HomeMy WebLinkAboutCastaways Leaf Blower DocumentsRECORDING REQUESTED BY
'rsf American Title Ins. Co.
Recorded in the County of Orange, California
WHEN RECORDED MAIL TO: Gary L. Granville, ClerMRecorder
SONGSTAD, RANDALL & ULICH 1 llM M lN Ill Ill llll Ill lli llMB 111 21 7.00
2201 DUPORT DRIVE, SUITE 420
IRVINE, CA 92612 1997041 5363 4:09pm 08/26/97
ATTN: TIMOTHY L. RANDAL& 005 14010603 14 23
DO2 71 7.00 210.00 0.00 0.00 0.00 0.00
FA 160035M PSC
THIS SPACE FOR RECORDER'S USE ONLY
DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATIONS OF EASEMENTS
FOR
CASTAWAYS
(This document, PREVfOUSL Y RECORDED AS /NSTRUMENT No. 7997039 7575,
is now being RE-RECORDED to show the Tract as No. 750 72
and to add the word "Lotsn to Page 8 at Section 2.1;
and to add Lots T & U to Exhibit "A")
THIS INSTRUMENT IS RECORDED IN THE COUNTY OF ORANGE AT THE
'REQUEST OF FIRST AMERICAN TITLE INSURANCE COMPANY AS AN
-0DATION ONLY. IT HAS NOT BEEN EXAMINED AS TO
ITS EXECUTION OR AS TO ITS EFFECT UPON THE TITLE.
THlS PAGE ADDED TO PROVlOE AOEWAfE SPACE FOR RECORDING /NFORMA~.IO~
I;ADDITIONAL RECORDING FEE APPLIES)
. . -.
RECORDING REQUESTED BY:
FIRST AMERICAN TITLE INS. CO. I
WHEN RECORDED RETm TO:
SONGSTAD, RANDALL & ULICH
2201 Dupont Drive
Suite 420
Irvine, california 92612
Attn: Timothy L. Randall
FA lbb~3S r\n Q5G
DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATIONS OF EASEMENTS
FOR
CASTAWAYS
THIS INSTRUMENT IS RECORDED IN THE
COUNTY OF ORANGE AT THE REQUEST OF
FIRST AMERIC4N TllU INSURANCE COMPANY
AS AN ACCOMMODATION ONLY. IT HAS
NOT BEEN EXAMINED AS TO ITS EXECUTION
OR AS TO ITS EFFECT UPON THE TITLE.
TABLE OF CONTENTS
Pase No .
ARTICLE I DEFINITIONS .................................. 2
Section 1.1.Annexable Area .......................... 2
Section 1.2.Annexed Land ............................ 2
Section 1.3.Architectural Committee ................. 2
Section 1.4.Architectural Committee Rules ........... 2 ................................ Section 1.5.Articles 3
Section 1.6.Association .......................... 3
Section 1.7.Association Maintenance Area ............ 3
Section 1.8.Association Property .................... 3
Section 1.9.Beneficiary ............................. 3 .................................. Section 1.10.Board 3
Section 1.11.Bylaws ................................. 3
Section 1.12.Ca~ital Iizprovement Assessment ......... 3 ........................ Section 1.13.Close of Escrow 3 ...................... Section 1.14.Common Assessment 4 ........................ Section 1.15.Common Expenses 4
Section 1.16.Declarant .............................. 4
Section 1.17.Declaration ............................ 5
Section 1.18.Deed of Trust .......................... 5 .................................... Section 1.19 DRE 5 ............................ Section 1.20.First Phase 5 .................... Section 1.21 Governing Documents 5
Section 1.22.Improvements ........................... 5
Section 1.23.Lot .................................... 5
Section 1.24.Manager ................................ 5
Section 1.25.Member ................................ 5
Section 1.26.Mortgage ............................... 5
Section 1.27.Mortgagee .............................. 5
Section 1.28.Mortgagor .............................. 6
Section 1.29.Notice and Hearing ..................... 6
Section 1.30.Notice of Annexation ................... 6
Section 1.31.0wner .................................. 6
Section 1.32.Participating Builder .................. 6
Section 1.33.Person ................................. 6 .................................. Section 1.34.Phase 6 .................... . Section 1.35.Planned Development 6
Section 1.36.Properties ............................ 7 ................................ Section 1.37 Project 7
Section 1.38.Records, Recorded, Filed and
Recordation .................................. 7
Section 1.39.Reconstruction Assessment .............. 7
Section 1.40.Residential Area ....................... 7 ........................ Section 1.41.Residential Lot 7
Section 1.42.Residence .............................. 7
Section 1.43.Rules and Regulations .................. 7
Section 1.44.Special~Assessment .................... 7
Section 1.45.Subdivision ............................ 7
ARTICLE I1 FIRST PHASE .................................. 8
Section 2.1.Property Description .................... 8
Section 2.2.Conveyance to Association ............... 8
Section 2.3.Association Maintenance Area Easements .. 8 ....................... Section 2.4 Mailbox Easements 8
Section 2.5.Delivery of Documents by Declarant ...... 9
TABLE OF CONTENTS
Pase No .
ARTICLE I11 ANNEXATION ............................... 10
Section 3.1.By Declarant/Consents ................... 10
Section 3.2.Effect of Annexation .................... 10
Section 3.3.Delivez-y of Documents for Subsequent
Phases .................................. 11
Section 3.4.FHA/VA Approval ......................... 11 .................... Section 3.5.Notice of Annexation 11 ....... Section 3.6.Execution of Notice of Annexation 12 ...................... Section 3.7.Notice of Deletion 12
ARTICLE IV ASSOCIATION .................................. 12
Section 4.l.Organization ............................ 12 . . Section 9.2.Merkersn~ E: .............................. 12 ...... Section 4.3.Easement over Association Property 12 ....................... Section 4.4.Voting by Members 13
(a) Voting Classes ......................... 13
Class A ................................ 13 ................................ Class B 13
(c) Appurtenant to Lot ..................... 13 ............ (d) Suspension of Voting Rights 14
ARTICLE V FUNCTIONS OF ASSOCIATION ..................... 14
Section 5.1.Powers and Duties ....................... 14
(a) Meetings ................................. 14 .............................. (b) Assessments 14
(c) Rights of Entry and Enforcement .......... 14
(dl Easements and Rights-of-way .............. 15
(e) Repair and Maintenance of Association ................................. Property 15
(£1 Manager .................................. 15
(g) Legal and Accounting Services ............ 16 ................................ (h) Insurance 16
(i) Construction on Association Property ..... 17 ................................ (j) Contracts 18
(k) Audit .................................... 18
(1) Maintenance of Flood Control Facilities .......................... and Other Areas 18 ................... Section 5.2.Rules and Regulations 18 .............. Section 5.3.Liability. Indemnification 19
Section 5.4.Taxes ................................... 19 ........... Section 5.5.Limitation on Certain Actions 19 ............... Section 5.6.Actions Without a Meeting 20
ARTICLE VI ASSESSMENTS .................................. 20 ......................... Section 6.1.Covenant to Pay 20 ...................... Section 6.2.Common Assessments 20 .... ........................ (a) Equal Assessments 20
(b) Basis of Maximum Common Assessment ....... 20
(c) Budget Estimate .......................... 21
(d) Commencement of Common Assessments ....... 23
(e) Payment of Common Assessments ............ 23 ....................... (f) Excess Assessments 23
Section 6.3.Capital Improvement Assessments ......... 23
Section 6.4.Emergency Situations .................... 23
TABLE OF CONTENTS
Pase No .
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
.............. 6.5.Reconstruction Assessments 24 ............... 6.6.Limitation on Assessments 24 ..................... 6.7.Special Assessments 24
6.8.Late Charges and Interest ............... 25
6.9.Waiver of Enjoyment ..................... 25
6.1O.Unpaid Assessments as Liens ............ 25
6.11.Mortgage Protection ..................... 26
6.12.Maintenance Funds ...................... 27
6.13.Amendments to Article VI ............... 27
6.14.Exemption from Assessments ............. 28
ARTICLE VII DAMAGE TO OR CONDEMNATION OF
?.SSC)CIF.TIOX PROPERTIES ...................... 28
Section 7.l.Damages ky Me~hsrs ...................... 28 ........................ Section 7.2.Repair of Damage 29 ............... Section 7.3.Sale by Unanimous Consent 29
Section 7.4.Distribution of Proceeds of Sale or ...................... Condemnation Award 29
..................... ARTICLE VIII GENERAL RESTRICTIONS 29 ....................... Section 8.1.Residential Areas 29 .................. Section 8.2.No Further Subdivision 30
Section 8.3.Improvement, Landscaping and
Alterations ............................. 30
Section 8.4.Exterior Maintenance and Repair;
Owner's Obligations ..................... 30
Section 8.5.Antennae. ............................... 31
Section 8.6.Signs ................................... 32
Section 8.7.Window Coverings ........................ 32
Section 8.8.Unsightly Articles ...................... 32 ........................... Section 8.9.Utility Areas 32 .............................. Section 8.10.Nuisances 32
Section 8.11 .Animals ................................ 33 ................ Section 8.12.No Hazardous Activities 33 ................ Section 8.13.No Temporary Structures 33 ................. Section 8.14.No Mining and Drilling 33
Section 8.15.Insurance Rates ........................ 33 ............................... Section 8.16.Drainage 34 ................ Section 8.17.Water and Sewer Systems 34 ....................... Section 8.18.Parking. Garages 34
Section 8.19.Maintenance and Control
of Association Maintenance Areas ....... 34
Section 8.20.Party Walls and Fences ... .............. 35
Section 8.21 Post Tension Slabs ..................... 36
Section 8.22 View ................................... 36 ....................... Section 8.23.Violation of Law 37
Section 8.24.Violation of Restrictions .............. 37
ARTICLE IX ARCHITECTURAL COMMITTEE ...................... 37
Section 9.1.Members of Committee .................... 37
(a) By Declarant ............................. 37
(b) By the Board ............................. 38
(c) Removal .................................. 38
(d) Notice of Appointment .................... 38
iii
TABLE OF CONTENTS
Paqe No .
Section 9.2.Review of Plans and Specifications ...... 38
(a) Criteria for Approval .................... 38
(b) Conditions of Approval ................... 39
(c) Rules and Guidelines ..................... 39
(d) Notice of Decision ....................... 39
(e) Submission by Declarant and ..................... Participating Builder 39
Section 9.3.Meetings of the Architectural
Committee ............................... 40 ........... Section 9.4.No Waiver of Future Approvals 40 ................. Section 9.5.Compensation of Members 40 .................. Section 9.6.Corrections of Defects 40 ............................... !a! Inspectizlii 40
(b) Failiire to Remedy or Remove .............. 41 ........ (c) Failure to Notify Deemed Approval 41
Section 9.7.Nonliability of Architectural
Committee Member ........................ 42 ............................... Section 9.8.Variances 42 ................. Section 9.9.Solar Heating Equipment 42 ................ Section 9.10.Amendment to Article IX 43
.......................... ARTICLE X RIGHTS OF DECLARANT 43
ARTICLE XI MISCELLANEOUS ................................ 45 ................................... Section 11.1.Te rm 45
Section 11.2 .Amendment .............................. 45
(a) By Declarant and Participating Builders .. 45
(b) By Owners ................................ 46
Section 11.3.Mortgage Protection .................... 46
(a) Notice of Default ........................ 46
(b) Right of First Refusal ................... 47
(c) Foreclosure .............................. 47
(d) Mortgagee Approval ....................... 47
(el Books, Records and Notice of Meetings .... 49
(f) Notice to Mortgagees ..................... 49 ................................. (g) Defaults 49
(h) Professional Management .................. 49 ............................ (i) Fidelity Bond 50 ................................... (j) Leases 50
(k) Agreements for Financing ................. 50 ................................ Section 11.4.Notices 50 ............. Section 11.5.Enforcement and Non-Waiver 50 ..................... (a) Right of Enforcement 50
(b) Violations and Nuisance .................. 51 ......................... (c) Violation of Law 51
(d) Remedies Cumulative ...................... 51 ............................... (e) Non-Waiver 51
(£1 Attorneys1 Fees .......................... 51
Section ll.G.FHA/VA Approval ........................ 51
Section 11.7.Interpretation ......................... 52 ........ (a) Restrictions Construed Together 52
(b) Restrictions Severable ................. 52 ............... (c) Singular Includes Plural 52
(dl Captions ............................... 52
TABLE OF CONTENTS
Pase No.
(e) Declaration to Control ................. 52 ............... Section 11.8.Reservation of Easements 52 ....... Section 11.9.No Representations or Warranties 53
Section 11.10.Special Provision for Enforcement of
Certain Bonded Obligations ............ 53
DECLARATION OF
COVENANTS, CONDITIONS, RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR CASTAWAYS
THIS DECLARATION OF COVENANTS, CONDITIONS,
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR CASTAWAYS
(llDeclaration") is made this 5th day of August, 1997, by
TAYLOR WOODROW HOMES, INC., a California corporation
("Declarantn), with regard to the following facts:
A. Declarant is the owner of that certain real
property located in the City of Newport Beach, County of
Orange, State of California, defined in Article I below as
the First Phase and the Annexable Area.
B. Declarant proposes to develop the First Phase
and other properties to be later annexed for residential use
and in furtherance thereof desires to establish a general
plan for their maintenance, care, use and management.
C. This Declaration is designed to create
equitable servitudes and covenants applicable to and running
with all property made subject hereto. Declarant may cause
additional property to be annexed and thereby subject to
this Declaration by causing to be recorded a Notice of
Annexation. Such Notice of Annexation shall not conflict
with the provisions of this Declaration, but may impose
further conditions, covenants and restrictions for the
operation, protection and maintenance of the property to be
annexed, taking into account the unique aspects of such
property.
D. Declarant hereby declares that the First
Phase and those portions of the Annexable Area hereafter
becoming subject to this Declaration in accordance with the
provisions of Article 111, below, shall, from the date
declared to be subject to this Declaration in accordance
with the provisions hereof, be owned, encumbered, used,
occupied, maintained, altered, and improved subject to the
covenants, conditions, restrictions, limitations, reser-
vations, exceptions and terms hereinafter set forth for the
duration hereof, all of which are declared to be part of,
pursuant to, and in furtherance of a common and general plan
of development, improvement, enhancement and perfection of
the First Phase, and those portions of the Annexable Area
which eventually become subject hereto in accordance with
the provisions hereof. The provisions of this Declaration
are expressly intended to and shall run with the land, and
shall until their expiration in accordance with the terms
hereof, bind, be a charge upon and inure to the benefit of
all of the properties made subject hereto, Declarant and its
successors or assigns, and all persons having or acquiring
any right, title or interest in such properties, and their
heirs, successors, executors administrators and assigns.
E. Each Owner (as defined herein) of any of the
property made subject hereto will acknowledge, by acceptance
of a deed or other conveyance, or by recordation of a notice
of addition thereon, that the covenants, conditions,
restrictions zinc3 retier-fatiofis herein zre i-eaonabls that
Declarant has a substantial interest to be protected with
regard to assuring compliance with, and the enforcement of,
the covenants, conditions, restrictions and reservations
herein.
I?. Notwithstanding the foregoing, no provision
of this Declaration shall be construed as to prevent or
limit the right of Declarant to complete development of any
property made subject hereto or the construction of any
improvements thereon, nor the right of Declarant to maintain
model homes, construction, sales or leasing offices or simi-
lar facilities on any portion of the property owned by
Declarant or the Association (as defined herein), nor the
right of Declarant to post signs incidental to construction,
sales or leasing.
ARTICLE I
DEFINITIONS
Unless otherwise expressly provided, the following
words and phrases when used in this Declaration shall have
the meanings hereinafter specified:
Section 1.1. Annexable Area: "Annexable Area" shall
mean the real property described in Exhibit ttA1t, which is
attached hereto and incorporated herein by this reference.
Section 1.2. Annexed Land: "Annexed LandN shall
mean that portion of the Annexable Area which has been
annexed into the property which is subject to this
Declaration pursuant to Article I11 hereof.
Section 1.3. Architectural Committee:
"Architectural CommitteeI1 shall mean the architectural and
landscaping committee created pursuant to Article IX hereof.
Section 1.4. Architectural Committee Rules: "Archi-
tectural Committee Rules" shall mean the rules adopted by
the Architectural Committee pursuant to Article IX hereof.
Section 1.5. Articles: "ArticlesM shall mean the
Articles of Incorporation of the Association as filed in the
Office of the Secretary of the State of California.
Section 1.6. Association: llAssociationll shall mean
the Castaways Homeowners Association, a California
non-profit mutual benefit corporation, its successors and
assigns.
Section 1.7. Association Maintenance Area: "Associ-
ation Maintenance Areal1 shall mean all of the real property,
which may include, without limitation, vegetation,
eq-~estrizrz trail, sidewzlks, bicycle pathways. the median
strips within streets, recreation buildings and other
Improvements, which is located (a) in the Properties to be
(i) owned by the Association or (ii) maintained by the
Association and so classified in accordance with any Notice
of Annexation, if and after such Notice of Annexation is
recorded, or (b) adjacent to the Properties and to be
maintained by the Association pursuant to the terms of a
license, easement or other agreement between the adjacent
landowner and Declarant and/or the Association.
Section 1.8. Association Property: llAssociat ion
Property1I shall mean all Association Maintenance Areas and
all real and personal property now or hereafter owned in fee
by the Association.
Section 1.9. Beneficiaw: "Beneficiary" shall mean
a mortgagee under a mortgage or a beneficiary under a deed
of trust, as the case may be, and the assignees of such
mortgagee or beneficiary.
Section 1.10. Board: "Board" shall mean the Board of
Directors of the Association, elected in accordance with the
Bylaws and the Declaration.
Section 1.11. Bylaws: "Bylaws" shall mean the Bylaws
of the Association, as adopted by the Board and approved by
the Members of the Association.
2.3
Section 1.12. Capital Improvement Assessment: "Capi-
tal Improvement Assessmentn shall mean a charge against each
Owner and his Lot, representing a portion of the costs of
the Association for installation or construction of any
improvements on any portion of the Association Maintenance
Areas which the Association may from time to time authorize,
pursuant to the provisions of this Declaration.
Section 1.13. Close of Escrow: "Close of EscrowN
shall mean the date on which a deed or long-term ground
lease conveying any portion of the Properties is recorded in
the Office of the County Recorder.
Section 1.14. Common Assessment: "Common AssessmentH
shall mean the annual charge against each Owner and his Lot,
representing a portion of the total, ordinary costs of
maintaining, improving, repairing, replacing, managing and
operating the Association Maintenance Area and for other
Common Expenses, which charge is to be paid by each Owner to
the Association, as provided herein.
Section 1.15. Common Emenses: " Common Expenses "
shall mean and refer to the actual and estimated costs of
maintenance, management, operation, repair, replacement and
improvement of the Association Maintenance Area (including
unpaid Assessments. Ccinmcn A~~e~srnents,
Reconstriictxxi Assessments, and Capital Improvement
Assessments); costs of any gardening, utilities and other
services benefiting the Association Maintenance Area and any
recreational facilities which may be constructed thereon;
costs of management and administration of the Association,
including, without limitation, compensation paid by the
Association to managers, recreational directors,
accountants, attorneys and other employees; costs of bonding
members of the Board; taxes paid by the Association; amounts
paid by the Association for discharge of any lien or
encumbrance levied against the Association Property, or any
portion thereof; and the costs of any other item designated
by the Association for any reason whatsoever in connection
with the Properties, for the benefit of all of the Owners.
Section 1.16. Declarant: "Declarant" shall mean:
(a) Taylor Woodrow Homes, Inc., a California
corporation, its successors and assigns, by merger,
consolidation or by purchase of all or substantially
all of its assets;
(b) Any person or entity, his or its successors
and assigns, to which the foregoing Declarant has
assigned any or all of the rights and obligations of
the Declarant by an assignment expressed in a recorded
instrument including, without limitation, a deed,
lease, option agreement, land sale contract or
assignment, as the case may be, transferring such
interest, if such assignee agrees in writing with
Declarant to accept such assignment; and
(c) A Participating Builder as to all rights and
obligation of Declarant excepting the following: (i)
the right to appoint members to the Architectural
Committee; and (ii) the right to annex any portion of
the Annexable Area or to deannex any. portion of the
Annexed Land without the approval of Declarant under
(a), above.
Sectitm 1.17. Declaration: llDeclarationu shall mean
this Declaration of Covenants, Conditions, Restrictions and
Reservation of Easements for Castaways, as it may be amended
from time to time.
Section 1.18. Deed of Trust: "Deed of TrustN shall
mean a mortgage or a deed of trust, as the case may be.
Section 1.19. m: I1DRE1I shall mean the California
Department of Real Estate.
Section 1.20. First Phase: "First Phase1* shall mean
the real property described i~ Section 2.1, below.
Section 1.21. Governins Documents. "Governing
Documents" shall mean this Declaration, the Articles,
Bylaws, Architectural Committee Rules, Rules and Regulations
and any Notice of Annexation applicable to the Properties.
Section 1.22. Imvrovements: "Improvementsw shall
mean all structures and appurtenances thereto of every type
and kind, including, but not limited to, buildings, out-
buildings, walls, fences, walkways, bicycle trials,
sprinkler pipes, garages, screening walls, retaining walls,
stairs, decks, landscaping, hedges, windbreaks, plantings,
planted trees and shrubs, poles, signs, exterior air condi-
tioning and water softener fixtures or equipment, arbors,
trellises, barbecues and wind chimes.
Section 1.23. Lot: "Lot" shall mean any lot or
parcel of land shown upon any recorded subdivision map or
recorded parcel map of the Properties, including, without
limitation, a residential lot or parcel of land, but
excepting the Association Property.
Section 1.24. Manaqer: "Managern shall mean the
Person employed by the Association, pursuant to the provi-
sions hereof, and delegated the duties, power or functions
of the Association as limited by the terms hereof.
Section 1.25. Member: "Memberu shall mean every
Person holding a membership in the Association.
Section 1.26. Mortqase: "Mortgaget1 shall mean any
mortgage or deed of trust or other conveyance of a Lot, Con-
dominium or other portion of the Properties to secure the
performance of an obligation, which conveyance will be
reconveyed upon the completion of such performance. The
term "Deed of Trustm or "Trust Deedf1 when used shall be syn-
onymous with the term "MortgageIt.
Section 1.27. Mortqasee: "Mortgageell shall mean a
person or entity to whom a Mortgage is made and shall
include the beneficiary of a Deed of Trust. The term
"Beneficiary" shall be synonymous with the term "Mortgageev.
Section 1.28. Mortsasor: llMortgagoru shall mean a
person or entity who mortgages his or its property to
another i l . , the maker of a Mortgage) , and shall include
the Trustor of a Deed of Trust. The term "Trustor" shall be
synonymous with the term "Mortgagor".
Section 1.29. Notice and Hearins: "Notice and Hear-
ing" shall mean written notice and a public hearing before
the forum appointed by the Board, at which the Owner con-
cerned shll hzve aii asportimity te be heard in person, or
by counsel at the Owner's expense, in the manner further
provided in the Bylaws.
Section 1.30. Notice of Annexation: "Notice of
AnnexationN shall mean any declaration of covenants, con-
ditions and restrictions, or similar document, which may in
the future be imposed by Declarant or a Participating
Builder or which may have been imposed upon any of the real
property included in the Annexable Area and which subjects
such property to this Declaration and the jurisdiction of
the Association.
Section 1.31. Owner: I1Owner1' shall mean the Person
or Persons, including Declarant and any Participating
Builder, holding a fee simple or long-term leasehold inter-
est of record to a Lot, including sellers under executory
contracts of sale, but excluding those having such interest
merely as security for the performance of any obligation.
Section 1.32. Participatins Builder: "Participating
Builder" shall mean a Person which acquires a portion of the
Properties for the purpose of improving such portion for
resale to Owners.
Section 1.33. Person: "Personw shall mean a natural
individual, a corporation or any other entity with the legal
right to hold title to real property.
Section 1.34. Phase: "Phasem shall mean (i) the
First Phase or (ii) all the real property defined and
described in a Notice of Annexation recorded pursuant to the
terms of Article I11 of this Declaration for which a Final
Subdivision Public Report is issued by the California
Department of Real Estate, unless otherwise defined in such
notice of annexation.
Section 1.35. Planned Develowment: "Planned Develop-
ment" shall mean an area of the Properties, other than a
condominium pro j ect or apartment pro j ect , which may or may
not be defined as a planned development in Section 1351 (c)
of the California Civil Code.
Section 1.36. Properties: llProperties" shall mean
all property which is or may hereafter become subject to
this ~eclaration and to the jurisdiction of the Association
as provided herein.
Section 1.37 Project: "Project shall mean
Castaways, consisting of the Annexed Land and all
Improvements thereon.
Section 1.38. Records, Recorded, Filed and Recorda-
tion: llRe~~rd~" , llrecordedfl, "filedu and llrecordationu
shall mean, with respect to any document, the recordation or
filing of such document in the Office of the County
Recorder.
Section 1.39. Reconstruction Assessment:
nReconstruction Assessment" shall mean a charge against each
Owner and his Lot, representing a portion of the cost to the
Association for reconstruction of any portion of the
Improvements on the Association Maintenance Area pursuant to
the provisions of this Declaration.
Section 1.40. Residential Area: "Residential Areal1
shall mean those portions of the Properties which may be so
classified in accordance with Article 111.
Section 1.41. Residential Lot: "Residential Lot1!
shall mean a Lot located within a Residential Area, together
with the improvements, if any, thereon intended for use as
a single-family residence.
Section 1.42. Residence: "Residence" shall mean a-
- dwelling on a Residential Lot intended for use and occupancy
by a single family.
Section 1.43. Rules and Resulations: I1Rules and
Regulationsw shall means such rules and regulations as
adopted by the Board governing the use and occupancy of the
Properties or any portion thereof.
Section 1.44. Special Assessment: !ISpecial Assess-
ment" shall mean a charge against a particular Owner and his
Lot , directly attributable to the Owner, equal to the cost
incurred by the Association or those acting under its
direction for corrective action, pursuant to the provisions
of this Declaration.
Section 1.45. Subdivision: llSubdivisionll shall mean
a parcel of real property which has been divided or sepa-
rated into Lots, or a single Lot, as shown on a recorded
Subdivision Map or recorded Parcel Map.
ARTICLE 11
FIRST PHASE
Section 2.1. Propertv Description: Declarant hereby
declares that the following described real property is
hereby made subject to this Declaration (the "First Phasen),
and is more particularly described as follows:
~ots 21-22, 95-99, 118 and 119 and Lots A, C, G,
K, L and M of Tract No. 15012 , as shown on Amended
Map No. 1 filed in Book 753, Pages 23 through 32
inclusive, of Maps, in the Official Records of Orange
C~~rnt-r ,,,,, , Csliforr,i=.
Section 2.2. Convevance to Association. Declarant
hereby covenants for itself, its successors and assigns that
fee title to Lots A, C, G, K, L and M of Tract 15012 shall
be conveyed to the Association prior to Close of Escrow for
the sale of the first Lot in the First Phase to an Owner and
such Lots shall thereafter be classified as Association
Maintenance Area to be maintained by the Association
pursuant to the terms of this Declaration. In the event
that fee simple title is conveyed to the Association, such
title shall be conveyed free and clear of all encumbrances
and liens, except current real property taxes, which taxes
shall be pro rated to the date of transfer, and except for
dedications, easements, conditions and reservations then of
record, including those set forth in this Declaration.
Section 2.3. Association Maintenance Area Easements.
Subject to the terms of Section 8.4, below, Declarant hereby
reserves an easement for maintenance purposes over those
portions of the Lots as shown on Exhibit "BN attached
hereto, in favor of the Association effective upon the Close
of Escrow for the sale of the first Lot in the First Phase
to an Owner and the areas set forth as Association
Maintenance Areas on Exhibit "BU attached hereto shall
thereafter be classified as Association Maintenance Area to
be maintained by the Association pursuant to the terms of
this Declaration. In the event that an easement to such
property is conveyed to the Association, such title shall be
conveyed free and clear of all encumbrances and liens,
except current real property taxes, which taxes shall be pro
rated to the date of transfer, and except for dedications,
easements, conditions and reservations then of record,
including those set forth. in this Declaration.
Section 2.4 Mailbox Easements. Mailboxes may be
provided in clusters in front yards in conformity with
current federal postal regulations. The precise location of
such mailboxes shall be determined by Declarant, and each
Owner will be notified at the time of sale of the location
of his mailbox and any other mailboxes to be located on his
Lot. Mailboxes shall be uniform in design and color, and
the maintenance of each mailbox shall be the duty of the
Association. Each Lot on which there are mailboxes located
for the delivery of mail to Owners of Lots, other than the
Lot on which the mailboxes are located, shall be subject to
irrevocable licenses in favor of the United States Parcel
Service and persons for whom mail is delivered in said
mailboxes for the delivery and receipt of mail. The rights
and duties provided in this Section shall run with the land
and shall be binding on each Owner and their heirs,
successors and assigns, but shall expire at such time as the
United States Postal Service shall agree to deliver mail to
individual Lots in other than curbside mailboxes.
Section 2.5. Deliverv of Documents bv Declarant.
Not later than ninety (90) days after the Close of Escrow
for the sale of the first Lot in the First Phase to an
Owner, Declarant shall deliver to the Board copies of the
documents listed below at the offices of the Association, or
such other place as the Board shall prescribe. Declarant's
obligation to deliver the documents listed below shall apply
to any documents obtained by Declarant no matter when
obtained; provided, however, such obligation shall terminate
upon the earlier of (i) the conveyance of the last ~ot
covered by a subdivision public report or (ii) three (3)
years after the expiration of the most recent public report
on the Phase:
(a) The recorded subdivision map(s) for the Project.
(b) The deeds and easements executed by Declarant
conveying the Association Maintenance Area or other interest
to the Association.
(c) The Declaration.
(d) The Articles and Bylaws.
(el The Architectural Committee Rules and the Rules
and Regulations.
*. .&
(f) The plans approved by the local agency or county
where the Project is located for the construction or
improvement of facilities that the Association is obligated
to maintain or repair; provided, however, that the plans
need not be as-built plans and that the plans may bear
appropriate restriction on their commercial exploitation or
use and may contain appropriate disclaimers regarding their
accuracy.
. -
(g) All notices of completion certificates issued for
Association Maintenance Area improvements.
(h) Any bond or other security device in which the
Association is the beneficiary.
(i) Any written warranty being transferred to the
Association for Association Maintenance Area equipment,
fixtures or improvements.
(j) Any insurance policy procured for the benefit of
the Association, the Board or the Association Maintenance
Area.
(k) Any lease or contract to which the Association is
a party.
( 1 The membership register, including mailing
addresses and telephone numbers, books of account and
minutes of meetings of the Owners, the Board and of
committees of the Board.
(m) Any other instrument which establishes or defines
the common, mutual or reciprocal rights or responsibilities
of the Owners.
ARTICLE I11
ANNEXATION
Section 3.1. By Declarant/Consents: Declarant may,
but shall not be required to, from time to time, add to the
real property which is covered by this Declaration all or
any portion of the real property described above as the
Annexable Area by recording a Notice of Annexation with
respect to the real property to be annexed (ItAnnexed Landtt).
Notwithstanding the foregoing, if any portion of the
Annexable Area is developed by Declarant or Declarant s
successors in interest with residential dwelling units, such
portion shall be annexed to this Declaration prior to the
sale of any dwelling unit in such Annexed Land to a member
of the home buying public. If any proposed annexation under
this Section 3 -1 shall not be effected in accordance with a
detailed plan of phased development submitted to the DRE
with the application for the subdivision public report for
the First Phase, then such annexation shall further require
the vote or written consent of sixty-six and two-thirds
percent (66 2/3%) of the Members excluding Declarant and all
Participating Builders.
Section 3.2. Effect of Annexation: Upon the recor-
dation of a Notice of Annexation, this Declaration shall
apply to the Annexed Land in the same manner as if such
Annexed Land had originally been subject to this Declaration
and had originally constituted a portion of the Properties;
and thereafter the rights, privileges, duties and
liabilities of the parties to this Declaration with respect
to the Annexed Land shall be the same as with respect to the
First Phase, and the rights, obligations, privileges, duties
and liabilities of the Owners, lessees and occupants of Lots
on or in the Annexed Land shall be the same as though the
Annexed Land had originally been subject to this
~eclaration.
Section 3.3. Delivew of Documents for Subsequent
Phases : Not later than ninety (90) days after the
annexation of a Phase subsequent to the First Phase,
Declarant shall deliver to the Board those documents set
forth in Section 2.5, above, which are applicable to that
Phase. Declarantls obligation to deliver these documents
shall apply to any documents obtained by Declarant no matter
when obtained; prcvided, however, such obligation shall
terminate upon the earlier of (i) the conveyance of the last
Lot covered by a subdivision public report or (ii) two (2)
years after the expiration of the most recent public report
on the Phase.
Section 3.4. FHA/VA Amroval: For so long as and
provided the Federal Housing Administrat ion ( IfFHAl1 ) or the
Veterans Administration ( "VA" is insuring or guaranteeing
loans on any portion of the Properties, or has agreed to
insure or guarantee such loans, then a condition precedent
to such annexation shall be that the annexation be in accor-
dance with and approved by the FHA or VA.
Section 3.5. Notice of Annexation : Each Notice of
Annexation shall contain at least the following provisions:
a. A reference to this Declaration and any
amendments hereof, which shall include the date of
recordation and the book and page numbers or document
number where this Declaration and any amendments hereof
are recorded -
b. A statement that this Declaration shall
apply to the Annexed Land as set forth herein.
c. An exact description of the Annexed Land and
the total number of residential units then contemplated
by Declarant for the Project.
d. The use classification of the Annexed Land.
The provisions of any Notice of Annexation shall not
conflict with the provisions hereof but may impose such fur-
ther conditions, covenants, restrictions, land uses and
limitations as Declarant may deem advisable, taking into
account the particular requirements of each increment. This
Declaration shall control in the event of any conflict
between any Notice of Annexation and the provisions of this
Declaration, although the documents shall be construed to be
consistent with one another to the extent possible.
Section 3.6. ~xecution of Notice of Annexation: For
so long as Declarant has the right to annex real property
without the approval of the Members as provided herein, each
Notice of Annexation relative to real property owned by
Declarant must be signed only by Declarant. From and after
the date on which any annexation shall require the approval
of the Members as herein provided, each Notice of Annexation
must also be signed by at least two (2) officers of the
~ssociation, certifying that such approval has been given.
Section 3.7. Notice of Deletion: Declarant may
delete all or any portion of the Annexed Land from the cov-
erage of this Declaratioc a~d rescind any Notice of
Annexation , provided Declarant is the sole owner of all of
the real property described in the Notice of Annexation to
be rescinded. Such deletion shall be effective by the
recordation of a Notice of Deletion of Territory, signed by
Declarant, in the same manner as the Notice of Annexation
to be rescinded was recorded.
ARTICLE IV
ASSOCIATION
Section 4.1. Orqanization: The Association is
organized as a California non-profit mutual benefit corpora-
tion under the California Non-profit Corporation Law. The
Association is charged with the duties and vested with the
powers prescribed by law and as set forth in the Articles,
Bylaws, and this Declaration. Neither the Articles nor
Bylaws shall, for any reason, be amended or otherwise
changed so as to be inconsistent with this Declaration. In
the event that there should exist any ambiguity in any
provision of the Articles or Bylaws, then such provision
shall be construed, to the extent possible, so that such
provision shall be- consistent with the provisions of this
Declaration.
Section 4.2. Membership: Each Owner of one or more
Lots in a Residential Area of the Properties shall be a
Member of the Association and subject to this Declaration,
the ,Articles, the Bylaws, and the Rules and Regulations.
Memberships in the Association shall not be assignable,
except to the successor-in-interest of the Owner, and all
memberships in the Association shall be appurtenant to the
Lot owned by such Owner. The memberships in the Association
shall not be transferred, pledged or alienated in any way
except upon the transfer of title to said Lot, and then only
to the transferee of title to said Lot. Any attempt to make
a prohibited membership transfer shall be void and will not
be reflected on the books of the Association.
Section 4.3. Easement over Association Pro~ertv: A
non-exclusive easement of use and enjoyment in and to all
~ssociation Property is hereby granted to all Members. Such
easement shall be appurtenant to and shall pass with the
title to such Lot. A Member shall have the right to
delegate his rights of use and enjoyment of the Association
Property to a lessee or tenant of his Lot.
Section 4.4. Votins bv Members. All voting rights
attributable to a Lot shall vest upon the commencement of
assessments against such Lot and shall be subject to the
restrictions and limitations provided herein and in the
Articles and Bylaws of the Association. Unless otherwise
specifically stated in this Declaration, the Bylaws, or as
required by law, actions to be taken by the Members shall be
so taken by Members holding a majority of the voting power
of the Association in accordance with the voting procedures
set forth below:
(a) Votins Classes. There shall be two classes
of voting memberships:
Class A. Initially, Class A Members shall be
all Members except Declarant and any Participating
Builder. Each Class A Member shall be entitled to one
(1) vote for each single-family Residential Lot which
he owns within the Properties. Declarant and any Par-
ticipating Builder shall become Class A Members, with
regard to Lots owned by Declarant or any Participating
Builder, upon the conversion of Class B memberships to
Class A memberships as provided below.
Class B. Declarant and the Participating
Builders shall be the sole Class B Members. Each
Class B Member shall be entitled to three (3) times the
number of votes to which the Class B Member would have
been entitled as a Class A Member. The Class B Members
shall cease and be converted to Class A Members on the
happening of first to occur of the following events:
(aa) On the second (2nd) anniversary
following the most recent conveyance to a Class A
Member of the first Lot in any Phase pursuant to a
final public report issued by the California
Department of Real Estate; and
(bb) On the fourth (4th) anniversary
of the first conveyance of a Lot to a Class A
Member under the authority of a final public
report issued by the California Department of Real
Estate for the First Phase.
(b) Amurtenant to Lot. The right to vote may
not be severed or separated from the ownership of the
Lot to which it is appurtenant, except that any Member
may give a revocable proxy in the manner described
above, or may assign his right to vote to a lessee or
tenant actually occupying his Lot or to a Mortgagee of
the Lot concerned, for the term of the lease or
mortgage, and any sale, transfer or conveyance of such
Lot to a new Owner shall operate automatically to
transfer the appurtenant vote to the new Owner, subject
to any assignment of the right to vote to a lessee or
Mortgagee as provided herein.
(c) Suswension of Votins Rishts. The Board
shall have the authority to suspend the voting rights
of any Member to vote in any meeting of the Members,
for ~rzy period during which the payment ~f any Common,
Capital Improvement or Reconstruction Assessments
against such Member and the real property owned by such
Member remains delinquent, it being understood that any
suspension for nonpayment of any Assessment shall not
constitute a waiver or discharge of the Member's
obligation to pay Assessments provided for herein.
ARTICLE V
FUNCTIONS OF ASSOCIATION
Section 5.1. Powers and Duties: The Association
shall have all of the powers of a California nonprofit
mutual benefit corporation, subject only to such limitations
upon the exercise of such powers as are expressly set forth
in the Articles, the Bylaws or this Declaration. It shall
have the power to do any and all lawful things which may be
authorized, required or permitted to be done by the
Association under and by virtue of this Declaration, the
Articles, and the Bylaws, and to do and perform any and all
acts which may be necessary or proper for or incidental to
the exercise of any of the express powers of the
Association. Without in any way limiting the generality of
the foregoing provisions, the Association shall have the
power and obligation at any time:
(a) Meetinss. To take such actions as necessary
to notice and conduct meetings of the Members in accor-
dance with Section 4.4, above.
(b) Assessments. To levy assessments on the
Owners of Lots within the Properties and to enforce
payment of such assessments in accordance with the
provisions of Article VI hereof.
(c) Rishts of Entrv and Enforcement. Af ter
Notice and Hearing, without being liable to any Owner,
to enter upon any Association Property or Lot for the
purpose of enforcing by peaceful means this
Declaration, or for the purpose of maintaining or
repairing any such area if for any reason whatsoever
the Owner thereof fails to maintain or repair any such
area as required by this Declaration. Unless there
exists an emergency, there shall be no entry into a
dwelling unit on a Lot without the prior consent of the"
Owner thereof. The Association shall also have the
power and authority from time to time in its own name,
on its behalf or on behalf of any Owner or Owners who
consent thereto, to commence and maintain actions and
suits to restrain and enjoin any breach or threatened
breach of this Declaration and to enforce, by mandatory
injunctions or otherwise, all of the provisions of this
Declaration. In the event of any action brought by the
Association, the prevailing party shall be entitled to
reasonable attorneys1 fees to be fixed by the court.
(dl Easements and Rishts-of-Wav. To grant and
convey, with the consent of Declarant (which consent
shall not be unreasonably withheld) for so long as
Declarant is entitled to appoint members to the
Architectural Committee, to any Person, easements,
rights-of-way, parcels or strips of land, in, on, over
or under any portion of the Association Maintenance
Area or other Association Property for the purpose of
constructing, erecting, operating or maintaining
thereon, therein and thereunder: (i) roads, streets,
walks, driveways, parkways and park areas; (ii)
overhead or underground lines, cables, wires, conduits,
or other devices for the transmission of electricity
for lighting, heating, power, television, telephone and
other similar purposes; (iii) sewers, storm water
drains and pipes, water systems, sprinkling systems,
water, heating and gas lines or pipes; and (iv) any
similar public or quasi-public Improvements or
facilities.
(e) Rewair and Maintenance of Association Prop-
erty. To paint, plant, maintain and repair in a neat
and attractive condition all Association Maintenance
Area and any other Association Property and all
Improvements thereon, and to pay for utilities, gar-
dening service and other necessary utility or other
services for the said Association Maintenance Areas and
any other Association Property; provided, however, that
the Association shall have no responsibility to provide
the services referred to in this paragraph with respect
to any Improvement which is not classified as a portion
of the Association Maintenance Area in this Declaration
or in a Notice of Annexation. Such responsibility
shall be that of the Owner concerned, as provided in
this Declaration, or as described in the Notice of
Annexation.
(f) Manaser.
of a professional
To retain and pay for the services
person or firm to manage the
15.
. I,'
Association Maintenance Area and any other Association
Property (the "Manager"), as well as such other person-
nel as the Board shall determine shall be necessary or
proper for the operation of the Association Property or
the conduct of the business of the Association, whether
such personnel are employed directly by the Association
or are furnished by the Manager. The Association and
the Board may delegate any of their duties, powers or
functions to the Manager, provided that any such
delegation shall be revocable upon notice by the
~ssociation or Board.
!q? Leaal and Accountino Services. To retain and
pay for legal and accounting services necessary or
proper in the operation of the Association Property,
enforcement of this Declaration, or in performing any
of the other duties or rights of the Association.
(h) Insurance. To obtain and maintain in force
the following policies of insurance:
(i) Fire and extended coverage insurance on
all Improvements, if any, under the control or
ownership of the Association, the amount of such
insurance to be not less than one hundred percent
(100%) of the aggregate full insurable value,
meaning actual replacement value. Such insurance
shall insure the Association and its Mortgagees,
as their interests may appear. As to each such
policy, which will not be voided or impaired
thereby, the Association hereby waives and
releases all claims against the Board, the
Owners, the Manager, Declarant, and the agents
and employees of each of the foregoing, with
respect to any loss covered by such insurance,
whether or not caused by negligence of or breach
of any agreement by said persons, but only to the
extent that insurance proceeds are received in
compensation for such loss.
(ii) Bodily injury liability insurance, with
limits of not less than One Million Dollars
($1,000,000.00) insuring against liability for
bodily injury, death and property damage arising
from the activities of the Association or with
respect to property under its jurisdiction,
including, if obtainable, a cross-liability
endorsement insuring each insured against liabil-
ity to each other insured.
( iii) Worker s Compensation insurance to the
extent necessary to comply with any applicable
laws.
(iv) Such other insurance, including mali-
cious mischief, medical payments, liquor liabil-
ity, directors and officers errors and omissions
insurance, indemnity and other bonds, as the
Board shall deem necessary or expedient to carry
out the Association functions as set forth herein
or in the Articles and Bylaws.
The liability insurance referred to above shall
name as separately protected insureds, Declarant, the
Association, the Board, and their representatives,
members and employees, with respect to any liability
arising out of the maintenance or use of any
Association Property. Every policy of insurance
obtained by the Association shall contain an express
waiver, if available, of any and all rights of
subrogation against Declarant, the Board, and their
representatives, members, employees and successors in
interest.
Said fire and liability insurance policies may be
blanket policies covering the Association Property and
property of Declarant or Participating Builder, in
which case the Association and Declarant or Par-
ticipating Builder shall each pay their proportionate
share of the premiums. With respect to insurance pro-
ceeds from the Association Property only, the
Association shall be deemed trustee of the interests of
all Members and Owners in any insurance proceeds paid
to it under any such policies, and shall have full
power to receive and to receipt for their interests in
such proceeds and to deal therewith. In the event that
the proceeds of such insurance policies are inadequate
to pay for the entire cost of repair, replacement or
reconstruction of the Association Maintenance Areas and
any other Association Property, the Board may levy a
Reconstruction Assessment on each Owner and his respec-
tive Lot in accordance with Section 6.5, below.
Notwithstanding any other provisions herein, the
Association shall continuously maintain in effect such
casualty, flood and liability insurance and a fidelity
bond meeting the insurance and fidelity bond
requirements for planned unit development established
by the Federal National Mortgage Association ( I1FNMAl1 ) ,
the Government National Mortgage Association ("GNMA1l)
and the Federal Home Loan Mortgage Association
(I1FHLMC1l) , so long as any of which is a Mortgagee or
Owner of a Lot within the Properties, except to the
extent such coverage is not available or has been
waived in writing by the FNMA, GNMA and FHLMC, as
applicable.
(i) Construction on Association Pro~ertv. To
construct new Improvements or additions to the Asso-
ciation Property, or demolish existing Improvements or
additions to the Association Property in accordance
with the provisions of this Declaration.
(j) Contracts. To enter into contracts, provided
neither Declarant, nor any Participating Builder nor
any of their agents, shall enter any contract which
would bind the Association or the Board for a period in
excess of one (1) year. All such contracts shall be
terminable by either party thereto without cause or
payment of a termination fee upon ninety (90) days
written notice thereof, and shall be terminable for
cacse sr: thirty (79) dzys written notice, Pxcept as
provided in the Bylaws. The Association, acting
through the Board, may enter into contracts with
Declarant, Lot Owners or other Persons in the
Properties or the Annexable Area to maintain and repair
slope areas and other areas subject to the provisions
of this Declaration. No Association contract may be
awarded to any firm or entity, other than Declarant, in
which any Board member or relative of any member of the
Board of either the Association has any financial or
other interest. This restriction applies to all
contracts entered into by the Association within twelve
(12) months after a member of the Board leaves his
position on a Board.
(k) Audit. To provide an annual independent
audit of the accounts of the Manager and Association
and for delivery of a copy of such audit to each Owner
in the manner provided in the Bylaws, Any Owner,
accompanied by an accountant, may at any time and at
his own expense cause an audit or inspection to be made
of the books and records of the Manager or the
Association; provided that such audit or inspection is
made during normal working hours and without
unnecessary interference with the operations of the
Manager or the Association.
(1) Maintenance of Flood Control Facilities and
Other Areas. To maintain, inspect, repair and recon-
struct flood control facilities on or servicing the
Properties, including emergency services, and to repair
slope easements, slopes, roads, roadways, roadway
rights-of-way, parkways and decorative signs identify-
ing the Properties not maintained by governmental enti-
ties to the extent deemed advisable by the Board; and
in particular, to maintain medians and circles on those
public roadways located on the Properties.
Section 5.2. Rules and Resulations: To adopt such
Rules and Regulations as the Board deems proper for the use
and occupancy of the Association Property. A copy of the
Rules and Regulations, as they may from time to time be
adopted, amended or repealed, shall be posted in a conspicu-
ous place in the Association Property and may be mailed or
otherwise delivered to each Owner. Such Rules and Regula-
tions may, but need not be, recorded; provided, however,
that any decision to record the Rules and Regulations shall
be first made by a majority vote of the Members. If the
Rules and Regulations are recorded pursuant to this provi-
sion, and duly adopted amendments to the Rules and Regula-
tions shall be recorded by the Board. Upon such mailing,
delivery, recordation or posting, the Rules and Regulations
shall have the same force and effect as if they were set
forth and were a part of this Declaration; provided,
however, that the 2des and Reyihtions shall be enforceable
only to the extent that they are consistent with this
Declaration, the Articles and the Bylaws, and the Rules and
Regulations may not be used to amend any of said documents.
Section 5.3. Liabilitv: Indemnification: No member
of the Board, Declarant, Participating Builder nor the
Manager shall have any liability to the Association or its
Members based upon any alleged failure to properly discharge
their respective powers and duties under this Article V as
long as such persons perform such powers and duties in a
manner not expressly contrary to law and in a manner such
persons believe to be in the best interests of the
Association and with such care, including reasonable
inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances. Such persons shall
be entitled to rely on information in any form prepared or
presented by employees or agents of the Association whom
such persons believe to be reliable and competent in the
matters presented and to rely on the information and advice
of other outside consultants which such persons believe to
be within such outside consultants' professional or expert
competence. Such persons shall be indemnified to the full
extent allowed by the California Corporations Code without
limitation.
Section 5.4. Taxes: Each Owner shall execute such
instruments and take such action as may reasonably be speci-
fied by the Association to obtain separate real estate tax
assessments of each Lot. If any taxes or assessments may,
in the opinion of the Association, nevertheless be a lien on
the Association Property, or any part thereof, they may be
paid by the Association, and ea$h Owner shall be obligated
to pay or to reimburse the Association for, as the case may
be, the taxes and assessments assessed by the County
Assessor or other taxing authority against the Association
Property and attributable to his own Lot and interest in the
Association Property.
Section 5.5. Limitation on Certain Actions: Not-
withstanding any contrary provision in this Declaration or
in the Articles or Bylaws of the Association, the amount of
Common Assessments levied in any fiscal year of the
Association upon each Owner shall not be less than the
amount reflected in the Final Subdivision Public Report for
the First Phase per Lot prior to the date on which Declarant
has lost the power to appoint members to the Architectural
Committee, unless the consent of Declarant has first been
obtained (in addition to any other vote, consent or approval
required) .
Section 5.6. Actions Without a Meetins: The Board
may take actions and exercise those powers and duties speci-
fied in this Declaration or otherwise authorized by the
Bylaws cr statxte withcut a rneetizs if all of the Directors
consent in writing to the action to be taken. If the Board
resolves by unanimous written consent to take an action, an
explanation of the action taken shall be posted in a promi-
nent place or places within the Common Area as the Directors
may direct which is convenient to the Owners within three
(3) days after the written consents of all Directors have
been obtained.
ARTICLE VI
ASSESSMENTS
Section 6.1. Covenant to Pay: Declarant and any
Participating Builder, for each Lot owned by it, hereby
agrees to pay, and each Owner of a Lot by accepting a deed
or other conveyance creating in such Owner the interest
required to be deemed an Owner, whether or not it shall be
so expressed in any such deed or other conveyance, is deemed
to agree to pay to the Association all Assessments as
provided herein.
Section 6.2. Common Assessments: Sums sufficient to
pay Common Expenses shall be assessed as Common Assessments
against the Owners of Lots in the Phase for which the first
Final Subdivision Public Report is issued by the California
Department of Real Estate (hereinafter "DREN) in the amounts
as set forth in the Association budget on file with the DRE.
As Common Assessments commence with respect to additional
Phases annexed to the Properties pursuant to Article I11
hereof, the Common Assessments shall be revised, subject to
the limitations of Section 6.2(b), below, in accordance with
the combined budget of the Association filed with the DRE
for the such additional Phases annexed to the Properties.
(a) Eaual Assessments. Those items of Common
Expenses of the Association shall be assessed equally
against all Owners, based upon the number of Lots owned
by each Owner.
(b) Basis of Maximum Common Assessment. Until
the first day of the fiscal year immediately following
conveyance of the first improved Lot in the Properties
to an Owner, the maximum Common Assessment under this
Article shall be the amount set forth in the Final
Subdivision Public Report issued for the First Phase of
the Properties. Thereafter, the maximum Common
Assessments shall be increased only in accordance with
the following:
(i) The maximum Common Assessment may be
increased by the Board without a vote of the
Members in an amount no more than twenty percent
(20%) above the maximum Common Assessment for the
previc~~ year.
(ii) The maximum Common Assessment may be
increased more than twenty percent (20%) above
the maximum Common Assessment for the previous
year, only by the vote or written assent of a
majority of the Members constituting a quorum at
a meeting or election of the Association. For
the purposes of this Section, a quorum means more
than fifty percent (50%) of the voting power of
the Association. Any meeting or election of the
Association for the purposes of complying with
this Section shall be conducted in accordance
with the terms of Article IV of this Declaration
and Section 7513 of the California Corporations
Code.
(iii) The Board shall not in any year levy a
Common Assessment in excess of the maximum Common
Assessment as such maximum may be annually
increased pursuant to this section. The levy of
a Common Assessment less than the maximum Common
Assessment in one (1) year shall not affect the
Board's right to levy a Common Assessment in the
amount: of the maximum Common Assessment in subse- ,.. quent years. If the Board shall levy a Common
Assessment in an amount of less than the maximum
for any calendar year and thereafter, during such
calendar year, determine that the important and
essential functions of the Association cannot be
funded by such lesser Common Assessment, the
Board may, by majority vote, levy one or more
supplemental Common Assessments. In no event
shall the sum of the initial and supplemental
Common Assessments for that year exceed the
maximum Common Assessment.
(c) Budset Estimate. The Board shall cause to be
prepared an annual operating statement reflecting
income and expenditures of the Association for each
fiscal year, and shall cause to be distributed a copy
of such statement to each Member as provided in the
Bylaws. Not less than forty-five (45) nor more than
sixty (60) days prior to the beginning of each fiscal
year, and subject to the provisions of Section 6.2,
above, the Board shall prepare and distribute to each
Member, a. written, itemized pro f orma operating budget
which shall include all of the following:
(i) The estimated revenue and expenses of
the Association on an accrual basis.
(ii) A summary of the Association's reserves
based upon the most recent review or study
conducted pursuant to California Civil Code
Section 1365.5, which shall be printed in bold
type and include all of the following:
(A) The current estimated replacement
cost, estimated remaining life, and estimated
useful life of each major component.
(B) As of the end of the fiscal year
for which the study is prepared:
(i) The current estimate of the
amount of cash reserves necessary to repair,
replace, restore, or maintain the major
components.
(ii) The current amount of
accumulated cash reserves actually set aside to
repair, replace, restore, or maintain major
components.
(C) The percentage that the amount
determined for purposes of clause (ii) of
subparagraph (B) is of the amount determined for
purposes of clause (i) of subparagraph (B) .
(iii) A statement as to whether the Board has
determined or anticipates that the levy of one or
more special assessments will be required to
repair, replace, or restore any major component
or to provide adequate reserves therefor.
(iv) A general statement addressing the
procedures used for the calculation and estab-
lishment of those reserves to defray the future
repair, replacement, or additions to those major
components that the Association is obligated to
maintain.
In calculating the Common Assessments of the
Association for each fiscal year, the Board shall allo-
cate the estimated expenses of the Association equally
against all Owners in the Properties.
(dl Commencement of Common Assessments. Common
Assessments shall commence as to each Lot in any Phase
(which may constitute only a portion of a phased
Subdivision), upon the first day of the first month
following the month in which escrow closes for the sale
of the first Lot in the Phase in which such Lot is
located. Each such Lot in such phase shall thenceforth
be subject to a pro rata share of the then established
Common Assessment for that Phase.
(e) Payment of Common Assessments. All Common
Assessments shall be due and payable to the Association
by the assessed Owners (including Declarant and any
Participating Builders) during the fiscal year in
monthly, or quarterly, or semi-annual installments, on
or before the first day of each month, or in such other
manner as the Board may designate in its sole and
absolute discretion.
(f) Excess Assessments. At the end of any fiscal
year of the Association, the Members may determine that
all excess funds over and above the amounts used for
the operation of the Properties shall be retained by
the Association and used to reduce the following years1
Common Assessment. Notwithstanding anything in the
Articles or Bylaws to the contrary, if prior to
dissolution of the Association the Association has not
obtained tax exempt status from both the federal and
state government, then upon dissolution of the
Association, any amounts remaining shall be distributed
to or for the benefit of the Members proportionately.
Section 6.3. Ca~ital Imwrovement Assessments: Sub-
ject to the provisions of Section 6.6, below, the Board may
levy, in any fiscal year, a Capital Improvement Assessment
applicable to that year only for the purpose of defraying,
in whole or in part, the cost of any construction, recon-
struction, repair or replacement of a Capital Improvement
upon the Association Property, including fixtures and
personal property related thereto. All Capital Improvement
Assessments must be fixed at a uniform rate for all Lots,
and they may be collected on a monthly basis.
Section 6.4. Emersencv Situations. The provisions
of Subsections 6.2(b) (i), (ii) and (iii), above, shall not
limit assessment increases necessary for emergency situ-
ations which, for purposes hereof, shall include: (a) an
extraordinary expenses required by an order of a court; (b)
an extraordinary expenses necessary to repair or maintain
the Properties, or any part thereof, for which the Associa-
tion is responsible where a threat to personal safety on the
properties is discovered; (c) an extraordinary expense
necessary to repair or maintain the Properties, or any part
thereof, for which the Association is responsible that could
not have been reasonably foreseen by the Board in preparing
and distributing the pro forma operating budget pursuant to
~alifornia Civil Code Section 1365; and (dl an extraordinary
expense in making the first payment of the earthquake
insurance surcharge pursuant to Section 5003 of the
California Insurance Code.
Notwithstanding the foregoing, prior to the imposition
or collection of an assessment under subsection (c), above,
the Board shall pass a resolution containing written
findings as to the necessity of the extraordinary expense
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 assessment.
Section 6.5. Reconstruction Assessments: Subject to
the provisions of Section 6.6, below, in the case of damage
by fire or other casualty to the Association Maintenance
Areas and any other Association Property, and provided the
proceeds of any insurance payable by reason thereof shall be
inadequate to pay for the entire cost of repair, replacement
or reconstruction of such property, the Board may levy a
Reconstruction Assessment to make good any deficiency on
each Owner and his respective Lot in a proportion equal to
the proportion in which such Owner is assessed Common
Assessments. The collection of such Reconstruction
Assessment shall be enforceable in the same manner as the
collection of-Common Assessments.
Section 6.6. Limitation on Assessments: The aggre-
gate Capital Improvement Assessments collected in accordance
with Section 6.3, above, and the Reconstruction Assessments
collected in accordance with Section 6.5, above, in any
fiscal year may not exceed five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year,
unless such excess shall have been approved by the vote or
written assent of both a majority of the Members
constituting a quorum at a meeting or election of the Asso-
ciation. For the purposes of this Section, a quorum means
more than fifty percent (50%) of the voting power of the
Association. Any meeting or election of the Association
for the purposes of complying with this Section shall be
conducted in accordance with the terms of Article IV of this
Declaration and Section 7513 of the California Corporations
Code.
Section 6.7. Special Assessments: A Special Assess-
ment may be levied against and collected from a particular
Owner and his Lot by a majority vote of the Board after
Notice and Hearing, to reimburse the Association for certain
costs or expenses that have been incurred by the Association
or Declarant with respect to bringing the Owner and his Lot
into compliance with the terms of this Declaration or with
respect to materials or services furnished to such Owner or
his Lot at his request or on his behalf as may be provided
herein.
A monetary penalty imposed by the Association as a
means of reimbursing the Association for costs incurred by
the Association in the repair of damage to Association
Property for which the Member or the Member's guests or
tenants were responsible may become a lien against the
Mer33er1s Lot enforceable by the sale of the Lot under
Sections 2924, 2924b and 2924c. Except as provided above, a
monetary penalty imposed by the Association as a
disciplinary measure for failure of a Member to comply with
the terms of this Declaration, may not be characterized or
treated as an assessment which may become a lien against the
Member's Lot enforceable by the sale of the Lot under
California Civil Code Sections 2924, 2924b and 2924c.
Section 6.8. Late Charses and Interest: If any
installment of an Assessment, whether Common, Special,
Reconstruction or Capital Improvement, assessed to any Owner
is not paid within fifteen (15) days after it is due, the
Owner may be required by the Board to pay a late charge of
Ten Dollars ($10.00) or ten percent (10%) of the full
Assessment, whichever is greater. Any installment of a
Common Assessment, Capital Improvement Assessment, Special
Assessment or Reconstruction Assessment, together with the
reasonable costs of collection and late charges, not paid
within thirty (30) days after the due date of such install-
ment shall accrue interest at the annual percentage rate of
twelve percent (12%) .
" Section 6.9. Waiver of Eniovment : No Member may
exempt himself from personal liability for Assessments duly
levied by the Association, nor release the Lot owned by him
from the liens and charges hereof, by any attempted waiver
of enjoyment of the Association Maintenance ~rea's or any
other Association Property and the facilities thereon or by
abandonment of his Lot.
Section 6.10. Unpaid Assessments as Liens: Before
the Association may place a lien upon the Lot of an Owner as
provided herein, the Association shall notify such Owner in
writing via certified mail of the fee and penalty procedures
of the Association, provide an itemized statement of the
charges owed by the Owner, including items on the statement
which indicate the principal owed, any late charges and the
method of calculation, any attorneys' fees, and the
collection practices used by the Association, including the
right of the Association to reasonable costs of collection.
No action shall be brought to enforce any lien of any
DENOTES HOA OWNED
MAINTENANCE AREA "UPPER CASTAWAYS'
DENOTES HOA EASEMENT
MAINTENANCE AREA EXHIBIT B SHT 6 OF 6
DENOTES EASEMENT FOR
STREET TREE MAINTENANCE
PHASE Q&TRACT 1501
PURPOSES ONLY DATE PREPARED: 08/06/97
Assessment, whether Common, Special, Reconstruction or
Capital Improvement, assessed to any Owner, until a Notice
of Delinquent Assessment (hereinafter "NoticeN ) has been
recorded stating the amount of the Assessment or
installment, as the case may be, the interest, late charges
and costs which have accrued thereon, the legal description
and street address of the Lot against which it has been
assessed, the name of the record Owner thereof and the name
and address of any trustee authorized by the Board to
enforce the lien by non-judicial sale. Such Notice shall be
signed and acknowledged by an officer of the Association,
and mailed in the manner set forth in California Civil Code
Sectiorr. 2924!b! to a11 record Owners of the Lot no later
than ten (10) calendar days after recordation. Such assess-
ment lien shall be prior to any declaration of homestead
recorded after the recording of this Declaration. The lien
shall continue until fully paid or otherwise satisfied.
When all amounts stated in the Notice and all other
assessments and costs which may have then accrued have been
fully paid or satisfied, a further notice releasing the lien
shall be recorded, upon payment by the defaulting Owner of a
reasonable fee, determined by the Board, to cover the costs
of preparing and recording such release. Such lien may be
foreclosed in the same manner as is provided in the laws of
the State of California applicable to the exercise of powers
of sale in mortgages and deeds of trust, or in any other
manner provided by law. No action shall be brought by the
Board or by its agent to foreclose the assessment lien or to
proceed under any power of sale thereunder, until thirty
(30) days have elapsed after the date that the Notice is
recorded. A certificate executed and acknowledged by an
officer or duly authorized agent of the Association stating
the indebtedness secured by the liens upon any Lot created
hereunder shall be conclusive upon the Association and the
Owners as to the amount of such indebtedness as of the date
of the certificate, in favor of all persons who rely thereon
in good faith, and such certificate shall be furnished to
any Owner upon request at a reasonable fee, as determined by
the Board, to cover the cost of furnishing such certificate.
Each assessment shall be payable in the amount specified in
the Notice, and no offsets against such amount shall be
permitted for any reason, including, without limitation, a
claim that the Association, the Board, the Members, or
Declarant is not properly exercising its duties and powers
as provided in this Declaration. Any payments towards
amounts specified in the. Notice shall first be applied to
the principal owed, and only after the principal owed is
paid in full shall such payments be applied to interest or
collection expenses.
Section 6.11. Mortsase Protection: Notwithstanding
all other provisions hereof, no lien created under this
Article VI nor any breach of this Declaration, nor the
enforcement of any provision hereof or. of any Notice of
~nnexation hereto shall defeat or render invalid the rights
of the Beneficiary under any recorded first deed of Trust'
upon a Lot made in good faith and for value; provided that
after such Beneficiary or some other third party obtains
title to such Lot by judicial foreclosure or by means of the
powers set forth in such Deed of Trust, such Lot shall
remain subject to this Declaration and the payment of all
Assessments accruing subsequent to the date such Beneficiary
or other Persons obtain title.
Section 6.12. Maintenance Funds: The Board shall
establish no fewer than two (2) separate accounts (the
"Maintenance Funds") into which shall be deposited all
monies paid to the Association, and from which disbursements
shall be made, as provided herein, in the performance of
functions by the Association under this Declaration. Each
of the Maintenance Funds shall be established as separate
trust savings or trust checking accounts at a banking
institution. The Maintenance Funds shall include: (a) an
operating fund for current expenses of the Association
(loperating Fundlf), and (b) an Association Maintenance Area
reserve fund for replacements, painting and repairs of the
landscaping, Improvements and all other Association
Property, to the extent necessary under the provisions of
this Declaration ("Common Area Reserve Fund") . The Board
shall not commingle any amounts deposited into any of the
Maintenance Funds with amounts deposited into any other
Maintenance Fund.
All amounts deposited into the Operating Fund and the
Common Area Reserve Fund must be used solely for the common
benefit of all of the Members for purposes authorized by
this Declaration, as may be amended from time to time.
Disbursements from the Operating Fund shall be made by the
Board for such purposes as are necessary for the discharge
of its responsibilities herein for the common benefit of all
the Members, other than those purposes for which dis-
bursements from the Common Area Reserve Fund are to be used.
Nothing in this Declaration shall be construed in such a way
as to permit the Association to use any Assessments to abate
any annoyance or nuisance emanating from outside the
physical boundaries of the Properties. Nothing contained
herein shall limit, preclude or impair the establishment of
additional Maintenance Funds by the Association earmarked
for specified purposes authorized by this Declaration. The
Common Area Reserve fund shall be funded by regularly
scheduled monthly, quarterly, semi-annual or annual payments
rather than by large Special Assessments.
Section 6.13. Amendments to Article VI: Amendments
to this Article VI (but not this Section 6 .I3 which is
covered by Section 11.2(b) of this Declaration and
amendments to sections of other Articles which are referred
to in this Article or which relate to this Article) shall
only be effective upon the vote or written consent of (a)
Declarant, for so long as Declarant is a Class B Member of
the Association, (b) the majority of all Members and (c) the
majority of the votes of the Association not attributable to
property owned by the Declarant and any Participating
Builders.
Section 6.14. Exemption from Assessments: Owners
shall be exempt from the payment of that portion of any
Common Assessment which is for the purpose of defraying
expenses and reserves directly attributable to the existence
and use of a residential structure which is not complete at
the time the Common Assessment commences. Such exemption
may include : (a) roof replacement ; (b) exterior mainte-
nance; (c) walkway and carport lighting; (d) refuse dis-
posal, if any; (el cable television; (£1 domestic water sup-
plied to living units, if any; and (g) insurance on uncom-
pleted structures. Any such exemption from the payment of
Common Assessments shall terminate upon the earlier of the
recordation of the notice of completion of the residential
structure, occupation or use of a structural improvement
which is a dwelling unit, or completion of all elements of
the residential structure which the Association is obligated
to maintain.
Owner shall be exempt from the payment of that portion
of any Common Assessment which is for the purpose of defray-
ing expenses and reserves directly attributable to the exis-
tence and use of a common facility which at the time of the
commencement of such Common Assessment is not complete. Any
such exemption from the payment of Common Assessments shall
terminate upon the earlier of the recordation of a notice of
completion of the common facility or such time as the common
facility is placed into use.
ARTICLE VII
DAMAGE TO OR CONDEMNATION OR
ASSOCIATION PROPERTIES
Section 7.1. Damases bv Members: Each Member shall
be liable to the Association for any damage to Association
Property not fully covered by insurance which may be
sustained by reason of the negligence or willful misconduct
of said Member, or the persons deriving their right and
easement of use and enjoyment of the Association Property
from said Member, or of his respective Family and guests,
both minor and adult. Notwithstanding the foregoing, the
Association reserves the right, after Notice and Hearing, to
charge a Special Assessment equal to the amount of such
damage not covered by insurance together with the increase,
if any, in the insurance premium directly attributable to
the damage caused by such Member or the Persons for whom
such Member may be liable as described above, and to impose
a fine upon such Member in accordance with Section 8.27,
below. In the case of joint ownership of a Lot, the
liability of such Owners shall be joint and several, except
to the extent that the Association has previously contracted
in writing with such joint Owners to the contrary.
Section 7.2. Repair of Damase: In the case of dam-
age by fire or other casualty to the Association Property,
any insurance proceeds payable by reason thereof shall be
paid to the Association, which thereupon shall contract to
repair or replace all the Association Property so damaged.
The Association shall levy a Reconstruction Assessment on
all Members to make good any deficiency in accordance with
Section 6.5, above.
If at any time all or any portion of the Association
Property, or any interest therein, be taken for any public
or quasi-public use, under any statute, by right of eminent
domain or by private purchase in lieu of eminent domain, the
award in condemnation shall be paid to the holder or holders
of fee title to such area, and their Mortgagees, as their
interests may appear. Any such award shall be deposited in
the Operating Fund. No Member shall be entitled to partici-
pate as a party, or otherwise, in any proceedings relating
to such condemnation. The Association shall have the
exclusive right to participate in such proceeding and shall,
in its name alone, represent the interests of all Members.
Section 7.3. Sale bv Unanimous Consent: If an
action for condemnation of all or a portion of the Associa-
tion Property is proposed or threatened by any governmental
agency having the right of eminent domain, then, on unani-
mous written consent of all of the Owners and after written
notice to at least sixty-seven percent (67%) of all first
Mortgagees, the Association Property, or a portion of it,
may be sold. .-
Section 7.4. Distribution of Proceeds of Sale or
Condemnation Award: On a sale occurring under Section 7.3,
above, or upon a taking through judgment of condemnation,
the proceeds shall be retained in the general fund of the
ARTICLE VIII
GENERAL RESTRICTIONS
All real property within the Properties shall be held,
used and enjoyed subject to the following limitations and
restrictions, subject to. the exemption of Declarant set
forth herein.
Section 8.1. Residential Areas: All property within
a Residential Area shall be improved and used solely for
single-family residential use; provided, however, that this
provision shall not preclude any Owner in the Properties
from renting or leasing all of his Lot by means of a written
lease or rental agreement subject to this Declaration. The
Notice of Annexation recorded for a Residential Area shall
designate such residential use for that area to be
single-family residences, a Planned Development or a
combination thereof.
Section 8.2. No Further Subdivision: No Lot or
Association Maintenance Area may be further subdivided
without the prior written approval of the Board; provided,
hcweuer, that nothing in this section shall be deemed to
prevent an Owner from, or require the approval of the Board
for: (a) selling a Lot, or (b) transferring or selling any
Lot to more than one person to be held by them as tenants
in common, joint tenants, tenants by the entirety or as
community property.
Section 8.3. Improvement, Landscapins and Altera-
tions: Except as set forth in Article X, hereof, without
the prior approval of the Architectural Committee as pro-
vided in Article IX hereof, there shall be no excavation,
construction, alteration or landscaping on any part of the
Properties, other than minor repairs or rebuilding pursuant
to Section 8.4 or Section 9.9. There shall be no violation
of the setback or sideyard requirements of the local govern-
mental authority. Within ninety (90) days after the
conveyance of a Lot to an Owner, the Owner shall install
landscaping and irrigation upon the front yard of his Lot
and the side yard on the street side of any corner Lot.
Within one hundred eighty (180) days after the conveyance of
a Lot to an Owner, the Owner shall install landscaping and
irrigation upon the side and back yards of his Lot. In the
event of default by an Owner in the performance of this
section, Declarant or the Association shall have the right
to enter upon said Lot and remove any weeds, plants,
rubbish, debris, objects or materials and do all things
necessary to place the Lot in a neat and orderly condition,
including, but not limited to, the installation of lawns and
landscaping on yards and slope areas. Any expenses shall
constitute Special Assessments, and payment therefor shall
become due and payable from the Owner of said Lot to the
Association within ten (10) days after written demand
theref or.
Section 8.4. Exterior Maintenance and Repair;
Owner's Oblisations: Each Improvement shall at all times be
kept in good condition and repair. All landscaping, includ-
ing, but not limited to, lawns, hedges, shrubs and, except
as provided below, trees, shall be periodically trimmed and
pruned so as to be maintained in a neat, clean, safe and
attractive manner and so as not to unreasonably obstruct the
view of adjacent Owners ; provided, the reasonableness or
unreasonableness of any such obstruction shall be determined
solely by the Architectural Committee. Except as
specifically provided below, each Owner shall be responsible
for maintaining all trees placed by Declarant in the front
yard of any Owner's Lot adjacent to the street ("Street
Trees1') , but excluding any Street Trees within the parkway
(the landscaped area, if any, between the sidewalk and the
street). Such maintenance shall include the irrigation of
such Street Trees and the replacement of any such Street
Trees if required for any purpose other than the improper
pruning or trimming thereof by the Association.
Notwithstanding the foregoing, the Association shall be
responsible far the pruning and trirndng of any Street Trres
placed by the Declarant in the front yard of any Owner's Lot
and the maintenance of that portion of any landscaping
including, without limitation, any Street Trees, within the
parkway of any street contiguous to such Owner's Lot. Each
Owner shall be responsible for maintaining the interior
surface of any perimeter wall or fence bordering such
Owner's Lot and the cleaning of the interior and exterior
surfaces of any Plexiglas or glass thereon. The maintenance
obligation of the Owners shall exclude the exterior and top
surfaces of such perimeter wall and the sides and exterior
surfaces of the pickets of any picket fence bordering such
Owner's Lot and, except as provided above, any Plexiglas,
glass, steel or wrought iron on such perimeter wall.
In the event that any Owner shall permit any
Improvement, which is the responsibility of such Owner to
maintain, to fall into disrepair so as to create a
dangerous, unsafe, unsightly or unattractive condition
affecting a neighboring Lot, the Board, after consulting
with the Architectural Committee, and after affording the
Owner of such property Notice and Hearing, shall have the
right but not the obligation to correct such condition, and
to enter upon such owner's Lot, or such Association Property
for the purpose of doing so, and such Owner, as the case may
be, shall promptly reimburse the Association -for the cost
thereof. Such cost shall be a Special Assessment and shall
create a lien enforceable in the same manner as other
assessments as set forth in the Declaration. The Owner of
the offending property shall be personally liable, and his
property may be subject to a mechanic's lien, for all costs
and expenses incurred by the Association in taking such
corrective acts, plus all costs incurred in collecting the
amounts due. Each Owner shall pay all amounts due for such
work within ten (10) days after receipt of written demand
therefor, or the amounts may, at the option of the Board, be
added to the amounts payable by such Owner as Common
Assessments.
Section 8.5. Antennae: No exterior radio antenna,
television antenna, "C.B." antenna, "satellite dishw or
other antenna of any type shall be erected or maintained on
any of the Properties, except by Declarant or the
Association. Any satellite dish erected on the Properties
shall be adequately screened through fencing, landscaping or
by other appropriate means in order to mitigate potential
scenic impacts and all radio and television antennas and
satellite dishes shall be placed so as not to project above
the roof eaves in conformance with San Juan Municipal Code
Section 9-3.609.
Section 8.6. Sisns: No sign, poster, billboard,
advertising device or other display of any kind shall be
displayed so as to be visible from outside the Properties,
except (3) sxck signs a& may be used by Declarazt or Par-
ticipating Builders in connection with the development of
the Properties and sale of Lots, or (b) one sign of
reasonable and customary dimensions as may be displayed on
or from any Improvement on any Lot in a Residential Area
advertising the sale or lease of such Lot, provided such
sign shall not be attached to the exterior of any
Improvements on any Lot in a manner which requires fasteners
to be embedded in any manner in such exterior.
Section 8.7. Window Coverinqs: Windows shall be
non-glaring and non-reflective. No window in any Residence
shall be covered with aluminum foil or other reflective
material and, unless approved by the Architectural Committee
in accordance with Section 9.2, below, no exterior surface
of any window covering shall bear any design or any color
other than white or beige.
Section 8.8. Unsiqhtlv Articles: No unsightly arti-
cles shall be permitted to remain on any Lot so as to be
visible from any public street or from any part of the
Properties. Without limiting the generality of the
foregoing, refuse, garbage and trash shall be kept at all
times in such covered, sanitary containers or other areas as
may be provided by the Association.
Section 8.9. Utilitv Areas: All utility and storage
areas and all laundry rooms, including all areas in which
clothing or other laundry is hung to dry, must be completely
covered and enclosed from view from the neighboring parts of
the Properties.
Section 8.10. Nuisances: No rubbish or debris of any
kind shall be placed or permitted to accumulate anywhere
within the Properties, and no odor shall be permitted to
arise therefrom so as to render the Properties or any
portion thereof unsanitary, unsightly, offensive or detri-
mental from any public street or to any other part of the
properties in the vicinity thereof or to their occupants.
No noise or other nuisance shall be permitted to exist or
operate upon any portion of the Properties so as to be
offensive or detrimental to any other part of the Properties
in the vicinity thereof or to their occupants. Without
limiting the generality of the foregoing provisions, no
exterior speakers, horns, whistles, bells or other sound
devices (other than security devices used exclusively for
security purposes), noisy or smoke-emitting vehicles, large
power equipment or large power tools, unlicensed off-road
motor vehicles or other items which may unreasonably disturb
Owners in neighboring parts of the Properties shall be
located, used or placed on any portion of the Properties.
Section 8.11. Animals: No insects, reptiles, birds
or animals of any kind shall be raised, bred or kept, on the
Properties except that a total combination of three (3)
dogs, cats or birds may be kept and provided that they are
not kept, bred or maintained for any commercial purpose, nor
in violation of any other provision of this Declaration and
such limitations as may be set forth in the Rules and
Regulations. The Association, acting through the Board,
shall have the right to prohibit maintenance of any animal
which constitutes, in the opinion of the Board, a nuisance
to other Owners. Animals belonging to Owners, occupants or
their licensees, tenants or invitees within the Properties
must be either kept within an enclosure, an enclosed yard or
on a leash being held by a person capable of controlling the
animal. Furthermore, any Owner shall be absolutely liable
to each and all remaining Owners, their families, guests,
tenants and invitees, for any unreasonable noise or damage
to person or property caused by any animals brought or kept
upon the Properties by an Owner or by members of his family,
his tenants or his guests; and it shall be the absolute duty
and responsibility of each such Owner to clean up after such
animals which have used any portion of the Association
Maintenance Areas or other Association Properties, if any.
Section 8.12. No Hazardous Activities: No activities
shall be conducted, nor shall any Improvements be con-
structed, on any part of the Properties which are or might
be unsafe or hazardous to any Person or Lot in any other
part of the Properties.
Section 8.13. No Temporaw Structures: No tent or
shack or other temporary building, Improvement or structure
shall be placed upon any portion of the Properties.
Section 8.14. No Minins and Drillins: No portion of
the Properties shall be used for the purpose of mining,
quarrying, drilling, boring or exploring for or removing
water, oil, gas or other hydrocarbons, minerals, rocks,
stones, gravel or earth.
Section 8.15. Insurance Rates: Nothing shall be done
or kept in the Properties which will increase the rate of
insurance on any Association Property without the approval
of the Board, nor shall anything be done or kept in the
properties which would result in the cancellation of insur-
ance on any Association Property or which would be in viola-
tion of any law.
Section 8.16. Drainase: There shall be no interfer-
ence with the established drainage pattern over any part of
the properties so as to affect any real property inside or
outside of the Properties. For the purpose hereof, "estab-
lished" drainage is defined as the drainage which exists at
the time the overall grading of any part of the Properties
is completed by Declarant, which may include drainage from
the Association Properties over any Lot or Association
Maintenance Areas in the Properties.
Section 8.17. Water and Sewer Svstems: No individual
water supply system, water softener system or sewage
disposal system shall be permitted on any Lot unless such
system is designed, located, constructed and equipped in
accordance with the requirements, standards and recommenda-
tions of any applicable water district and any applicable
governmental health authority having jurisdiction.
Section 8.18. Parkins; Garases: No trailer, motor
home, truck in excess of one (1) ton, camper, boat or van of
eighteen (18) feet or more in length, or any vehicle with
advertising on it other than an automobile shall be kept or
maintained anywhere on the Properties in such a manner as to
be visible from other parts of the Properties. No vehicle
or boat shall be constructed or repaired upon any property
or street (public or private) in such a manner as to be
visible from any other parts of the Properties. All other
vehicles must be parked within the Owner's garage; provided,
in the event the number of vehicles owned by any Owner
exceeds the number of vehicles for which such Owner's garage
was designed to accommodate, the excess vehicles may be
parked in such Owner's driveway. No Owner shall be
permitted at any time to park or otherwise maintain a
vehicle of any kind on the streets within the Properties or
in areas designated as visitor parking. Garage doors must
remain closed at all times except when vehicles are entering
or leaving the garage. For purposes of this Section,
"parkingI1 shall be defined as leaving a vehicle unattended
for a period in excess of one (1) hour.
Section 8.19. Maintenance and Control of Association
Maintenance Areas: The Association Maintenance Areas shall
be maintained for streets, recreational facilities, slope
maintenance, erosion control and landscaping purposes pri-
marily, and no Improvements other than streets, recreational
facilities, landscaping, fences, sprinklers, other similar
amenities incidental to such purposes as constructed by
Declarant, and public or private utility lines or facilities
which do not interfere with slope maintenance use, shall be
erected or maintained thereon.
As each Phase in the Properties is developed by
Declarant or by a Participating Builder, Declarant covenants
for itself, its successors and assigns that it will convey,
or cause to be conveyed to the Association, an easement
over, or title to, any Association Maintenance Areas within
that Phase, prior to or concurrently with the Close of
Escrow for the sale to an Owner of the first Lot , as the
case may be, in that Phase.
In the event that the Association Maintenance Areas,
or any part thereof, are conveyed to the Association, the
Association thereafter shall 0k?3. such Associ3tion
Maintenance Areas and shall manage and continuously maintain
such Association Maintenance Areas. The Association shall
have the right to assess the Owners for the reasonable cost
of maintaining such Association Maintenance Areas, and shall
have the right to lien the property of any such Owner who
defaults in the payment of a maintenance assessment. An
assessment lien, once created, shall be prior to all other
liens recorded subsequent to the notice of assessment lien
document creating the assessment lien.
Section 8.20. Partv Walls and Fences. Each wall or
fence which is built as a part of the original construction
of the homes upon the Annexed Land and placed between the
Lots shall constitute a party wall; and, to the extent not
inconsistent with the provisions of this Section, the
general rules of law regarding party walls and liability for
property damage due to negligence or willful acts or
omissions shall apply thereto. Any and all construction,
addition, modification, decoration, redecoration or
reconstruction of a party wall shall be subject to those
provisions of this Declaration concerning architectural
control. The cost of reasonable repair and maintenance of a
party wall shall be shared by the Owners who make use of the
wall in proportion to such use. If a party wall is
destroyed or damaged by fire or other casualty, any Owner
who has used the wall may restore it and, if the Owners
thereafter make use of the wall, they shall contribute to
the cost of restoration thereof in proportion to such use
without prejudice, however, to the right of any such Owners
to call for a larger contribution from the others under any
rule of law regarding liability for negligent or willful
acts or omissions. Notwithstanding any other provision of
this Section, an Owner who by his negligent or willful act
causes the party wall to be exposed to the elements shall
bear the whole cost of furnishing the necessary protection
against such elements. The right of any Owner to
contribution from any other Owner under this Section shall
be appurtenant to the land and shall pass to such Owner's
successors in title. In the event of any dispute arising
concerning a party wall, or under the provisions of this
Section, each party shall choose one arbitrator, and such
-.
arbitrators shall choose one additional arbitrator, and the
decision shall be by a majority of all the arbitrators.
Section 8.21 Post Tension Slabs. By acceptance of
the Deed to the Lot, each Owner acknowledges and understands
that due to certain underlying expansive soil conditions,
his Residence has been built using a post-tension concrete
system ("Systemn). The System involves placing steel cables
under high tension in the concrete slab foundation located
beneath the Residence. Any attempt to alter or pierce the
foundation and/or slab (for example, saw cutting, drilling,
or installation of subterranean improvements such as new
plw3ing cr a f lsor safe! c~uLd damage the integrity of the
System and/or cause serious personal injury or property
damage. Each Owner, by acceptance of the Deed to his Lot,
hereby agrees that Declarant shall not be responsible for
any damage or injury resulting from the alteration of the
slab or foundation of the Owner's residence by the Owner or
any employee, agent, family member or representative of the
Owner. Each Owner, by acceptance of the Deed to his Lot,
hereby agrees to hold Declarant and all partners,
subsidiaries and affiliated companies of Declarant, and all
of the officers, employees, directors and agents of any of
them, free of liability from damages arising from Owner's
attempt to alter or pierce the foundation and/or slab and
any costs, expenses or charges in connection therewith, such
as, but not limited to, attorneys' fees and court costs and
costs incurred by reason of injury to property or injury to
persons caused by any modification or alteration of such
post tension slabs. Additionally, said expansive soil
condition should be taken into consideration before the
construction or installment by an Owner (or any of the
Owner's contractors or agents) of patios, pools, spas, or
any other improvements within Owner's Lot.
Section 8.22. View. Each Owner, by acceptance of a
deed or other conveyance of a Lot, acknowledges that any
construction or Improvement by Declarant, the Association,
or any other Owner, or any owner of any other property may
change, impair, obstruct, or otherwise affect any view that
such Owner may have enjoyed at the time of the purchase of
his Lot. This Declaration does not contain any provisions
intended to protect any view or guaranty that any views that
an Owner may have enjoyed will not be impaired or obstructed
in the future by changes to other property. Each Owner
further acknowledges that any rights acquired do not include
the preservation of any view and further consents to such
obstruction and/or impairment. No representations or
warranties of any kind, express or implied, have been given
by Declarant, or its officers, employees, partners,
subsidiaries, affiliated companies or directors and agents
of any of them in connection with the preservation of views.
and each Owner agrees to hold Declarant, and all of such
officers, employees, partners, subsidiaries, affiliated
companies and directors and agents of any of them, free of
liability from such damages, costs, expenses or charges
incurred in connection therewith, such as, but not limited
to, attorneysv fees and court costs and costs arising from
any changes, obstruction or impairment of the view from such
Owner's Lot.
Section 8.23. Violation of Law: Any violation of any
state, municipal or local law, ordinance or regulation per-
taining to the ownership, occupation or use of any portion
of the Property is hereby declared to be a violation of this
Declaration and subject to any and all of the enforcement
precedures herein set f~rth.
Section 8.24. Violation of Restrictions: There shall
be no violation of this Declaration, including, without
limitation, the Rules and Regulations, once adopted by the
Board after Notice and Hearing. If any Member, his family,
guest, or any licensee, lessee or invitee violates this
Declaration, the Board may impose upon such Owner, in
addition to any Special Assessment as provided in
Section 6.7, above, a fine ("Fine") in an amount not to
exceed One Hundred Dollars ($100.00) for each violation.
The maximum amount of the Fine may be increased by action of
the Board, in the Board's sole discretion, in an amount no
more than ten percent (10%) above the maximum Fine for the
previous fiscal year. No Fine may be imposed by the Board
until Notice and Hearing are afforded to the affected
Member.
ARTICLE IX
ARCHITECTURAL COMMITTEE
Section 9.1. Members of Committee: The Architec-
tural Committee shall consist of five (5) members, the
initial members of which shall be chosen by the Declarant,
and who shall hold office until the election of the first
Board of Directors by the Members. Thereafter, the Archi-
tectural Committee members shall be chosen as follows:
(a) Bv Declarant. Declarant shall have the
right to appoint a majority of the members of the
Architectural Committee until the earliest to occur of
the following:
(i) At such time as the close of escrow for
the sale to the public by Declarant and any
Participating Builders of at least one hundred
seven (107) Lots in the real property
constituting the Annexed Land and the Annexable
Area as of the date of Recordation of this
Declaration; or
(ii) On the fifth (5th) anniversary
following the original issuance of the final
public report issued by the California Department
of Real Estate for the First Phase.
Declarant's appointees to the Committee need not be Members.
(b) Bv the Board. The Board shall have the right
to appoint such members of the Architectural Committee
which Declarant is not authorized to appoint until such
time as Declarant's rights of appointment shall have
expired, and thereafter the Board shall have the right
to appoint and remove all members of the Architectural
Committee. Architectural Committee members appointed
by the Board shall be Members and serve for a term of
one (1) year or until their respective successors are
appointed.
(c) Removal. Members of the Architectural
Committee may be removed at any time without cause by
the Person appointing such member as provided herein.
(d) Notice of Appointment. Whenever an Architec-
tural Committee member is appointed or removed while
both Declarant and the Board have rights of appoint-
ment, written notice of such appointment or removal
shall given by the appointing party to the other party.
Section 9.2. Review of Plans and Specifications:
The Architectural Committee shall consider and act upon any
and all plans and specifications submitted for its approval
under this Declaration and perform such other duties as from
time to time shall be assigned to it by the Board, including
the inspection of construction in progress to assure.its
conformance with plans approved by the Architectural
Committee as follows:
(a) Criteria for Approval. The Architectural
Committee shall approve plans and specifications sub-
mitted for its approval only if it deems that the con-
struction, alterations, or additions contemplated
thereby in the locations indicated will not be detri-
mental to the appearance of the surrounding area of the
Properties as a whole, that the appearance of any
structure affected thereby will be in harmony with the
surrounding structures, that the construction thereof
will not detract from the beauty, wholesomeness or
attractiveness of the Association Maintenance Areas or
the enjoyment thereof by the Members, and that the
upkeep and maintenance therefor will not become a
burden on the Association.
(b) Conditions of Amroval. The Architectural
Committee may condition its approval of proposals or
plans and specifications for any Improvement (i) on
such changes therein as it deems appropriate, (ii) upon
the agreement by the Person (referred to in this
Section 9.2 as "applicant") submitting the same to
grant appropriate easements to the Association for the
maintenance of the Improvement, or (iii) upon the
agreement of the applicant to reimburse the Association
for the cost of such maintenance, or all three, and may
require submission of additional plans and
specifications or other information prior to approving
or disapproving saterial s-&mitted.
(c) Rules and Guidelines. The Architectural
Committee may also issue rules or guidelines setting
forth procedures for the submission of plans for
approval which may require a fee to accompany each
application for approval, or include additional factors
which it will take into consideration in reviewing sub-
missions. The Architectural Committee may provide that
the amount of such fee shall be uniform, or that it may
be determined in any other reasonable manner, such as
based upon the reasonable cost of the construction,
alterations, or additions contemplated. The Architec-
tural Committee may require such detail in plans and
specifications submitted for its review as it deems
proper, including, without limitation, floor plans,
site plans, drainage plans, elevation drawings and
description or samples of exterior material and colors.
Until receipt by the Architectural Committee of any
required plans and specifications, the Architectural
Committee may postpone review of any plan submitted for
approval.
(dl Notice of Decision. Decisions of the Archi-
tectural Committee and the reasons therefor shall be
transmitted by the Architectural Committee to the
applicant at the address set forth in the application
for approval, within forty-five (45) days after receipt
by the Architectural Committee of all materials
required by the Architectural Committee. Any applica-
tion submitted pursuant to this Section 9.2 shall be
deemed approved, unless written disapproval or a
request for additional information or materials by the
Architectural Committee shall have been transmitted to
the applicant within forty-five (45) days after the
date of receipt by the Architectural Committee of all
required materials.
(e) Submission bv Declarant and Partici~atinq
Builder. Declarant need not seek approval of the
Architectural Committee with respect to its activities
until Close of Escrow for the sale of the last Lot in
tee -
the Properties from Declarant (i) to a Participating
Builder or (ii) to a member of the public pursuant to a
Final Subdivision Public Report issued by the
California Department of Real Estate. All Partici-
pating Builders must seek such approval in the manner
herein provided until Declarant has lost the power to
appoint a majority of the members of the Architectural
Committee. After Declarant has lost the power to
appoint a majority of the members of the Architectural
Committee, the Participating Builders need not seek
approval of the Architectural Committee with respect to
its new construction activities until Close of Escrow
for the sale of the last Lot owned by such
Participating Builder to a member of the public.
Section 9.3. Meetinss of the Architectural Commit-
: The Architectural Committee shall meet from time to -
time as necessary to perform its duties hereunder. The
Architectural Committee may from time to time by resolution
unanimously adopted in writing designate an Architectural
Committee Representative (who may, but need not, be one of
its members) to take any action or perform any duties on
behalf of the Architectural Committee, except the granting
of variances pursuant to Section 9.8. In the absence of
such designation, the vote of a majority of the members of
the Architectural Committee, or the written consent of a
majority of the members of the Architectural Committee taken
without a meeting, shall constitute an act of the Architec-
tural Committee.
Section 9.4. No Waiver of Future Approvals: The
approval of the Architectural Committee to any proposals or
plans and specifications or drawings for any work done or
proposed or in connection with any other matter requiring ,.
the approval and consent of the Architectural Committee,
shall not be deemed to constitute a waiver of any right to
withhold approval or consent as to any similar proposals,
plans and specifications, drawings or matter whatever subse-
quently or additionally submitted for approval or consent.
section 9.5. Compensation of Members: The members
of the Architectural Committee 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.
Section 9.6. Corrections of Defects: Inspection of
work and correction of defects therein shall proceed as fol-
lows :
(a) Inswection. The Architectural Committee or
its duly authorized representative may at any time
inspect any Improvement for which approval of plans is
required under this Article IX; provided, however, that
the Architectural Committee's right of inspection of
Improvements for which plans have been submitted and
approved shall terminate sixty (60) days after such
work or Improvement shall have been completed and the
respective Owner shall have given written notice to the
Committee of such completion. The Architectural
Committee's rights of inspection shall not terminate
pursuant to this subsection in the event that plans for
the work of Improvement have not previously been sub-
mitted to and approved by the Architectural committee.
If, as a result of such inspection, the Architectural
Committee finds that such Improvement was done without
obtaining approval of the plans therefor or was not
done in substantial compliance with the plans approved
by the Architectural Committee, it shall notify the
Owner in writing of failure to comply with this
Article IX within sixty (60) days from the inspection,
specifying the particulars of noncompliance. The Owner
shall remedy such noncompliance or remove the same
within a period of not more than forty-five (45) days
from the date that notice of the Architectural
Committee ruling is given to the Owner. The Architec-
tural Committee shall have the authority to require the
Owner to take such action as it deems necessary to
remedy the noncompliance.
(b) Failure to Remedv or Remove. If the Owner
does not comply with the Architectural Committee ruling
within such 45-day period, the Architectural Committee,
at its option, may peacefully remove the noncomplying
Improvement or otherwise peacefully remedy the noncom-
pliance, and the Owner shall reimburse the Architec-
tural Committee, upon demand, for all expenses incurred
in connection therewith. If such expenses are not
promptly repaid by the Owner to the Architectural
committee, the Board shall levy a Special Assessment
against such Owner for reimbursement as provided in
this Declaration. Upon failure to pay such Special
Assessment when due the Board may record a Notice of
Delinquent Assessment in the Office of the County
Recorder of Orange County. The right of the
Architectural Committee to remove a noncomplying
Improvement or otherwise remedy the noncompliance shall
be in addition to all other rights and remedies which
the Architectural Committee and the Association may
have at law, in equity or in this Declaration.
(c) Failure to Notifv Deemed Awwroval. If for
any reason the Architectural Committee fails to notify
the Owner of any noncompliance with previously
submitted and approved plans within sixty (60) days
after receipt of said written notice of completion from
the Owner, the Improvement shall be deemed to be in
accordance with said approved plans.
Section 9.7. Nonliabilitv of Architectural Committee
Member: Neither the Architectural Committee, nor any member
of the Architectural Committee, nor the Architectural
Committee's duly authorized representative shall be liable
to the Association or to any Owner for any loss, damage or
injury arising out of or in any way connected with the
performance of the Architectural Committee's duties here-
under, unless due to the willful misconduct or bad faith of
the Architectural Committee. The Architectural Committee
shall review and approve or disapprove all plans submitted
to it for any proposed Improvement, alteration or addition,
solely on the basis of aesthetic considerations and the
overall benefit or detriment which would result to the
immediate vicinity and the Properties generally. The
Architectural Committee shall take into consideration the
aesthetic aspects of the architectural designs, placement of
buildings, landscaping, color schemes, exterior finishes and
materials and similar features. The Architectural
Committee's approval or disapproval shall be based solely on
the considerations set forth in this Article IX and the
Architectural Committee shall not be responsible for review-
ing, nor shall its approval of any plan or design be deemed
approval of, any plan or design from the standpoint of
structural safety or conformance with building or other
codes.
Section 9.8. Variances: The Architectural Committee
may authorize variances from compliance with any of the
architectural provisions of this Declaration or any Notice
of Annexation , including restrictions upon height, size,
floor area, or placement of structures, or similar
restrictions, when circumstances such as topography, natural
obstructions, hardship, aesthetic or environmental
consideration may require. Such variances must be evidenced
in writing, must be signed by at least a majority of all of
the members of the Architectural Committee, and shall become
effective upon Recordation in the Office of the County
Recorder of Orange County. If such variances are granted,
no violation of the covenants, conditions and restrictions .a
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
property and particular provision hereof covered by the
variance, nor shall it affect in any way the Owner's
obligation to comply with all governmental laws and regula-
tions affecting his use of the premises, including, but not
limited to, zoning ordinances and Lot set-back lines or
requirements imposed by any governmental authority.
Section 9.9. Solar Heatins Eaui~ment: Notwithstand-
ing any other provisions of this Declaration concerning
approval of plans and specifications by the Architectural
Committee, the installation of any solar heating equipment
which meets all applicable zoning regulations, the Uniform
Building Code, all associated ordinances and regulations and
any reasonable requirements of the Architectural Committee
is hereby deemed to have been approved by the Architectural
Committee.
Section 9.10. Amendment to Article IX: So long as
Declarant owns any portion of the Properties, this Declara-
tion cannot be' amended or modified to change or eliminate
the provision of this Article IX without the prior written
approval of Declarant, and any attempt to do so shall be
null and void. ,..
ARTICLE X
RIGHTS OF DECLARANT
It is acknowledged that the First Phase is a portion
of a larger parcel of land which Declarant is causing to be
developed into a planned community known as Castaways.
Declarant, in cooperation with the City of Newport Beach,
has created a master plan for its development whereby modern
town master planning objectives may be realized for the
common good and enhancement of property values within the
community. In furtherance thereof, Declarant, for itself
and its successors and assigns, reserves the following
rights and easements, with the right to convey to others:
(a) Easements over the Properties for the instal-
lation and maintenance of electric, telephone, cable
television, water, gas, and sanitary sewer lines and
drainage facilities.
(b) Easements over any Association Maintenance
Area for construction, display, maintenance, sales, and
exhibit purposes in connection with the construction,
development and sale or lease of the Properties or any
portion thereof; provided, however, that the exercise
of such easements by Declarant shall not unreasonably
interfere with the reasonable use and enjoyment of the
Properties by the Owners. Until the sale of all
portions of the Properties owned by Declarant,
Declarant shall have the right to use any of the Lots
owned by it as model home sites and any Association
Maintenance Area as incidental parking.
(c) The right of Declarant (and its agents,
employees and representatives) to enter on any portion
of the Properties to construct improvements on the
Properties or upon any adjacent land which may be
annexed to the Properties and which is annexed into the
Properties and to make repairs and remedy construction
defects if such entry shall not unreasonably interfere
with the use of any occupied Lot; provided, however,
that the Declarant shall be responsible for the timely
repair of any damage caused to any Association
Maintenance Area or Lot by the Declarant (and its
agents, employees and representatives) in exercising
this right.
(dl For itself and for the benefit of the
Association, easements of access, use, maintenance and
repair over any areas of the Properties through which
irrigation water lines and other equipment have been or
will be placed.
(el The right of free access by Declarant, the
Association and Owners of adjacent Lots to slopes or
drainage ways located on any Owner's property when such
access is required for the maintenance or permanent
stabilization of said slopes, or maintenance of such
drainage facility or for the protection and use of
property other than the Lot on which the slope or
drainage way is located.
(f) For itself and for the benefit of the Owners
and the Association, an easement on, over, across and
under those portions of the Properties which are
necessary for the Declarant, the Association and/or the
Owners to fulfill their maintenance and other
obligations under this Declaration.
(g) The right of Declarant to subdivide or resub-
divide any portion of the Properties, or to complete
excavation and grading and construction of Improvements
to and on any portion of the Properties owned by
Declarant, or to alter the foregoing and its construc-
tion plans and designs, or to construct such additional
Improvements as Declarant deems advisable in the course
of development of the Properties so long as any Lot in
the Properties remains unsold.
(h) Each Owner by accepting a deed to a Lot
hereby acknowledges that any construction by Declarant,
Association or any Participating Builder may impair
the view of such Owner and hereby consents to such
impairment.
(i) This Declaration shall not limit the right of
Declarant at any time prior to acquisition of title to
a Lot by a purchaser from Declarant to establish on
that Lot, as the case may be, additional licenses,
easements, reservations and rights of way to itself, to
utility companies, or to others as may from time to
time be reasonably necessary to the proper development
and disposal of the Properties, subject to the rights
of the Veterans Administration and the Federal Housing
Administration to approve such grants as provided
herein in the event that they are insuring or guaran-
teeing a loan on any Lot on the Properties.
(j) The rights, or any portion of the rights of
Declarant hereunder and elsewhere in this Declaration,
may be assigned by Declarant to any successor in
interest to any portion of Declarantls interest in any
portion of the Properties, by an express written
assignment recorded in the Office of the County
Recorder.
Ck) So long as Declarant owns any portion of the
Properties, this Declaration cannot be amended or modi-
fied to change or eliminate the easements and other
rights reserved herein to Declarant without the prior
written approval of Declarant, and any attempt to do so
shall be null and void.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Term: The covenants, conditions and
restrictions of this Declaration as they may be amended from
time to time, shall run until December 31, 2045, unless a
written instrument executed by the Members holding at least
seventy-five percent (75%) of the voting power of the
Association has been recorded within one (1) year prior to
such date agreeing to terminate such restrictions in whole
or in part, and such written instrument is recorded with the
Orange County Recorder. After December 31, 2045, such
covenants, conditions and restrictions shall be automa-
tically extended for successive periods of ten (10) years
each, unless extinguished by a written instrument executed
by the Members holding at least seventy-f ive percent (75%)
of the voting power of the Association, and such written
instrument is recorded with the Orange County Recorder. - ..
Section 11.2. Amendment : Subject to the terms -. of
Section 11.6, below, this Declaration shall .be amended in
accordance with the following:
(a) Bv Declarant and Partici~atins Builders.
Until the Close of Escrow for the sale of any portion
of the Properties to a Participating Builder, the pro-
visions of this Declaration may be amended or ter-
minated by recordation of a written instrument signed
only by Declarant setting forth such amendment or
termination. Following Close of Escrow for the sale of
any portion of the Properties to a Participating
Builder but prior to the sale of a Lot to a member of
the public in accordance with a Final Subdivision
Public Report issued by the California Department of
Real Estate, the provisions of this Declaration may be
amended or terminated by recordation of a written
instrument signed by Declarant and each Participating
Builder setting forth such amendment or termination.
(b) Bv owners. Except Paragraph D of the
Preamble hereto, Sections 3.1, 5.5 and 8.6, and
Articles IX and X (which provisions may not be amended
without the written consent of Declarant only so long
as Declarant owns a Lot in the Properties), the
provisions of this Declaration, other than Article VI
and this Section 11.2, may be amended by an instrument
in writing signed and acknowledged by the president and
secretary of the Association certifying that such
amendment has been approved by the vote or written
assent of the Members holding at least fifty-one
percent (51%) of the total voting power of the
Association and at least fifty-one percent (51%) of the
voting power of the Association excluding votes
attributable to property owned by Declarant and any
Participating Builders, and such an amendment shall be
effective upon its recordation with the County
Recorder. Any amendment to Section 6.13 or to this
Section 11.2 shall require the vote or written assent
of the Members holding at least sixty-seven percent
(67%) of the voting power of the Association and a
majority of the voting power of the Association,
excluding the votes attributable to property owned by
Declarant or any Participating Builders, and Declarant,
for so long as Declarant is a Class B Member.
Section 11.3. Mortsase Protection: Notwithstanding
any other provision of this Declaration, no amendment of
this Declaration shall operate to defeat and render invalid
the rights of the Beneficiary under any Deed of Trust upon a
Lot made in good faith and for value, and recorded prior to
the recordation of such amendment, provided that after the
foreclosure of any such Deed of Trust such Lot shall remain
subject to this Declaration, as amended. -Notwithstanding
any and all provisions of this Declaration to the contrary,
in order to induce the Federal Home Loan Mortgage
Corporation (llFHLMC1r), the ~overnment National Mortgage
Association (I1GNMCl1) and the Federal National Mortgage
Association (llFNMAm) to participate in the financing of the
sale of Lots within the Properties, the following provisions
are added hereto (and to the extent these added provisions,
pertaining to the rights of Mortgagees, FHLMC, FNMA, GNMA,
VA and FHA, conflict with any other provisions of this
Declaration or any other of this Declaration, these added
restrictions shall control:
(a) Notice of Default. Each first Mortgagee of a
Mortgage encumbering any Lot, upon filing a written
request for notification with the Board, is entitled to
written notification from the Association of any
default by the Mortgagor of such ~ot, in the
performance of such Mortgagor's obligations under this
Declaration, the Articles or the Bylaws (collectively
referred to as the I1Project Documentsll) , which default
is not cured within sixty (60) days after the
Association learns of such default.
(b) Riqht of First Refusal. Every Owner, includ-
ing every first Mortgagee of a Mortgage encumbering any
Lot, which obtains title to such Lot , pursuant to the
remedies provided in such Mortgage, or pursuant to
foreclosure of the Mortgage, or by deed (or assignment)
in lieu of foreclosure, shall be exempt from any "right
of first refusal."
(c) Foreclosure. Each first Mortgagee of a Mort-
gage encumbering any Lot, which obtains title to such
Lot, pursuant to judicial foreclosure or the powers
provided in such Mortgage, shall take title to such Lot
free and clear of any claims for unpaid assessments or
charges against such Lot which accrued prior to the
time such holder acquires title to such Lot .
(dl Mortsasee Approval. Except as provided by
statute in case of condemnation or substantial loss,
unless at least sixty-seven percent (67%) of the first
Mortgagees (based upon one vote for each Mortgage
owned) or sixty-seven percent (67%) of the Members
other than Declarant and any Participating Builders
have given their prior written approval, neither the
Association or the Owners shall:
(i) Subject to any provisions of the
California General Non-profit Corporation Law to
the contrary, by act or omission seek to abandon,
partition, subdivide, encumber, sell or transfer
the Association Property or the Improvements
thereon which are owned, directly or indirectly,
by the Association (the granting of easements for
public utilities or for other public purposes
consistent with the intended use of such property
by the Association shall not be deemed a transfer
within the meaning of this clause);
(ii) Change the method of determining obli-
gations, assessments, dues or other charges which
may be levied against any Owner, or the method of
allocating distributions of hazard insurance pro-
ceeds or condemnation awards;
(iii) By act or omission, dissolve this
Association, terminate the Project, or change,
waive or abandon any scheme of regulations, or
enforcement thereof, pertaining to the architec-
tural design or the exterior appearance of the
dwelling units on the Lots, the exterior mainte-
nance of the dwelling units on the Lots, the
maintenance of the Association Property and any
Improvements thereon, including, but not limited
to, walks, fences and driveways, or the upkeep of
lawns and plantings on the Properties;
(iv) Fail to maintain Fire and Extended
Coverage on insurable Association Property on a
current replacement cost basis in an amount at
least one hundred percent (100%) of the insurable
value (based on current replacement cost);
(v) Use hazard insurance proceeds for
losses to any Association Property for other than
the repair, replacement or reconstruction of such
Association Property;
(vi) Change the pro rata interest or obliga-
tions of any individual Lot for the purpose of
levying assessments or charges or allocating
distributions of hazard insurance proceeds or
condemnation awards;
(vii) Terminate professional management and
assume self-management of the Association;
(viii) Amend a material provision of this
Declaration, the Bylaws or the Articles; for pur-
poses herein, the term 'material provisionN shall
mean and refer to those provisions affecting the
following:
(aa) The fundamental purpose
for which the project was created (such as a
change from residential use to a different
use) ;
(bb) Voting;
(cc) Assessments, assessment
. - liens, and subordination thereof;
(dd) The reserve for
maintenance, repair and replacement of
Association Property and Association
Maintenance Area;
(ee) Property maintenance
obligations;
(ff) Casualty and liability
insurance;
(gg) Reconstruction in the
event of damage or destruction;
(hh) ~i~hts to use the
Association Property or Association
Maintenance Areas;
(ii) Rights to annex
additional property; and
(jj) Any provision, which by
its terms, is specifically for the benefit
of first Mortgagees, or specifically confers
rights on first Mortgagees.
(el Books, Records and Notice of Meetinss. First
Mortgagees, upon written request, shall have the right
to (i) examine the books and records of the Association
during normal business hours, (ii) require from the
Association the submission of audited annual financial
reports and other financial data, (iii) receive written
notice of all meetings of the Owners, (iv) designate in
writing a representative to attend all such meetings.
(f) Notice to Mortqacrees. All first Mortgagees
shall be given (i) thirty (30) days written notice
prior to the effective date of any proposed material
amendment to this Declaration or the Articles or
Bylaws, and prior to the effective date of any termina-
tion of an agreement for professional management of the
properties following a decision of the Owners to assume
self-management of the Properties; and (ii) immediate
written notice as soon as the Board receives notice or
otherwise learns of any damage to other Association
Property whenever the cost of reconstruction exceeds
Ten Thousand Dollars ($10,000.00) , and as soon as the
Board receives notice or otherwise learns of any con-
demnation or eminent domain proceedings or other pro-
posed acquisition, with respect to any portion of the
Properties.
(g) Defaults. First Mortgagees may, jointly or
singly, pay taxes or other charges which are in default
and which may or have become a charge against any
Association Property and may pay any overdue premiums
on hazard insurance policies or secure new hazard
insurance coverage for such property in case of lapse
of a policy, and first Mortgagees making such payments
shall be owed immediate reimbursement therefor from the
Association.
(h) Professional Manasement . The Board shall
contract for professional management of the Properties
with a professional Manager. The agreement between the
Association and its agent for such professional
management shall provide that the management contract
may be terminated be either party thereto, without
cause, and without payment of a termination fee, upon
ninety (90) days written notice, and the term of such
contract shall not exceed three (3) years.
(i) Fidelitv Bond. The Board shall secure and
cause to be maintained in force at all times a fidelity
bond for any person or entity handling funds of the
Association, including, but not limited to, employees
of the professional Manager.
(j) Leases. Any agreement for the leasing or
rental of a Lot shall provide that the terms of such
agreement shall be subject in all respects to the
provisions of this Declaration, the Articles and the
Bylaws. All such agreements shall be in writing and
shall provide that any failure by the lessee to comply
with the terms of this Declaration, the Articles and
the Bylaws shall be a default under the agreement.
(k) Asreements for Financing. In addition to the
foregoing, the Board may enter into such contracts or
agreements on behalf of the Association as are required
in order to satisfy the guidelines of the VA, the FHA,
the FHLMC, the FNMA or the GNMA or any similar entity,
so as to allow for the purchase, guaranty or ipsurance,
as the case may be, by such entities of first Mortgages
encumbering Lots with dwelling units thereon.
Mortgagees are hereby authorized to furnish information
to the Board concerning the status of any Mortgage
encumbering a Lot.
Section 11.4. Notices: Any notice permitted or
required to be delivered as provided herein shall be in wri-
ting and may be delivered either personally or by mail. If
delivery is made by mail, it shall be deemed to have been '
delivered' seventy-two (72) hours after a copy of the same
has been deposited in the United States mail, postage pre-
paid, addressed to any person at the address given by such
person to the Association for the purpose of service of such
notice, or to the residence of such Person if no address has
been given to the Association. Such address may be changed
from time to time by notice in writing to the Association.
Section 11.5. Enforcement and Non-Waiver:
(a) Risht of Enforcement. Except as otherwise
expressly provided herein, Declarant, the Board and any
Owner of any Lot shall have the right to enforce any or
all of the provisions of this Declaration or any other
Governing Documents against any property within the
Properties and the Owners thereof. Such right shall
include an action for damages, as well as an action to
enjoin any violation of- the Declaration or any other
Governing Documents.
(b) Violations and Nuisance. Every act or omis-
sion whereby any provision of this Declaration is
violated in whole or in part is hereby declared to be a
nuisance and may be enjoined or abated, whether or not
the relief sought is for negative or affirmative action
by Declarant or the Association or any Owner or Owners
of Lots within the Properties. However, any other
provision to the contrary notwithstanding, only
Declarant, the Association, the Board or a duly
authorized agent of any of them, may enforce by
self-help any of the provisions of this Declaration,
and only if such self -help is preceded by reasonable
Notice and Hearing.
(c) Violation of Law. Any violation of any
state, municipal or local law, ordinance or regulation
pertaining to the ownership, occupation or use of any
property within the Properties is hereby declared to be
a violation of this Declaration and subject to all of
the enforcement procedures set forth in this
Declaration.
(d) Remedies Cumulative. Each remedy provided by
this Declaration is cumulative and not exclusive. The
Association may, at its option, without waiving the
right to enforce its lien against the Lot, bring a suit
at law to enforce each assessment obligation.
(el Non-Waiver. The failure to enforce any of
the provisions of this Declaration at any time shall
not constitute a waiver of the right thereafter to
enforce any such provision or any other provisions of
this Declaration.
(f) Attornevs' Fees. Any judgment rendered in
any action or proceeding hereunder shall include a sum
for attornevsl fees in such amount as the Court may
deem reasonable in favor of the prevailing party, as
well as the amount of delinquent payment (if applica-
ble), interest thereon, late charges (if any) and court
costs.
Section 11.6. FHA/VA ADDroval: As long as Declarant
or a Participating Builder has effective voting control of
the Association, and provided they are insuring or guaran-
teeing loans, as the case may be, on a portiori of the
Properties, the following actions will require the prior
approval of the Federal Housing Administration or the
Veterans Administration: annexation or deannexation of
additional real property to the Properties pursuant to
Article I11 of this Declaration; dedication of the
Association Maintenance Area to any public agency; grants of
additional easements, rights-of-way, or licenses by
Declarant in the Properties; establishment of additional
reservations by Declarant in the Properties; amendment of
this Declaration; and mergers or consolidations of the
Association.
Section 11.7. Interpretation:
(a) Restrictions Construed Tosether. All of the
provisions of this Declaration shall be liberally
construed together to promote and effectuate the funda-
mental concepts of the Properties as set forth in the
Preamble to this Declaration. This Declaration shall
be construed and governed by the laws of the State of
California.
(b) Restrictions Severable. Notwithstanding the
provisions of the foregoing subparagraph (a), each of
the provisions of this Declaration shall be deemed
independent and severable, and the invalidity or
partial invalidity of any provision or portion thereof
shall not affect the validity or enforceability of any
other provision.
(c) Sinsular Includes Plural. Unless the con-
text requires a contrary construction, the singular
shall include the plural and the plural the singular;
and the masculine, feminine or neuter shall each
include the masculine, feminine and neuter.
(dl Captions. All captions and titles used in
this Declaration are intended solely for convenience of
reference and- shall not affect that which is set forth
in any of the provisions hereof.
(el Declaration to Control. Notwithstanding any
provision in this Declaration to the contrary, in the
event of any conflict between this Declaration and the
Articles, Bylaws, or the Association Rules and
Regulations, if any, this Declaration shall control.
Section 11.8. Reservation of Easements: Declarant
expressly reserves for the benefit of all Properties recip-
rocal easements for access, ingress and egress for all
Owners to and from their respective Lots, for installation
and repair of utility services; for encroachments of
Improvements constructed by Declarant for drainage of water
over, across and upon adjacent Lots and Association Property
resulting from the normal use of adjoining Lots or
Association Property, and for necessary maintenance and
repair of any Improvement. Such easements may be used by
Declarant, its successors, purchasers, the Association, and
all Owners, their guests, tenants and invitees, residing.on
or temporarily visiting the Properties, for pedestrian walk-
ways, vehicular access and such other purposes reasonably
necessary for the use and enjoyment of a Lot or the
~ssociation Property.
Section 11.9. No Representations or Warranties: No
representations or warranties of any kind, express or
implied, have been given or made by Declarant or its agents
or employees in connection with the Properties or any por-
tion of the Properties, or any Improvement thereon, its
physical conditions, zoning, compliance with applicable
laws, fitness for intended use, or in connection with the
subdivision, sale, operation, maintenance, cost of mainte-
nance, taxes or regulation thereof as-a Planned Development,
except as specifically and expressly set forth in this
Declaration and except as may be filed by Declarant from
time to time with the California Department of Real Estate,
the County, the City, the VA, the FHA, the FHLMC, the FNMA,
the GNMA or any other government agency.
Section 11.10. Special Provision for Enforcement of
Certain Bonded Oblisations: In the event that (a) any
Improvements on any Association Maintenance Area located on
any phase of development of the Properties are not
completed, prior to the issuance of a Final Subdivision
Public Report for that phase by the DRE, and (b) the
Association is obliged under a bond or other arrangement
(I1Bond1') required by the DRE to secure performance of the
commitment of Declarant to complete the Improvements, the
following provisions of this section will be applicable:
(a) The Board shall consider and vote on the
question of action by the Association to enforce the
obligations under the Bond, with respect to any such
Improvement for which a Notice of Completion has not
been filed, within sixty (60) days after the completion
date specified for that 'Improvement in the Planned
Construction Statement appended to the Bond. If the
Association has been given an extension in writing for
the completion of any such Improvement, the Board shall
be directed to consider and vote on the aforesaid
question, if a Notice of Completion has not been filed,
within thirty (30) days after the expiration of the
extension.
(b) A special meeting of Members, for the pur-
pose of voting to override a decision by the Board not
to initiate action to enforce the obligations under the
Bond or on the failure of the Board to consider and
vote on the question, shall be held no fewer than
thirty-five (35) days nor more than forty-five (45)
days after receipt by the Board of a petition for such
a meeting signed by Members representing five percent
(5%) or more of the total voting power of the
Association. A vote of a majority of the voting power
of the Association residing in Members other than
Declarant 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 this decision by initiating and pursuing
appropriate action in the name of the Association.
IN WITNESS WHEREOF, Declarant has executed this
Declarant of Covenants, Conditions, Restrictions and
Reservation of Easements as of the date first above written.
TAYLOR WOODROW HOMES, INC.,
a California corporation,
Its : Tom ~edwite-ice - President
'1ts : Bob Liewer-Assistant Secretary
STATE OF CALIFORNIA
COUNTY OF ORANGE
)
) ss.
)
On Auaust 13. 1997, before me, Michele R. Leondis, personally appeared Tom Redwib and
Bob I iewer, personally known to me (0
to be the person(s) whose name(s)is/are subscribed to the within instrument and
acknowledged to me that helshelthey executed the same in hidbwltheir authorized
capacity(ies) and that by kisCkeFltheir signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Exhibit A
~xhibit B
LIST OF EXHIBITS
Annexable Area
Association Maintenance Areas
EXHIBIT "A"
Annexable Area
LOTS 1 THROUGH 20, INCLUSIVE, 23 THROUGH 94, INCLUSIVE, 100
THROUGH 117, INCLUSIVE, AND LETTERED LOTS B, D, E, F, H, I, J, N,
0, PI Q, T AND U OF TRACT NO. 15012 SHOWN ON AMENDED MAP NO. 1
FILED IN BOOK 753, PAGES 23 TO 32, INCLUSIVE OF MISCELLANEOUS MAPS,
RECORDS OF ORANGE COUNTY, CALIFORNIA.
EXHIBIT "Bgl
Association Maintenance Areas
I DENOTES HOA OWNED
MAINTENANCE AREA "UPPER CASTAWAYS
HUNSAKLR P ASSOCIATES
IaVINE, INC.
Ik..-..*I.U.lll.MWSUW.fICWYI.n
u DENOTES HOA OWNED
MAINTENANCE AREA "UPPER CASTAWAYSy
DENOTES HOA EASEMENT
MAINTENANCE AREA EXHIBIT B SHT 4 OF 6 -
DENOTES EASEMENT FOR
STREET TREE MAINTENANCE
PHASE OA,TRACT 1501:
PURPOSES ONLY DATE PREPARED: 08/06/97
] SUBDIVIDER : DENOTES HOA OWNED
MAINTENANCE AREA
TAncmmm
"UPPER CASTAWAYS'
*un=-wm "'-'(%I 8-m DENOTES HOA EASEMENT
PREPARED BY : MAINTENANCE AREA EXHlBlT B SHT s OF 6
HUNSAKER E ASSqCiATcES
11VlNt,
DENOTES EASEMENT FOR PHASE1 &TRACT 1501
MHU:.MOYQHe.IUHIW; STREET TREE MAINTENANCE
~~.*~CA~-~O~OYIOI.~O~O~ PURPOSES ONLY DATE PREPARED: 08/06/97
~:\l SO1 Z\EXHlBlTS\ORE\MN I