county, city, local or municipal
governmental entity or quasi-governmental entity or body (or any departmental agency thereof) exercising
jurisdiction over a particular subject matter for any portion of the Community.
1.44 "Guest Builder" means Intracorp SW LLC, a Delaware limited liability company.
1.45 “Guest Builder Condominium Buildings” means the Condominium Buildings
constructed by Guest Builder within the Guest Builder Property.
1.46 “Guest Builder Disputes” means any claim or dispute involving Guest Builder that
involves the Guest Builder Property and does not involve Declarant.
1.47 “Guest Builder Property” means the portion of the Community depicted on the Site Plan
as “Guest Builder Property.”
1.48 “Hazardous Materials” means any biologically or chemically active or toxic or hazardous
waste or materials as defined or regulated by Applicable Laws. Hazardous Materials shall include without
limitation those described in the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901, et seq., any applicable state, local or federal laws and the regulations
adopted under these Acts.
1.49 “Improvements” means all structures or improvements of every type or kind installed or
erected on the Property or an alteration or modification to a Residential Unit, Exclusive Use Easement Area
or Association Property or any addition to a Residential Unit or Association Property, including without
limitation room partitions, structural alterations to any portion of a Residential Unit or any Association
Property surrounding the Residential Unit; any addition or alteration to a Residential Unit that causes
penetration beyond the unfinished surface of the walls, ceilings or surface flooring of a Residential Unit or
impacts or affects in any manner any Association Property; changes of level, grade or drainage pattern of
any Exclusive Use Easement Area; patio covers; skylights; stairs; window tinting; plantings and potted
plants; paving, tiling or other covering of any patio or balcony; Utility Facilities; poles and signs; and all other
structures or improvements of every type and kind installed or erected on the Property. The Design
Guidelines may identify additional items that are Improvements which require approval of the Design
Review Committee.
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1.50 “Institutional Mortgagee” means each of the following: (a) a First Mortgagee that is a
bank, savings and loan association, insurance or mortgage company or other entity or institution chartered
under federal and/or state law; (b) an insurer or governmental guarantor of a First Mortgage; (c) a First
Mortgagee that is a Federal or State Agency; or (d) any other institution specified by the Board in a recorded
instrument that is the Mortgagee of a Mortgage or the beneficiary of a deed of trust encumbering a
Condominium.
1.51 “Invitee” means any Person whose presence within the Community is approved by or is
at the request of a particular Owner, including, without limitation, Occupants, agents, contractors and the
family, guests, employees or licensees of Owners or Lessees.
1.52 “Lease” means each lease whereby a Person acquires rights to use or occupy a
Condominium for a specified term.
1.53 “Lessee” means any tenant or lessee occupying a portion of the Property with a Lease.
1.54 "Limited Use Solar Area" means the area designated on the Association Property roofs
of the Condominium Buildings where Owners can place Solar Energy Systems as designated in the Design
Guidelines.
1.55 “Limited Warranty” means the Limited Warranty provided by Declarant or a Guest Builder
to an Owner and/or the Association.
1.56 “Maintenance Obligations” means the Association’s obligations and each Owner’s
obligations to perform: (a) all reasonable maintenance consistent with the terms of the Association
Maintenance Guide and Owner Maintenance Guide, respectively; (b) any maintenance obligations and
schedules in any warranty offered by Declarant as to Association Property and the Residential Units within
the Declarant Condominium Buildings), Guest Builder (as to the Residential Units within the Guest Builder
Condominium Buildings) or any manufacturer, and any maintenance obligations and schedules otherwise
provided to the Association or the Owners by Declarant, Guest Builder or any manufacturer, as applicable;
(c) any commonly accepted maintenance practices intended to prolong the life of the materials and
construction of the Association Property and Residential Units, as applicable; and (d) any maintenance
obligations imposed by the Governing Documents or any Governmental Agencies.
1.57 “Maintenance Responsibility Chart” means Exhibit “B” attached hereto and
incorporated herein which designates the components of the Community to be maintained by the
Association and the Owners, respectively. The Maintenance Responsibility Chart may be further modified
or supplemented in a Supplementary Declaration.
1.58 “Member” means every Person who holds a membership in the Association.
1.59 “Mortgage” means a recorded mortgage or deed of trust encumbering a Condominium in
the Community.
1.60 “Mortgagee” means a mortgagee under a Mortgage as well as a beneficiary under a deed
of trust.
1.61 “Module” means each module designated on the Condominium Plan(s). Each Module is
a three-dimensional portion of the Property and has been created pursuant to California Government Code
Section 66427. The lower and upper boundaries of each Module are set forth in the Condominium Plan.
The lateral boundaries of each Module are vertical planes which are also described and depicted in the
Condominium Plans. The Module includes all land and Improvements (whether now or hereafter located
within its boundaries).
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1.62 “Notice and Hearing” means the procedure that gives an Owner notice of an alleged
violation of the Governing Documents and the opportunity for a hearing before the Board.
1.63 “Occupant” means a Person that is entitled to occupy from time to time all or a portion of
a Residential Unit, whether pursuant to a Lease, sublease, license or other similar agreement.
1.64 “Official Records” means the official public records of the County Recorder of Los
Angeles County.
1.65 “Offsite Maintenance Areas” means any real property or Improvements located outside
of the Property which the Association is obligated to maintain. The Offsite Maintenance Areas, if any, shall
be described in a Supplementary Declaration.
1.66 “Owner” means the record owner, whether one or more Persons, including Declarant or
a Guest Builder of any Condominium, excluding those having such interest merely as security for the
performance of an obligation, unless and until such Person acquires fee title thereto.
1.67 “Owner Maintenance Manual” means the manual prepared by Declarant as to the
Residential Units located within the Declarant Condominium Buildings or a Guest Builder as to the
Residential Units located within the Guest Builder Condominium Buildings setting forth the standards and
requirements for the maintenance by an Owner of the Condominium and other Improvements. The Owner
Maintenance Manual may also be referred to as the “Homeowner Manual” or “Homeowner Maintenance
Manual” in other related documents.
1.68 “Person” means a natural person or any legal entity recognized under California law.
When the word “person” is not capitalized, the word refers only to natural persons.
1.69 “Phase” means that portion of the Property which is the subject of a separate Public
Report and is designated as a Phase in a Supplementary Declaration.
1.70 “Private Streets” means those streets, roads, drives and adjacent sidewalks within the
Association Property and related lighting, private drainage, pollution control devices, sewage and water
systems and other utility installations within such streets, roads, drives and sidewalks that are not
maintained by a public agency or franchised utility.
1.71 “Property” means all of the real property described on Exhibit “A”. In the event of the de-
annexation of any Property previously subject to this Declaration, the term “Property” shall not include any
such de-annexed land.
1.72 “Public Report” means the final subdivision public report issued by the DRE for a Phase
in the Community.
1.73 “Residential Unit” means the elements of a Condominium which are not owned in
common with the other Owners, such Residential Units and their respective elements and boundaries being
shown and particularly described in the Condominium Plan. The dimensions of a Residential Unit are
measured from the unfinished floor, walls, ceiling, except as otherwise noted herein. The Residential Unit
includes all Improvements situated within its boundaries, and includes, without limitation: (i) interior walls
(except interior bearing walls); (ii) the interior undercoated surfaces of bearing walls and perimeter walls,
floors and ceilings; (iii) any interior door; exterior doors and windows, (iv) appliances, cabinets, and all
electrical, heating, plumbing and other utility fixtures; (v) the openings and outlets of all Utility Facilities that
are located partially within the Residential Unit and partially in the Association Property, such as electrical
outlets, and that exclusively serve the Residential Unit; (vi) all Utility Facilities serving solely that Residential
Unit, whether located in the Residential Unit or the Association Property; (vii) the interior stairs, and
(viii) interior stairs. The following are not part of any Residential Unit: bearing walls, columns, floors, roofs,
foundations, and Utility Facilities that serve two (2) or more Condominiums wherever located. In interpreting
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deeds and plans, the then existing physical boundaries of a Residential Unit, whether in its original state or
reconstructed in substantial conformance with the original plans thereof, shall be conclusively presumed to
be its boundaries rather than the boundaries expressed in the Condominium Plan, deed or in any other
recorded document, regardless of variances between boundaries shown on the Condominium Plan or any
other recorded document and those of the building within which the Residential Unit is located and
regardless of settling or lateral movement of the building in which the Residential Unit is located.
1.74 "Solar Easement Agreement " means that any easement agreement that may be
recorded against the Property to provide access to the Solar Energy Systems by a Solar Energy System
provider.
1.75 “Solar Energy System" means fixed devices, structures or devices or structures that are
used primarily to transform solar energy into thermal, chemical or electrical energy including roof-integrated
photovoltaic roof tiles, roof-mounted panels or other roof-mounted devices that collect solar energy and
generate energy by exposure to the sun.
1.76 "Solar Rights Act" shall means California Civil Code Sections 714, et seq., and any
successor statutes.
1.77 "Solar Shade Control Act" means California Public Resources Code Sections 25980, et
seq., and any successor statutes.
1.78 “Storm Drain and Water Quality Improvements” means any private storm drain and
water quality protection improvements and systems including, without limitation, detention and storm water
basins and other pollution control devices located within the Property which are required to be maintained
by the Association.
1.79 “Supplementary Declaration(s)” means those certain declarations of covenants,
conditions and restrictions, or similar instruments, which do any or all of the following: (a) deannex any
portion of the Property in accordance with the provisions of this Declaration; (b) make such other
complementary additions and/or modifications necessary to reflect the different character of specific real
property; (c) designate a portion of the Property as a Phase; (d) identify Association Property and/or make
modifications or supplements to any areas designated for maintenance by the Association or any Owner;
(e) conform this Declaration or any previously recorded Supplementary Declarations to Applicable Laws or
any conditions of approval imposed by any Federal Agencies, Governmental Agencies or the Community
Entitlements; (f) make modifications or adjustments to the description of the Property to reflect Declarant’s
or a Guest Builder’s development plan or any lot line adjustments, parcel maps and final subdivision maps
and/or conditions or requirements imposed by Governmental Agencies, including, without limitation,
identifying additional real property to be included within the Property; and/or (g) make corrections to the
provisions of this Declaration or previously recorded Supplementary Declaration(s).
1.80 “Utility Facilities” means all utility facilities serving the Community including, without
limitation, intake and exhaust systems, backflow preventers, storm and sanitary sewer systems, drainage
systems and pollution control devices, common ducting systems for ventilation and utility services, domestic
water systems, natural gas systems, heating and air conditioning systems, electrical systems, fire protection
water and sprinkler systems, telephone systems, cable television systems, telecommunications systems,
satellite communications systems, water systems, sump pumps, pool equipment, central utility services and
all other utility systems and facilities reasonably necessary to service any Improvement situated in, on, over
and under the Community.
1.81 “Voting Power” means the voting power of the Association set forth in Section 4.2.
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ARTICLE 2
OWNERSHIP AND EASEMENTS
This Article describes the easements necessary for the Association to exercise its rights and
obligations under the Governing Documents, the easements necessary for Declarant and Guest Builder to
implement the development plan and marketing for the Community and the easements necessary for the
Association and Owners to exercise their rights and enjoy the overall features and amenities of the
Community intended for their use. Each Owner’s rights of enjoyment to the Association Property are limited
by some of the rights described in this Article.
2.1 Ownership of Condominium. Ownership of each Condominium within the Community
shall include: (a) fee title to a Residential Unit; (b) an undivided interest in the Common Area located within
the Module in which the Residential Unit is situated, as shown on the Condominium Plan and the deed to
the Condominium; (c) a membership in the Association; and (d) subject to the terms of the Governing
Documents, any exclusive or non-exclusive easement or easements appurtenant to such Condominium
over the Association Property as described in this Declaration, the Condominium Plan, and/or the deed to
the Condominium, subject to any limitation set forth in the Governing Documents. To be effective, the
easements reserved and granted herein may be, but are not required to be reserved and granted in the
grant deed.
2.2 Title to Association Property. Any portions of the Property within a Phase made subject
to this Declaration that are intended or required to be Association Property shall be conveyed to the
Association prior to the conveyance of the first Condominium in that Phase to a First Purchaser.
2.3 Commencement of Easements. Each of the easements reserved or granted under this
Declaration shall be deemed to be established upon the recordation of this Declaration and the conveyance
by Declarant or a Guest Builder of a Condominium to a First Purchaser and shall thereafter be deemed to
be covenants running with the land for the use and benefit of the Owners, the Condominiums, the
Association, and the Association Property superior to all other encumbrances applied against or in favor of
any portion of the Community.
2.3.1 Easements Reserved and Granted by Declarant and Guest Builder.
Easements reserved and granted by Declarant and Guest Builder shall be deemed reserved and granted
over the portion of the Property owned by Declarant, and easements reserved and granted by Guest Builder
shall be deemed reserved and granted over the portion of the Property owned by Guest Builder.
2.4 Easements and Rights of Use in Favor of Owners.
2.4.1 Non-Exclusive Easements for Use of Association Property. Declarant and
Guest Builder hereby reserve and grant to each Owner for the benefit of such Owner and such Owner’s
Invitees, non-exclusive easements for: (a) ingress and egress on, over, through and across the Association
Property; and (b) use and enjoyment of the Association Property and other areas intended for the use and
benefit of the Owners and an Owner’s Invitees. Notwithstanding the foregoing, with respect to the
installation, operation, maintenance or removal of a Solar Energy System, the right of entry to the roof of
an Attached Condominium Building or upon any other portion of the Association Property where such Solar
Energy System is located, shall, unless otherwise approved by the Association, be restricted to contractors
or solar energy installers approved by the Association which shall include without limitation the grantee
under the Solar Easement Agreement and Grant of Easement.
2.4.2 Easements for HVAC Equipment. Declarant and Guest Builder hereby reserve
and grant to each Owner, an easement for placement of such Owner’s HVAC condenser within the
Association Property in the location originally installed by Declarant or Guest Builder, as applicable.
2.4.3 Exclusive Use Easements. Declarant and Guest Builder hereby reserve and
grant to each Owner an exclusive easement to use each portion of the Association Property (if any) that
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are described in the Condominium Plan or the deed to the Owner’s Residential Unit as being an Exclusive
Use Easement Area appurtenant to such Residential Unit for the purposes described in this Declaration or
the deed.
2.4.4 Enforcement Easements in Favor of Declarant, Guest Builder and the
Association. Declarant and Guest Builder hereby reserve to themselves and grant to the Association,
non-exclusive easements and right of access over, upon, across and through all portions of the Property,
for the purpose of taking such action as may be reasonably required to exercise the remedies of Declarant,
Guest Builder or the Association (as applicable) in regard to any violation of this Declaration or any of the
other Governing Documents. In the case of any such entry over, upon, across and through any portion of
the Property that is not owned by the Association: (a) Declarant, Guest Builder or the Association, as
applicable, shall endeavor to provide reasonable prior notice to the Owner, except notice shall not be
required in the case of an Emergency or for entry for the performance by the Association of its regular
maintenance obligations under this Declaration and the other Governing Documents; and (b) Declarant,
Guest Builder or the Association shall use commercially reasonable efforts to minimize any inconvenience
to the Owner and/or Occupants.
2.4.5 Solar Energy Systems. Declarant and Guest Builder reserve to themselves the
right to grant non-exclusive easements over, under, through and across the portion of the Property owned
by Declarant or Guest Builder, as applicable, for installation, operation, maintenance, improvement and
removal of solar energy systems, and access necessary for such purposes.
2.5 Encroachment Easements. Declarant and Guest Builder hereby reserve and grant to
each Owner and to the Association non-exclusive easements over, under, across and through the Property,
for encroachment, support, maintenance, repair, occupancy and use of such portions of the Residential
Units and/or Association Property as are encroached upon, used or occupied as a result of any original
construction design, accretion, erosion, addition, deterioration, decay, errors in original construction,
movement, settlement, shifting or subsidence of any building, structure, or other Improvements or any
portion thereof, or any other cause. In the event any portion of the Property is partially or totally destroyed,
the encroachment easement shall exist for any replacement structure that is rebuilt pursuant to the original
construction design. The easement for the maintenance of the encroaching improvement shall exist for as
long as the encroachments exists; provided, however, that no valid easement of encroachment shall be
created due to the willful misconduct of the Association or any Owner. Any easement of encroachment
may, but need not be, cured by repair and restoration of the structure.
2.5.1 Structural Support. Declarant and Guest Builder hereby reserve and grant to
each Owner and to the Association, non-exclusive easements and rights in and to all supporting
components within and upon the Condominium Buildings and other portions of the Community, for structural
support of the Improvements situated therein. Such non-exclusive easements shall not be deemed to
create any rights for Owners to attach Improvements to the exterior of the Condominium Buildings.
2.6 Storm Water Drainage and Utility Easements.
2.6.1 Easements for Drainage and Runoff. Declarant and Guest Builder hereby
reserve and grant to each Owner and to the Association, non-exclusive easements for drainage through
the established system of drainage pipes and facilities over, through and the Residential Units and the
Association Property. Such easements shall be subject to the restrictions set forth in Section 6.18.
2.6.2 Storm Water Easements. Declarant and Guest Builder hereby reserve and grant
to each Owner and the Association, non-exclusive easements over, under, through and across the Property
to the extent necessary for the flow of storm water through the Storm Drain and Water Quality
Improvements.
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2.6.3 Utilities. Declarant and Guest Builder hereby reserve and grant to the
Association, non-exclusive easements over, under, across and through the Property for the maintenance,
repair and replacement of the Utility Facilities serving the Association Property pursuant to this Declaration.
2.7 Development and Other Easements and Rights in Favor of Declarant and Guest
Builder.
2.7.1 Maintenance and Repair. Declarant and Guest Builder hereby reserve non-
exclusive easements over, under, through and across the Property for access by Declarant, Guest Builder
their agents, employees and contractors to perform necessary maintenance or repair of any Improvements
or to implement any warranty provided by Declarant or Guest Builder, as applicable. Such right includes
the right of Declarant, and Guest Builder with the prior permission of Declarant, to enter upon the Property
to perform any work required to be performed pursuant to any of the Community Entitlements, or to cure
any failure of the Association to perform any work required as a condition to the release of any bonds or
other security posted with a Governmental Agency or any other obligee and to perform its obligations under
any warranties provided by Declarant or Guest Builder to an Owner and/or the exercise any repair rights
granted to Declarant and/or Guest Builder under this Declaration, any warranties or Applicable Laws;
provided, however, that nothing contained herein shall be deemed to impose any obligations on Declarant
or Guest Builder to cure any failure of the Association to perform its Maintenance Obligations.
2.7.2 Inspection and Repair of Association Property. Declarant and Guest Builder
hereby reserve non-exclusive easements over, under, through and across the Property for access by
Declarant, Guest Builder and their agents, employees and contractors to inspect the Association Property
on a periodic basis to determine whether any repair to or routine maintenance of any Improvements within
the Association Property is needed in accordance with Section 7.6 and to perform any necessary repair or
maintenance of any Improvements within the Association Property; provided that nothing herein shall create
an obligation on Declarant or Guest Builder to inspect the Association Property, to repair or maintain any
portion thereof or any Improvements there within, or to cure any failure of the Association to perform its
Maintenance Obligations and provided further, that Guest Builder shall have such rights only as to the
Association Property constructed by Guest Builder.
2.7.3 Declarant’s and Guest Builder’s Easements to Exercise Rights. Declarant
and Guest Builder hereby reserve non-exclusive easements over, under, through and across the Property
to perform their duties and exercise their powers granted or reserved in this Declaration.
2.7.4 Development Easements. Declarant and Guest Builder hereby reserve non-
exclusive easements over, under, through and across the Property as are reasonable and necessary to
undertake and complete the work of development, construction, marketing, conveyance and/or repair and
replacement of the Improvements and as may be necessary to access the Property.
2.7.5 Easements for Signage. Declarant hereby reserves to itself non-exclusive
easements over, under, through and across the Association Property to install, maintain, repair and replace,
identification, promotional, and other signage, banners, flags and other advertising and promotional
materials required or deemed necessary by Declarant, including, without limitation, any signage in
connection with the exercise of activities described in Section 2.7.4 and Article 9. Guest Builder shall have
the rights set forth in this Section 2.7.5 subject to the approval of Guest Builder’s signage by Declarant.
2.7.6 Additional Improvements and Utility Facilities. Declarant hereby reserves to
itself non-exclusive easements over, under, through and across the Property, for the purpose of installing,
operating and maintaining landscaping, sidewalks, walkways, drainage areas, lighting, signage,
monumentation, Utility Facilities, and other facilities and Improvements within the Property, as may be
deemed appropriate by Declarant and/or required by the Community Entitlements, Governmental Agencies
or in connection with the issuance of any permits or approvals for the benefit of Declarant or as may be
required in connection with the development of the Property. In addition, Declarant hereby reserves to itself
non-exclusive easements over, upon and across all Association Property for purposes of such access as
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may be reasonably required in connection with such activities. Guest Builder shall have the rights set forth
in this Section 2.7.6 as to the Guest Builder Property.
2.7.7 Parking Rights for Marketing. Until Declarant and Guest Builder no longer own
any portion of the Property, Declarant (as to Declarant’s model homes) and Guest Builder (as to Guest
Builder’s model homes) shall have the sole right to exclusively utilize the parking spaces located in the
vicinity of the Declarant’s and Guest Builder’s model homes, as applicable, for sales, marketing,
construction and customer service purposes. In connection with such rights, Declarant shall have the right
to tow any vehicles which park within any space which is designated for Declarant’s model home and sales
use by Declarant and Guest Builder shall have the right to tow any vehicles which park within any space
which is designated for Guest Builder’s model home and sales use by Guest Builder.
2.8 Assignment of Limited Use Solar Area for Attached Condominium Buildings.
2.8.1 Limited Use Solar Area Rights to Assign. Declarant and the Association shall
have the rights to assign use of a Limited Use Solar Area on the Declarant Condominium Buildings and
Guest Builder and the Association shall have rights to assign use of a Limited Solar Area on the Guest
Builder Condominium Buildings.
2.8.2 Assignment of Limited Use Solar Area. A Limited Use Solar Area may be
assigned to an Owner for use in accordance with the terms of the Governing Documents. The rights
assigned to an Owner to use the Limited Use Solar Area shall be subject to the rights of the Declarant (as
to the Declarant Condominium Buildings), Guest Builder (as to the Guest Builder Condominium Buildings)
or the Association to require temporary removal of the Solar Energy System in accordance with the
provisions of this Declaration.
2.8.3 Owners' Rights to Limited Use Solar Area. Upon assignment of a Limited Use
Solar Area to an Owner as provided herein, such Owner shall have the right to the use of the Limited Use
Solar Area so assigned, subject to the rights of the Declarant, Guest Builder and the Association set forth
below. Upon conveyance of a Condominium by an Owner to another Owner, the Limited Use Solar Area
assigned to such Owner in the records of the Association shall automatically inure to the benefit of the new
Owner.
2.9 Limitations on Easements and License Rights. The easement rights, and the
reservations of the right and authority to grant easements, described in the foregoing provisions of this
Article and elsewhere in this Declaration, shall be subject to the limitations set forth below.
2.9.1 Easements of Record. The Property and all of the easements granted or
reserved herein are subject to all covenants, conditions, restrictions, encumbrances, easements,
dedications, and rights of way as set forth in Supplementary Declarations, as well as the Final Map and any
other matters of record, including, without limitation, the Community Entitlements and any agreements
recorded against the Property. Nothing in this Declaration shall be deemed to limit the right of Declarant,
or with the prior consent of Declarant Guest Builder or the Association, to grant or reserve any additional
easements over any portion of the Property to such grantees and for such purposes as Declarant, or the
Association may deem appropriate, provided that any such easements shall not be inconsistent with the
easement rights granted in this Declaration.
2.9.2 Governing Documents. All of the easements and other rights reserved and
granted in this Declaration are subject to the limitations, restrictions and easements set forth in the
Governing Documents.
2.9.3 Restricted Access. The Association, Declarant and Guest Builder (with
Declarant’s consent) shall have the right to temporarily close or restrict access to the Association Property
as may be reasonably necessary in connection with the exercise of any Maintenance Obligations or in the
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event of an Emergency or to exercise any other rights reserved or granted by Declarant, Guest Builder or
the Association hereunder.
2.9.4 Suspend Rights to Use Association Property. All of the easements are subject
to the right of the Association, after Notice and Hearing, to temporarily suspend an Owner’s rights as a
Member to use the facilities within the Association Property for a period not to exceed sixty (60) days (unless
such rights are suspended for failure to pay assessments) pursuant to the terms of the Governing
Documents. Notwithstanding anything to the contrary contained herein, in no event shall the Association
suspend an Owner’s easement or right of ingress and egress to and from such Owner’s Residential Unit,
or such Owner’s easements for utilities servicing such Owner’s Residential Unit.
2.9.5 Easements and Dedication. The Association shall have the right without the
consent of the Owners to dedicate, transfer or grant easements over all or any part of the Association
Property or any interest therein to any Governmental Agency or other Person, which dedication, transfer or
easements shall be subject to the provisions of this Declaration and such other conditions as the
Association deems proper.
2.9.6 Control Parking. Subject to the provisions of this Declaration and the rights of
Declarant and Guest Builder hereunder, the Association shall have the right to control parking within the
Community and to promulgate rules and regulations to control parking in a manner consistent with this
Declaration.
2.10 Rights of Invitees and Occupants. Notwithstanding any other provisions of this
Declaration or the Governing Documents, nothing contained in this Article is intended to grant any third
party beneficiary rights or any other rights to an Invitee and Occupant. No Invitee or Occupant shall have
any rights under this Article independent of the rights granted to the Association and the Owners under this
Declaration.
2.11 Easements Reserved by Declarant and Guest Builder. Any of the easements
hereunder reserved by Declarant or Guest Builder may be assigned or transferred by Declarant or Guest
Builder (with Declarant’s consent), to any Person, without the consent of any Owners or the Association.
2.12 Duration of Easement Rights. Except for the rights of Declarant and Guest Builder, the
easement rights granted under this Declaration shall be for a term and duration coextensive with the
Owner’s title or interest in and to a Condominium. Upon conveyance of a Condominium, such rights shall
pass to the successor Owner(s) of the Condominium being conveyed. All of the rights reserved to Declarant
a/ornd Guest Builder shall continue so long as Declarant or Guest Builder owns any portion of the Property.
2.13 Light, Air and View. No Owner shall have an easement for light, air or view over the
Condominium of another Owner or the Association Property, and no diminution of light, air or view by any
Improvement now existing or hereafter erected shall entitle an Owner or any Invitee to claim any easement
for light, air or view within the Community.
2.14 No Separate Conveyance. The interest of each Owner in the use and benefit of the
Association Property and all other easements reserved and granted hereunder to each Owner shall be
appurtenant to the Condominium owned by the Owner. No Condominium shall be conveyed by the Owner
separately from the right to use the portions of the Association Property that are open for access by the
Owners and their Invitees in accordance with the Governing Documents. Any conveyance of any
Condominium shall automatically transfer the interest in the Owner’s right to use the Association Property
as provided in this Declaration and the Governing Documents without the necessity of express reference
in the instrument of conveyance.
2.15 Delegation of Use. Any Owner entitled to the right of use of the Association Property to
the extent provided in this Declaration or the other Governing Documents may delegate such Owner’s rights
to the Occupants who reside in such Owner’s Condominium, subject to reasonable regulation by the
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Association and the Governing Documents. An Owner who has made such a delegation of rights shall not
be entitled to use of the Association Property for so long as such delegation remains in effect, other than
such access rights as are directly related to the Owner’s rights and duties as landlord.
ARTICLE 3
THE ASSOCIATION
The Association has been formed to govern, maintain and manage the Community and to perform
the other powers and duties of the Association described in this Article. The Association acts by and
through a Board of Directors. This Article establishes both the powers and the duties of the Association.
3.1 The Organization. The Association is a nonprofit mutual benefit corporation formed under
the Nonprofit Mutual Benefit Law of the State of California. On the conveyance of the first Condominium
to a First Purchaser, the Association shall be charged with the duties and given the powers set forth in the
Governing Documents.
3.2 Association Action; Board of Directors and Officers; Members’ Approval. Except as
to matters requiring the approval of Members as set forth in the Governing Documents, the affairs of the
Association shall be conducted by the Board and officers as the Board may elect or appoint. Such election
or appointment shall be in accordance with the Governing Documents. Except as otherwise provided in
Governing Documents, all matters requiring the approval of Members shall be deemed approved if:
(a) Members holding a majority of the total Voting Power consent to them in writing as provided in the
Bylaws; (b) such matters are approved by a majority vote of a quorum of Members at any regular or special
meeting held in accordance with the Bylaws; or (c) in certain situations set forth in Section 3.4, such matters
as are approved in accordance with the procedures set forth in Section 3.4.
3.3 Powers of the Association. The Association shall have all the powers of a nonprofit
mutual benefit corporation organized under the laws of the State of California subject only to such limitations
on the exercise of such powers as are set forth in the Governing Documents. It shall have the power to do
any lawful thing that may be authorized, required, or permitted to be done by the Association under the
Governing Documents including, without limitation, the powers set forth below.
3.3.1 Performance of Duties; Commencement of Association’s Duties and
Powers. The Association shall have the power to undertake all of the express duties required to be
performed by the Association. Unless otherwise specified in a Supplementary Declaration, the duties, rights
and powers of the Association as described in this Declaration shall commence from and after the date of
the conveyance of fee ownership of any portion of the Property from the Declarant or Guest Builder to a
First Purchaser, or such earlier date that the Declarant may elect, and the Association shall thereupon
assume all such duties and such rights and powers.
3.3.2 Assessments. The Association shall have the power to establish, fix, and levy
Assessments against the Owners and to enforce payment of such Assessments, in accordance with the
provisions of the Governing Documents.
3.3.3 Right of Enforcement. The Association, in its own name and on its own behalf,
or on behalf of any Owner who consents, shall have the power to: (a) take disciplinary action and/or assess
monetary fines against an Owner for violation of the Governing Documents by such Owner or their Invitees;
(b) commence and maintain actions for damages or to restrain and enjoin any actual or threatened breach
of any provision of the Governing Documents; (c) after Notice and Hearing, suspend the rights to use any
portion of the Association Property or membership rights or privileges; and/or (d) to enforce by mandatory
injunction, or otherwise, any resolutions of the Board or any provision of the Governing Documents. In
addition, the Association can temporarily suspend the membership rights and privileges and/or can assess
monetary fines against any Owner or other person entitled to exercise such rights or privileges for any
violation of the Governing Documents or Board resolutions, in accordance with the procedures set forth in
this Declaration and in the Bylaws; provided, however, that unless such suspension is due to a failure to
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pay Assessments pursuant to Article 5, such suspension shall not last longer than sixty (60) days. In no
event shall the Association suspend an Owner’s right and easement of access for ingress and egress over
the Association Property to the extent necessary to provide access and utility service to the Residential
Unit.
3.3.4 Right of Entry. Except in the case of an Emergency, in which case no prior notice
need be given, the Association or any authorized representative thereof shall have the right, upon forty-
eight (48) hours’ prior notice and during reasonable hours, to enter in or on to the interior of any Residential
Unit for the purpose of: (a) construction, maintenance or repair; (b) enforcing the provisions of the
Governing Documents or to perform its obligations under the Governing Documents to cure any default by
an Owner; or (c) inspecting, maintaining and repairing the Improvements, if any, located within said
Residential Unit which are required to be maintained by the Association as provided in this Declaration.
Such Persons shall not be deemed guilty of trespass by reason of such entry.
3.3.5 Delegation of Rights of Use. Subject to the Governing Documents, the
Association shall have the power to exclusively use or to allow the Owners or Occupants the exclusive use
of portions of the Association Property for events and functions, on terms and conditions that the Board
deems appropriate, including charging such Owners or their Occupants for such use provided that if
Declarant or a Guest Builder owns any Residential Unit in the Property, the prior consent of the Declarant
shall be obtained.
3.3.6 Delegation of Powers; Professional Management. The Association shall have
the power to delegate its powers, duties, and responsibilities to committees or employees, including a
professional managing agent, subject to the requirements of Section 3.5.2.
3.3.7 Easements and Rights of Way. The Association shall have the power to exercise
any of the easements and other rights granted to the Association under Article 2. The affirmative vote of
majority of Members shall be required before the Board may grant exclusive use of any portion of the
Association Property to any Member unless the grant of exclusive use is one of the exceptions to Member
approval requirements listed in California Civil Code Section 4600.
3.3.8 Capital Improvements. Subject to the provisions of Section 5.6, the Association
may approve the construction, installation or acquisition of a particular capital improvement to the
Association Property.
3.3.9 Acquire Property. The Association shall have the power to acquire and hold real
and personal property as may be necessary or convenient for (i) the management or operation of the
Association Property, (ii) the administration of the affairs of the Association or (iii) the benefit of the Owners.
The Association may dispose of the same by sale or otherwise.
3.3.10 Restrict Access. The Association shall have the power to restrict access on or to
any portion of the Association Property for purposes of facilitating construction or making repairs of
Improvements by the Association on such terms as the Association may deem reasonably appropriate.
Any such restriction shall reasonably minimize any impact on access to and from any neighboring areas.
3.3.11 Enter Into Agreements. The Association shall have the power to enter into
maintenance, cost sharing and/or easement agreements with owners of property adjacent or in the vicinity
of the Property (including, without limitation, Governmental Agencies) or any owners associations. Unless
otherwise specified in the agreement or a Supplementary Declaration, any agreements entered into by
Declarant with any Governmental Agency relating to the Property shall be binding on the Association.
Notwithstanding any other provisions of this Declaration regarding the term of contracts with Declarant for
providing services to the Association, the Association shall have the power to enter into maintenance, use,
subsidy or similar agreements with Declarant.
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3.3.12 Contract for Goods and Services. The Association shall have the power to
contract for goods and services for the benefit of the Association Property and the Community that are
necessary for the Association to perform its duties and obligations under the Governing Documents and/or
as may be required by Governmental Agencies, including engaging legal, management and accounting
services.
3.3.13 Borrow Funds. The Association shall have the right to borrow money to improve,
repair or maintain the Association Property and to hypothecate any or all real or personal property owned
by the Association, including pledging as collateral the assessment liens levied thereon provided that: (a)
the borrowing of any money or hypothecation of any real or personal property in excess of five percent (5%)
of the budgeted gross expenses of the Association shall require the approval by written ballot of at least
sixty-seven percent (67%) of each class of Members; and (b) the lender’s rights of default for any loan
obtained pursuant to this Section are limited to, after taking possession of any Association Property,
charging reasonable admission and fees, and, upon satisfaction of the debt, such Association Property
shall be returned to the Association . Notwithstanding the foregoing, in no event may the Association
borrow money to fund any litigation by the Association relating to the Community or the Improvements
unless the consent of a majority of the Class A Members other than Declarant is obtained.
3.3.14 Rights Regarding Title Policies. If any title claims regarding the Association
Property are made by any third party, the Association shall have the power to pursue such claims on any
title insurance policy held by the Owners or the Association, and each Owner hereby delegates on a non-
exclusive basis and assigns to the Association any rights he or she may have under his or her title insurance
policies to the extent that the title claim relates to the Association Property.
3.3.15 Association Rules. The Board, by majority vote, shall have the power to adopt
the Association Rules. The Board shall further have the power to amend the Association Rules as it deems
appropriate relating to the use and operation of the Community. Notwithstanding any provision of this
Declaration to the contrary and to the extent California Civil Code Section 4340, et seq. is applicable to the
Association Rules, any rule which is considered to be an operating rule under California Civil Code Section
4340, et seq. may not be adopted, changed or amended except by and pursuant to the procedures set forth
in California Civil Code Section 4340, et seq.
3.3.16 Assignment of Maintenance Responsibilities. The Association shall have the
power to relinquish or assign its maintenance responsibilities to any Governmental Agencies, including,
without limitation, maintenance or assessment districts, utility companies and/or school districts, provided
that such Governmental Agency shall have accepted such maintenance responsibility from the Association.
3.4 Duties of the Association. In addition to the powers described above, and without limiting
their generality, the Association, has the power and the obligation to perform each of the duties set forth
below.
3.4.1 Applicable Laws and Community Entitlements. The Association shall comply
with all Applicable Laws and the Community Entitlements and any City Agreements, including the Storm
Water Agreement.
3.4.2 Obligations Under Governing Documents. The Association shall perform all
duties that may be expressly imposed on the Association in the Governing Documents.
3.4.3 Acceptance of Association Property. The nature, design, quality and quantity
of all Improvements to the Association Property shall be determined by Declarant, in its sole discretion.
The Association shall accept any Association Property and Improvements situated thereon and any
maintenance or other easements conveyed by Declarant and/or created under this Declaration and shall
maintain, repair, replace, operate, and otherwise manage all of the Improvements and facilities required to
be maintained by the Association, and all personal property acquired by the Association in accordance with
the terms and provisions of the Governing Documents and the Community Entitlements. The Board shall
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periodically review the nature and scope of the operations of the Association to assure such operations are
in satisfactory compliance with the requirements of the Governing Documents. The Association shall
comply with the requirements of any agreements entered into between Declarant and a Governmental
Agency pertaining to the Association Property. In the event that a dispute arises between Declarant and
the Association with respect to the nature, design, quality or quantity of such Improvements, or the
acceptance of maintenance responsibilities therefor, the Association shall be obligated to accept title to the
Association Property and any easements to maintain other real property or Improvements and undertake
maintenance responsibilities therefore, pending resolution of the dispute, in accordance with the provisions
for enforcement set forth in Article 15 herein.
3.4.4 Utilities. The Association shall acquire, provide and pay for water and other utility
services for the Association Property to the extent necessary. The Association shall have the duty to permit
utility suppliers and other providers of any telecommunications or other services to use portions of the
Association Property reasonably necessary to the ongoing development and operation of the Community.
3.4.5 Management. The Association shall retain a professional manager or other
Persons and contract with independent contractors or managing agents who have professional experience
in the management of similar communities to perform any services required for the maintenance, protection,
operation and preservation of the Community; provided that any such professional manager shall be
covered by its own fidelity insurance policy, which must provide the same coverage required of the
Association.
3.4.6 Taxes and Assessments. The Association shall have the duty to pay all real and
personal property taxes levied against the Association Property or any other taxes or assessments which
could become a lien on the Association Property or any portion thereof. Such taxes and assessments may
be contested by the Association provided that they are paid or that a bond insuring payment is posted
before the sale or the disposition of any property to satisfy the payment of such taxes.
3.4.7 Architectural Control. The Association shall have the duty to promulgate
architectural standards and procedures as set forth in the Design Guidelines and may appoint or remove
members of the Design Review Committee or hire a consultant in connection there in accordance with the
provisions of Article 8.
3.4.8 Association Rules. The Association shall adopt and be entitled to modify and
enforce the Association Rules as it deems reasonable. The Association Rules shall govern the Community.
However, the Association Rules shall not be inconsistent with or materially alter any provisions of the
Governing Documents. A copy of the Association Rules, as adopted, amended or repealed, shall be mailed
or otherwise delivered to each Owner. In case of any conflict between any of the Association Rules and
any other provisions of this Declaration, the conflicting Association Rule shall be deemed to be superseded
by the provisions of the Governing Documents. Notwithstanding any provision of this Declaration to the
contrary and to the extent Civil Code Section 4340, et seq. is applicable to the Association Rules, any rule
which is considered to be an operating rule under California Civil Code Section 4340, et seq. may not be
adopted, changed or amended except by and pursuant to the procedures set forth in California Civil Code
Section 4340, et seq.
3.4.9 Claims and Actions. Subject to the provisions of this Declaration, and in
compliance with California Civil Code Section 5980, the Association shall have the power, but not the duty,
to initiate, defend, settle, release or intervene in mediation, arbitration, judicial or administrative proceedings
on behalf of the Association in matters pertaining to: (a) the application or enforcement of this Declaration;
(b) any and all claims, causes of action, damages and suits for defects relating in any way to the design or
construction of the Association Property or any portion thereof, on behalf of all Owners; and (c) Limited
Warranty claims that may arise with respect to the Association Property or Association Maintenance Areas;
provided, however that no representative of Declarant or Guest Builder on the Board shall vote on the
initiation of any claim under California Civil Code Section 895 et seq., such that from and after the first
election of directors in which Class A Members of the Association participate, Declarant nor Guest Builder
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shall have control over the Association’s ability to decide whether to initiate a claim under such statutory
provisions and in the event of such a vote, the affirmative vote of the two non-Declarant/non-Guest Builder
representatives on the Board shall be binding so long as a quorum of the Board is present at any meeting
where such vote is taken. An Owner may only assert Limited Warranty claims pertaining to such Owner’s
Residential Unit. The Association and not the individual Members shall have the power to pursue Limited
Warranty claims or any claims or other actions using the non-adversarial procedures for construction
defects in the Association Property. The Association shall comply with the dispute resolution procedures
set forth in Article 16 below. Each Owner hereby agrees to designate such authority to the Association and
assigns to the Association all power and authority as is necessary for any settlement or release of any such
claims
3.4.10 Warranties. The Association shall comply with the terms of each warranty in favor
of the Association, if any, for any equipment or facilities within the Association Property, which warranties
may be impaired or eliminated if the Association fails to maintain in compliance with a warranty or if it fails
to keep in effect certain maintenance contracts.
3.4.11 Maintenance Manuals. The Association shall maintain at the offices of the
Association a copy of the Owner Maintenance Manual(s) provided by Declarant or Guest Builders to the
Owners and shall make available to every Owner upon request a copy of the Owner Maintenance Manual
applicable to such Owner’s home. The Association shall have the right to charge the requesting Owner a
fee for the copying of such Owner Maintenance Manual. The Association shall also comply with provisions
of the Association Maintenance Manuals provided by Declarant and Guest Builder to the Association. The
Association may, from time to time, make appropriate revisions to the Association Maintenance Manual
based on the Board’s review thereof to update such manual to provide for maintenance according to current
industry practices so long as such changes do not reduce the useful life or functionality of the items being
maintained. The Association shall require that any management company hired by the Association for the
Community: (i) ensures that review of the Association Maintenance Manual requirements and issues is
included on the agenda of each meeting of the Board; (ii) ensures that the Association Maintenance Manual
is brought to each regular meeting of the Board; and (iii) ensures that the Association Maintenance Manual
is updated with all inspection reports for the Association Property or other Association maintained areas.
3.4.12 Minutes of Board Meetings. The Association shall supply copies of the minutes
or a summary of the minutes of any meeting of the Board to the Declarant within thirty (30) days of the
applicable meeting of the Board for a period of one (1) year after the conveyance of the last Condominium
within the Property by Declarant and Guest Builder to a First Purchaser.
3.5 Limitations on Authority of Board.
3.5.1 Actions Requiring Member Approval. The Association shall not take any of the
actions listed below except with: (a) the vote or written consent of a majority of the Members of each of
Class A and Class B Members during the time the Class B voting structure set forth in Section 4.2 is in
effect; or (b) except with the vote at a meeting of the Association, or by written ballot without a meeting
pursuant to Corporations Code Section 7513, of at least a majority of the Members of the Association
including at least a majority of Association Members other than Declarant and Guest Builder after
conversion to a single Class A voting membership.
(a) Limit on Capital Improvements. The Association shall not, without
obtaining the consent of the Members as set forth above, incur aggregate expenditures for capital
improvements to the Association Property in any Fiscal Year in excess of five percent (5%) of the budgeted
gross expenses of the Association for that Fiscal Year;
(b) Limit on Sales of Association Property. The Association shall not,
without obtaining the consent of the Members as set forth above, sell during any Fiscal Year property of
the Association having an aggregate fair market value greater than five percent (5%) of the budgeted gross
expenses of the Association for that Fiscal Year;
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(c) Limit on Compensation. The Association shall not, without obtaining the
consent of the Members as set forth above, pay compensation to Members for services performed in the
conduct of the Association’s business. However, the Board may cause a member of the Board to be
reimbursed for expenses incurred in carrying on the business of the Association; or
(d) Limit on Third Person Contracts. The Association shall not, without
obtaining the consent of the Members as set forth above, enter into a contract with a third person wherein
the third person will furnish goods or services for the Association Property for a term longer than one (1)
year with the following exceptions:
(i) A management contract, the terms of which have been approved
by the Federal Housing Administration or Veterans Administration;
(ii) A contract with a public utility company if the rates charged for the
materials or services are regulated by the Public Utilities Commission; provided, however, that the term of
the contract shall not exceed the shortest term for which the supplier will contract at the regulated rate;
(iii) A prepaid casualty and/or liability insurance policy not to exceed
three (3) years duration; provided that the policy permits short-rate cancellation by the insured;
(iv) 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 obligations
upon ninety (90) days’ written notice of termination to the other party;
(v) A contract submitted to the DRE in connection with an application
for a Public Report; and
(vi) Any maintenance agreement for the maintenance of any portion
of the Association Property which is required as a condition to the effectiveness of any warranty in favor of
the Association.
3.5.2 Property Manager. The manager of the Association shall at all times be a
professional manager operating as an independent contractor. The Association shall not discontinue the
management of the Association by a professional, and certified or accredited management company
without the vote of: (a) Declarant, so long as Declarant or Guest Builder owns any Residential Unit within
the Community; and (b) a vote in accordance with Section 13.11; provided, however, that nothing contained
in this Section 3.5.2 shall be deemed to prohibit or restrict the Board from changing professional
management companies from one professional management company to another. If the Association
decides to change professional management companies from one professional management company to
another, then any replacement manager shall have at least five (5) years’ experience in the management
of condominium communities and shall have earned accreditation or certification from a professional
association management organization.
3.5.3 Prohibited Actions.
(a) Political Activities. The Association shall not (i) participate in federal,
state or local political activities or activities intended to influence a governmental action affecting areas
outside the boundaries of the Property (e.g. endorsement or support of (a) legislative or administrative
actions by a local governmental authority, (b) candidates for elected or appointed office, or (c) ballot
proposals), or (ii) conduct, sponsor, participate in or expend funds or resources or any activity, campaign
or event, including any social or political campaign, event or activity which is not directly and exclusively
pertaining to the authorized activities of the Association. There shall be no amendment of this Section so
long as Declarant or Guest Builder owns any portion of the Property.
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(b) Reserved Rights of Declarant and Guest Builder. For so long as
Declarant and/or Guest Builder is entitled to exercise any right, or avail itself of any exemption, in Article 9
or elsewhere in this Declaration, neither the Association, nor the Board, nor any Owner shall take any action
which is inconsistent with, or which would abrogate, any such right or exemption.
3.6 Indemnification of Management Parties. No volunteer officer or volunteer director of the
Board, or of any committee of the Association, or any officer of the Association, or any manager, or
Declarant, Guest Builder or any agent or employee or consultant of Declarant or Guest Builder (each a
“Management Party”), shall be personally liable to any Owner or to any other party, including the
Association, for any act or omission of any Management Party if such Person has, on the basis of such
information as was actually possessed by him or her, acted in good faith without willful, wanton or gross
misconduct when performing an act within the scope of the Person’s duties (collectively, an “Official Act”).
The Association has the power and duty to indemnify, defend, protect and hold harmless each Management
Party for all damages and expenses incurred (including, without limitation, reasonable attorneys’ fees and
costs), and to satisfy any judgment or fine levied as a result of any action or threatened action brought
because of an act or omission which such Person reasonably believed was an Official Act. Management
Parties are deemed to be agents of the Association when they are performing Official Acts for purposes of
obtaining indemnification from the Association pursuant to this Section. The entitlement to indemnification
under this Declaration inures to the benefit of the successors-in-interest of any Person entitled to such
indemnification. The Association has the power, but not the duty, to indemnify any other Person acting as
an agent of the Association for damages incurred, pay expenses incurred, and satisfy any judgment or fine
levied as a result of any action or threatened action because of an Official Act. The Association also has
the power, but not the duty, to contract with any person to provide indemnification in addition to any
indemnification authorized by Applicable Laws on such terms and subject to such conditions as the
Association may impose.
3.7 Additional Provisions. Notwithstanding any provisions of this Declaration to the contrary,
by accepting a deed for a portion of the Property, the Association and the Owners acknowledge and agree
that there may be Applicable Laws for the operation of the Association and the Property by the Association,
including, without limitation, the Davis Stirling Common Interest Development Act of Section 4000, et seq.
of the California Civil Code, and the Association and Owners shall comply with such provisions to the extent
required by such Applicable Laws.
ARTICLE 4
MEMBERSHIP AND VOTING RIGHTS IN ASSOCIATION
The Association will function as a corporate entity with Members who will participate in the
governance of the various areas. This Article describes the membership of the Association. This Article
also establishes the classes of voting rights. Additional provisions regarding the procedures for elections
to and meetings of the Board are set forth in the Bylaws.
4.1 Membership.
4.1.1 Qualifications. Each Owner of a Condominium which is subject to Assessment,
including Declarant and Guest Builder, shall be a Member of the Association. Ownership of a Condominium
shall be the sole qualification for membership in the Association. Each Owner shall remain a Member of
the Association until such Owner’s ownership interest in the Condominium(s) ceases at which time such
Owner’s membership in the Association shall automatically cease. Any reference in this Declaration to a
vote of the Members shall refer only to those Members against whose Condominium Assessments have
commenced unless otherwise specified in the Governing Documents.
4.1.2 Members’ Rights and Duties. Each Member shall have the rights, duties, and
obligations set forth in the Governing Documents, as the same may from time to time be amended.
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4.1.3 Approval by Members. Except as otherwise provided in the Governing
Documents, all matters requiring the approval of Members shall be deemed approved if: (a) Members
holding a majority of the total Voting Power consent to them in writing as provided in the Bylaws; or (b) such
matters are approved by a majority vote of a quorum of Members at any regular or special meeting held in
accordance with the Bylaws.
4.1.4 Transfer of Membership. The Association membership of each Owner shall be
appurtenant to each such Condominium, and shall not be assigned, transferred, pledged, hypothecated,
conveyed or alienated in any way except on a transfer of title to each such Condominium or interest in it
and then only to the transferee. Any attempt to make a prohibited transfer shall be void. Any transfer of
title to a Condominium or interest in it shall operate automatically to transfer the appurtenant membership
right in the Association to the new Owner.
4.1.5 Commencement of Voting Rights. An Owner’s right to vote, including
Declarant’s right to vote, shall not vest until Regular Assessments have been levied upon such Owner’s
Condominium as provided in this Declaration. All voting rights shall be subject to the restrictions and
limitations provided for herein and in the other Governing Documents.
4.2 Number of Votes. The Association shall have two (2) classes of voting membership. The
voting rights described in Sections 4.2.1 and 4.2.2 shall constitute the Voting Power of the Association:
4.2.1 Class A Members. Class A Members shall be all Owners, with the exception of
Declarant and Guest Builder (until the conversion of Declarant’s and Guest Builder’s Class B membership
to a Class A membership as provided in Section 4.2.2), and shall be entitled to one (1) vote for each
Condominium owned. When more than one (1) Person holds an interest in any Condominium, all such
Persons shall be Members. The vote for such Condominium shall be exercised as they among themselves
determine, but in no event shall more than one (1) vote be cast with respect to such Condominium.
4.2.2 Class B Members. Class B Member(s) shall be Declarant and Guest Builder who
shall be entitled to three (3) votes for each Condominium owned by such Declarant or Guest Builder in a
Phase for which Assessments have commenced. The Class B membership shall cease and be converted
to Class A membership on the happening of the earliest of the following to occur:
(a) The second anniversary of the first close of escrow for conveyance of a
Condominium in a Phase covered by the most recently issued Public Report for any Phase of the
Community; or
(b) The fourth anniversary of the first conveyance of a Condominium covered
by the original Public Report for the first Phase of the Community.
As long as Class B membership exists, no action by the Association that must have the prior approval of
the Members shall be deemed approved by the Members unless approved by the appropriate percentage
of Class A and Class B Members, except as otherwise set forth in this Declaration. Upon conversion to a
single Class A voting membership, any action by the Association that must have the prior approval of the
Members will require approval by at least a majority of the Members of the Association including at least a
majority of Members other than Declarant and Guest Builder.
4.3 Declarant’s Right to Select Director. In any election of Directors after the Class B
membership has been terminated, so long as Declarant owns any of the Property, the Board shall adopt
special procedures to ensure that at least one (1) Director is selected by Declarant. A representative to the
Board selected by Declarant pursuant to the provisions of this Section may be removed prior to the
expiration of his or her term of office only with the consent of Declarant.
4.4 Joint Owner Votes. The voting rights for each Condominium may not be cast on a
fractional basis. If the joint Owners of a Condominium are unable to agree among themselves as to how
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their voting rights shall be cast, they shall forfeit the vote on the matter in question. If any Owner exercises
the voting rights of a particular Condominium, it will be conclusively presumed for all purposes that such
Owner was acting with the authority and consent of all other Owners of the same Condominium. If more
than one (1) Person exercises the voting rights for a particular Condominium, their votes shall not be
counted and shall be deemed void.
ARTICLE 5
ASSESSMENTS
The Association will levy and collect various types of assessments to provide it with the funds it
needs to perform its duties and obligations under this Declaration and the Governing Documents and for
such other purposes as provided in this Article. This Article describes the Assessments which can be levied
by the Association, the procedures for collection of such Assessments, and the rights and remedies if such
Assessments are not paid when due.
5.1 Creation of Lien and Personal Obligation for Assessments. Declarant, for each
Condominium owned within the Property and Guest Builder, for each Condominium owned within the
Property, hereby covenant, and each Owner of a Condominium by acceptance of a deed therefor, whether
or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association all
Assessments levied pursuant to the provisions of this Declaration. All Assessments levied hereunder,
together with Additional Charges, shall be a charge on the land and shall be a continuing lien upon the
Condominium of such Owner against which each such Assessment is made, the lien to be effective upon
recordation of a Notice of Delinquent Assessment (defined below). Each such Assessment, together with
Additional Charges, shall also be the personal obligation of the Person who was the Owner of such
Condominium at the time when the Assessment fell due and shall bind its heirs, devisees, personal
representatives and assigns. Unlike the lien for non-delinquent Assessments, the personal obligation for
delinquent Assessments shall not pass to successive Owners, unless expressly assumed by such
successive Owner. No such assumption of personal liability by a successor Owner shall relieve any Owner
against whose Condominium the lien was levied from personal liability for delinquent Assessments. If more
than one Person is the Owner of a Condominium, the personal obligation to pay such Assessment or
installment respecting such Condominium shall be both joint and several.
5.2 Funds Held in Trust. The Assessments collected by the Association shall be held by the
Association for and on behalf of each Owner and shall be used solely for the operation, care and
maintenance of the Community. Upon the sale or transfer of any Residential Unit, the Owner’s interest in
the funds shall be deemed automatically transferred to the successor in interest of such Owner. A general
operating fund shall be established for current expenses of the Association.
5.3 Purpose of Assessments. The Assessments levied by the Association shall be used
exclusively to perform the obligations and duties of the Association, including, without limitation, the
improvement and maintenance of the Association Property and for any other maintenance responsibilities
of the Association, and to reimburse the Association for the costs incurred in bringing an Owner into
compliance with the Governing Documents. The Association shall not impose or collect any Assessment,
penalty or fee that exceeds the amount necessary for the purpose or purposes for which it is levied. If the
Association decides to use or transfer reserve funds to pay for litigation, the Association must provide
general notice to its Members of the decision in accordance with California Civil Code Sections 4045 and
5520. Such notice shall provide an explanation of why the litigation is being initiated or defended, why
operating funds cannot be used, how and when the reserve funds will be replaced, and a proposed budget
for the litigation. The notice must state that the Members have a right to review an accounting for the
litigation as provided in California Civil Code Section 5520 which will be available at the Association’s office.
The accounting shall be updated monthly.
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5.4 Regular Assessments.
5.4.1 Payment of Regular Assessments. The Assessments for Common Expenses
(“Regular Assessment”) for each Fiscal Year shall be established when the Association approves the
Budget for that Fiscal Year, which Budget shall be prepared in accordance with the provisions of the
Governing Documents. Regular Assessments shall be levied on a Fiscal Year basis. Unless otherwise
specified by the Board, Regular Assessments shall be due and payable in monthly installments on the first
day of each month during the term of this Declaration. Declarant’s and Guest Builder’s obligation or subsidy
for such Regular Assessments may be reduced in accordance with the terms of any maintenance or subsidy
agreement executed by Declarant, Guest Builder and the Association.
5.4.2 Budgeting. Each fiscal year the Association shall prepare, approve and make
available to each Member a Budget as described in the Bylaws not less than thirty (30) days nor more than
ninety (90) days prior to the beginning of the Fiscal Year or as otherwise required by Applicable Laws.
5.4.3 Restrictions for Tax Exemption. As long as the Association seeks to qualify and
be considered as an organization exempt from federal and state income taxes pursuant to Internal Revenue
Code Section 528 and California Revenue and Taxation Code Section 23701t and any amendments
thereto, then the Board shall prepare its annual Budget and otherwise conduct the business of the
Association in such a manner consistent with federal and state requirements to qualify for such status.
5.4.4 Reallocation of Assessments. After conveyance of the first Condominium in a
Phase to a First Purchaser, the Assessments shall be reallocated among all Condominium, in the same
manner as described above.
5.4.5 Non-Waiver of Assessments. If the Association fails to fix Regular Assessments
for the next Fiscal Year before the expiration of the then-current Fiscal Year, the Regular Assessment
established for the preceding year shall continue until a new Regular Assessment is fixed.
5.4.6 Supplemental Assessments. If the Board determines that the Association’s
essential functions may be properly funded by a Regular Assessment in an amount less than the maximum
authorized Regular Assessment described above, it may levy such lesser Regular Assessment. If the
Board determines that the estimate of total charges for the current year is or will become inadequate to
meet all Common Expenses, it shall determine the approximate amount of the inadequacy. Subject to the
limits described in Section 5.8, the Board may levy a supplemental Regular Assessment reflecting a
revision of the total charges to be assessed against each Condominium.
5.5 Special Assessments. If the Association determines at any time that the estimated total
amount of funds necessary to fund the Common Expenses of the Association for a given Fiscal Year is or
will become inadequate to meet expenses for any reason, including, without limitation, unanticipated
delinquencies, costs incurred pursuant to Section 15.7 below, costs of construction, unexpected repairs or
replacements of capital improvements, damage and destruction or condemnation of the Association
Property or any other areas which the Association is obligated to maintain, the Board shall determine the
approximate amount necessary to defray such expenses, and may levy a special assessment (“Special
Assessment”). Special Assessments shall be subject to the limitations set forth in Section 5.8; provided,
however, that such limitation shall not apply to Special Assessments levied by the Board to replenish the
Association’s reserve account as provided in the Article of the Bylaws entitled “Association’s Accounts.”
The Board may, in its discretion, prorate such Special Assessment over the remaining months of the Fiscal
Year or levy the Assessment immediately against each Condominium as to which Assessments have
commenced. The Association must comply with California Civil Code Section 5610.
5.6 Capital Improvement Assessment. In addition to any other Assessments provided for
hereunder, the Association may levy a capital improvement assessment for the purpose of defraying, in
whole or in part, the cost of any construction or replacement of a capital improvement (“Capital Improvement
Assessment”). Capital Improvement Assessments shall be due and payable by all Owners in such
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installments and during such period or periods as the Board shall designate. Capital Improvement
Assessments shall be subject to the limitations set forth in Section 5.8.
5.7 Compliance Assessments. The Association may levy an assessment (“Compliance
Assessment”) against any Owner for bringing the Owner or the Owner’s Condominium into compliance with
the provisions of the Governing Documents and/or any other charge designated a Compliance Assessment
in the Governing Documents, together with any Additional Charges. The Association shall have the
authority to adopt a reasonable schedule of Compliance Assessments for any violation of the Governing
Documents. If, after Notice and Hearing which satisfies California Corporations Code Section 7341 and
California Civil Code Section 5855, the Owner fails to cure or continues such violation, the Association may
impose an additional fine each time the violation is repeated, and may assess such Owner and enforce the
Compliance Assessment as herein provided for nonpayment of an Assessment. A hearing committee may
be established by the Association to administer the foregoing. A Compliance Assessment imposed by the
Association as a means to reimburse the Association for costs incurred by the Association in the repair of
damage to Association Property and facilities caused by a Member or a Member’s Invitee may become a
lien against the Member’s Condominium enforceable by the sale of the interest under Sections 2924, 2924b
and 2924c. Notwithstanding any other provision in this Declaration to the contrary, except as provided in
Section 5.13, Compliance Assessments imposed by the Association as a disciplinary measure for failure of
a Member to comply with the Governing Documents are Assessments but they may not become a lien
against the Owner’s Condominium that is enforceable by a power of sale under California Civil Code
Sections 2924, 2924b and 2924c; provided, however, that this restriction on Compliance Assessment liens
imposed by the Association as a disciplinary measure for failure of a Member to comply with the Governing
Documents, does not apply to late payments.
5.8 Changes to Assessments.
5.8.1 Limitation on Assessments. From and after January 1st of the year immediately
following the conveyance of the first Condominium to a First Purchaser, the annual Regular Assessment
may not, except in the case of an Emergency, be increased by an amount greater than twenty percent
(20%) of the Regular Assessments for the preceding Fiscal Year, and Special Assessments and Capital
Improvement Assessments shall not be imposed that in the aggregate exceed five percent (5%) of the
budgeted gross expenses of the Association for that Fiscal Year, without the consent of the Members,
constituting a quorum and casting a majority of the votes at a meeting or election of the Association
conducted in accordance with the provisions of: (a) California Civil Code Section 5100, et seq. and the rules
adopted by the Board pursuant thereto; and (b) California Corporations Code Sections 7510, et seq. and
7613. The Board may not increase the Regular Assessments for any Fiscal Year unless it has complied
with California Civil Code Section 5605. For the purpose of this Section, a quorum shall mean more than
fifty percent (50%) of the Members of the Association, pursuant to California Civil Code Section 4070, and
an Emergency shall mean any one of the following:
(a) An extraordinary expense required by an order of a court;
(b) An extraordinary expense necessary to repair or maintain the Association
Property or other portions of the Community that the Association is obligated to maintain where a threat to
personal safety is discovered; or
(c) An extraordinary expense necessary to repair or maintain the Association
Property or other portion of the Community that the Association is obligated to maintain, that could not have
been reasonably foreseen by the Board in preparing and distributing the Budget required under this
Declaration and the Bylaws and California Civil Code Section 5300; provided, however, that prior to the
imposition or collection of a Special Assessment under this Section, the Board shall pass a resolution
containing written findings as to the necessity of the extraordinary expense which is involved and why the
expense was not or could not have been reasonably foreseen in the budgeting process, and the resolution
shall be distributed to the Members with the notice of Special Assessment.
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5.8.2 Calculation of Percentage Increase in Regular Assessments. For the purpose
of calculating whether an increase to Regular Assessments exceeds twenty percent (20%), the term
“Regular Assessments” shall be deemed to include the amount assessed against each Condominium as a
Regular Assessment plus any amount paid by Declarant or Guest Builder as a subsidy pursuant to any
subsidy agreements, to the extent such subsidy payments offset any amount which would otherwise be
paid by Owners as Regular Assessments. Any increases authorized under this Section shall not be
imposed unless the Board has complied with the budgetary requirements set forth in the Bylaws with
respect to the Fiscal Year for which an Assessment is being levied.
5.9 Allocation of Assessments to Residential Units. Except as otherwise provided for
herein, that portion of Regular, Special and Capital Improvements Assessments set forth in the Budget as
“variable expenses” shall be allocated by the Board on a variable basis. During build-out of the Community,
variable expenses shall be allocated as set forth in the DRE reviewed Budget applicable to the Phase. The
final variable expense allocation effective upon the first close of escrow of Residential Unit in the final Phase
shall be as set forth in the Supplementary Declaration recorded to annex such Phase. All other items
covered by any Regular, Special and Capital Improvement Assessments set forth in the Budget shall be
fixed at a uniform rate for all Residential Units, subject to reduction for Declarant’s obligations under the
terms of any maintenance or subsidy agreement executed by Declarant and the Association. Compliance
Assessments shall be levied directly to the individual Residential Units.
5.10 Date of Commencement of Regular Assessments. The Regular Assessments shall
commence as to all Condominiums in a Phase subject to this Declaration on the first day of the first month
following the conveyance of the first Condominium in that Phase to First Purchaser.
5.11 Notice and Assessment Due Dates. The Association shall provide notice by first class
mail to each Owner (pursuant to California Civil Code Section 4040) of an increase in the Regular
Assessment and notice of any Special Assessment or Capital Improvement Assessment (or increase
therein) not less than thirty (30) days nor more than sixty (60) days prior to the increased Regular
Assessment or the Special Assessment or Capital Improvement Assessment becoming due. The due dates
for the payment of Regular Assessments normally shall be the first day of each month unless some other
due date is established by the Association. The due date for Special Assessments or Capital Improvement
Assessments shall be specified in the notice provided by the Association and if such Special Assessments
or Capital Improvement Assessments are payable in installments, such installments normally shall be due
the first day of each month unless some other due date is established by the Association. Each installment
of Regular Assessments, Special Assessments and Capital Improvement Assessments shall become
delinquent if not paid within fifteen (15) days after its due date. Additional Charges shall accrue with each
delinquent installment but shall not, in any event, exceed the maximum rates permitted under California
Civil Code Section 5600, et seq.
5.11.1 Additional Charges. As used in this Declaration, the other Governing
Documents, “Additional Charges” means costs, fees, charges and expenditures, including, without
limitation, attorneys’ fees and costs, late charges, interest, administrative charges and recording and filing
fees actually incurred by the Association in collecting and/or enforcing payment of Assessments, and other
amounts levied under this Declaration. Additional Charges include, without limitation, the following:
(a) Reasonable attorneys’ fees and costs incurred in the event an attorney is
employed to collect any Assessment or sum due, whether by suit or otherwise;
(b) A late charge in an amount to be fixed by the Association in accordance
with California Civil Code Section 5650 to compensate the Association for additional collection costs
incurred in the event any Assessment or other sum is not paid when due or within any “grace” period
established by Applicable Laws;
(c) Costs of suit and court costs incurred as are allowed by the court;
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(d) Interest at the Applicable Rate; and
(e) Any such other additional costs that the Association may incur in the
process of collecting delinquent Assessments.
5.12 Estoppel Certificate. On not less than ten (10) days’ prior written request, the Association
shall execute, acknowledge and deliver to the party making such request a statement in writing stating both
of the following: (a) whether or not, to the knowledge of the Association, a particular Owner is in default in
connection with the payment of Assessments as to such Owner’s Condominium; and (b) the dates to which
installments of Assessments, have been paid as to such Condominium. Any such statement may be relied
on by any prospective purchaser or Mortgagee of the Condominium, but reliance on such statement may
not extend to any default not involving the payment of Assessments of which the signer had no actual
knowledge.
5.13 Collection of Assessments; Liens.
5.13.1 Right to Enforce. The right to collect and enforce Assessments is vested in the
Board acting for and on behalf of the Association. The Board may enforce the obligations of the Owners
to pay Assessments provided for in this Declaration by commencement and maintenance of a suit at law
or in equity, or the Board may foreclose by judicial proceedings or through the exercise of the power of sale
pursuant to Section 5.13.5 enforce the lien rights created. Suit to recover a money judgment for unpaid
Assessments together with all other Additional Charges shall be maintainable without foreclosing or waiving
the lien rights. Notwithstanding anything else to the contrary herein, a monetary penalty imposed by the
Association as a disciplinary measure for failure of a Member to comply with the Governing Documents or
in bringing the Member and its Condominium into compliance with the Governing Documents may not be
characterized nor treated as an Assessment that may become a lien against the Member’s Condominium
enforceable by a sale of the interest hereunder. The limitation in the preceding sentence however, does
not apply to any Additional Charges.
5.13.2 Notice of Assessments and Foreclosure. The Association shall distribute a
written notice regarding Assessments and foreclosure as set forth in California Civil Code Section 5730
during the sixty (60) day period immediately preceding the beginning of the Association’s Fiscal Year.
5.13.3 Delinquent Assessments. In collecting delinquent Assessments, the Association
shall comply with the requirements of California law, including, without limitation, California Civil Code
Section 5650. As of the date of this Declaration, such laws require that, among other things, before the
Association records a lien against the Owner’s Condominium, the Association shall: (a) notify the
delinquent Owner of certain matters; and (b) offer and, if requested by the Owner, participate in, dispute
resolution procedures pursuant to the Association’s “meet and confer” program required by California Civil
Code Sections 5900 through 5920.
5.13.4 Assignment. The Association may not voluntarily assign or pledge the
Association’s right to collect payments or Assessments, or to enforce or foreclose a lien to a third party
except where provided under California Civil Code Section 5735.
5.13.5 Notice of Default; Foreclosure. The Association can record a notice of default
and, subject to the requirements and limitations of California Civil Code Section 5700, et seq., can cause
the Condominium with respect to which a notice of default has been recorded to be sold either in the same
manner as a sale is conducted under California Civil Code Sections 2924, 2924b and 2924c or through
judicial foreclosure and as provided in California Civil Code Section 5700, et seq. However, as a condition
precedent to the holding of any such sale under Section 2924c, appropriate publication shall be made. In
connection with any such sale, the Board is authorized to appoint a trustee for purposes of conducting the
sale. If a delinquency is cured before sale of the Condominium or before completing a judicial foreclosure,
or if it is determined that a lien previously recorded against a Condominium was recorded in error, the Board
shall apply payments and follow the procedures set forth in California Civil Code Section 5685. On
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becoming delinquent in the payment of any Assessment or installment, each delinquent Owner shall be
deemed to have absolutely assigned all rent, issues and profits of its Condominium to the Association and
shall further be deemed to have consented to the appointment of a receiver (which appointment may, at
the election of the Association, be enforced by the Association through specific performance). The
Association, acting on behalf of the Owners, shall have the power to bid upon the Condominium at
foreclosure sale and to acquire, hold, lease, mortgage and convey the Condominium and vote as an Owner
of the Condominium.
5.13.6 Creation of Lien. If there is a delinquency in the payment of any Assessment
(other than a Compliance Assessment), any amounts that are delinquent, together with any Additional
Charges, shall be a lien against the defaulting Owner’s Condominium upon the recordation in the Official
Records of a notice of delinquent assessment (“Notice of Delinquent Assessment”) as provided in California
Civil Code Section 5675. After its recordation, the Notice of Delinquent Assessment shall be mailed to all
Owners of record for the Condominium for which the lien is being filed as provided in California Civil Code
Section 5675.
5.13.7 Payment of Assessments. Any payments of sums due under this Article shall
first be applied to Assessments owed, and only after Assessments owed have been paid in full shall the
payments be applied to the Additional Charges. If an Owner requests a receipt after payment of a
delinquent Assessment, the Association shall provide a receipt which sets forth the date of payment and
the individual who received such payment.
5.14 Additional Charges. In addition to any other amounts due or any other relief or remedy
obtained against an Owner who is delinquent in the payment of any assessments, each Owner agrees to
pay Additional Charges incurred or levied by the Association including such additional costs, fees, charges
and expenditures as the Association may incur or levy in the process of collecting from that Owner monies
due and delinquent subject to California Civil Code Section 5650, et seq.
5.15 Waiver of Exemptions. Each Owner, to the extent permitted by Applicable Laws, waives,
to the extent of any liens created pursuant to this Article, the benefit of any homestead or exemption laws
of California in effect at the time any Assessment or installment becomes delinquent or any lien is imposed.
5.16 Subordination of Lien to First Mortgages. When a Notice of Delinquent Assessment
has been recorded, such Assessment shall constitute a lien on such delinquent Owner’s Condominium
prior and superior to all other liens, except: (a) all taxes; (b) bonds; (c) assessments and other levies that,
by law, would be superior thereto; and (d) any First Mortgage now or hereafter placed upon any
Condominium subject to Assessment. The sale or transfer of any Condominium pursuant to judicial or
nonjudicial foreclosure (excluding a transfer by a deed in lieu of foreclosure for any loan which is not FHA
or VA insured) of a First Mortgage shall extinguish the lien of such Assessments as to payments which
became due prior to such sale or transfer. No sale or transfer shall relieve such Condominium from any
Assessments thereafter becoming due or from the lien of any subsequent Assessment. Where the
Mortgagee of a First Mortgage or other purchaser of a Condominium obtains title to the same as a result of
foreclosure (excluding a transfer by a deed in lieu of foreclosure), such acquiror of title, and his or her
successors and assigns, shall not be liable for the share of the Common Expenses or Assessments
chargeable to such Condominium that became due prior to the acquisition of title to such Condominium by
such acquiror, except for a share of such charges or Assessments resulting from a reallocation of such
charges or Assessments that are made against all Condominiums.
5.17 No Offsets. All Assessments shall be payable in the amounts specified by the particular
Assessment, and no offsets against such amounts shall be permitted for any reason, including, without
limitation, a claim that the Association is not properly exercising its duties of maintenance, operation or
enforcement.
5.18 Personal Liability of Owner. No Owner may exempt himself or herself from personal
liability for Assessments, nor any part thereof, levied by the Association, nor release the Condominiums
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owned by him or her from the liens and charges hereof by waiver of the use and enjoyment of the
Association Property and facilities thereof, or by abandonment of such Owner’s Condominiums.
5.19 Transfer of Condominiums. After transfer or sale of a Condominium, the selling Owner
or Owners shall not be liable for any Assessment levied on such Condominium after the date of transfer of
ownership and written notice of such transfer is delivered to the Association. The selling Owner shall remain
responsible for all Assessments and charges levied on his or her Condominium prior to any such transfer.
5.20 Failure to Fix Assessments. The omission by the Board to fix the Assessments
hereunder before the expiration of any Fiscal Year for that or the next year shall not be deemed either a
waiver or modification in any respect of the provisions of this Declaration or a release of the Owner from
the obligation to pay the Assessments or any installment thereof for that or any subsequent Fiscal Year,
but the Assessment fixed for the preceding Fiscal Year shall continue until a new Assessment is fixed.
5.21 Property Exempt From Assessments. The Association Property shall be exempt from
the Assessments, charges and liens created herein.
5.22 Uncompleted Facilities. Although no land or Improvements devoted to dwelling use in
the Community shall be exempt from Assessment, the Board may, but shall have no obligation to, exclude
from the Regular Assessments those portions of budgeted Common Expenses that are for the purpose of
defraying expenses and reserves directly attributable to the existence of Improvements to be maintained
by the Association that are not complete at the time of the Assessment. Any such exemption from the
payment of Assessment shall be in effect only until the earlier to occur of the following: (a) a notice of
completion for the subject Association Property has been recorded; or (b) the Association Property has
been placed into use.
5.23 Association Property Improvements. If the Improvements to be installed by Declarant
or Guest Builder on the Association Property in a Phase have not been completed prior to the issuance by
the DRE of a Final Subdivision Public Report covering the Phase, and in the further event that the
Association is the obligee under a bond to secure performance by Declarant or Guest Builder to complete
such Improvements, then if such Improvements have not been completed and a notice of completion filed
within sixty (60) days after the completion date specified in the planned construction statement appended
to the bond, the Board shall consider and vote upon the question of whether or not to bring action to enforce
the obligations under the bond. If the Association has given an extension in writing for the completion of
any such Improvement, then the Board shall consider and vote on said question if such Improvements have
not been completed and a notice of completion filed within thirty (30) days after the expiration of the
extension period. In the event that the Board determines not to take action to enforce the obligations
secured by the bond or does not vote on the question as above provided, then, in either such event, upon
petition signed by Members representing five percent (5%) or more of the Voting Power of the Association,
excluding the Voting Power of Declarant and Guest Builder, the Board shall call a special meeting of the
Members of the Association to consider the question of overriding the decision of the Board or of requiring
the Board to take action on the question of enforcing the obligations secured by the bond. Said meeting of
Members shall be held not less than thirty-five (35) days nor more than forty-five (45) days following receipt
of the petition. At said meeting, a vote of a majority of the Voting Power of Members of the Association,
excluding the vote of Declarant and Guest Builder, to take action to enforce the obligations under the bond
shall be deemed to be the decision of the Association, and the Board shall thereafter implement the decision
by initiating and pursuing appropriate action in the name of the Association.
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ARTICLE 6
USE RESTRICTIONS
This Article sets forth restrictions on the use of the Property. The restrictions contained in this
Article will likely have the greatest impact on day to day living in the Community. Each Owner shall comply
and cause its Occupants and Invitees to comply with the restrictions set forth in this Article.
6.1 Residential Use. Residential Units shall be used for residential purposes only, provided,
however, that any Residential Unit may be used incidentally for the purpose of operating a home based
small business if, and only if: (a) the business is operated solely within the Residence; (b) the business is
limited to arts and crafts, the rendition of professional services, or other similar entities; (c) the business is
operated by the Owner whose principal residence is the Residential Unit, by a Lessee whose principal
residence is the Residential Unit or by a member of such Owner’s or Lessee’s family whose principal
residence is the Residential Unit; (d) there is no sales activity conducted within the Association Property,
no customers visiting the Residential Unit and no advertising anywhere in the Community; (e) the operation
is permitted by and is at all times in compliance with Applicable Laws; and (f) the operation of the business
does not result in: (i) the violation of any of the other provisions of this Declaration; (ii) any unreasonable
increase in the flow of traffic within the Community; (iii) any unreasonable odor, noise, or vibration outside
of the Residential Unit; (iv) any parking problems within the Community; or (v) any other adverse conditions
to the Occupants of the individual Condominiums. Notwithstanding the foregoing, nothing contained herein
shall be deemed to prohibit any home based business specifically required to be allowed by Applicable
Law.
6.2 Commercial Use. Except as otherwise provided in this Declaration, including without
limitation Section 6.1, no part of the Community shall be used or caused, allowed, or authorized to be used
in any way, directly or indirectly, for any business, commercial, manufacturing, mercantile, storing, vending,
or other such non-residential purpose.
6.3 Rental of Condominiums. An Owner shall be entitled to rent his or her entire
Condominium subject to the restrictions contained in the Governing Documents, any other restrictions of
record applicable to such Owner’s Residence and all Applicable Laws. Any rental or lease agreement shall
(a) be in writing, (b) provide that the lease is subject to the Governing Documents, and (c) provide that any
failure to comply with the Governing Documents shall be a default under the terms of the rental or lease
agreement. A copy of the rental or lease agreement shall, upon request, be provided to the Association.
Owners shall, at all times, be responsible for their Lessee’s compliance with the Governing Documents. A
Lessee shall have no obligation to the Association to pay Assessments nor shall any Lessee have any
voting rights in the Association. No Owner may lease such Owner’s Condominium for hotel, motel or
transient purposes and no Owner may lease only a portion of such Owner’s Condominium. For purposes
of this restriction, any lease which is either for a period of fewer than thirty (30) days or pursuant to which
the lessor provides any services normally associated with a hotel shall be deemed to be for transient or
hotel purposes and shall be prohibited.
6.4 Further Subdivision. Except as otherwise provided in this Declaration, no Owner may
further partition or subdivide the Owner’s Condominium, including any division of such Owner’s
Condominium into time-share estates or time-share uses. This provision does not limit the right of an Owner
to: (a) rent or lease the entire Condominium by means of a written lease or rental agreement subject to the
Governing Documents; (b) sell such Owner’s Condominium; or (c) transfer or sell any Condominium to
more than one (1) Person to be held by them as tenants-in-common, joint tenants, tenants by the entirety
or as community property.
6.5 Time Sharing. A Condominium may not be divided or conveyed on a time increment basis
(commonly referred to as “time sharing”) of measurable chronological periods. The term “time sharing” as
used herein shall include, but shall not be limited to, any agreement, plan, program or arrangement under
which the right to use, occupy or possess the Condominium, Condominiums or any portion thereof in the
Community rotates among various persons, either corporate partnership, individual or otherwise, on a
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periodically recurring basis for value exchanged, whether monetary or like-kind use privileges, according to
a fixed or floating interval or period of time. sixty (60) consecutive calendar days or less.
6.6 Animals. Only domestic animals that are kept as household pets and are not kept, bred
or raised for commercial purposes are permitted to be maintained within the Community. No Owner shall
keep more than a total of two (2) domestic dogs or two (2) domestic cats, or a combination thereof (but not
to exceed two (2) total) within such Owner’s Residential Unit, or the maximum capacity allowed by the City,
whichever is more stringent. Domestic reptiles, birds, rodents and fish shall be permitted so long as such
animals are kept in the interior of a Residential Unit. No animal shall be permitted to be maintained, at any
time, within any recreational areas within the Community. Notwithstanding the foregoing, the Association
Rules may further limit or restrict the keeping of pets and the Board shall specifically have the power to
prohibit the keeping or maintenance of any animal, which, in the opinion of the Board, after Notice and
Hearing, is deemed to constitute a nuisance to any other Owner or which constitutes a threat to personal
safety. Each Owner shall be absolutely liable to other Owners and their Invitees for any damage to persons
or property caused by any pet brought upon or kept upon the Community by such Owner or any Invitee of
such Owner. Each Owner shall clean up after animals that have deposited droppings or otherwise used
any portion of the Community or public street abutting or visible from the Property. Dogs must be kept
within an enclosure or on a leash held by a person capable of controlling the animal when outside the
Residential Unit. Nothing contained herein shall constitute a restriction on human assistance animals.
6.7 Antenna Restrictions. No Owner shall install any antenna, satellite dish, or other over-
the-air receiving device (“Antenna”): (a) on any real property which such Owner is not entitled to exclusively
use or control, as provided in Title 47 U.S.C. §§ 1, et seq., 47 CFR § 1.4000 and any other Applicable Laws,
rules and decisions promulgated thereunder (collectively “Antenna Laws”); (b) in a particular location if, in
the Board’s opinion, the installation, location or maintenance of such Antenna unreasonably affects the
safety of any Person, or for any other safety-related reason established by the Board; or (c) that is of a size
larger than is permitted under the Antenna Laws. If an Owner is entitled to install an Antenna under the
foregoing requirements, such Owner shall provide the Board with written notice that such Owner intended
to install the Antenna and provides evidence of compliance with the foregoing requirements. If an Owner
desires to install an Antenna, other than as described above, such Owner may do so only upon the prior
approval of the Board pursuant to Article 8. The Association shall not impose or enforce any restrictions
upon Antennae that are inconsistent with the Antenna Laws. Notwithstanding any provision hereof, this
Section shall be interpreted to comply with state and federal laws applicable to antennas in effect at the
time of enforcement of this Section. In that regard, this Section shall not be interpreted or enforced in a
manner which would: (i) unreasonably delay or prevent installation, maintenance or use of such Authorized
Antenna; (ii) unreasonably increase the cost of installation, maintenance or use; or (iii) preclude reception
of an acceptable quality signal.
6.8 Solar Requirements
6.8.1 Contractors. Work on a Solar Energy System ("Solar Work") shall be performed
by an actively licensed, bonded and adequately insured contractor who is trained and certified to perform
Solar Work on the type of roof-mounted Solar Energy System subject to the Solar Work ("Solar Contractor")
and shall at all times while performing any Solar Work maintain insurance as may be required by the
Association Rules. The Association shall have the right to impose additional requirements on a Solar
Contractor in order to assure that any Solar Work will be performed in a safe manner in compliance with all
Applicable Laws.
6.8.2 Liens. Owner shall not suffer or permit to be enforced against the Association
Property, Common Area or any Residential Unit not owned by Owner, any mechanics', materialmen's,
contractors' or subcontractors' liens, claims or demands arising from the activities of the Owner or his/her
agents on the Community.
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6.8.3 Fixture Filings. Any fixture filings made by the Owner's Solar Contractor shall be
recorded against Owner's Residential Unit and shall not encumber other Residential Units within the
Community or any Association Property or Common Area.
6.8.4 Owner Responsibility for Damage. Owner assumes full responsibility for any
damage resulting to persons or to the Association Property, the Residential Unit, other residences in a
Condominium Building, roof of the Condominium Building or property owned by the Association or other
persons caused by the Solar Work, including without limitation, damage to the structural integrity, water-
tight properties, durability, load capacity, roof maintenance expenses or useful life of the roof of the
Condominium Building. Owner is liable for any personal injury or damage occurring to the roof or other
Association Property arising from any Solar Work.
6.8.5 Indemnification. Owner consents and agrees to indemnify, protect, defend and
hold the Association and all other Owners of Residential Units located within the Community, and their
respective successors and assigns, and its officers, directors, successors and assigns, the management
company for the Association and the Declarant and Guest Builder entirely free and harmless from and
against any and all claims, costs, expenses, liabilities, actions and damages, including without limitation,
attorneys' fees and costs and costs of enforcing this indemnification (collectively, "Claims") arising from or
attributable to any acts or omissions of Owner, the Solar Contractor, or any of their respective heirs,
personal representatives, successors, assigns, officers, agents, employees, subcontractors, or material
suppliers arising out of or based upon Solar Work. This indemnity does not include any Claims to the extent
they arise out of the gross negligence or willful misconduct of the Association or any other Owner.
6.8.6 Association Roof Work. Owner agrees that performance of the Solar Work shall
not interfere with the Association's maintenance, repair or replacement of the roof on the Condominium
Building ("Roof Work"). If Association has to perform Roof Work, Owner shall cooperate with the
Association in the removal of such Solar Energy System in accordance with the Association Rules.
Temporary removal of a Solar Energy System that is subject to the Solar Easement Agreement and Grant
of Easement shall be governed by the provisions of the Solar Easement Agreement and Grant of Easement
provided, however, that the Association shall have the right to charge the individual Owner whose Solar
Energy System is removed for the costs and expenses associated with such removal and replacement.
6.8.7 Interruption of Service. Owner agrees that Association shall not be liable for any
interruption in service or for interference with the Solar Energy System when the Association maintains,
repairs or replaces roof or other portions of the Condominium Building.
6.9 Signs and Displays. No sign, advertising device or other display of any kind shall be
displayed in the Community, except for the following:
6.9.1 entry monuments and community identification signs, subject to compliance with
City signage criteria;
6.9.2 traffic or parking control signs maintained by the Association;
6.9.3 for each Condominium, one (1) nameplate or similar Owner name or address
identification which complies with the Design Guidelines;
6.9.4 for each Condominium, one (1) sign advertising the Condominium for sale or lease
that complies with the following requirements, subject to California Civil Code Sections 712 and 713:
(a) the sign is a reasonable size; and
(b) the sign is in compliance with the Design Guidelines or is otherwise
authorized pursuant to Article 8;
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6.9.5 noncommercial signs permitted by California Civil Code Section 4710; and
6.9.6 such other signs or displays authorized pursuant to Article 8.
In addition to the foregoing, all signs must comply with all Applicable Laws.
6.10 Parking and Vehicular Restrictions.
6.10.1 Authorized Vehicles. The following vehicles are “Authorized Vehicles”: standard
passenger vehicles, including automobiles, passenger vans designed to accommodate ten (10) or fewer
people, motorcycles and pickup trucks having a manufacturer’s rating or payload capacity of one (1) ton or
less and vehicles which are the principal source of transportation for an Owner. Authorized Vehicles may
be parked in any portion of the Community intended for parking of motorized vehicles subject to this Section;
provided, however, no Owner may park an Authorized Vehicle in a manner which the Association
determines either restricts the passage of pedestrians or vehicles over streets, driveway, or sidewalks in
the Community or extends beyond the limits of the space where the Authorized Vehicle is parked. The
Association has the power to identify additional vehicles as Authorized Vehicles in the Association Rules
to adapt this restriction to other types of vehicles.
6.10.2 Prohibited Vehicles. The following vehicles are “Prohibited Vehicles”:
(a) recreational vehicles (e.g., motorhomes, travel trailers, camper vans and boats); (b) commercial-type
vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step vans, concrete trucks and limousines);
(c) buses or vans designed to accommodate more than ten (10) people; (d) vehicles having more than two
(2) axles; (e) trailers; (f) inoperable vehicles or parts of vehicles; (g) aircraft; (h) boats; (i) any vehicles or
vehicular equipment deemed a nuisance by the Board, (j) any other vehicles not classified as an Authorized
Vehicle. Prohibited Vehicles may not be parked, stored or kept within the Property [except for brief periods
for loading, unloading, making deliveries or emergency repairs. If a vehicle qualifies as both an Authorized
Vehicle and a Prohibited Vehicle, then the vehicle is presumed to be a Prohibited Vehicle unless the vehicle
is expressly classified as an Authorized Vehicle in writing by the Association.
6.10.3 General Restrictions. Subject to the restriction on Prohibited Vehicles, all
vehicles owned or operated by or under the control of an Owner or an Occupant and kept in the Residential
Unit must be parked in such Owner’s garage. There shall be no parking in the Community that obstructs
free traffic flow, constitutes a nuisance, violates the Association Rules, or otherwise creates a safety hazard.
The Association Rules may further limit such guest parking. The parking areas shall be used for parking
Authorized Vehicles only and shall not be used for storage, living, recreational or business purposes. No
maintenance, repair, restoration, or construction of any vehicle shall be conducted on the Property, with the
exception of minor or emergency automobile repairs within the garage. There is no guarantee,
representation or assurance that vehicles will fit into the garages. Notwithstanding the forgoing, no storage
is allowed in any garage which interferes with the parking of functional, operating, registered street legal
vehicles.
6.10.4 Parking Regulations. The Association may establish additional regulations
regarding parking areas not assigned to Condominiums, including designating “parking,” “guest parking,”
and “no parking” areas. Any vehicle parked within a fire lane may be towed without prior notice. The Board
may take all actions necessary to enforce all parking and vehicle use regulations for the Property, including
removing violating vehicles from the Community pursuant to California Vehicle Code Section 22658 or other
Applicable Laws.
6.10.5 Garage Use. Garages shall be used for parking vehicles only and shall not be
converted for living, recreational activities, business or storage that would prevent the ability of an Owner
or Occupant to park the number of vehicles in the garage that the garage was designed for, unless approved
by the Board and the City. Doors to garages shall be kept closed except when actively in use. Each Owner
shall ensure that such garage accommodates at least the number of Authorized Vehicles for which it was
originally constructed by Declarant or Guest Builder, as applicable.
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6.11 Installations.
6.11.1 Generally. This Section does not apply to Improvements installed by Declarant or
Guest Builder.
6.11.2 Outside Installations. The following items are prohibited unless approved by the
Board: (a) outside installations, including balcony, patio or deck covers, wiring, air conditioning equipment,
water softeners, other machines and other Improvements; (b) Improvements to deck or balcony railings;
and (c) other exterior additions or alterations to any Condominium or Exclusive Use Easement Area.
6.11.3 Inside Installations. Nothing may be done in any Condominium or in, on or to
the Association Property which may impair the structural integrity of any building in the Community or which
structurally alters any such building except as otherwise expressly provided in this Declaration.
6.11.4 Outside Drying and Laundering. No exterior clothesline shall be erected or
maintained or hung on balconies or railings within the Community. There shall be no exterior drying or
laundering of clothes or any other items on any Exclusive Use Easement Area or Association Property
except that Exclusive Use Areas may be used for clotheslines or drying racks provided that such laundering
apparatuses are not visible at street level from outside of the appurtenant Residential Unit.
6.11.5 Storage and Other Restrictions for Exclusive Use Easement Areas. No
Owner shall use any Exclusive Use Easement Area for storage purposes. Unless installed by Declarant or
Guest Builder, all plants kept in the Exclusive Use Easement Areas shall be kept in pots or planters which
do not allow water to drain outside of such pot or planter, and no vegetation shall be permitted to extend
beyond the railings, walls and/or other boundaries of the Exclusive Use Easement Areas, except as
approved by the Board. The Board may require approval of any potted plants. No Owner shall change or
alter the surface of any Exclusive Use Easement Areas without the consent of the Board.
6.11.6 Basketball Standards. No basketball standards or fixed sports apparatus shall
be attached to any Condominium or placed anywhere within the Association Property.
6.11.7 Exterior Lighting. No additional exterior lighting may be installed by an Owner.
Any exterior electrical, gas or other artificial lighting installed on any Condominium Building shall be
positioned, screened, or otherwise directed or situated and of such controlled focus and intensity so as not
to unreasonably disturb the residents of any other Condominiums. Further rules regarding exterior lighting
may be promulgated by the Board. Some of the exterior lighting on Condominium Buildings provides light
to certain exterior portions of the Community and contains a photocell which will automatically control their
operation. Such exterior lighting shall not be manually turned off and the photocell shall not be altered in
any way by the Owners. As provided in Section 7.3 below, the Association shall maintain these fixtures
and light bulbs, but the electricity supplied to them shall be metered and paid for by individual Owners.
Holiday lighting shall be in conformance with the Design Guidelines.
6.11.8 Water Beds and Limitations on Size of Aquariums. No water beds shall be
permitted in any Condominium and as specified above, no Owner shall maintain in its Condominium any
aquarium or other container holding thirty (30) or more gallons of water. Each Owner acknowledges that
substantial damage to other Residential Units and/or Association Property may occur as a result of a
violation of this restriction.
6.11.9 Vibrations. No Owner shall install or use in its Residential Unit any fixtures or
equipment which will cause unreasonable vibrations, noise or annoyance to other Owners.
6.12 Community Entitlements. Each Owner and the Association shall comply with all
applicable requirements and restrictions set forth in the Community Entitlements.
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6.13 Trash Disposal, Pickup and Recycling. Trash, garbage or other waste shall be kept only
in sanitary containers. No Owner shall permit or cause any trash or refuse to be kept on any portion of the
Community other than in the receptacles customarily used for it, which shall be stored within garages except
on the scheduled day for trash pickup.
6.14 View Impairment. There is no representation that any view exists from any Residential
Unit. By accepting a deed to a Residential Unit, each Owner acknowledges that grading of, construction
on or installation of Improvements, including landscaping, on other Condominium Buildings and on
surrounding real property may impair whatever view may exist from the Owner’s Residential Unit, and each
Owner consents to such impairment and waives any claim for view impairment. Each Owner and the
Association, on behalf of the Members, hereby consent to such view impairment and/or loss of privacy. By
accepting a deed to a Residential Unit, each Owner acknowledges that: (a) there are no protected views,
no Condominium is assured of the existence, quality or unobstructed continuation of any particular view,
and Declarant and Guest Builder make no representation or warranty that there are now, or will be in the
future, any such views or that any view will impact the view or desirability of any Condominium; (b) any view
from the Condominium is not intended as part of the value of the Condominium and is not guaranteed; and
(c) any future development, construction, landscaping, growth of trees, or other installation of
Improvements by Declarant, Guest Builder or other Owners or of properties surrounding the Community
may impair the view from any Residential Unit and/or may allow other persons to have a line of sight into
Owner’s Residential Unit, which may affect the use and enjoyment of the Owner’s Condominium, including
Owner’s privacy. There are no express or implied easements appurtenant to any Residential Unit for view
purposes or for the passage of light and air over another Residential Unit or any other property whatsoever.
6.15 Offensive Conduct, Nuisances. No noxious or offensive activities, including, but not
limited to, repair of automobiles or other motorized vehicles, shall be conducted within the Community.
Nothing shall be done on or within the Community that may be or may become a nuisance to the residents.
6.16 Window Coverings. Temporary window coverings (“Temporary Window Coverings”) in a
design and color that does not conflict with the surrounding Improvements (but excluding aluminum foil,
newspapers, or any other contrasting material) shall be permitted for a maximum period of ninety (90) days
from the date that a Condominium is conveyed to a First Purchaser by Declarant or Guest Builder. Except
as specifically provided above, no Temporary Window Coverings shall be used to cover any door or window
of any Residential Unit. All window coverings (including Temporary Window Coverings) shall be of a neutral
color harmonious with and not conflict with the color scheme of the exterior wall surface of the Residential
Unit.
6.17 Fire Prevention and Fire Sprinkler Systems. No Owner shall remove, alter or impair or
tamper or interfere with the proper operation of any fire prevention or fire sprinkler equipment installed by
Declarant or a Guest Builder in the Owner’s Residential Unit.
6.18 Drainage and Erosion Control. There shall be no interference with the established
drainage pattern over the Property, unless an adequate alternative provision is made for proper drainage
with the prior written approval of the Board. For the purpose hereof, “established” drainage is defined as
the drainage that exists at the time of the first close of escrow for the sale of a Condominium, or that which
is shown on any plans approved by the Board. Each Owner shall regularly inspect and, if necessary, clean
out any drainage facilities located within such Owner’s Exclusive Use Easement Areas. If such Owner fails
to maintain such drainage and as a result, imminent danger to Person or property may result, then the
Association shall have the right of access onto the Residential Unit and/or Exclusive Use Easement Area
for the purpose of clearing debris and other material so as to not impede the flow of water. This right of
access shall be exercised only for the purpose of preventing damage to Persons and property and the
entering party shall use reasonable care so as to not cause any damage to the Condominium. The Owner
shall reimburse the Association for any costs and expenses incurred in clearing such debris pursuant to the
provisions of this Declaration.
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6.19 Rights of Disabled. Subject to the provisions of Article 8, the Design Guidelines, each
Owner may modify such Owner’s Residential Unit and the route over the Association Property leading to
the front door of its Condominium, at such Owner’s sole expense, to facilitate access to its Condominium
by persons who are blind, visually impaired, deaf or physically disabled, or to alter conditions which could
be hazardous to such Persons in accordance with Applicable Laws.
6.20 Solar Energy System. Except for those Solar Energy Systems originally installed by
Declarant or a Guest Builder, no Solar Energy System may be installed on a Residential Unit unless and
until (i) the Owner provides the Association and each of the Owner's neighbors who may be affected by the
installation of the Solar Energy System with the notice set forth in California Public Resources Code Section
25982.1, and (ii) the Solar Energy System has been approved in accordance with the provisions of Article
8 of this Declaration. A Solar Energy System that is proposed to be installed on a Residential Unit must
meet all applicable requirements of California Civil Code Section 714(c) and California Public Resources
Code Section 25981(d).
6.21 Compliance With Requirements Regarding Storm Water Pollution. Each Owner
acknowledges that water that enters a storm drain flows directly to waterways, creeks, streams, rivers,
lakes and/or oceans. Accordingly, the National Pollutant Discharge Elimination System, the Federal Clean
Water Act, and the policies and ordinances of the City prohibit discharging anything other than natural rain
water into storm drainage systems, including gutters and streets which drain into storm drains. Toxic
chemicals or hydrocarbon compounds such as gasoline, motor oil, antifreeze, solvents, paints, paint
thinners, wood preservatives, fertilizers, lawn clippings, yard waste, detergents, pet waste, paints and other
such materials and pollutants shall not be discharged into any street, public or private, gutters, or into storm
drains or storm water conveyance systems. The disposal of such pollutants and materials into a storm
drain system may result in significant penalties and fines and such Owner may be responsible for any
activities by Owner’s contractors (e.g., painters, landscapers, etc.) who dispose of such pollutants from an
Owner’s Residential Unit or Exclusive Use Easement Area into a storm drain system. Use and disposal of
pesticides, fungicides, herbicides, insecticides, fertilizers, and other such chemicals shall meet all
requirements of any Governmental Agencies. All Owners and the Association are required to comply with
such restrictions. Owners are encouraged to consult with the Governmental Agencies concerning the
proper disposal of any Hazardous Materials.
6.21.1 Storm Water Pollution Prevention Best Management Practices. To comply
with the requirements of the Governmental Agencies in connection with the storm water pollution prevention
Best Management Practices, each Owner and the Association agree that they will, at all times, maintain all
Improvements located within a Residential Unit, or in the case of the Association, within the Association
Property, in a clean, safe and attractive condition, free and clear of any and all debris and in accordance
with any agreements that are recorded or may be recorded against the Community. All trash receptacles
within Owner’s Residential Unit shall be closed at all times except when disposing of trash. The Association
and the Owners shall comply with all applicable Best Management Practices and perform all maintenance
that may be imposed by any water quality management plan that may affect the Property. The costs of the
Association’s portion of such maintenance, if any, shall be treated as a Common Expense. “Best
Management Practices” means all best management practices imposed from time to time by Applicable
Laws or Governmental Agencies, including without limitation, pollution control practices or devices, erosion
control to prevent silt runoff during construction, general housekeeping practices, pollution prevention and
educational practices, maintenance procedures, and other management practices or devices to prevent or
reduce the discharge of pollutants to stormwater, receiving water or stormwater conveyance system to the
maximum extent practicable.
6.21.2 Liability to Declarant. So long as Declarant or Guest Builder owns any
Condominium, if an Owner or the Association is not in compliance with the provisions of this Section and,
as a result, Declarant or Guest Builder may incur any liability, Declarant and Guest Builder shall have the
right but not the obligation to enter upon the Residential Unit to correct such violation. Any Owner who
violates the requirements of this Section, and the Association to the extent the Association violates the
requirements of this Section, shall indemnify, protect, defend and hold Declarant, Guest Builder and
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Declarant’s and Guest Builder’s officers, directors, successors and assigns entirely free and harmless from
and against any liabilities, penalties, costs, expenses and actions, including, without limitation, attorneys’
fees and costs arising from or attributed to a violation of the provisions of this Section and shall within fifteen
(15) days after request from Declarant or Guest Builder, reimburse Declarant or Guest Builder, as
applicable, for any costs and expenses incurred by Declarant or Guest Builder, as applicable, in correcting
any violation by any Owner or the Association of this Section.
6.22 Post Tension Slab. The concrete slabs for the Condominium Buildings in the Community
are reinforced with a grid of steel cables which were installed in the concrete and then tightened to create
very high tension. This type of slab is commonly known as a “Post Tension Slab.” Cutting into a Post
Tension Slab for any reason (e.g., to install a floor safe, to remodel plumbing, etc.) is very hazardous and
may result in serious damage to the Condominium and/or personal injury. By accepting a grant deed to a
Condominium in the Community, each Owner specifically covenants and agrees that: (a) such Owner shall
not cut into or otherwise tamper with the Post Tension Slab; (b) such Owner shall not knowingly permit or
allow any person to cut into or tamper with the Post Tension Slab so long as such Owner owns any interest
in the Condominium; (c) such Owner shall disclose the existence of the Post Tension Slab to any tenant,
lessee or subsequent purchaser of the Condominium; and (d) such Owner shall indemnify, protect, defend
and hold Declarant, Guest Builder and their officers, employees, contractors and agents, free and harmless
from and against any and all claims, damages, losses, or other liability (including, without limitation,
attorneys’ fees) arising from any breach of this Section.
6.23 Compliance with Laws, Etc. Nothing shall be done or kept in any Residential Unit or in
the Association Property that might increase the rate of, or cause the cancellation of, insurance for the
Community, or any portion of the Community. No Owner or the Association shall permit anything to be
done or kept in the Owner’s Residential Unit or any Exclusive Use Easement Area appurtenant thereto or
in the Association Property that violates Applicable Laws, including any Applicable Laws pertaining to the
use or storage of any hazardous, contaminated or toxic materials.
6.24 Notice of Airport in Vicinity. The Property is presently located in the vicinity of an airport,
within what is known as an airport influence area. For that reason, the Property may be subject to some of
the annoyances or inconveniences associated with proximity to airport operations (for example: noise,
vibration, or odors). Individual sensitivities to those annoyances can vary from person to person. Each
Owner should consider what airport annoyances, if any, are associated with the Property before such
Owner completes his or her purchase and determine whether such annoyance is acceptable to such Owner.
6.25 Exemption of Declarant and Guest Builder. The restrictions set forth in this Article shall
not apply to Declarant or Guest Builder so long as Declarant or Guest Builder owns any portion of the
Property, or so long as Declarant or Guest Builder is exercising any of its rights under Article 9 or any other
rights or powers or easements reserved to Declarant or Guest Builder under this Declaration.
ARTICLE 7
MAINTENANCE RESPONSIBILITIES
This Article sets forth the maintenance responsibilities of the Association and the standards for that
maintenance to ensure the overall quality and aesthetic appearance of the Community. This Article also
sets forth the maintenance obligations of the Owners. It is important that the Association and each Owner
understand the maintenance responsibilities set forth in this Article. Maintaining the Community will help
to preserve and protect the value and aesthetic appearance of the Community. Additional maintenance
obligations will be identified in a Supplementary Declaration.
7.1 Maintenance. Unless the context otherwise requires, as used in this Article,
“maintenance,” “maintain” or “maintaining” means the operation, inspection, maintenance, repair,
restoration and replacement of the areas and facilities designated for maintenance by the Association or
Owner. To the extent repair, restoration and replacement is required as a result of damage or destruction
under Article 11, then the repair and replacement shall be governed by the provisions of Article 11.
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7.1.1 Maintenance Exhibit. The Maintenance Responsibility Chart attached hereto
identifies certain maintenance responsibilities of the Association and the Owners. In the event of a conflict
between the maintenance responsibilities set forth in this Article and the Maintenance Responsibility Chart,
the provisions of this Article shall control.
7.2 Maintenance Obligations of Owners.
7.2.1 Maintenance by Owners. Each Owner of a Condominium shall be responsible
for the maintenance of the Improvements described on the Maintenance Responsibility Chart attached
hereto. In addition, each Owner whose Residential Unit is benefitted by a Solar Energy System shall
perform the maintenance described in this Section 7.2.1.
(a) Maintenance of Solar Energy System. The provisions of this Section
7.2.1 shall only apply to Solar Energy Systems that are not subject to the requirements of the Solar
Easement Agreement and Grant of Easement. Solar Energy Systems subject to the Solar Easement
Agreement and Grant of Easement shall be maintained pursuant to the requirements set forth in the Solar
Easement Agreement and Grant of Easement; provided, however, that to the extent the Solar Energy
System subject to the Solar Easement Agreement and Grant of Easement is not being maintained, the
Owner shall be obligated enforce the maintenance obligations pursuant to the terms of the Solar Easement
Agreement and Grant of Easement. Owners shall be responsible for any Solar Maintenance Work
performed within such Owner's Limited Solar Use Area. Only Solar Contractors that have been approved
by the Association shall be permitted access to the roof for the purposes of performing Solar Maintenance
Work. Owner is responsible to keep the Solar Energy System in good working order and condition. Owner
shall cause an approved service provider to inspect the Owner's Solar Energy System as reasonably
necessary to ensure Owner's Solar Energy System is functioning properly and is not causing damage to
any portion of the roof on the Affected Building. The Association shall have the right, but not the obligation,
to oversee any Solar Maintenance Work to be completed on behalf of Owner to ensure that the roof of the
Affected Building is not damaged. Owner takes full responsibility for and releases the Association from any
liability for damage to persons or personal property within Owner's Property and the other Residential Units
(as defined in the Declaration) in the Affected Building resulting from any Solar Maintenance Work including,
without limitation, water intrusion through, around or under the Solar Energy System.
(b) Failure to Maintain Solar Energy System. If the Board determines that
Owner has failed or neglected to adequately maintain or repair the Solar Energy System, upon seven (7)
days prior written notice by Association to Owner, Association shall have the right to maintain or repair the
Solar Energy System due to Owner's failure to maintain the Solar Energy System and to charge Owner for
all expenses incurred, which may be added to Owner's account as a Compliance Assessment as provided
in the Declaration. If the Association determines that a dangerous condition exists or there is a threat to
the safety of community residents caused by the Solar Energy System, Association may remedy the
condition without prior written notice to Owner.
(c) Removal of Solar Energy System. To the extent the Association requires
removal of the Solar Energy System in order to perform roof maintenance, the Owner benefitted by the
Solar Energy System shall be responsible for paying all costs of removing the panels and reinstalling the
panels upon completion of the work by the Association. The Association may, in the Association’s
discretion, elect to require the Owner remove the Solar Energy System or the Association may remove
such Solar Energy System and assess the Owner for such costs.
7.2.2 Quality of Maintenance. All maintenance required to be performed by an Owner
pursuant to this Declaration shall be performed in such a manner as shall be deemed necessary in the
judgment of the Association to preserve the attractive appearance thereof, and to protect the value thereof
in compliance with all requirements of the Owner Maintenance Manual, the Maintenance Obligations and
the Maintenance Responsibility Chart. Any such maintenance of any of the foregoing which is visible from
outside of a Residential Unit shall be consistent with the existing design, aesthetics and architecture of the
Community.
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7.2.3 Compliance with Maintenance Obligations. By accepting a deed to a
Residential Unit, each Owner acknowledges and agrees that each Owner is required to comply with all of
the Maintenance Obligations and schedules set forth in the Owner Maintenance Manual, and each Owner
is further obligated to provide a copy of all documents describing Maintenance Obligations to any successor
purchaser of such Owner’s Condominium.
7.2.4 Liability for Damage. Notwithstanding any other provision of this Article to the
contrary an Owner who by his or her negligent or willful act causes damage to the Association Property
shall bear the whole cost of repairing such damage.
7.2.5 Non Compliance With Maintenance Obligations by an Owner. If an Owner
(“Non-Maintaining Owner”) fails to perform its Maintenance Obligations as required under this Declaration,
the Association, in addition to any other rights under this Declaration, shall have the right to cure such
failure and the provisions set forth below shall apply.
(a) Maintenance Deficiencies. Upon a finding by the Association of a
deficiency by a Non-Maintaining Owner in its Maintenance Obligations, the Association may provide to the
Non-Maintaining Owner a written notice (the “Notice of Deficiency”), which shall briefly specify the
conditions which the Association finds to be deficient, and request that such deficiency be cured within a
specified reasonable period of time. If the Association determines that such deficiency continues to exist
at the end of the period of time specified in the Notice of Deficiency, the Association may, at its option,
either: (a) enter on and accomplish the maintenance of such portion of the Property that continues to be
deficient; (b) contract with another party to accomplish such maintenance; or (c) seek any other remedy
available at law or in equity including, without limitation, specific performance or an injunction to enforce
the Non-Maintaining Owner’s Maintenance Obligations provided herein. Any of the foregoing remedies
may be employed at the option of the Association, and the failure to employ any of such remedies upon
any occurrence giving rise to such remedies shall not be a waiver of the right to employ such remedies in
connection with any other occurrence.
(b) Emergency Maintenance. If the Association determines that such
deficiency constitutes an Emergency which requires action prior to the expiration of any cure period, the
Association may take the actions provided for in this Section without a Notice of Deficiency being given in
advance of taking such action, provided that as soon as reasonably practicable after taking the Emergency
action the Association gives a Notice of Deficiency (without providing a cure period) to the Non-Maintaining
Owner.
(c) Reimbursement of Association. If the Association elects to perform a
Non-Maintaining Owner’s Maintenance Obligations, whether by use of its own employees and equipment
or by contract with a third party, the entire cost of accomplishing such maintenance shall be an obligation
of the applicable Non-Maintaining Owner and shall be reimbursed by the Non-Maintaining Owner to the
Association with interest at the Applicable Rate within fifteen (15) days after receipt of a statement therefor.
If such amounts are not reimbursed when due, the Association may levy a Compliance Assessment.
7.3 Maintenance Obligations of the Association. The Association shall maintain all areas
designated for maintenance by the Association on the Maintenance Responsibility Chart. The requirements
set forth in this Section are in addition to, and supplement the Association’s obligations set forth on the
Maintenance Responsibility Chart. The Association shall maintain the Association Property (including
without limitation all portions of the Condominium Buildings except for the Residential Units contained
therein), in a good condition of repair in accordance with the Maintenance Obligations and the Association
Maintenance Manual, including all Improvements, landscaping, irrigation, monument signs and any private
storm drains located on the Association Property.
7.3.1 City Agreements. The Association shall perform all maintenance obligations set
forth in the City Agreements.
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7.3.2 Private Streets. The Association shall maintain all Private Streets, including,
without limitation, any parkway and sidewalk Improvements located within the Private Streets, and the street
lights within or adjoining the Private Streets as part of the Private Streets.
7.3.3 Cluster Mailboxes. The Association shall maintain the cluster mailboxes, except
that the Owners shall maintain the locks as provided above.
7.3.4 Utility Facilities. The Association shall maintain the Utility Facilities which service
more than one Residential Unit. The Association shall have the right, but not the obligation, to undertake
the maintenance of any Utility Facility which exclusively services a Residential Unit when located within
Association Property and to levy a Compliance Assessment against the Owner for the costs of such
maintenance.
7.3.5 Storm Water and Drainage Facilities. The Association shall maintain all Storm
Drain and Water Quality Improvements within the Association Property and any other storm water and
drainage facility as may be designated in a Supplementary Declaration. Such maintenance shall be
performed in accordance with all Governmental Requirements.
7.3.6 Photocell Lighting. The Association shall maintain the photocell controlled
fixtures installed by Declarant or Guest Builder that are located on the Condominium Buildings in working
condition and will replace as needed.
7.3.7 Additional Items. The Association shall also be responsible for maintaining any
Improvements designated in a Supplementary Declaration and/or that a majority of the Board or a majority
of the Voting Power designates for maintenance by the Association.
7.3.8 Association’s Compliance with Maintenance Obligations. The Association
shall comply with the Maintenance Obligations for the Association Property in accordance with the
requirements of the Association Maintenance Manual and this Declaration. The Association’s Maintenance
Obligations in any Phase shall commence on the date Regular Assessments commence in such Phase.
Until commencement of Regular Assessments in any Phase, the Association Property in such Phase shall
be maintained by Declarant (as to the Property owned by Declarant) or Guest Builder (as to the Property
owned by Guest Builder). Notwithstanding the foregoing, the contractors or subcontractors of Declarant
may be contractually obligated to maintain the landscaping or other Improvements on the Association
Property pursuant to warranties or other existing contractual obligations to Declarant. The Association shall
not interfere with the performance of such warranty or other contractual maintenance obligations.
Maintenance performed by such contractors or subcontractors of Declarant shall not serve to postpone the
commencement of Regular Assessments pursuant to this Declaration, nor entitle an Owner to claim any
offset or reduction in the amount of such Regular Assessments.
7.4 Duty to Protect Against Mechanics’ Liens. In performing their Maintenance Obligations,
and in connection with any other Improvements, the Association and any Owner (for the purposes of this
Section, the “Contracting Party,” as applicable) shall each promptly pay all costs, expenses, liabilities and
liens arising out of or in any way connected with contracts for any service, labor or materials provided or
supplied to the Property or the construction of any Improvements authorized or undertaken by the
Contracting Party. A Contracting Party shall not cause or permit any mechanic’s lien to be filed against the
Community for labor or materials alleged to have been furnished or delivered to the Community by the
Contracting Party. If any Contracting Party causes a lien to be filed, such Contracting Party shall: (a)
immediately either cause the lien to be discharged within ten (10) days after notice to such responsible
party by the Contracting Party, or post a bond which protects the title of the affected Contracting Party to
their Property; and (b) indemnify, protect, defend and hold harmless the other Owners and/or the
Association, as applicable, from any loss, damage, liability, expense or claims whatsoever by reason of any
expenses incurred in connection therewith, including, without limitation, reasonable attorneys’ fees and
costs of defending against the foregoing claims by the Association, another Owner and any costs of
enforcing this indemnity prior to the defense thereof by the Contracting Party.
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7.5 Liability to Declarant and Guest Builder. So long as Declarant or Guest Builder has any
obligation or liability under any permits issued by a Governmental Agency, if an Owner or the Association
is not in compliance with the provisions of this Article and as a result, Declarant or Guest Builder may incur
any liability, Declarant and Guest Builder (with the permission of Declarant) shall have the right but not the
obligation to enter upon the applicable portion of the Community to correct such violation. If the Association
or an Owner violates the requirements of this Article, the Association or Owner shall indemnify, protect,
defend and hold Declarant, Guest Builder and their officers, directors, successors and assigns entirely free
and harmless from and against any liabilities, penalties, costs, expenses and actions, including, without
limitation, attorneys’ fees and costs arising from or attributed to a violation of the provisions of this Article
and shall, within fifteen (15) days after request from Declarant or Guest Builder, reimburse Declarant or
Guest Builder, as applicable, for any costs and expenses it incurred as a result of a violation of this Article
by the Association or Owner.
7.6 Inspection of the Community.
7.6.1 Inspection of the Property. The Board shall periodically cause an inspection of
the Association Property to be conducted to report any violations of the Declaration. The Board shall also
cause inspections of the Association Property and all Improvements thereon to determine the condition of
said Improvements (“Condition Inspections”), which shall be conducted in conformance with the applicable
Maintenance Obligations and the Association Maintenance Manual. In the absence of inspection frequency
recommendations in the Association Maintenance Manual, the Board shall conduct Condition Inspections
no less frequently than once every three (3) years, and more frequently as directed in the Association
Maintenance Manual and in conjunction with the inspection required for the reserve study to be conducted
pursuant to the Bylaws. Condition Inspections shall, at a minimum: (a) determine whether the Association
Property are being maintained adequately in accordance with the standards of maintenance established in
Section 7.3; (b) identify the condition of the Association Property and any Improvements thereon, including
the existence of any hazards or defects, and the need for performing additional maintenance,
refurbishment, replacement, or repair; and (c) recommend preventive actions which may be taken to reduce
potential maintenance costs to be incurred in the future. The Board shall, during its meetings, regularly
determine whether the required inspections and maintenance activities set forth in the Association
Maintenance Manual have been followed and, if not followed, what corrective steps need to be taken to
assure proper inspections and maintenance of the Association Property. The Board shall keep a record of
such determinations in the Board’s minutes. The Board shall keep Declarant and Guest Builder fully
informed of the Board’s activities under this Section. The Board shall employ, consistent with reasonable
cost management, such experts, contractors and consultants as are necessary to perform the inspections
and make the reports required by this Section.
7.6.2 Report. The Board shall prepare a report of the results of the Condition
Inspections required by this Section. The report of a Condition Inspection must include at least the
following:
(a) a description of the condition of the Association Property, including a list
of items inspected, and the status of maintenance, repair and need for replacement of all such items;
(b) a description of all maintenance, repair and replacement planned for
the ensuing Fiscal Year and included in the Budget;
(c) if any maintenance, repair or replacement is to be deferred, the reason for
such deferral;
(d) inspections required to be performed by and in accordance with Applicable
Law including without limitation California Civil Code Section 5551;
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(e) a summary of all reports of inspections performed by any expert,
contractor or consultant employed by the Association to perform inspections since the Board’s last
Condition Inspection report;
(f) a report of the status of compliance with the maintenance, replacement
and repair needs identified in the Condition Inspection report for preceding years and identified Association
Maintenance Manual; and
(g) such other matters as the Board considers appropriate.
7.6.3 Timing. For a period of ten (10) years after the date of the last close of escrow of
a Residential Unit in the Community, the Board shall also furnish to Declarant and Guest Builder: (a) the
report of each Condition Inspection performed for the Board, whenever such Condition Inspection is
performed and for whatever portion of the Association Property that is inspected, within thirty (30) days
after the completion of such Condition Inspection; and (b) the most recent Condition Inspection report
prepared for any portion of the Association Property, within ten (10) days after the Association’s receipt of
a written request therefor from Declarant or Guest Builder.
7.6.4 Maintenance Manual Compliance. The Association has the duty and obligation,
along with the attendant rights and power, to carry out Declarant’s, Guest Builder’s and their consultant(s)’
maintenance of the Association Property in perpetuity as set forth in the Maintenance Manual and in
accordance with the requirements or recommendations of Declarant and its consultant(s). The Board shall
regularly determine whether the recommended inspections and maintenance activities have been followed,
and, if any such recommendations have not been followed, what corrective steps need to be taken to assure
proper inspections and maintenance of the Association Property. The Board shall keep a record of such
determinations in the Board’s minutes.
7.6.5 Declarant’s and Guest Builder’s Inspection Rights. For a period of ten (10)
years after the date of the last close of escrow of a Residential Unit in the Community, Declarant and Guest
Builder shall have the right, but not the obligation, to inspect the Association Property on an periodic basis,
at least once each year, to determine whether any repair to or routine maintenance of the Association
Property is needed. Such inspection by Declarant and/or Guest Builder shall be in addition to, not in place
of, the inspections required of the Association in this Declaration. Nothing herein shall create an obligation
on Declarant and/or Guest Builder to inspect the Association Property, to repair or maintain any portion
thereof or any Improvements there within, or to cure any failure of the Association to perform its
Maintenance Obligations.
7.7 Future Construction. Nothing in this Declaration shall limit the right of Declarant or Guest
Builder to complete construction of Improvements to the Association Property and to Condominiums owned
by Declarant or Guest Builder or to alter them or to construct additional Improvements as Declarant or
Guest Builder deems advisable before completion and sale of the entire Community.
ARTICLE 8
DESIGN REVIEW
To help maintain the architectural integrity and to project and preserve the value of the Community,
the Association is charged with the responsibility of architectural review over the Community. The
architectural review and approval process is intended to help to protect the interests of the Owners in the
Community. Design review may be performed by either the Board, the Design Review Committee or an
outside consultant. The architectural review process will be governed by both the provisions of this
Declaration and the requirements set forth in Design Guidelines.
8.1 Non-Applicability to Declarant and Guest Builder. The provisions of this Article shall
not apply to any Improvements installed by Declarant or Guest Builder and neither the Board nor the Design
Review Committee shall have any rights of review or approval with respect thereto.
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8.2 Scope of Review. No Improvements of any kind whatsoever shall be commenced,
erected, placed or altered upon or around any Residential Unit or any Exclusive Use Easement Area until
the Owner has submitted complete plans and specifications showing the nature, kind, shape, height and
materials, including the color and any other requirements set forth in the Design Guidelines (“Plans and
Specifications”), and such Plans and Specifications have been approved in writing as to harmony of external
design and location to surrounding structures and topography by the Board. In addition, the grade, level or
drainage characteristics of the Residential Unit or any portion thereof shall not be altered without the prior
written consent of the Board. An Owner shall also be obligated to obtain any approvals required by the City
or other Governmental Agencies.
8.3 Design Guidelines. The Board may, from time to time and in accordance with California
Civil Code Section 4355, et seq., adopt, amend and repeal, rules and regulations to be known as “Design
Guidelines.” The Design Guidelines shall interpret and implement the provisions hereof by setting forth the
standards and procedures for Board review and guidelines for architectural design of Improvements,
placement of Improvements, color schemes, exterior finishes and materials and similar features which are
recommended for use in the Community; provided, however, that the Design Guidelines shall not be less
restrictive that the standards required by this Declaration. The Design Guidelines shall be in compliance
with all Applicable Laws including, without limitation, California Civil Code Sections 4720 and 4735.
8.4 Approval of Solar Energy System. The installation by an Owner other than Declarant or
Guest Builder of a Solar Energy System or upgrade to a Solar Energy System shall require the prior
approval of the Design Review Committee. Reasonable restrictions on the installation of a Solar Energy
System may be applied, so long as the restrictions do not significantly increase the cost of the system or
significantly decrease its efficiency or specified performance. A Solar Energy System shall be appropriately
certified and shall comply with the requirements for such systems as set forth in the Solar Rights Act. The
criteria for approval of the installation of a Solar Energy System may implement relevant provisions of the
Solar Rights Act and the Solar Shade Control Act and the provisions of this Section 8.4, but shall not
otherwise be any more restrictive or subject to more scrutiny than those for any other Improvement. Any
restrictions, Design Guidelines or Association Rules applied to Solar Energy Systems must comply with the
Solar Rights Act and the Solar Shade Control Act. The application for approval shall be processed and
approved by the Design Review Committee in the same manner as an application for approval of any other
Improvement, and shall not be willfully avoided or delayed.
8.5 Approval of Plans and Specifications. Prior to the installation of any Improvements, or
taking other action that requires the prior approval of the Board, the Owner (“Applicant”) shall submit a
complete set of Plans and Specifications and any review fee required pursuant to the Design Guidelines
and any other materials required by the Association in accordance with the Design Guidelines. Applicant
shall include evidence satisfactory to the Board that the proposed Improvements (1) are acceptable under
the terms of this Declaration and the Design Guidelines, and (2) comply with all Applicable Laws and, as
applicable building code requirements (“Application”).
8.5.1 Time Periods for Review. Within forty-five (45) days after an Owner’s proper
application for approval, the Board shall consider and act upon such request. In the event the Board fails
to approve or disapprove of the Application within forty-five (45) days after all documents and information
requested by the Board have been received by it, the Owner requesting said approval may submit a written
notice to the Board advising the same of its failure to act. If the Board fails to approve or disapprove any
such Application within fifteen (15) days after the receipt of said notice from such Owner, then said
Application shall be deemed approved, provided that any Improvements conform to all conditions and
restrictions contained in this Article and are aesthetically harmonious with similar structures erected within
the Community.
8.5.2 Reconsideration. If a Design Review Committee is appointed and the Design
Review Committee disapproves any Plans and Specifications submitted by an Owner pursuant to this
Article, the Applicant may submit a written request for reconsideration to the Board. The Board must receive
the written request not more than thirty (30) days following the final decision of the Design Review
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Committee. Within thirty (30) days following receipt of the written request for reconsideration, the Board
shall render its written decision in accordance with California Civil Code Section 4765. The decision of the
Board shall be binding and final.
8.5.3 Effectiveness of Final Approval. The approval granted as provided above shall
be effective for a period of twelve (12) months from the date of issuance. In the event construction does
not commence within such twelve (12) month period, the approval shall be deemed to have expired and a
new approval pursuant to the provisions of this Article must be obtained.
8.6 Approval of Modifications to Accommodate Disabled Owners. Any Owner proposing
to install Improvements or make modifications to such Owner’s Residential Unit or the Association Property
leading to such Owner’s Residential Unit to facilitate access for persons who are blind, visually
handicapped, deaf or partially disabled, or to other conditions which could be hazardous to such persons
shall be subject to the same review and approval requirements as any Owner proposing to construct
Improvements or other actions requiring approval of the Board pursuant to this Declaration; provided,
however, that the Board shall not deny approval of the proposed modifications without good cause.
8.7 Compliance With California Civil Code Section 4765. In approving Plans and
Specifications submitted to it pursuant to this Article, the Board shall comply with the requirements of
California Civil Code Section 4765.
8.8 Inspection and Correction of Work. Inspection of work and correction of defects therein
shall proceed as set forth below.
8.8.1 Right of Inspection During Course of Construction. The Board or its duly
authorized representative may enter into any Residential Unit, from time to time, as provided below during
the course of construction or installation of any Improvements for the purpose of inspecting the construction
or installation. If the Board determines that such construction and/or installation is not being done in
substantial compliance with the approved Plans and Specifications, it shall notify the Owner of such
noncompliance. The Board may not enter into a Residential Unit without obtaining the prior permission of
the Owner or Occupant; provided, however, that such prior permission shall not be unreasonably withheld
and shall be given for entry by the Board during the daylight hours within forty-eight (48) hours of the request
for entry.
8.8.2 Notice of Completion. Upon completion of any construction or reconstruction or
the alteration or refinishing of any Improvements, or upon the completion of any other work for which
approved Plans and Specifications are required under this Article, the Owner shall give written notice of
completion thereof to the Board.
8.8.3 Inspection. Within thirty (30) days after receiving notice of completion, the Board,
or its duly authorized representative, shall have the right to enter into a Residential Unit as provided in
Section 8.8.1, to inspect the Improvements to determine whether they were constructed or installed in
substantial compliance with the approved Plans and Specifications. If the Board finds that such
construction or installation was not done in substantial compliance with the approved Plans and
Specifications, it shall notify the Owner in writing of such non-compliance within such thirty (30) day period,
specifying particulars of non-compliance, and shall require the Owner to remedy such non-compliance.
8.8.4 Non-Compliance. If an Owner fails to remedy such non-compliance within thirty
(30) days after the date of notification of non-compliance, the Board, after affording the Owner Notice and
Hearing, shall determine whether there is a non-compliance, and if so, the nature thereof and the estimated
cost of correcting or removing the same. If non-compliance exists, the Board shall require the Owner to
remedy or remove the same within a period of not more than thirty (30) days from the date of the Board
ruling. If the Owner does not comply with the Board ruling within such period or within any extension of
such period as the Board in its discretion may grant, the Board, at its option, may either remove the
non-complying Improvement or remedy the non-compliance, and the Owner shall reimburse the
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Association for all expenses incurred in connection therewith upon demand. If such expenses are not
promptly repaid by the Owner to the Association, the Board shall levy a Compliance Assessment against
such Owner for reimbursement.
8.8.5 Failure to Notify. If for any reason the Board fails to notify the Owner of any
non-compliance within sixty (60) days after receipt of the notice of completion from the Owner, the
Improvements shall be deemed to be in accordance with said approved Plans and Specifications.
8.8.6 Governmental Regulations. If in the event there is any conflict between the
requirements or actions of the Board and the Applicable Laws relating to the Property, to the extent that
such Applicable Laws are more restrictive, the Applicable Laws shall control, and the Board shall modify its
requirements or actions to conform to the Applicable Laws; provided, however, that if the Applicable Laws
are less restrictive, the provisions of this Declaration shall nonetheless apply. The application to and the
review and approval by the Board of any Plans and Specifications or other submittals by an Owner shall in
no way be deemed to be satisfaction or compliance with any building permit process or other Applicable
Laws or public utility requirements (hereinafter collectively referred to as “Additional Requirements”) the
responsibility for which shall lie solely with the Owner; provided, however, if the Additional Requirements
are less restrictive than the provisions of this Declaration, then the other Governing Documents shall
nonetheless apply.
8.9 Diligence in Construction. Upon approval by the Board or Design Review Committee of
any Plans and Specifications, the Owner shall promptly commence construction of the Improvements and
diligently pursue the same to completion.
8.10 Fee for Review and Inspection of Improvements. The Board shall have the right to
establish a fee for the review and approval of Plans and Specifications and inspection of Improvements
that must be submitted to the Board pursuant to the provisions of this Article. The Board shall have the
right to hire an engineer or other consultant, the opinion of which the Board deems necessary in connection
with its review of any plans submitted by any Owner, and such Owner shall be liable for payment of such
engineer’s and/or consultant’s fee.
8.11 Interpretation. All questions of interpretation or construction of any of the terms or
conditions herein shall be resolved by the Board, and its decision shall be final, binding and conclusive on
all of the parties affected.
8.12 Waiver. The approval by the Board of any Plans and Specifications for any work done or
proposed, or for any other matter requiring the approval of the Board under this Declaration, shall not be
deemed to constitute a waiver of any right to withhold approval of any similar Plans and Specifications or
matter subsequently submitted for approval.
8.13 Estoppel Certificate. Within thirty (30) days after written demand is delivered to the Board
by any Owner and upon payment to the Association of a reasonable fee (as fixed from time to time by the
Association), the Board shall deliver an estoppel certificate executed by any member of the Board (with
respect to any Residential Unit of said Owner) that as of the date thereof, either: (a) all Improvements
made and other work completed by said Owner comply with this Declaration, or (b) such Improvements or
work do not so comply, in which event the estoppel certificate shall also identify the non-complying
Improvements or work and set forth with particularity the basis of such non-compliance. Any purchaser
from the Owner or from anyone deriving any interest in said Residential Unit through the Owner shall be
entitled to rely on said estoppel certificate with respect to the matters therein set forth, such matters being
conclusive as between the Association, Declarant, Guest Builder and all Owners and such Persons deriving
any interest through them.
8.14 Liability. Neither the Board, any Design Review Committee, nor any member thereof shall
be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed on
account of: (a) the approval or disapproval of any Plans and Specifications, whether or not defective; (b)
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the construction or performance of any work, whether or not pursuant to approved Plans and Specifications;
(c) damage to the Community or any property within the Community; or (d) the execution and filing of an
estoppel certificate pursuant to Section 8.13, whether or not the facts therein are correct; provided,
however, that the Board member has acted in good faith on the basis of such information as may be
possessed by him or her. Without in any way limiting the generality of the foregoing, the Board, or any
member thereof, may, but is not required to, consult with or hear the views of any Owner with respect to
any Plans and Specifications or any other proposal submitted to the Board.
8.15 Variances. The Board may authorize variances from compliance with any of the
architectural provisions of this Declaration, including, without limitation, restrictions upon height, size, floor
area or placement of Improvements or other similar restrictions, when circumstances such as topography,
natural obstructions, aesthetic or environmental considerations may require. Such variances may be
evidenced in writing and must be signed by at least two (2) officers of the Board and shall become effective
upon execution. If such variances are granted, no violation of the covenants, conditions and restrictions
contained in this Declaration shall be deemed to have occurred with respect to the matter for which the
variance was granted. The granting of such a variance shall not operate to waive any of the terms and
provisions of this Declaration for any purpose except as to the particular Residential Unit and particular
provision hereof covered by the variance, nor shall it affect in any way the Owner’s obligation to comply
with all Applicable Laws affecting its use of the Residential Unit, including, without limitation, zoning
ordinances and lot setback lines or requirements imposed by the City or any other Governmental Agencies.
8.16 Appointment of Design Review Committee. The Board shall have the right to delegate
its review and approval rights under this Article to a Design Review Committee or an outside consultant. If
the Board so elects, the Design Review Committee shall consist of three (3) members. One (1) alternate
member may be designated by the Board to act as a substitute on the Design Review Committee. In the
event the Board appoints a Design Review Committee, all rights hereunder shall apply to the Design Review
Committee and all references to the Board shall be deemed to refer to the Design Review Committee.
Members appointed to the Design Review Committee by Declarant or Guest Builder need not be Members
of the Association. Exercise of the right of appointment and removal as set forth herein shall be evidenced
by the specification in the minutes of the Association of each new Design Review Committee member or
alternate member appointed and each member or alternate replaced or removed from the Design Review
Committee.
8.17 Compensation. The members of any Design Review Committee appointed by the Board
shall receive no compensation for services rendered other than reimbursement by the Association for
expenses incurred by them in the performance of their duties hereunder, unless the Association retains a
professional architect, engineer or designer as a member of the Design Review Committee for the purpose
of providing professional services, in which event reasonable compensation for such member shall be
approved by the Board.
ARTICLE 9
DEVELOPMENT RIGHTS
Given the size of the Community, development will extend over a long period of time. Declarant
and Guest Builder require certain rights to enable Declarant and Guest Builder to complete development,
marketing and construction for the benefit of all of the Community. This Article describes some of those
rights which are in addition to other rights reserved to Declarant and Guest Builder under this Declaration
and the other Governing Documents.
9.1 Limitations of Restrictions. Declarant and Guest Builder are undertaking the work of
developing Condominiums and other Improvements within the Community. The completion of the
development work and the marketing and sale, rental and other disposition of the Condominiums are
essential to the establishment and marketing of the Property as a first class condominium community. In
order that the work may be completed nothing in this Declaration shall be interpreted to deny Declarant the
rights set forth in this Article.
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9.1.1 Access. Declarant, Guest Builder and their agents, contractors and
subcontractors shall have the right to obtain reasonable access over and across the Association Property
to do within any Residential Unit owned by it whatever is reasonably necessary or advisable in connection
with the completion of the portion of the Community being developed by Declarant or Guest Builder, as
applicable, and the development, marketing and maintenance thereof, and Declarant and its contractors
and subcontractors shall have such rights of access over and across the Association Property for purposes
of satisfying any obligation of Declarant or Guest Builder has been secured by a bond in favor of any
Governmental Agency.
9.1.2 Construct Improvements. Declarant, Guest Builder their agents, contractors and
subcontractors, shall have the right to erect, construct and maintain on the Association Property or within
any Condominium owned by Declarant or Guest Builder, as applicable, such structures or Improvements,
including, without limitation, sales offices and signs, as may be reasonably necessary for the conduct of its
business to complete the work, establish the Community as a residential community and dispose of the
Community and to perform or complete any work to improvements required for Declarant to obtain a release
of any bonds posted by Declarant or Guest Builder in favor of any Governmental Agencies.
9.1.3 Grant Easements. Declarant and Guest Builder, with Declarant’s prior consent,
shall have the right to establish and/or grant such easements and rights of way on, over, under or across
all or any part of the Association Property to or for the benefit of any Governmental Agency or public
organization, or any public utility entity or cable television provider, for the purpose of constructing, erecting,
operating and maintaining Improvements thereon, therein or thereunder at that time or at any time in the
future. The Governmental Agencies furthermore are granted an easement across the Association Property
for ingress and egress for use by emergency vehicles of the Governmental Agencies.
9.2 Size and Appearance of Community. Declarant shall not be prevented from increasing
or decreasing the number of Condominiums that may be constructed within the portion of the Community
being developed by Declarant or from changing the exterior appearance of Association Property structures,
the landscaping or any other matter directly or indirectly connected with the Community in any manner
deemed desirable by Declarant, provided Declarant obtains governmental consents required by Applicable
Laws. The nature, design, quality and quantity of all Improvements to the Association Property being
constructed by Declarant shall be determined by Declarant, in its sole discretion. Guest Builder shall have
the rights set forth in this Section 9.2 as to the Guest Builder Property.
9.3 Marketing Rights. Declarant and Guest Builder shall have the right to:
9.3.1 maintain structures (including model homes), signs, billboards, sales offices,
storage areas and related facilities on any portion of the Property as are necessary or reasonable, in the
opinion of Declarant, for the sale, leasing or disposition of any Condominiums;
9.3.2 use such portions of the Condominiums as may be necessary or advisable to
complete the sale or leasing of the Condominiums;
9.3.3 maintain construction, leasing and/or sales offices within the Property;
9.3.4 place signs, flags, banners, balloons and other promotional advertising materials
on the Condominium Buildings and other portions of the Property during the marketing and leasing of
Condominiums or any grand opening;
9.3.5 provide ongoing maintenance, operation, service, construction, punch out, and
repairs to any portion of the Residential Units and other Improvements within any portion of the Property;
9.3.6 change the appearance of portions or all of the Property, or change the
development plan if Declarant or Guest Builder, as applicable, complies with Applicable Laws;
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9.3.7 enter within or upon the Property in exercising the inspection and cure rights
granted to Declarant or Guest Builder under any other warranty rights;
9.3.8 make reasonable use of the Association Property and facilities for the sale of any
Condominium; and
9.3.9 conduct their business of disposing of the Condominiums by sale, lease or
otherwise.
Any easement rights reserved by Declarant and Guest Builder for marketing shall continue until Declarant
and Guest Builder have conveyed all of the Residential Units within the Property to First Purchasers, and
any easement rights reserved by Declarant and Guest Builder for any construction, inspection or cure
purposes shall be for a term and duration co-extensive with Declarant’s and Guest Builder’s, interest in any
portion of the Property.
9.4 Title Rights. The rights of Declarant under this Declaration may be assigned to any
successor(s) by an express assignment in a recorded instrument, including without limitation, a deed, option
or lease. This Declaration shall not be construed to limit the right of Declarant at any time prior to such an
assignment to establish additional licenses, reservations and rights-of-way to itself, to utility companies, to
Governmental Agencies, or to others as may be reasonably necessary to the proper development and
disposal of property owned by Declarant. The rights of Guest Builder under this Declaration may be
assigned to any successor(s) by an express assignment in a recorded instrument, including without
limitation, a deed, option or lease. This Declaration shall not be construed to limit the right of Guest Builder
at any time prior to such an assignment to establish additional licenses, reservations and rights-of-way to
itself, to utility companies, to Governmental Agencies, or to others as may be reasonably necessary to the
proper development and disposal of property owned by Guest Builder.
9.5 Declarant Representative. Until Declarant and Guest Builder no longer own any
Condominium, the Association shall provide Declarant and Guest Builder with written notice of all meetings
of the Board and Declarant shall be entitled, without obligation, to have a representative present at all such
Board meetings (“Declarant’s Representative”), excluding any meetings while the Board is in executive
session. The Declarant’s Representative shall be in addition to any member which Declarant may have on
the Board and, if Declarant elects to have an additional representative, Declarant’s Representative may be
present in an advisory capacity only and shall not be a Board member or have any right to vote on matters
coming before the Board.
9.6 Declarant and Guest Builder Exemptions. None of the covenants, restrictions and
limitations set forth in Article 6, Article 8 or elsewhere in this Declaration shall be applied to the development,
construction, marketing or sales or leasing activities of Declarant or Guest Builder or construed in such a
manner as to prevent or limit development, construction, marketing, leasing or sales activities by Declarant
and/or Guest Builder. This Section shall not be amended or removed without Declarant’s and Guest
Builder’s prior written consent so long as Declarant or Guest Builder owns any portion of the Property.
Declarant, Guest Builder and any Person to whom Declarant or Guest Builder has assigned all or a portion
of its rights as Declarant under this Declaration is exempt from the restrictions established under Article 6
and Article 8.
9.7 Supplementary Declarations. So long as Declarant or Guest Builder own any portion of
the Property, Supplementary Declarations may be recorded by Declarant and Guest Builder with
Declarant’s consent, without the consent of any Owner, the Association or Mortgagee, for any of the
purposes for which a Supplementary Declaration may be recorded. In addition, Supplementary
Declarations may be recorded by the Association for any of the purposes for which Supplementary
Declarations may be recorded: (a) after Declarant and Guest Builder no longer own any portion of the
Property; or (b) so long as Declarant or Guest Builder own any portion of the Property with the consent of
Declarant. Supplementary Declarations may also be recorded to impose additional covenants and
restrictions on the Owners with the prior consent of the applicable Owners, upon whose portion of the
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Property the covenants and restrictions are being imposed unless such restrictions are imposed pursuant
to any of the other purposes for which a Supplementary Declaration may be recorded as set forth herein or
in the other Governing Documents.
ARTICLE 10
INSURANCE
10.1 Association’s Insurance Obligations.
10.1.1 Liability Insurance. The Association shall obtain and maintain liability insurance
providing coverage at least as broad as a current Insurance Services Office, Inc. (“ISO”) commercial
general liability insurance form or its equivalent (including coverage for medical payments and coverage for
owned and non-owned automobiles, if applicable), insuring the Association, Declarant (as long as Declarant
is the Owner of any Property and/or has any rights under Article 9), Guest Builder (as long as Guest Builder
is the Owner of any Property and/or has any rights under Article 9) and the Owners against liability arising
from the ownership, operation, maintenance and use of the Association Property by the Association and
the performance by the Association of its duties under this Declaration. Coverage for such matters shall
be primary to any coverage provided by any other liability insurance policy maintained by such insureds.
The limits of such insurance shall not be less than Five Million Dollars ($5,000,000) per occurrence and
Five Million Dollars ($5,000,000) general aggregate and shall at all times meet or exceed the minimum
requirements of California Civil Code Section 5805. Such insurance shall include coverage against water
damage liability, a broad form named insured endorsement, if reasonably available as determined by the
Board, and may include coverage against any other liability customarily covered with respect to properties
similar in construction, location and use, all as may be determined by the Board. Such policy shall include,
if reasonably available as determined by the Board, a cross-liability or severability of interest endorsement
insuring each insured against liability to each other insured.
10.1.2 Property Insurance. The Association shall obtain and maintain property
insurance for the risks covered by, and providing coverage at least as broad as, a current ISO “special
form” policy or its equivalent, insuring: (1) all Association Property including fixtures and building service
equipment; (2) all personal property owned or maintained by the Association, and (3) any items required to
be included under Subsection (b) below (collectively, the “Association Insured Property”). Such insurance
shall be maintained in the amount of the maximum insurable replacement value of the property as
determined annually by the Board. Such coverage may exclude land, foundations, excavations, and other
items typically excluded from property insurance coverage on properties similar in construction, location
and use.
(a) Course of Construction. Whenever any Improvements or alterations to
the Association Insured Property are in the course of construction, the insurance required under this
Section shall be carried by the Association in builder’s risk form written on a completed value basis, insuring
against loss to the extent of at least the full replacement value of the Association Insured Property
(excluding foundations and footings, except for earthquake coverage) of the Property being covered.
(b) Residential Units. The property insurance maintained by the Association
shall also cover any portions of the Residential Units not required to be insured by the Owners pursuant to
Section 10.2.1, including without limitation, the following items and components installed by Declarant or
Guest Builder within Residential Units at the time of original construction of the Residential Units (and any
equivalent replacements thereof): fixtures, interior walls and doors, ceiling, floor and wall surface materials
(e.g. paint, wallpaper, mirrors, carpets, and hardwood floors); cabinets, built-in appliances; heating and air
conditioning systems, and water heaters.
(c) Payment of Insurance Proceeds. Subject to the rights of Mortgagees,
the proceeds from such property insurance shall be payable to the Association or an insurance trustee
(“Trustee”) to be held in trust for the benefit of the Association and the Owners, Mortgagees and others, as
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their respective interests shall appear. The Trustee shall be a commercial bank or other financial institution
with trust powers in the County that agrees in writing to accept such trust.
(d) Primary. With respect to Association Insured Property, the property
insurance maintained by the Association shall be primary and noncontributing with any other property
insurance maintained by an Owner covering the same loss.
(e) Endorsements. The property insurance policy shall contain, to the extent
available on commercially reasonable terms as may be determined by the Board, the following
endorsements or their equivalents: agreed amount, boiler and machinery (to the extent applicable), inflation
guard, ordinance or law, replacement cost, and such other endorsements as may customarily be obtained
with respect to properties similar in construction, location and use, as may be determined by the Board.
(f) Adjustment of Losses. The Association shall timely file, pursue and
complete the adjustment of all claims arising under the property insurance policies carried by the
Association. The Board is appointed attorney-in-fact by each Owner (except for the Secretary, U.S.
Department of Veterans Affairs), to negotiate and agree on the value and extent of any property damage
under any policy carried by the Association. The Board is granted full right and authority to: (i) compromise
and settle any property damage claim under any policy of property insurance carried by the Association; or
(ii) enforce any such claim by legal action or otherwise; and (iii) execute releases in favor of any insurer
with respect to any such claim.
(g) Waiver of Claims and Subrogation. The Association waives all claims
against the Owners for any damage to the Association Insured Property (including without limitation, any
loss of use of such property), except that the Association may claim against an Owner for property damage
caused by that Owner to the extent that either: (i) the peril causing such damage is not covered by the
property insurance required by this Declaration to be maintained by the Association or the property
insurance actually maintained by the Association (whichever is greater), provided that such Owner’s liability
for such uninsured damage is limited to the amount of liability insurance required to be maintained by such
Owner pursuant to this Declaration; (ii) the peril causing such damage is covered by the Association’s
property insurance, but the damage is within the amount of the deductible or self-insured retention, provided
that such Owner’s liability for such damage is limited to the amount of liability insurance required to be
maintained by such Owner pursuant to this Declaration; or (iii) such damage is caused by the gross
negligence or willful misconduct of that Owner. Any property insurance policy obtained by the Association
must contain a waiver of subrogation rights by the insurer consistent with this Section; provided, however,
that a failure or inability of the Association to obtain such a waiver from an insurer shall not defeat or impair
the waivers between the Association and the Owners as set forth herein. If an Owner is liable for damage
under this Section, the Association may, after Notice and Hearing, levy a Compliance Assessment amount
of damage for which the Owner is responsible, and the increase, if any, in insurance premiums directly
attributable to such damage.
The waivers of claims and subrogation set forth in this Subsection apply only in favor of the Owners
and do not limit or waive, release or discharge any claims that the Association (or its insurers) may have
against any third party, including without limitation any contractor, service provider, agent, or Invitee,
provided that such waivers shall also apply in favor of an Owner’s tenant occupying a Unit under a written
lease agreement if and to the extent that the Owner has similarly agreed in such lease agreement to a
waiver of claims and subrogation against such tenant.
10.1.3 General Policy Requirements. All insurance policies the Association is required
to obtain pursuant to this Article shall be placed and maintained with companies rated at least “A-/VII” by
A.M. Best Company, Inc. and otherwise reasonably satisfactory to the Association. If an A.M. Best
Company, Inc. rating is not available, a comparable rating service may be used. Such insurance policies
may have reasonable deductible amounts comparable to those customarily maintained with respect to
properties similar in construction, location and use, as may be determined by the Board for projects
approved by FNMA, the maximum deductible may not exceed the maximum deductible, if any, established
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by FNMA. The coverage amounts required for such insurance policies may be satisfied by any combination
of primary and excess policies that collectively serve to satisfy the requirements of this Article.
The Association waives all claims against the Owners for any damage to the Association Insured
Property (including without limitation, any loss of use of such property), except to the extent that such
damage is not covered by the property insurance required by this Declaration to be maintained by the
Association or the property insurance actually maintained by the Association (whichever is greater), and
such damage is caused by the gross negligence or willful misconduct of an Owner. All rights of subrogation
between the Association’s insurer and the Owners are waived. The insurance policies obtained by the
Association shall include a waiver of all subrogation rights of the Association’s insurer against Owners;
provided, however, that any failure to obtain such a waiver from the insurer shall not defeat or impair the
foregoing waiver between the Association and the Owners. If an Owner is liable for damage under this
Section, the Association may, after Notice and Hearing, levy a Compliance Assessment equal to the cost
of repairing the damage, and the increase, if any, in insurance premiums directly attributable to such
damage.
10.1.4 Fidelity Bond. The Association shall maintain a commercial crime policy or a
fidelity bond in an amount equal to the greater of: (a) the estimated maximum amount of funds, including
reserves, expected to be regularly held by or on behalf of the Association or a managing agent at any given
time during the term of the fidelity bond; or (b) three (3) months’ aggregate of the Regular Assessments on
all Residential Units plus any reserve funds. If the Association maintains a bond, the bond shall name the
Association as obligee and if the Association maintains insurance, the policy shall name the Association as
the insured and shall insure against loss by reason of the acts of the employees of the Association, and
any managing agent and its employees, whether or not such persons are compensated for their services.
10.1.5 Worker’s Compensation Insurance. The Association shall maintain worker’s
compensation insurance to the extent necessary to comply with all Applicable Laws.
10.1.6 Directors and Officers Insurance. The Association shall maintain a policy
insuring the Association’s officers and directors against liability for their acts or omissions while acting in
their capacity as officers and directors of the Association. The limits of such insurance shall be not less
than Two Million Dollars ($2,000,000) and shall at all times meet or exceed the minimum requirements of
California Civil Code Section 5800.
10.1.7 Copies of Policies. Copies of all insurance policies of the Association shall be
retained by the Association and available for inspection by Owners and First Mortgagees at reasonable
times. All such insurance policies shall provide that they shall not be cancelable or substantially modified
by the insurer without first giving at least thirty (30) days prior notice in writing to the Association, Owners
and First Mortgagees, except that ten (10) days prior written notice shall be required if the cancellation is
for non-payment of premiums. In addition to the foregoing, the Association shall provide to the Owners
such information regarding the insurance of the Association as may be required by Applicable Law or under
the Bylaws.
10.1.8 Earthquake Insurance. ALL PARTIES ACKNOWLEDGE THAT EARTHQUAKE
INSURANCE IS NOT INCLUDED IN THE COMMUNITY BUDGET AND IS NOT BEING OBTAINED BY
DECLARANT OR GUEST BUILDER FOR THE BENEFIT OF THE OWNERS OR THE ASSOCIATION.
NEITHER DECLARANT, GUEST BUILDER NOR THE ASSOCIATION IS OBLIGATED TO MAINTAIN
EARTHQUAKE INSURANCE ON THE COMMUNITY OR ANY PORTION THEREOF. Declarant, Guest
Builder or any Owner (and/or their respective lenders) may maintain earthquake insurance for their own
benefit, but the premiums therefor may not be included by Declarant, Guest Builder or the Association in
the assessments. Notwithstanding the foregoing, at such time as the Board is no longer controlled by
Declarant, the Association may, in its discretion, (but without any obligation to do so) obtain earthquake
insurance from time to time, on those portions of the Community that are to be insured by the Association,
and if so obtained, the premiums for such insurance may be included in the Assessments. All parties
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acknowledge that earthquake insurance is typically very expensive and if purchased by the Association a
material increase in Assessments may be required to cover the additional cost of such insurance.
10.1.9 Compliance with Federal Regulations. Notwithstanding any other provisions
contained herein, the Association shall continuously maintain in effect such insurance and a fidelity bond
meeting the minimum insurance and fidelity bond requirements for condominium projects established by
FNMA, FHLMC, GNMA or any successor to those entities, so long as any of the above is a Mortgagee or
an Owner of a Condominium, except to the extent such coverage is not available or has been waived in
writing by the FNMA, FHLMC, GNMA as applicable. If the FNMA and FHLMC requirements conflict, the
more stringent requirements shall be met.
10.2 Owners’ Insurance Obligations. Each Owner is strongly advised to seek the advice of a
qualified insurance consultant regarding: (i) the amount of property insurance the Owner should procure
for casualty losses to property not covered under the Association’s property insurance policy; and (ii) the
amount of personal liability insurance coverage the Owner should maintain.
10.2.1 Property Insurance.
(a) Residential Units. Each Owner shall obtain and maintain at its sole
expense property insurance for the risks covered by, and providing coverage as least as broad as, a current
ISO form residential condominium homeowners insurance policy or its equivalent, insuring: (i) all personal
property located within the Owner’s Residential Unit or Exclusive Use Easement Areas including without
limitation any property of others under the care, custody, or control of Owner, except the Association’s
property); and (ii) any upgrades or Improvements which are not Association Insured Property and which
are located within the Residential Unit or Exclusive Use Easement Areas (including without limitation any
Solar Energy System servicing such Owner’s Attached Residential Unit) (collectively referred to as the
“Residential Owner’s Property”) for an amount equal to the maximum insurable replacement value thereof.
(b) Waiver of Claims and Subrogation. Each Owner waives all claims
against the Association for any damage to the real and personal property that such Owner is obligated
under this Declaration to insure (including without limitation any loss of use of such property), except that
an Owner may claim against the Association for property damage to the extent that the damage is caused
by the gross negligence or willful misconduct of the Association or its managing agent. Any property
insurance policy obtained by an Owner must contain a waiver of subrogation rights by the insurer consistent
with this Section; provided, however, that a failure or inability of an Owner to obtain such a waiver from an
insurer shall not defeat or impair the waivers between the Owners and the Association set forth herein.
The waivers of claims and subrogation set forth in this Subsection apply only in favor of the
Association and do not limit or waive, release or discharge any claims that an Owner (or its insurers) may
have against any third party, including without limitation any contractor, service provider, agent, other
Owner, or Invitee; provided, that such waivers shall also apply in favor of the Association’s managing agent
if and to the extent that the Association has similarly agreed in a written management agreement to a waiver
of claims and subrogation against such managing agent.
10.2.2 Liability Insurance. Each Owner shall, at such Owner’s sole cost and expense
maintain liability insurance providing coverage at least as broad as the current ISO commercial general
liability insurance form or its equivalent (including coverage for medical payments), insuring the Owner
against liability arising from the ownership, operation, maintenance and use of the Owner’s Residential Unit
and Exclusive Use Easement Area by such Owner. Such liability insurance shall have limits of liability of
not less than Three Hundred Thousand Dollars ($300,000) per occurrence and Three Hundred Thousand
Dollars ($300,000) general aggregate.
10.3 Copies of Policies. The Association shall have the right but not the obligation to request
copies of any insurance policy or certificate of such insurance which an Owner is required to maintain
pursuant to this Declaration, and in such case, the Owner shall deliver a copy to the Association within
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fifteen (15) days upon request. All policies shall indicate they may not be canceled or modified without
thirty (30) days prior written notice to the Association, except that ten (10) days prior written notice shall be
required if the cancellation is for non-payment of premiums. The acceptance of a copy of an insurance
policy by the Association from an Owner shall not constitute a waiver of any of the insurance requirements
set forth herein.
10.4 General Policy Requirements. All insurance policies the Owners are required to obtain
pursuant to this Article shall be placed and maintained with companies rated at least “B/VII” by A.M. Best
Company, Inc. in Best’s Insurance Reports and otherwise reasonably satisfactory to the Association. The
coverage types and amounts required for such insurance may be satisfied by any combination of primary
and excess policies that collectively serve to satisfy the requirements of this Article, including without
limitation condominium Owners’ policy forms that provide both property damage and liability insurance
coverage under one policy.
10.5 Review of Insurance. The Board shall review the adequacy of all insurance required by
this Declaration to be maintained by the Association and by the Owners at least once every year. The
review shall include a reasonable determination of the replacement cost of all Association Insured Property
without respect to depreciation.
10.6 Board’s Authority to Revise Insurance Requirements. Subject to any statutory
insurance requirements, the Board shall have the power and right to adjust and modify the insurance
requirements for Owners and the Association set forth herein to require coverage and protection that is
customarily carried by and reasonably available to prudent owners and associations of projects similar in
construction, location and use. If the Board elects to materially reduce the coverage required to be
maintained by the Association from the coverage required in this Article, the Board shall make all
reasonable efforts to notify the Owners and Mortgagees of the reduction in coverage and the reasons
therefor at least thirty (30) days prior to the effective date of the reduction. The Association and its directors
and officers and the Owners shall have no liability to each other or to any Mortgagee and shall not be in
breach of their obligations hereunder if, after a good faith effort, the Association or Owner is unable to obtain
one or more of the insurance coverages required hereunder to the extent the insurance is no longer
available, or, if available, the insurance can be obtained only at a cost that the Board, in its sole discretion,
determines is unreasonable under the circumstances, or in the case of insurance required to be maintained
by the Association, if the Owners fail to approve any Assessment increase needed to fund the insurance
premiums.
ARTICLE 11
DESTRUCTION OF
IMPROVEMENTS AND CONDEMNATION
This Article addresses what happens in the event of any damage or destruction to a portion of the
Property. It is the intent of this Article that if there are sufficient insurance proceeds or if the Members elect
to impose a Special Assessment to pay the costs of any shortfalls in the insurance proceeds or elect to
adopt an alternative plan of reconstruction so that the rebuilding can occur, that the Association have the
responsibility and obligation to repair and restore the damaged Improvements.
In addition, the City or other Governmental Agencies can exercise rights of eminent domain that
allow the City or other Governmental Agencies to “take” all or a portion of the Community. This Section
describes what happens if a taking of all or a portion of the Association Property occurs.
11.1 Restoration Defined. As used in this Article, the term “restore” or “restoration” shall mean
repairing, rebuilding or reconstructing damaged Improvements to substantially the same condition and
appearance in which they existed prior to fire or other casualty damage.
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11.2 Restoration Proceeds for Association Property.
11.2.1 Sufficient Proceeds. The costs of restoration of the damaged Improvement shall
be paid first from any insurance proceeds paid to the Association under existing insurance policies. If the
insurance proceeds exceed the costs of restoration, the excess proceeds shall be paid into reserves and
held for the benefit of the Association. If the insurance proceeds are insufficient to restore the damaged
Improvement, the Board shall then add to the insurance proceeds all reserve account funds designated for
the repair or replacement of the damaged Improvement. If the total funds then available are sufficient to
restore the damaged Improvement, the Improvement shall be restored. If the aggregate amount of
insurance proceeds and such reserve account funds are insufficient to restore the damaged Improves, and
if such claims are not waived, the Association shall determine whether to levy a Compliance Assessment
against any Owner or Owners who caused such damage in accordance with Section 10.1.2(g). If the
aggregate amount of insurance proceeds and such reserve account funds are insufficient to pay the total
costs of restoration, a Special Assessment against all Owners shall be levied by the Board up to the
maximum amount permitted without the approval of the Members in accordance with the limitations set
forth in this Declaration and by law. If the total funds then available are sufficient to restore the damaged
Improvement, the Improvement shall be restored.
11.2.2 Insufficient Proceeds. If the total funds available to the Association are still
insufficient to restore the damaged Improvement, then the Board first shall attempt to impose an additional
Special Assessment pursuant to subsection (a) below, and second to use a plan of alternative
reconstruction pursuant to subsection (b) below. If the Members do not approve such actions, then the
entire building of which the damaged Improvement is a part shall be sold pursuant to subsection (c) below.
(a) Additional Special Assessment. If the total funds available to restore
the damaged Improvement as provided in Section 11.2 are insufficient, then a meeting of the Members
shall be called for the purpose of approving a Special Assessment to make up all or a part of the deficiency
(“Additional Special Assessment”). If the amount of the Additional Special Assessment approved by the
Members, and the amounts available pursuant to Section 11.2, are insufficient to restore the damaged
Improvement, or if no Additional Special Assessment is approved, the Association shall consider a plan of
alternative reconstruction in accordance with subsection (b).
(b) Alternative Reconstruction. The Board shall consider and propose
plans to reconstruct the damaged Improvement making use of whatever funds are available to it pursuant
to Section 11.2 and subsection (a) above (“Alternative Reconstruction”). All proposals shall be presented
to the Owners. If two-thirds of the Voting Power of the Owners whose Residential Units were materially
damaged, as determined by the Association (“Affected Owners”) and a majority of the Voting Power of the
Members, including the Affected Owners, agree to any plan of Alternative Reconstruction, then the Board
shall contract for the reconstruction of the damaged Improvement in accordance with the plan of Alternative
Reconstruction making use of whatever funds are then available to it. If no plan of Alternative
Reconstruction is agreed to, then the provisions of subsection (c) shall apply.
(c) Sale of Building. If the damaged Improvement is part of a Condominium
Building (“Damaged Building”), the damage renders one or more of the Condominiums uninhabitable, and
the Improvements will not be restored in accordance with the provisions of subsections (a) and (b) above,
the Board, as the attorney-in-fact for each Owner of a Condominium in the Damaged Building, shall be
empowered to sell the Damaged Building, including all Condominiums therein, in their then present
condition, on terms to be determined by the Board, provided that the Board receives adequate assurances
that the purchaser shall, and has the financial capability to: (i) restore the Damaged Building (either by
renovation or removal and rebuilding); (ii) remove the Damaged Building (including foundations), grade the
area, and appropriately landscape or otherwise improve the area; or (iii) perform any combination of the
foregoing. Any work to be performed by the purchaser with respect to any of the foregoing shall be subject
to the provisions of this Declaration. In lieu of selling the Damaged Building to a third Person, the
Association may purchase the Condominium Building on satisfaction of the following conditions:
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(i) Members holding at least sixty-seven percent (67%) of the total
Voting Power (including the votes allocated to the Condominiums within the Damaged Building) approve of
the purchase;
(ii) the purchase price is the fair market value of the Damaged
Building as of the date of sale as determined by an appraisal made by a qualified and independent real
estate appraiser;
(iii) any special assessment needed to fund the purchase price shall
be levied against all Condominiums, including the Condominiums within the Damaged Building; and
(iv) the Association has an adequate source of funds to repair,
renovate or rebuild all or a portion of the Damaged Building and to remove and appropriately landscape the
remaining area. For this purpose, no Condominium that is being purchased shall be subject to any
Assessment intended to be used as a source of such funds.
(d) Distribution of Proceeds. The proceeds from the sale, together with the
insurance proceeds received and any reserve funds allocated to the Damaged Building, after deducting
therefrom the Association’s sale expenses, including commissions, title and recording fees, and legal costs,
shall be distributed among the Owners of Condominiums in the Damaged Building and their respective
Mortgagees, in proportion to the respective fair market values of these Condominiums immediately prior to
the date of the event causing the damage as determined by an independent appraisal made by a qualified
real estate appraiser selected by the Board.
If a Damaged Building is removed and not restored so that the new building contains the same
number of Condominiums as the removed building, the Board shall take appropriate steps to adjust the
property interests of the remaining Owners and to effect such amendments as may be necessary to this
Declaration, the Condominium Plan and the Map to reflect the revised property interests and other related
changes.
11.3 Rebuilding Contract. The Board or its authorized representative shall obtain bids from at
least two (2) licensed and reputable contractors and shall accept the restoration work from whomever the
Board determines to be in the best interests of the Members. The Board shall have the authority to enter
into a written contract with the contractor for such restoration, and the insurance proceeds shall be
disbursed to the contractor according to the terms of the contract. The Board shall take all steps necessary
to assure the commencement and completion of authorized restoration at the earliest possible date. Such
restoration shall be commenced no later than one hundred eighty (180) days after the event requiring
restoration and shall thereafter be diligently prosecuted to completion. Such restoration shall return the
damaged Improvements to substantially the same condition and appearance in which it existed prior to the
damage or destruction.
11.4 Authority to Effect Changes. If any adjacent Residential Units or portion thereof are
damaged or destroyed or in need of renovation or rehabilitation and the Residential Units are repaired or
reconstructed pursuant to the provisions set forth herein, the Residential Unit may be repaired or
reconstructed in a manner that alters the boundaries of such Residential Units or the adjacent Association
Property provided the following conditions are satisfied:
11.4.1 the alteration has been approved by the Board, by the holders of any First
Mortgages to the extent required herein and the Owners of the affected Residential Units;
11.4.2 the Board has determined that the alteration is necessary in order to comply with
current building code requirements, to meet current building construction standards and procedures, or to
improve the conditions and quality of the affected Residential Units;
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11.4.3 the alteration does not materially change the location of any Residential Unit or
materially reduce the size of any Residential Unit without the consent of the Owner and the holders of any
First Mortgages thereon. For purposes herein, a material reduction in the size of the Residential Unit shall
mean any alteration that increases or decreases the square footage of the interior floor space of the
Residential Unit by more than ten percent (10%) from the square footage as shown on the Condominium
Plan;
11.4.4 the Board has determined that any alteration that will relocate or reduce the
Association Property will not unreasonably interfere with the rights of the Owners and occupants to use and
enjoy the Association Property;
11.4.5 the Condominium Plan is amended to reflect the alteration to the Residential Units
or Association Property; and
11.4.6 easements for any encroachments created by such alterations are granted to the
Affected Owners by the Association.
Each Owner irrevocably appoints the Association as that Owner’s attorney-in-fact (except for the Secretary,
U.S. Department of Veterans Affairs) and irrevocably grants to the Association the full power in the name
of the Owner to effect any alteration to any Residential Unit or Association Property as authorized above,
including, without limitation, the execution, delivery and recordation of any Condominium Plan
amendments, deeds or other instruments.
11.5 Minor Repair and Reconstruction. The Board shall have the duty to repair and
reconstruct Improvements, without the consent of Members and irrespective of the amount of available
insurance proceeds, in all cases of partial destruction when the estimated cost of repair and reconstruction
does not exceed Ten Thousand Dollars ($10,000). The Board is expressly empowered to levy a Special
Assessment for the cost of repairing and reconstructing improvements to the extent insurance proceeds
are unavailable and determine whether to levy a Compliance Assessment against any Owner who caused
the damage pursuant to Section 10.1.2(g), such Assessment to be levied as described above (but without
the consent or approval of Members, despite any contrary provisions in this Declaration).
11.6 Damage or Destruction to a Residential Unit. In the event of damage or destruction to
any Residential Unit, the Owner thereof shall (unless the Association is not required to repair surrounding
damaged Association Property pursuant to the terms set forth above) reconstruct the same as soon as
reasonably practicable and substantially in accordance with the original plans and specifications therefor;
provided, however, that any such Owner may, with the written consent of the Board, reconstruct or repair
the same pursuant to new or changed plans and specifications. In the event the Board fails to approve or
disapprove such changed plans and specifications within sixty (60) days of the receipt thereof, they shall
be deemed to have been approved. The Owner shall be entitled to the benefit of any master policy of
property insurance maintained by the Association to the extent it covers the damage or destruction of
elements of the Condominium that are within the Residential Unit and which are the obligation of the Owner
to repair as provided in this Declaration. With the exception of any casualty or damage insured against by
the Association pursuant to Section 10.1, restoration and repair of any damage to the interior of any
individual Residential Unit, including without limitation all fixtures, cabinets and improvements therein,
together with restoration and repair of all interior paint, wall coverings and floor coverings, shall be made
by and at the individual expense of the Owner, provided however, that nothing contained in this
Section shall be construed as a waiver of claims that the Owner of a damaged Residential Unit may have
against another Owner who caused the damage. In the event of a determination to rebuild the Property
after partial or total destruction, as provided in this Article, such interior repair and restoration shall be
completed as promptly as practical and in a lawful and workmanlike manner, in accordance with Plans and
Specifications approved in accordance with Article 8.
11.7 Condemnation of Association Property. If any portion of the Association Property is
taken by condemnation, eminent domain or any proceeding in lieu thereof, then the Owners and their
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Mortgagees as their respective interests then appear, shall be entitled to receive a distribution from the
award for such taking in the same proportion as insurance proceeds would be distributed pursuant to the
provisions above; provided, however, that should it be determined to repair or rebuild any portion of the
Association Property, such proceeds shall be paid to the Association for that purpose in the same manner
and subject to the same terms, conditions and limitations as are set forth above in this Article for repairing
damaged or destroyed portions of the Association Property. A decision to repair or rebuild shall be made
in the same manner and subject to the same conditions and limitations as provided above in this Article for
determining whether to rebuild or repair following damage or destruction.
11.8 Condemnation of a Residential Unit. In the event of any taking of a Residential Unit, the
Owner (and such Owner’s Mortgagees as their interests may appear) of the Residential Unit shall be
entitled to receive the award for such taking and after acceptance thereof such Owner and such Owner’s
Mortgagee shall be divested of all further interest in the Residential Unit and membership in the Association
if such Owner shall vacate such Owner’s Residential Unit as a result of such taking. In such event said
Owner shall grant its remaining interest in the Common Area appurtenant to the Residential Unit so taken,
if any, to the other Owners owning a fractional interest in the same Common Area, such grant to be in
proportion to the fractional interest in the Common Area then owned by each Owner.
ARTICLE 12
PARTITION AND SEVERABILITY OF INTERESTS
12.1 Suspension. The right of partition is suspended pursuant to California Civil Code
Section 4610 as to the Community. Nothing in this Article shall be deemed to prohibit partition of a co-
tenancy in a Condominium.
12.2 Partition. Except as provided in this Declaration, there shall be no judicial partition of the
Common Area, or any part thereof, for the term of the Community, nor shall Declarant, Guest Builder any
Owner or any other person acquiring any interest in any Condominium seek any such judicial partition. The
undivided interest in the Common Area described above may not be altered or changed as long as the
prohibition against severability of interests in a Condominium remains in effect as provided in this
Declaration. Notwithstanding the foregoing, judicial partition shall be permitted as follows:
12.2.1 With the approval, after substantial destruction or condemnation of the Community
occurs, of at least sixty-seven percent (67%) of the total Voting Power and approval by Eligible Holders
who represent at least fifty-one percent (51%) of the Condominiums that are subject to Mortgages held by
Eligible Holders; or
12.2.2 With the approval, for reasons other than substantial destruction or condemnation
of the Community, of at least sixty-seven percent (67%) of the total Voting Power and approval by Eligible
Holders who represent at least sixty-seven percent (67%) of the Condominiums that are subject to
Mortgages held by Eligible Holders; or
12.2.3 As allowed by California law, including Civil Code Section 4610, as the same may
be amended from time to time.
12.2.4 An Eligible Holder who receives a written request to give such approvals who does
not deliver or mail the requesting party a negative response within sixty (60) days shall be deemed to have
given such approval provided such written request was delivered by certified mail or registered mail with
“return receipt” requested.
For so long as is required by FNMA’s legal requirements for project acceptance, all references to “Eligible
Holder” in this Section shall be deemed to include all guarantors of First Mortgagees.
12.3 Distribution of Proceeds. Proceeds or property resulting from a partition shall be
distributed to and among the respective Owners and their Mortgagees as specified or apportioned in the
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judgment of partition, or if not so specified, as their interests appear in proportion to the fair market value
of the Condominiums at the date of the sale as determined by an independent appraisal conducted by a
member of the American Institute of Real Estate Appraisers with the designation of a Member Appraisal
Institute (M.A.I.) or if such institute no longer exists, an appraiser of comparable experience.
12.4 Power of Attorney. Each of the Owners irrevocably appoints the Association as attorney-
in-fact and irrevocably grants to the Association full power in the name and stead of such Owner to sell the
entire Community, and to execute deeds and conveyances to it, in one or more transactions, for the benefit
of all Owners when partition of the Community may be had under California Civil Code Section 4610. The
power of attorney shall:
12.4.1 Be binding on all Owners, whether they assume the obligations under this
Declaration or not;
12.4.2 Be exercisable by a majority of the Board acting on behalf of the Association,
subject to obtaining the prior approval by vote or written consent of at least seventy-five percent (75%) of
the Owners and at least seventy-five percent (75%) of all Institutional Mortgagees; and
12.4.3 Be exercisable only after recordation with the County Recorder of a certificate
executed by those who have power to exercise the power of attorney that the power of attorney is properly
exercisable under the authority of this Declaration. This certificate shall be conclusive evidence of proper
exercise in favor of any person relying on it in good faith; provided; however, that said power of attorney
shall not apply to the Administrator of Veterans Affairs, an Officer of the United States of America.
12.5 Prohibition Against Severance. An Owner shall not be entitled to sever such Owner’s
Residential Unit from its membership in the Association, and shall not be entitled to sever such Owner’s
Residential Unit and such Owner’s membership from such Owner’s undivided interest in the Common Area
for any purpose. None of the component interests in a Condominium can be separately sold, conveyed,
encumbered, hypothecated or otherwise dealt with, and any violation or attempted violation of this provision
shall be void. Similarly, no Owner can sever any exclusive easement appurtenant to such Owner’s
Residential Unit over the Association Property from such Owner’s Condominium, and any attempt to do so
shall be void. It is intended hereby to restrict severability pursuant to California Civil Code Section 4630.
Notwithstanding the foregoing, the suspension of such right of severability contained herein shall not extend
beyond the period set forth in Section 12.2 in which the right to partition the Community is suspended
thereunder.
12.6 Conveyances. Any conveyance of a Condominium by an Owner shall be presumed to
convey the entire Condominium. However, nothing contained in this Section shall preclude the Owner of
any Condominium from creating an estate for life or years, co-tenancy or joint tenancy in the ownership of
the Condominium with any other person or persons.
ARTICLE 13
RIGHTS OF MORTGAGEES
Certain Mortgagees need to protect their interests in the Community. This Article gives certain
Mortgagees rights to protect their security interests.
13.1 Conflict. Notwithstanding any contrary provision contained elsewhere in the Governing
Documents, the provisions of this Article shall control with respect to the rights and obligations of
Mortgagees as specified herein.
13.2 Liability for Unpaid Assessments. Any Institutional Mortgagee who obtains title to a
Condominium pursuant to the remedies provided in the First Mortgage (except upon a voluntary
conveyance to the Institutional Mortgagee) or by foreclosure of the First Mortgage shall take the property
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free of any claims for unpaid assessments or charges against the Condominium which accrue prior to the
acquisition of title to the Condominium by the Institutional Mortgagee.
13.3 Payment of Taxes and Insurance. All taxes, assessments and charges that may become
a lien prior to the lien of any First Mortgagee shall be levied only to the individual Condominium and not the
Community as a whole. Institutional Mortgagees may, jointly or singly, pay taxes or other charges that are
in default and that may or have become a charge against any Association Property or Improvements
situated thereon and may pay overdue premiums on property insurance policies or secure new property
insurance coverage on the lapse of a policy for such Association Property. Institutional Mortgagees making
such payments shall be owed immediate reimbursement for such expenditures from the Association and,
on demand, the Association shall execute an agreement in favor of all Institutional Mortgagees reflecting
entitlement to reimbursement.
13.4 Notice to Mortgagees. A Mortgagees and guarantor of a Mortgage on a Condominium
within the Community are entitled to timely written notice of the following events:
13.4.1 Any condemnation loss or casualty loss that affects either a material portion of the
Community or the Condominium on which the Mortgagee holds a Mortgage;
13.4.2 Any delinquency in the payment of Assessments or charges owed by the Owner
that is subject to a Mortgage held by the Mortgagee if the delinquency is not cured within sixty (60) days
after its due date;
13.4.3 Any lapse, cancellation or material modification of any insurance policy or fidelity
bond maintained by the Association;
13.4.4 Any proposal to take any action specified in this Article or Article 11, provided that,
for purposes of a proposal to terminate the Community and/or dissolve the Association, “timely written
notice” shall mean at least thirty (30) days’ advance written notice;
13.4.5 Any default by the Owner-Mortgagor of a Condominium subject to a Mortgage held
by the Mortgagee in the performance of its obligations under this Declaration or the Bylaws which is not
cured within sixty (60) days; or
13.4.6 Any proposed action that requires the consent of a specified percentage of the
Mortgagees.
13.5 Reserve Fund. The Association shall maintain a reserve account with funds sufficient to
pay for maintenance, repair and periodic replacement of Association Property that the Association is
obligated to maintain cost sharing obligations. This reserve fund shall be funded by Regular Assessments
of Owners that are payable in installments rather than by Special Assessment; provided, however, that this
provision shall not be deemed to limit the power of the Association to levy any other type of Assessment or
charge authorized by this Declaration.
13.6 Inspection of Books and Records. Upon request, any Owner, prospective purchaser, or
Eligible Holder shall be entitled to inspect the books, records and financial statements of the Association,
the Governing Documents and any amendments thereto, during normal business hours or under other
reasonable circumstances.
13.7 Financial Statements. The Association, at its expense, shall prepare an audited financial
statement for the immediately preceding Fiscal Year and make the same available within one hundred
twenty (120) days after the Association’s Fiscal Year-end to any Institutional Mortgagee or Eligible Holder
that has submitted a written request for it.
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13.8 Actions Requiring Eligible Holder Approval. Unless at least sixty-seven percent (67%)
of the Eligible Holders (based on one vote for each First Mortgage owned) and at least sixty-seven percent
(67%) of the Owners other than Declarant and Guest Builder have given their prior written approval, the
Association shall not be entitled to:
13.8.1 By act or omission, seek to abandon or terminate the Community and/or dissolve
the Association;
13.8.2 By act or omission abandon, partition, subdivide, encumber, sell or transfer any
property or improvements owned, directly or indirectly, by the Association for the benefit of the
Condominiums and the Owners. (The granting of easements for public utilities or for other public purposes
consistent with the intended use of the Community by the Association and Owners shall not be deemed a
transfer within the meaning of this Section);
13.8.3 By act or omission change, waive or abandon any scheme of regulations, or
enforcement thereof, pertaining to architectural design or exterior appearance of Residential Units, the
exterior maintenance of Residential Units, or the upkeep of lawns, plantings or other landscaping in the
Community;
13.8.4 By act or omission change the method of determining the obligations,
assessments, dues or other charges that may be levied against an Owner;
13.8.5 Partition or subdivide a Condominium;
13.8.6 Fail to maintain fire and extended coverage insurance on insurable portions of the
Association Property on a current replacement cost basis in an amount not less than one hundred percent
(100%) of the insurable value based on current replacement cost; and
13.8.7 Use insurance proceeds for losses to any property or Improvements owned by the
Association other than for the repair, replacement or reconstruction of such property and Improvements.
13.9 Votes for Termination of Community. Any election to terminate the legal status of the
Community as a condominium community shall require:
13.9.1 The approval of Mortgagees that represent at least fifty-one percent (51%) of the
votes of Condominiums that are subject to Mortgages and at least sixty-seven percent (67%) of the total
Voting Power if the election to terminate the legal status is a result of substantial destruction or a substantial
taking in condemnation of the property within the Community; or
13.9.2 The approval of at least sixty-seven percent (67%) of the total Voting Power and
Mortgagees that represent at least sixty-seven percent (67%) of the votes of Condominiums that are subject
to Mortgages, if Section 13.9.1 is not applicable.
For so long as is required by FNMA’s legal requirements for Community acceptance, all references to
“Mortgagees” in this Section shall be deemed to include all guarantors of such Mortgagees.
13.10 Condemnation or Destruction. In the event a portion of the Community is either
condemned or destroyed or damaged by a hazard that is insured against, restoration or repair shall be
performed substantially in accordance with the provisions of this Declaration and the original plans and
specifications for the Community unless Eligible Holders representing at least fifty-one percent (51%) of the
votes of Condominiums subject to Mortgages held by Eligible Holders approve the taking of other action by
the Association.
13.11 Self-Management. The vote or approval by written ballot of at least sixty-seven percent
(67%) of the total Voting Power and Eligible Holders that represent at least fifty-one percent (51%) of the
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votes of Condominiums that are subject to Mortgages held by Eligible Holders shall be required to assume
self-management of the Community if professional management has been required by an Eligible Holder
at any time.
13.12 Mortgagee Protection. A breach of any of the conditions contained in this Declaration
shall not defeat nor render invalid the lien of any First Mortgage made in good faith and for value as to any
Condominium; provided, however, that the conditions contained in this Declaration shall be binding upon
and effective against any Owner of a Condominium if the Condominium is acquired by foreclosure, trustee’s
sale or otherwise.
13.13 Distribution of Insurance and Condemnation Proceeds. No Owner, or any other party,
shall have priority over any right of Institutional Mortgagees of Condominiums pursuant to their Mortgages
in case of a distribution to Owners of insurance proceeds or condemnation awards for losses to or a taking
of Condominiums or Association Property. Any provision to the contrary in the Governing Documents 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 Mortgagees naming the Mortgagees,
as their interests may appear.
13.14 Voting Rights on Default. In case of default by any Owner in any payment due under the
terms of any Institutional Mortgage encumbering such Owner’s Condominium or the promissory note
secured by the Mortgage, the Mortgagee or its representative, on giving written notice to such defaulting
Owner or Owners, and placing of record a notice of default, is hereby granted a proxy and can exercise the
voting rights of such defaulting Owner attributable to such Condominium at any regular or special meeting
of the Members held during such time as such default may continue.
13.15 Foreclosure. If any Condominium is encumbered by a First Mortgage made in good faith
and for value, the foreclosure of any lien created by any provision set forth in this Declaration for
Assessments, or installments of Assessments, shall not affect or impair the lien of the First Mortgage. On
foreclosure of the Mortgage, the lien for Assessments, including Additional Charges, that has accrued up
to the time of foreclosure shall be subordinate to the lien of the Mortgage with the foreclosure-purchaser
taking title to the Condominium free of the lien for Assessments, including interest, costs (including
attorneys’ fees), and late charges levied by the Association with respect thereto or installments that has
accrued up to the time of the foreclosure sale. On taking title to the Condominium, the foreclosure-
purchaser shall only be obligated to pay Assessments or other charges levied or assessed by the
Association after the foreclosure-purchaser acquired title to the Condominium. The subsequently accrued
Assessments or other charges may include previously unpaid Assessments provided all Owners, including
the foreclosure-purchaser, and its successors and assigns are required to pay their proportionate share as
provided in this Section.
13.16 Non-Curable Breach. Any Mortgagee who acquires title to a Condominium by foreclosure
or by deed-in-lieu of foreclosure or assignment-in-lieu of foreclosure shall not be obligated to cure any
breach of this Declaration that is non-curable or that is not practical or feasible to cure.
13.17 Loan to Facilitate. Any Mortgage given to secure a loan to facilitate the resale of a
Condominium after acquisition by foreclosure or by a deed-in-lieu of foreclosure or by an assignment-in-
lieu of foreclosure shall be deemed to be a loan made in good faith and for value and entitled to all of the
rights and protections of this Article.
13.18 Appearance at Meetings. Because of its financial interest in the Community, any
Mortgagee may appear (but cannot vote except as may be provided for herein) at meetings of the Members
and the Board to draw attention to violations of this Declaration that have not been corrected or made the
subject of remedial proceedings or Assessments.
13.19 Right to Furnish Information. Any Mortgagee can furnish information to the Board
concerning the status of any Mortgage.
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13.20 Inapplicability of Right of First Refusal to Mortgagee. No right of first refusal or similar
restriction on the right of an Owner to sell, transfer or otherwise convey the Owner’s Condominium shall be
granted to the Association without the written consent of any Mortgagee of the Condominium. Any right of
first refusal or option to purchase a Residential Unit that may be granted to the Association (or other person,
firm or entity) shall not apply to any conveyance or transfer of title to such Condominium, whether voluntary
or involuntary, to a Mortgagee that acquires title to or ownership of the Condominium pursuant to the
remedies provided in its Mortgage or by reason of foreclosure of the Mortgage or deed- or assignment-in-
lieu of foreclosure and shall not apply to any sale or lease of Condominium acquired by the Mortgagee or
its assignee.
13.21 Written Notification to Mortgagees or Guarantors of First Mortgages. If a Mortgagee
or guarantor of a First Mortgage has not given written notice to the Association specifying its name and the
name of the Owner and address of the Condominium encumbered by the First Mortgage, any written notice
or proposal required or permitted by this Declaration to be given to such Mortgagee or guarantor shall be
deemed properly given if deposited in the United States mail, postage prepaid, and addressed to the
Mortgagee or guarantor at its address appearing of record in the First Mortgage (or assignment thereof, if
applicable).
ARTICLE 14
AMENDMENTS
This Declaration and the easements, covenants, conditions and restrictions established under the
Declaration will continue in effect for 60 years and thereafter will continue unless a certain percentage of
the Owners elect to terminate the Declaration. This will help to ensure the continued operation, use and
viability of the Community. This Article also describes the procedures and requirements for amendments
to this Declaration. Some provisions of this Declaration may not be amended without the consent of
Declarant. Moreover, each Owner acknowledges that corrections and supplements to this Declaration may
be necessary and that it is important to give Declarant the right to record such Supplementary Declarations
without the consent of any Owner except as otherwise provided in this Declaration.
14.1 Amendment Before the Conveyance of First Condominium. Before the conveyance
of the first Condominium to a First Purchaser, this Declaration and any amendments to it may be amended
in any respect or revoked by the execution by Declarant and any Mortgagee of record of an instrument
amending or revoking the Declaration. The amending or revoking instrument shall make appropriate
reference to this Declaration and its amendments and shall be acknowledged and recorded in the Official
Records.
14.2 Amendments After Conveyance of First Condominium. Except as may otherwise be
stated in this Declaration and as set forth below, after the conveyance of the first Condominium to a First
Purchaser and during the period of time prior to conversion of the Class B membership in the Association
to Class A membership, this Declaration may be amended at any time and from time to time provided that
the vote or approval by written ballot of a majority of the Voting Power of each class of Members has been
obtained. After conversion of the Class B membership in the Association to Class A membership, this
Declaration may be amended at any time and from time to time, provided that the vote or approval by written
ballot of: (a) at least a majority of the total Voting Power; and (b) at least a majority of the Voting Power of
the Members, other than Declarant and Guest Builder, has been obtained. The vote on a proposed
amendment to the Declaration shall be held by secret written ballot in accordance with the procedures set
forth in California Civil Code Section 5100 et seq., and the rules adopted by the Board pursuant thereto.
Such amendment shall become effective upon the recording of a Certificate of Amendment signed and
acknowledged by the President or Vice President of the Association and the Secretary or Assistant
Secretary of the Association certifying that such votes or approval by written ballot have been obtained.
For the purposes of recording the Certificate of Amendment, the President or Vice-President and Secretary
or Assistant Secretary of the Association are hereby granted an irrevocable power of attorney to act for and
on behalf of each and every Owner in certifying and executing and recording the Certificate of Amendment
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in the Official Records. Nothing contained herein shall limit the Members of the Association from exercising
the rights of the Association under California Civil Code Section 4275.
14.2.1 Amendments by Declarant. Notwithstanding any other provisions of this Article,
Declarant (as long as Declarant or a Guest Builder owns any portion of the Property) may unilaterally amend
this Declaration or a Supplemental Declaration by recording a written instrument signed by Declarant to:
(a) conform this Declaration or the Supplementary Declaration to the rules, regulations or requirements of
DRE, Fannie Mae, Ginnie Mae, Freddie Mac or the County or City, (b) amend, replace or substitute any
exhibit to correct typographical or engineering errors, (c) include any exhibit that was inadvertently omitted
at the time of recording, (d) comply with any City, County, State or Federal laws or regulations, (e) correct
typographical errors, (f) supplement this Declaration with provisions which pertain to rights and obligations
of Declarant, the Association or Owners arising under the Right to Repair Law, (g) re-Phase any portion of
the Community, and (h) change any exhibit or portion of an exhibit to conform to as-built conditions.
14.3 Approval of Material Amendments. In addition to the requirements of Section 14.2, in
the case of any Material Amendment, as defined below, the vote of Mortgagees that represent at least fifty-
one percent (51%) of the votes of Condominiums that are subject to Mortgages and at least sixty-seven
percent (67%) of the Voting Power of each class of Members (or, following conversion of Class B
membership to Class A membership, at least sixty-seven percent (67%) of the total Voting Power of the
Association and at least sixty-seven percent (67%) of the voting power of Members of the Association other
than Declarant and Guest Builder) shall also be required. For purposes of this Section, “Material
Amendment” shall mean, for the purposes of this Section, any amendments to provisions of this Declaration
governing any of the following subjects:
14.3.1 The fundamental purpose for which the Community was created (such as a change
from residential use to a different use);
14.3.2 Assessments, collection of assessments, assessment liens and subordination
thereof;
14.3.3 The reserves for repair and replacement of the Association Property;
14.3.4 Property Maintenance Obligations;
14.3.5 Casualty and liability, insurance or fidelity bond requirements;
14.3.6 Reconstruction in the event of damage or destruction;
14.3.7 Rights to use the Association Property;
14.3.8 Reallocation or conveyance of any interests in the Common Area;
14.3.9 Voting;
14.3.10 Any provision that, by its terms, is specifically for the benefit of Mortgagees, or
specifically confers rights on Mortgagees;
14.3.11 Expansion or contraction of the Community or the addition, annexation or
withdrawal of property to or from the Community, the redefinition of Residential Unit boundaries or the
conversion of a Residential Unit or Residential Units into Association Property;
14.3.12 Imposition of any restriction on any Owner’s right to lease, sell or transfer its
Residential Unit;
14.3.13 Merger or consolidation of the Association;
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14.3.14 A determination not to require professional management if required pursuant to
this Declaration; and
Any Mortgagee who receives written request to consent to additions or amendments requiring consent
under this provision who does not deliver to the requesting party a negative response within sixty (60) days
after receipt of a notice delivered by certified or registered mail, return receipt requested, shall be deemed
to have consented to such request. If any provision of this Declaration requires a greater or lesser
percentage of the voting rights of any class of Members in order to take affirmative or negative action under
such provision, the same percentage of such class or classes of Members shall be required to amend or
revoke such provision. Also, if the consent or approval of any governmental authority, Mortgagee or other
person, 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. Any amendment or revocation 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 and shall make appropriate reference to this Declaration and its amendments and shall
be acknowledged and recorded in the Official Records.
14.4 Additional Approvals.
14.4.1 Governmental Approvals. If the consent or approval of any Governmental
Agency, VA, FNMA or FHA is required 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 pursuant to the requirements of the Governmental Agency, VA, FNMA or FHA.
14.4.2 Amendment of Certain Provisions. If any provision of this Declaration requires
a greater or lesser percentage of the voting rights of any class of Members in order to take affirmative or
negative action under such provision, the same percentage of such class or classes of Members shall be
required to amend or revoke such provision. Notwithstanding anything to the contrary contained in this
Declaration, Sections 1.56, 7.2.3, 7.3.8 and Article 15 of this Declaration shall not be amended without the
prior written approval of Declarant and Guest Builder.
14.4.3 Declarant’s and Guest Builder’s Consent. So long as Declarant or Guest
Builder owns any portion of the Property, this Declaration may not be amended to do any of the following
without the prior written approval of Declarant and Guest Builder: (a) diminish or eliminate any rights
specifically granted or reserved to Declarant and/or Guest Builder; or (b) modify or eliminate the easements
reserved to Declarant and/or Guest Builder.
14.5 Reliance on Amendments. Any amendments made in accordance with the terms of this
Declaration shall be presumed valid by anyone relying on them in good faith.
14.6 Conflict with Article 13 or Other Provisions of this Declaration. To the extent any
provisions of this Article conflict with the provisions of Article 13 or any other provision of this Declaration
except those contained in this Section 14.6, the provisions of Article 13 shall control.
14.7 Business and Professions Code Section 11018.7. All amendments or revocations of
this Declaration shall comply with the provisions of California Business and Professions Code
Section 11018.7 to the extent such section is applicable.
14.8 Notice to Eligible Holder. Eligible Holders shall be entitled to timely written notice of any
amendments to this Declaration, the Bylaws or the Articles.
14.9 Mergers or Consolidations. Upon a merger or consolidation of the Association with
another association, the Association’s properties, rights and obligations may, by operation of law, be
transferred to the surviving or consolidated association, or, alternatively, the properties, right and obligations
of another association may, by operation of law, be added to the properties, rights and obligations of the
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Association as a surviving corporation pursuant to a merger. The surviving or consolidated association
may administer the covenants, conditions and restrictions established by this Declaration within the
Community, together with the covenants and restrictions established upon any other property as one plan.
14.10 De-Annexation. Declarant may delete all or any portion of the Property from the coverage
of this Declaration and rescind any Supplementary Declaration, provided that: (a) Declarant or Guest
Builder is the sole Owner of all of the real property described in the Supplementary Declaration to be
rescinded or obtains the consent of the fee title Owner(s) of the real property to be de-annexed; and (b)
assessments have not commenced with respect to any portion of the real property to be de-annexed. Such
deletion shall be effective upon the recordation of a written instrument signed by Declarant, in the same
manner as the Supplementary Declaration to be rescinded was recorded.
ARTICLE 15
TERM AND ENFORCEMENT
This Article describes the enforcement rights for violations of this Declaration and the Governing
Document and certain procedures which must be followed in the event of a claim. The claims procedures
are intended to establish an efficient procedure to enable claims to be resolved promptly for the benefit of
the Community.
15.1 Term. The covenants, conditions and restrictions of this Declaration shall run with and
bind the Property and shall inure to the benefit of and be enforceable by the Association, Declarant, Guest
Builder or any Owner, their respective legal representatives, heirs, successors and assigns, for a term of
sixty (60) years from the date this Declaration is recorded, after which time said covenants, conditions and
restrictions shall be automatically extended for successive periods of ten (10) years each, unless an
instrument signed by at least sixty-seven percent (67%) of the Members has been recorded at least one
(1) year prior to the end of any such period in the manner required for a conveyance of real property, in
which it is agreed that this Declaration shall terminate at the end of the then applicable term.
15.2 Rights of Enforcement of Governing Documents. Subject to Section 15.5, Declarant,
Guest Builder, the Association or any Owner shall have a right of action against any Owner, and Declarant,
Guest Builder or any Owner shall have a right of action against the Association to enforce by proceedings
at law or in equity, all covenants, conditions, and restrictions now or hereafter imposed by the provisions of
the Governing Documents or any amendment thereto, including the right to prevent the violation of such
covenants, conditions and restrictions and the right to recover damages or other dues for such violation
except that Owners shall not have any right of enforcement concerning Assessment liens. The Association
shall have the exclusive right to the enforcement of provisions relating to architectural control and the
Association Rules unless the Association refuses or is unable to effectuate such enforcement, in which
case any Owner who otherwise has standing shall have the right to undertake such enforcement. Failure
of the Association, Declarant, Guest Builder or any Owner to enforce any covenants or restrictions herein
contained shall in no event be deemed a waiver of the right to do so thereafter.
15.2.1 Disputes Involving Members. Prior to filing an Enforcement Action (as such term
is defined in California Civil Code 5925) by a Member solely for declaratory relief or injunctive relief, or for
declaratory relief or injunctive relief in conjunction with a claim for monetary damages, related to the
enforcement of the Governing Documents, the Members shall be required to comply with California Civil
Code Sections 5925 through 5965, if applicable. Failure of a Member to comply with the alternative dispute
resolution requirements of California Civil Code Section 5930 may result in the loss of the Member's right
to sue the Association or another Member regarding enforcement of the Governing Documents or
Applicable Laws.
15.2.2 Disputes involving the Association and Members. Prior to filing a civil action
by either the Association or by a Member solely for declaratory relief or injunctive relief, or for declaratory
relief or injunctive relief in conjunction with a claim for monetary damages (other than for nonpayment of
Assessments) related to the any of the following matters: (a) enforcement of the Governing Documents; (b)
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damage to the Association Property; or (c) damage to a Residential Unit that arises out of, or is related to,
damage to the Association Property, the Association shall be required to perform any act reasonably
necessary to resolve any civil claim or action through alternative dispute resolution proceedings such as
mediation, binding arbitration, or non-binding arbitration proceedings. Any dispute resolution procedure
imposed by the Association shall satisfy the requirements of California Civil Code Sections 5900, 5905 and
5910. In the event the Association does not comply with the minimum requirements of a fair, reasonable
and expeditious dispute resolution procedure, the Association or any Member may invoke the procedures
provided for in California Civil Code Section 5915.
15.2.3 Notice Requirements. Members of the Association shall annually be provided a
summary of the provisions of California Civil Code Section 5900, et seq. which specifically references the
provisions of California Civil Code Section 5965. The summary shall be provided either at the time the
Budget required by California Civil Code Section 5300 is distributed or in the manner specified in California
Corporations Code Section 5016. The summary shall include a description of the Association's internal
dispute resolution procedure, as required by California Civil Code Section 5920.
15.2.4 Civil Action. A civil action to enforce the Governing Documents shall comply with
California Civil Code Sections 5850 through 5985.
15.3 Enforcement of Non Payment of Assessments. Each Owner of any Condominium then
subject to Assessment shall be deemed to covenant and agree to pay to the Association each and every
Assessment provided for in this Declaration. The Association shall have the right to enforce such payment
obligation in accordance with the provisions set forth in Section 5.13.
15.4 Enforcement of Bonded Obligations. The Association shall have the right to enforce
bonded obligations in accordance with the provisions set forth in Section 5.23.
15.5 Disputes Involving Declarant. Declarant has recorded an ADR Declaration which sets
forth the procedures that shall be used to resolve all disputes with Declarant for any claims asserted by an
Owner and/or the Association. The ADR Declaration recorded in the Official Records constitutes a part of
this Declaration and is incorporated herein by this reference as though set forth in full herein. Each Owner
and the Association acknowledge and agree that the terms and provisions set forth in the ADR Declaration
are covenants running with the land which are binding upon the Owners and the Association and successor
Owners.
15.6 Guest Builder Disputes. Any Guest Builder Disputes shall be resolved pursuant to the
dispute resolution procedures set forth on Exhibit “D.” The only disputes and claims that shall be resolved
pursuant to the procedures set forth on Exhibit “D” are Guest Builder Disputes. In the event a dispute or
claim that involves both Guest Builder and Declarant, the procedures set forth in the ADR Declaration shall
be utilized to resolve such dispute or claim.
15.7 Construction Defect Disputes Related to Declarant Condominium Buildings and/or
Guest Builder Condominium Buildings. Declarant Condominium Buildings are being constructed by
Declarant, and Guest Builder Condominium Buildings are being constructed by Guest Builder. To the extent
there is a claim of construction defect relating to the Declarant Condominium Buildings, all costs and
expenses associated with such claim (including without limitation costs related to investigations, costs
incurred in obtaining, votes of owners as to whether to initiate claim, attorneys’ costs and fees) shall be
levied as a Special Assessment against the Owners of the Residential Units within the Declarant
Condominium Buildings. To the extent there is a claim of construction defect relating to the Guest Builder
Condominium Buildings, all costs and expenses associated with such claim (including without limitation
costs related to investigations, costs incurred in obtaining, votes of owners as to whether to initiate claim,
attorneys’ costs and fees) shall be levied as a Special Assessment against the Owners of the Residential
Units within the Guest Builder Condominium Buildings. In such event, the vote required pursuant to Section
15.8.3 below, shall be required only from the Owners in the Guest Builder Condominium Buildings (as to
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claims against Guest Builder) and only as to Owners in the Declarant Condominium Buildings (as to claims
against Declarant).
15.8 Relinquishment of Control. Notwithstanding any other provision in the Declaration or
the ADR Declaration to the contrary (including, without limitation, any provision which expressly or implicitly
provides Declarant with control over Association decisions for any period of time), while the Declarant has
majority control of the Board, Declarant hereby relinquishes control over the Association's ability to decide
whether to initiate any claim against Declarant or any Declarant Parties. No representative of Declarant or
Declarant Parties on the Board shall vote on the initiation of any claim including without limitation, any
construction defect claim such that from and after the first election of directors in which Class A Members
of the Association participate, Declarant and Declarant Parties shall have no control over the Association's
ability to decide whether to initiate a claim including without limitation, any construction defect claim and in
the event of such a vote, the affirmative vote of the two (2) non-Declarant representatives on the Board
shall be binding so long as a quorum of the Board is present at any meeting where such vote is taken.
15.8.1 Pursuit of Claims. An Owner may only assert Limited Warranty claims
pertaining to such Owner's Condominium. The Association and not the individual Owners shall have the
power to pursue any Claims for the Association Property and/or Offsite Maintenance Areas. The
Association and each Owner shall comply with the claim process set forth in the ADR Declaration in bringing
any such claims. Each Owner hereby agrees to delegate authority to the Association and assigns to the
Association all power and authority as is necessary for any settlement or release of any claim relating to
the Association Property and/or Offsite Maintenance Areas.
15.8.2 Notification to Prospective Buyers. In the event that the Association
commences a claim pursuant to the ADR Declaration, or pursues any other legal action, all Owners must
notify prospective purchasers of such action or claim and must provide such prospective purchasers with a
copy of the notice produced by the Association and delivered to the Owners in accordance with California
Civil Code Section 6000 and this Declaration.
15.8.3 Members’ Approval of Certain Actions. In the event any claim brought by
the Association against Declarant or Guest Builder, as applicable, is not resolved pursuant to the Limited
Warranty or the non-adversarial procedures set forth in ADR Declaration or the Guest Builder Dispute
Resolution Procedures, as applicable, then to the extent permitted by Applicable Law the Association shall
not initiate a further action or arbitration proceeding without first obtaining the consent of the Owners other
than Declarant constituting a majority of the Voting Power; provided, however, in the event such claim or
dispute is Guest Builder Dispute, only the majority of the Voting Power of the Owners of a Residential Unit
within the Guest Builder Condominium Buildings shall be required and in the event such claim or dispute is
a dispute with Declarant regarding the Declarant Condominium Buildings, only the majority of the Voting
Power of the Owners of Residential Units within the Declarant Condominium Buildings shall be required.
Each Owner and the Association, by acceptance of a deed to a Condominium or Association Property, as
applicable, agrees that because representative claims (i.e. claims related to the Association Property or
claims by the Association on behalf of the Owners) by the Association may create disclosure requirements
and/or may impair the ability of Owners to sell or finance their Condominiums, the Association must obtain
the consent of a majority of Owners other than Declarant before filing such representative claims. Each
Owner and the Association acknowledge that obtaining such consent is a reasonable requirement to ensure
that each Owner is given the ability to evaluate the impact such action or proceeding may have on the
value, sale and/or the ability to finance the Condominiums. In the event such vote is not permitted by
Applicable Law, the non-Declarant appointed Board Members must unanimously agree to proceed with
such further claim or action.
15.8.4 Notice Prior to Litigation. The Association shall notify all Owners of any
litigation filed for or on behalf of the Association. The notice shall include a proposed budget for the litigation
and an explanation of the source of the funds for the litigation. Such notice shall provide an explanation of
why the litigation is being initiated or defended, and shall include a budget for the litigation (including, without
limitation, experts’ fees and costs, consultants’ fees and costs and the costs of the proceedings). The
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notice must state that the Members have a right to review an accounting for the litigation provided in
California Civil Code Section 5200, which will be available at the Association’s office. Any such litigation
which is filed shall also conform to the requirements set forth in the ADR Declaration.
15.8.5 Conflict. In the event of any conflict between the provisions of this
Section 15.8 and the ADR Declaration, the terms of the ADR Declaration shall control.
ARTICLE 16
GENERAL PROVISIONS
This Article sets forth the general provisions which govern this Declaration.
16.1 Headings. The headings used in this Declaration are for convenience only and are not to
be used to interpret the meaning of any of the provisions of this Declaration.
16.2 Severability. The provisions of this Declaration shall be deemed independent and
severable, and the invalidity or partial invalidity or unenforceability of any provision or provisions of it shall
not invalidate any other provisions. In the event that any phrase, clause, sentence, paragraph, section,
article or other portion of this Declaration shall become illegal, null, void, against public policy or otherwise
unenforceable, for any reason, the remaining portions of this Declaration shall not be affected thereby and
shall remain in force and effect to the fullest extent permissible by law.
16.3 Cumulative Remedies. Each remedy provided for in this Declaration shall be cumulative
and not exclusive. Failure to exercise any remedy provided for in this Declaration shall not, under any
circumstances, be construed as a waiver.
16.4 Violations as Nuisance. Every act or omission in violation of the provisions of this
Declaration shall constitute a nuisance and, in addition to all other remedies herein set forth, may be abated
or enjoined by any Owner, any Member of the Board, the manager, or the Association.
16.5 No Racial Restriction. No Owner shall execute or cause to be recorded any instrument
which imposes a restriction upon the sale, leasing or occupancy of its Condominium on the basis of race,
sex, color or creed.
16.6 Access to Books. Declarant may, at any reasonable time and upon reasonable notice to
the Board or manager, cause an audit or inspection to be made of the books and financial records of the
Association.
16.7 Liberal Construction. The provisions of this Declaration shall be liberally construed to
effectuate its purpose. Failure to enforce any provision hereof shall not constitute a waiver of the right to
enforce said provision thereafter.
16.8 Notification of Sale of Condominium. Concurrently with the consummation of the sale
of any Condominium under circumstances whereby the transferee becomes an Owner thereof, or within
five (5) business days thereafter, the transferee shall notify the Board in writing of such sale. Such
notification shall set forth the name of the transferee and its Mortgagee and transferor, the common address
of the Condominium purchased by the transferee, the transferee’s and the Mortgagee’s mailing address,
and the date of sale. Prior to the receipt of such notification, any and all communications required or
permitted to be given by the Association, the Board or the manager shall be deemed to be duly made and
given to the transferee if duly and timely made and given to said transferee’s transferor. Mailing addresses
may be changed at any time upon written notification to the Board. Notices shall be deemed received forty-
eight (48) hours after mailing if mailed to the transferee, or to its transferor if the Board has received no
notice of transfer as above provided, by certified mail return receipt requested, at the mailing address above
specified. Notices shall also be deemed received on the next business day after being sent by overnight
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courier or upon delivery if delivered personally to any occupant of a Condominium over the age of twelve
(12) years.
16.9 Provision of Governing Documents to Prospective Purchasers. Pursuant to California
Civil Code Section 4525, as soon as practicable before the transfer of title or the execution of a real property
sales contract, the Owner shall provide copies of the Governing Documents to the prospective purchaser
of a Condominium, which Governing Documents include, but are not limited to, this Declaration and the
Master Dispute Resolution.
16.10 Number, Gender. 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,
feminine or neuter, as the context requires.
16.11 Exhibits. All exhibits referred to in this Declaration are attached to this Declaration and
incorporated by reference.
16.12 Binding Effect. This Declaration shall inure to the benefit of and be binding on the
successors and assigns of Declarant, and the heirs, personal representatives, grantees, tenants,
successors and assigns of the Owners.
16.13 Easements Reserved and Granted. Any easements referred to in this Declaration shall
be deemed reserved or granted, or both reserved and granted, by reference to this Declaration in the first
deed by Declarant to any Condominium.
16.14 Statutory References. All references in this Declaration to various statutes, codes,
regulations, ordinances and other laws shall be deemed to include those laws in effect as of the date of this
Declaration and any successor laws as may be amended from time to time.
16.15 Applicability of FNMA Regulations. For so long as FNMA blanket loan approvals are in
effect for the Community and while any FNMA loan encumbers any Condominium in the Community
pursuant to such blanket approval, the FNMA and guidelines and regulations shall apply to the Community
to the extent that FNMA, respectively, asserts application of such guidelines and regulations and those
guidelines and regulations are not in conflict with California law or with the requirements of the DRE. At
such time as the blanket loan approvals are no longer in effect and no FNMA loans encumber any
Condominium in the Community, the FNMA guidelines and regulations shall have no further applicability
with respect to the Community.
IN WITNESS WHEREOF, Declarant has executed this instrument as the date first written above.
DECLARANT:
SHEA HOMES LIMITED PARTNERSHIP, a California
limited partnership
By:
Name:
Title:
By:
Name:
Title:
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SMRH:4814-2394-3589.4 i Shea / Mariner Square
102519 0100-923071
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, personally
appeared _______________________________, who proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the 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
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of _____________________ )
On ____________________, before me, ____________________________, a Notary Public, personally
appeared _______________________________, who proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the 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
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SMRH:4814-2394-3589.4 ii Shea / Mariner Square
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LIST OF EXHIBITS
EXHIBIT “A”....................................................................... Description of Property and Association Property
EXHIBIT “B”............................................................................................... Maintenance Responsibility Chart
EXHIBIT “C” ......................................................................................................................... ADR Declaration
EXHIBIT “D” ............................................................................. Guest Builder Dispute Resolution Provisions
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SMRH:4814-2394-3589.4 EXHIBIT “A” Shea / Mariner Square
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EXHIBIT “A”
DESCRIPTION OF PROPERTY
AND ASSOCIATION PROPERTY
PROPERTY:
ASSOCIATION PROPERTY:
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SMRH:4814-2394-3589.4 EXHIBIT “B” Shea / Mariner Square
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EXHIBIT “B”
MAINTENANCE RESPONSIBILITY CHART
Each Owner is responsible for the maintenance, repair and replacement of all elements of the Residential Unit,
except as otherwise set forth below or in the Governing Documents. The Association is responsible for all of the
maintenance, repair and replacement of the Association Property. Notwithstanding the foregoing, in the event of a
casualty, the Association shall repair and replace all items covered by the Association’s insurance. The Owner
Maintenance Guide and the Association Maintenance Guide may also expand on the scope of the maintenance
responsibilities set forth below.
“O” indicates an obligation of the Owner.
“A” indicates an obligation of the Association.
“N/A” indicates an obligation that is “not applicable.”
IMPROVEMENT MAINTENANCE OBLIGATION & RESPONSIBLE PARTY
Clean Maintain Repair Replace Paint Resurface Repave
The interior of the Residential
Unit including, without
limitation, all appliances,
cabinets, plumbing fixtures and
all other items within the
Residential Unit whether free-
standing or built in
O O O O O O
(if
applicable)
N/A
Utility Facilities and equipment
which exclusively service the
Residential Unit whether
located in the Residential Unit
or the Association Property
N/A O O O N/A N/A N/A
Windows enclosing a
Residential Unit, including
metal frames, tracks and
exterior screens of glass doors
and windows
O
O O O A
(exterior of
the window
frame only)
N/A N/A
Doors (including without
limitation the garage door)
enclosing an Owner’s
Residential Unit
O
O O O O to paint
interior
A to paint
exterior
N/A N/A
The Exclusive Use Areas
(excluding any railings
surrounding such areas)
O A
(excluding
any
Improve-
ments
installed
by Owner)
A
(excluding
any
Improve-
ments
installed
by Owner)
A
(excluding
any Improve-
ments
installed by
Owner)
(excluding
any
Improve-
ments
installed by
Owner)
A
(excluding
any
Improve-
ments
installed by
Owner)
N/A
Exterior fixtures including light
fixtures, photocells, and light
bulbs not controlled by Unit
Owners
A A A A A N/A N/A
Exterior fixtures including light
fixtures, photocells and light
bulbs operation of which is
controlled by Unit Owner
O O O O O N/A N/A
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SMRH:4814-2394-3589.4 EXHIBIT “B” Shea / Mariner Square
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Each Owner is responsible for the maintenance, repair and replacement of all elements of the Residential Unit,
except as otherwise set forth below or in the Governing Documents. The Association is responsible for all of the
maintenance, repair and replacement of the Association Property. Notwithstanding the foregoing, in the event of a
casualty, the Association shall repair and replace all items covered by the Association’s insurance. The Owner
Maintenance Guide and the Association Maintenance Guide may also expand on the scope of the maintenance
responsibilities set forth below.
“O” indicates an obligation of the Owner.
“A” indicates an obligation of the Association.
“N/A” indicates an obligation that is “not applicable.”
IMPROVEMENT MAINTENANCE OBLIGATION & RESPONSIBLE PARTY
Clean Maintain Repair Replace Paint Resurface Repave
The individual lock for the
Residential Unit’s applicable
mailbox (subject to Postal
requirements)
O O O O N/A N/A N/A
Established system of
drainage within the Owner’s
Exclusive Use Easement
Areas
O O O O N/A N/A N/A
All Association Property
including without limitation,
roof, structural components,
bearing walls, foundations,
except for any Exclusive Use
Easement Areas as provided
herein
A A A A A A A
Association Property such as
Private Streets, landscaping,
open spaces situated within
the Association Property,
except for any Exclusive Use
Easement Areas as provided
herein,
A A A A A A A
All Utility Facilities serving two
or more Condominiums, and
all private Utility Facilities
located in the Association
Property
N/A A A A N/A N/A N/A
Cluster Mailboxes (excluding
locks on individual mailboxes)
A A A A A N/A N/A
Walls, fencing and railings on
Association Property that do
not enclose a Residential
Unit’s Exclusive Use Easement
Area
A A A A A N/A N/A
Railings and Walls Enclosing
Exclusive Use Easement
Areas
O A
A
A
A
A
N/A
HVAC Unit servicing
Residential Unit
O O O O N/A N/A N/A
Solar Energy System servicing
Residential Unit
O O O O N/A N/A N/A
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SMRH:4814-2394-3589.4 EXHIBIT “C” Shea / Mariner Square
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EXHIBIT “C”
ADR DECLARATION
[Attached hereto.]
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SMRH:4814-2394-3589.4 EXHIBIT “D” Shea / Mariner Square
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EXHIBIT “D”
GUEST BUILDER DISPUTE RESOLUTION PROCEDURES
[ATTACHED HERETO]
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SMRH:4814-2394-3589.4 EXHIBIT “D” Shea / Mariner Square
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GUEST BUILDER DISPUTE RESOLUTION PROCEDURES
1. Dispute Resolution. Notwithstanding any provision of the Declaration to the contrary, the
following dispute resolution procedure is implemented for Guest Builder Disputes as to the Guest Builder
Property with the intent to avoid costly and potentially lengthy traditional court proceedings. Any dispute
between the Owners of Residential Units in the Guest Builder Property, on the one hand, and Guest Builder,
or any director, officer, partner, shareholder, member, employee, representative, contractor, subcontractor,
design professional or agent of Guest Builder (each, a “Guest Builder Party,” and collectively the “Guest
Builder Parties”), on the other hand, is a “Guest Builder Dispute” that shall be resolved in accordance
with the following alternative dispute resolution procedures, if the Guest Builder Dispute arises under the
Declaration or otherwise relates to the Guest Builder Property, including construction defect claims under
the Right to Repair Law. In addition, Owners are advised that Sections 2, 3 and 4 below are Guest Builder’s
alternative contractual non-adversarial procedures for the resolution of Guest Builder Disputes concerning
matters governed by the Right to Repair Law. These procedures are different from and replace the “Pre-
litigation Procedure” described in Chapter 4 of the Right to Repair Law. All Guest Builder Disputes shall be
resolved in accordance with the following alternative dispute resolution procedures:
2. Notice. Any Person with a Guest Builder Dispute shall give written notice of the Guest
Builder Dispute by personal or mail service as authorized by California Code of Civil Procedure Sections
415.10, 415.20, 415.21, 415.30 or 415.40 to the party to whom the Builder Dispute is directed
(“Respondent”) describing the nature of the Guest Builder Dispute and any proposed remedy (the “Dispute
Notice”).
3. Cooperation, Access and Repair. Commencing on the date the Dispute Notice is
delivered to the Respondent, the party alleging the Guest Builder Dispute must promptly and reasonably
cooperate with Respondent and its representatives to facilitate the resolution of the Guest Builder Dispute.
Respondent and its representatives have the right to (i) meet with the party alleging the Guest Builder
Dispute at a reasonable time and place to discuss the Guest Builder Dispute, (ii) enter the Added Property
to inspect any areas that are subject to the Guest Builder Dispute, and (iii) conduct inspections and testing
(including destructive or invasive testing) in a manner deemed appropriate by the Respondent. If
Respondent elects to take any corrective action, Respondent and its representatives shall be provided full
access to the Added Property to take and complete the corrective action. If the Guest Builder Dispute
relates to the planning surveying, design, engineering, grading, specifications, construction or other
development of the Added Property, Respondent is granted the irrevocable right to inspect, repair or replace
any affected parts of the Added Property that are subject to the Guest Builder Dispute. However,
Respondent is not obligated to take any such corrective action. Respondent, with the consent of Guest
Builder, has the right to select the corrective action Respondent believes is appropriate. The right to take
corrective action granted in this Section is in addition to the rights granted in California Civil Code Section
6000 (“Calderon Act”). The procedures established in the Calderon Act may be implemented, before,
during or after the procedure in this Section is implemented.
4. Mediation. If the Guest Builder Dispute is not resolved within ninety (90) days after the
Respondent receives the Dispute Notice, any party may submit the Guest Builder Dispute to mediation by
delivering a request for mediation (a “Mediation Notice”) in the same manner as allowed for delivery of the
Dispute Notice. The Guest Builder Dispute shall be mediated pursuant to (a) the American Arbitration
Association (“AAA”) mediation procedures in existence when the Dispute Notice is delivered, as modified
by this Section, or (b) the mediation procedures of any successor to AAA in existence when the Dispute
Notice is delivered, as modified by this Section, or (c) mediation procedures approved by the parties of any
entity offering mediation services that are acceptable to the parties to the Guest Builder Dispute (each, a
“Party” and collectively, the “Parties”). Except as provided in Section 6 below, no Person shall begin
litigation regarding a Guest Builder Dispute without complying with this Section 4.
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SMRH:4814-2394-3589.4 EXHIBIT “D” Shea / Mariner Square
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(a) Selection of Mediator. The mediator shall be selected within sixty (60) days after
delivery of the Mediation Notice. The mediator shall be selected by mutual agreement of the Parties. If the
Parties cannot agree on a mediator, the mediator shall be selected by the entity providing the mediation
service. No Person shall serve as a mediator in any Guest Builder Dispute in which the Person has any
financial or personal interest in the result of the mediation, except by the written consent of all Parties.
Before accepting any appointment, the prospective mediator shall disclose any circumstances likely to
create a presumption of bias or to prevent a prompt commencement of the mediation process.
(b) Position Letter; Pre-Mediation Conference. No later than sixty (60) days after
selection of the mediator, each party to the Guest Builder Dispute shall submit a letter (a “Position
Statement”) containing (i) a description of the Party’s position concerning the issues that need to be
resolved, (ii) a detailed description of the defects allegedly at issue, and (iii) a suggested plan of repair,
remediation or correction. The mediator may schedule a pre-mediation conference. All Parties shall attend
unless otherwise mutually agreed. The mediation shall be commenced within twenty (20) days after
submittal of all Position Statements and shall be concluded within fifteen (15) days after the mediation
began unless either (A) the mediator extends the mediation period, or (B) the Parties mutually agree to
extend the mediation period. The mediation shall be held in the County or another place mutually
acceptable to the parties.
(c) Conduct of Mediation. The mediator has discretion to conduct the mediation in
the manner in which the mediator believes is most appropriate to achieve the goal of settling the Guest
Builder Dispute. The mediator is authorized to conduct joint and separate meetings with the Parties and to
make oral and written recommendations for settlement. The mediator may also obtain expert advice
concerning technical aspects of the Guest Builder Dispute, provided the Parties agree to and do assume
the expenses of obtaining such advice. The mediator shall not have the authority to impose a settlement
on the Parties.
(d) Application of Evidence Code. The provisions of California Evidence Code
Sections 1115 through 1128 shall be applicable to the mediation process. Use and disclosure of
statements, evidence and communications offered or made in the course of the mediation shall be governed
by these sections, including the sections which preclude use of material in future proceedings and the
sections which provide for confidentiality of material.
(e) Parties Permitted at Mediation. Persons other than the Parties, their liability
insurers, Guest Builder, attorneys for the Parties and the mediator may attend mediation sessions only with
the permission of the Parties and the consent of the mediator. Guest Builder has the right to attend the
mediation session even if Guest Builder is not one of the Parties.
(f) Record. There shall be no stenographic, video or audio record of the mediation
process.
(g) Expenses. Guest Builder and any Guest Builder Parties who are a Party to the
mediation shall pay the mediator’s fees for a one-half day mediation session. All Parties shall bear their
own attorneys’ fees and costs incurred in connection with the mediation. All other expenses of the
mediation, including additional mediator’s fees and the cost of any proof or expert advice requested by the
mediator, shall be borne equally by the Parties, unless the Parties agree otherwise. This provision does
not modify any provision of a contract between Guest Builder and any Guest Builder Party requiring
indemnification or establishing a different allocation of costs between the Guest Builder and the Guest
Builder Party.
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5. Arbitration of Disputes. To the extent that the Guest Builder Dispute is not resolved
during mediation, the entire matter shall proceed as one of binding arbitration (“Arbitration”) and shall be
resolved by and pursuant to the Arbitration Rules and Procedures of Judicial Arbitration and Mediation
Services (“JAMS”) in effect at the time the request for Arbitration is submitted. In the event JAMS is for
any reason unwilling or unable to serve as the Arbitration service, the Parties shall select another Arbitration
service. If the Parties are unable to agree on an alternative service, then either Party may petition any court
of competent jurisdiction in the County to appoint an alternative service, which shall be binding on the
Parties. The rules and procedures of the alternative service in effect at the time the request for Arbitration
is submitted shall be followed. 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 shall
be conducted, the latter rules shall govern the conduct of the Arbitration.
(a) Development of the Added Property involves and concerns interstate commerce
and hence the procedures described in this Section 5 are governed by 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.
(b) The provisions of this Section 5 shall inure to the benefit of and be enforceable by
the Guest Builder Parties, and any other Person whom an Owner contends is responsible for any matter
relating to the Guest Builder Dispute. The Parties contemplate the inclusion of such Persons in any
Arbitration of a Guest Builder Dispute and agree that the inclusion of such Persons will not affect the
enforceability of this Section 5.
(c) Each Party shall bear its own attorney’s fees and costs (including expert costs) for
the Arbitration. The fees to initiate the Arbitration shall be advanced by the Guest Builder. 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 ultimately shall be borne
as determined by the arbitrator.
(d) The arbitrator appointed to serve shall be a neutral and impartial individual. The
arbitrator shall be authorized to provide all recognized remedies available in law or in equity for any cause
of action or claim that is the basis of the Arbitration.
(e) The decision of the arbitrator shall be final and binding. An application to confirm,
vacate, modify, or correct an award rendered by the arbitrator shall be filed in any court of competent
jurisdiction in the County.
(f) The participation by any Party, or any Party whom an Owner contends is
responsible for any matter relating to a Guest Builder Dispute, in any judicial proceeding concerning any
matter arbitral hereunder shall not be asserted or accepted as a reason to delay, to refuse to participate in,
or to refuse to compel Arbitration, including instances in which the judicial proceeding involves parties not
subject to this Section 5 and/or who cannot otherwise be compelled to arbitrate.
(g) The venue of the Arbitration shall be in the County unless the Parties agree in
writing to another location.
(h) Either Party may use small claims court as an alternative to Arbitration of a Guest
Builder Dispute if the amount in controversy is within the jurisdictional limits of small claims court.
(i) If any provision of this Section 5 is 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. The agreement to arbitrate Guest Builder Disputes set forth in this Section 5 is self-executing.
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SMRH:4814-2394-3589.4 EXHIBIT “D” Shea / Mariner Square
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6. Statutes of Limitation. Nothing in this Exhibit “D” shall be considered to toll, stay, reduce
or extend any applicable statute of limitations, provided, however, that Guest Builder, the Guest Builder
Parties and any Owner may commence a legal action which in the good faith determination of that Person
is necessary to preserve that Person’s rights under any applicable statute of limitations so long as no further
steps in processing the action are taken except those authorized in this Exhibit “D.”
7. Agreement to Dispute Resolution; Waivers of Jury Trial. GUEST BUILDER AND
EACH OWNER AGREE TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS
EXHIBIT “D” DECIDED BY NEUTRAL ARBITRATION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION ACT, AND ARE
GIVING UP ANY RIGHTS THEY MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT
OR JURY TRIAL. GUEST BUILDER AND EACH OWNER ACKNOWLEDGE THAT BY AGREEING TO
RESOLVE ALL DISPUTES AS PROVIDED IN THIS EXHIBIT “D,” THEY ARE GIVING UP THEIR
RESPECTIVE JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS EXHIBIT “D.” IF ANY PARTY REFUSES TO SUBMIT TO
ARBITRATION, SUCH PARTY MAY BE COMPELLED TO ARBITRATE UNDER THE FEDERAL
ARBITRATION ACT AND THE CALIFORNIA ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA
ARBITRATION ACT IS NOT INCONSISTENT WITH THE FEDERAL ARBITRATION ACT. THIS EXHIBIT
“D” MAY NOT BE AMENDED WITHOUT GUEST BUILDER’S PRIOR WRITTEN CONSENT.