HomeMy WebLinkAboutNewport Hills Leaf Blower DocumentsAMENDED AND RESTATED
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
AND RESERVATION OF EASEMENTS
FOR
NEWPORT HILLS
(TRACT NO. 7027)
THIS AMENDED AND RESTATED DECLARATION ("Declaration") is made
by NEWPORT HILLS COMMUNITY ASSOCIATION, a California nonprofit
corporation ("Association").
PREAMBLE:
A. The Association is the association of owners of real property ("Properties") in
the City of Newport Beach County of Orange, State of California, described on Exhibit "A"
attached hereto and incorporated herein by this reference.
B. The Properties are subject to a Declaration of Covenants, Conditions and
Restrictions, Tract No. 7027 ("Original Declaration"), which was Recorded on March 5, 1970,
in Book 9231, Page 823 et seq., of Official Records of Orange County, California.
C. The Association and its Members desire to amend and restate the Original
Declaration in its entirety with this Declaration, so that upon Recordation of this Declaration
in the Official Records of Orange County, the Original Declaration will cease to encumber the
Properties, and shall be replaced with this Declaration.
D. The Association hereby declares that the Properties shall be held, sold,
conveyed, encumbered, hypothecated, leased, used, occupied and improved subject to the
easements, restrictions, reservations, rights, covenants, conditions and equitable servitudes
contained in this Declaration, all of which are for the purpose of enhancing and protecting the
value, attractiveness and desirability of the Properties, in furtherance of a general plan for the
protection, maintenance, subdivision, improvement and sale of the Properties or any portion
thereof. The covenants, conditions, restrictions, rights, reservations, easements and equitable
servitudes set forth herein shall (1) run with and burden the Properties and shall be binding upon
all Persons having or acquiring any interest in the Properties or any part thereof their heirs,
successors and assigns; (2) inure to the benefit of every portion of the Properties and any
interest therein; and (3) inure to the benefit of and be binding upon each Owner and each
Owner's successors in interest.
ARTICLE I
1. Definitions
Unless otherwise expressly provided, the following words and phrases when used herein have
the following specified meanings.
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1.1. ARC.
ARC means the Architectural Review Committee created pursuant to Article VIII hereof.
1.2. Articles.
Articles means the Articles of Incorporation of the Association as amended.
13. Assessment Annual.
Annual Assessment means a charge against the Owners and their Lots, representing a portion
of the Common Expenses, which is to be levied as provided herein.
1.4. Assessment Special.
Special Assessment means (a) a charge against a particular Owner directly attributable to, or
reimbursable by, that Owner, equal to the cost incurred by the Association for corrective action
performed pursuant to the Restrictions, or a reasonable fine or penalty assessed by the Board,
plus interest and other charges on such Special Assessments as provided for herein, or (b) a
charge which the Board may levy against the Owners and their Lots, representing a portion of
the cost to the Association for installation, construction or reconstruction of any capital
Improvement on any of the Common Area or Association Maintenance Areas, to be levied in the
same proportion as Annual Assessments.
1.5. Association.
Association means NEWPORT HILLS COMMUNITY ASSOCIATION, a California nonprofit
corporation, its successors and assigns. The Association is an "association" as defied in Section
1351(a) of the California Civil Code.
1.6. Association Maintenance Areas.
Association Maintenance Areas means the structural integrity, top surface and surface facing
away from the Lots of the (a) walls surrounding the perimeter of the Properties, (b) walls and
fences within the Properties that abut or are adjacent to public rights of way, parks, schools or
Common Area and (c) walls identified as the Association's maintenance responsibility in the
document Recorded on March 14, 1995, as Instrument No. 95-0103631 (the "Tract No. 14533
Notice of Annexation"). Notwithstanding the foregoing, there are no Association Maintenance
Areas located on Tract No. 14533 other than as identified on Exhibit "I" to the Tract No. 14533
Notice of Annexation.
1.7. Association Maintenance Funds.
Association Maintenance Funds means the accounts created for Association receipts
and disbursements pursuant to Article VI hereof.
1.8. Beneficiary.
Beneficiary means a Mortgagee under a Mortgage or a Beneficiary under a Deed of Trust and
the assignees of such Mortgagee or Beneficiary.
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1.9. Board or Board of Directors.
Board or Board of Directors means the Association's Board of Directors.
1.10. Budget.
Budget means a written, itemized estimate of the Association's income and Common Expenses
prepared pursuant to the Bylaws.
1.11. Bylaws.
Bylaws means the Bylaws of the Association.
1.12. City.
City means the City of Newport Beach, in the County of Orange, State of California, and its
various departments, divisions, employees and representatives.
1.13. Common Area.
Common Area means all real property and Improvements which are owned by the Association.
The Common Area includes the real property described on Exhibit "B" attached hereto and
incorporated herein by this reference.
1.14. Common Expenses.
Common Expenses means those expenses for which the Association is responsible under this
Declaration, including the actual and estimated costs of: maintaining, managing, operating,
repairing and replacing the Common Area and Association Maintenance Areas; unpaid Special
Assessments; any commonly metered utilities and other commonly metered charges for the
Properties; managing and administering the Association including, but not limited to,
compensation paid by the Association to managers, accountants, attorneys and other employees;
all utilities, gardening, trash pickup and other services benefiting the Common Area and
Association Maintenance Areas; fire, casualty and liability insurance, worker's compensation
insurance, and other insurance covering the Properties and the directors, officers and agents of the
Association; bonding the members of the Board; taxes paid by the Association; amounts paid by
the Association for discharge of any lien or encumbrance levied against the Properties, or portions
thereof and all other items incurred by the Association for any reason whatsoever in connection
with the Properties, for the common benefit of the Owners.
1.15. Cost Center.
Cost Center means one or more Improvements or maintenance areas located on a portion or
portions of the Common Area, the maintenance or use of which Improvements or maintenance
areas is fully or partially restricted to Owners of certain Lots, and where the expenses of operating,
maintaining and replacing such Improvements or maintenance areas are borne solely or
disproportionately by such specified Owners. There are no Cost Centers as of the Recordation of
this Declaration.
1.16. Declaration.
Declaration means this instrument as amended.
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1.17. Deed of Trust.
Deed of Trust means a Mortgage as defined herein.
1.18. Dwelling Unit
Dwelling Unit means a building located on a Lot designed and intended for use and occupancy as
a residence by a single Family.
1.19. Family.
Family means (a) one or more natural persons related to each other by blood or legally related to
each other by marriage or adoption, or (b) a group not all so related who maintain a common
household in a Dwelling Unit on a Lot.
1.20. Fiscal Year.
Fiscal Year means the fiscal accounting and reporting period of the Association selected by the
Board.
1.21. Improvement.
Improvement means any structure or appurtenance thereto, including, but not limited to,
buildings, walkways, sprinkler pipes, carports, recreational facilities, roads, driveways, parking
areas, fences, screening walls, block walls, retaining walls, stairs, decks, landscaping, antennae,
the paint on all exterior surfaces, hedges, windbreaks, patio covers, railings, plantings, planted
trees and shrubs, poles, signs, storage areas, exterior air conditioning and water-softening fixtures
or equipment.
1.22. Lot.
Lot means any residential Lot or parcel of land shown upon any Recorded subdivision map,
Recorded parcel map or Recorded lot line adjustment of any portion of the Properties, with the
exception of the Common Area.
1.23. Manager.
Manager means the Person employed by the Association to perform functions of the Association
as limited by the Restrictions and the terms of the agreement between the Association and said
person.
1.24. Member. Membership.
Member means any Person holding a Membership. Membership means the property, voting and
other rights and privileges of Members as provided in the Restrictions, together with the
correlative duties and obligations contained therein.
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1.25. Mortgage.
Mortgage means any Recorded mortgage or deed of trust or other conveyance of one (1) or more
Lots or other portion of the Properties to secure the performance of an obligation, which will be
reconveyed upon the completion of such performance.
1.26. Mortgagee, Mortgagor.
Mortgagee means a Person to whom a Mortgage is made and includes the Beneficiary of a
Deed of Trust. Mortgagor means a Person who mortgages his or her Lot to another (i.e., the
maker of a Mortgage), and includes the Trustor of a Deed of Trust. The term "Trustor" is
synonymous with the term "Mortgagor" and the term "Beneficiary" is synonymous with the
term "Mortgagee."
1.27. Notice and Hearing.
Notice and Hearing means written notice and a hearing before the Board as provided in
the Bylaws.
1.28. Owner.
Owner means the Person or Persons holding fee simple interest of record to any Lot. The term
"Owner" includes a seller under an executory contract of sale but excludes Mortgagees. A list of
Owners as of the date of Recordation hereof is attached hereto as Exhibit "C."
1.29. Person.
Person means a natural individual or any other entity with the legal right to hold title to
real property.
1.30. Properties.
Properties means (a) all of the real property described in Paragraph A of the Preamble to this
Declaration, and (b) any real property annexed to the Properties pursuant to Article XlII hereof
The Properties are a "common interest development" and a "planned development" as defined in
Sections 1351(c) and 1351(k), respectively, of the California Civil Code.
1.31. Record, File, Recordation.
Record, File, or Recordation means, with respect to any document, the recordation or filing of
such document in the office of the Orange County Recorder.
1.32. Restrictions.
Restrictions means this Declaration, the Articles, Bylaws and the Rules and Regulations of the
Association.
1.33. Rules and Regulation:.
Rules and Regulations means the rules and regulations adopted by the Board pursuant to
this Declaration or the Bylaws, as amended.
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ARTICLE II
2. Owners’ Property Rights.
2.1. Owners' Easements of Enjoyment.
Every Owner has a right and easement of ingress and egress and of enjoyment in, to and over the
Common Area, and such easement is appurtenant to and shall pass with title to every Lot, subject to
the following:
(a) The Association's right to reasonably limit the number of guests and tenants
of the Owners using the Common Area;
(b) The Association's right to establish Rules and Regulations for the use of the
Common Area;
(c) The Association's right in accordance with the Restrictions, with the vote or
written assent of two-thirds (2/3) of the Association's voting power, to borrow
money for the purpose of improving, repairing, or adding to the Common Area, or
for improving the Association Maintenance Areas, and in aid thereof; to mortgage,
pledge, deed in trust, or hypothecate any or all of its real or personal property as
security for money borrowed or debts incurred, provided that the rights of such
Mortgagee shall be subordinated to the rights of the Owners;
(d) Subject to the provisions of Article V hereof; the Association's right to
transfer the Common Area for such purposes and subject to such conditions as may
be agreed to by the Members. Except for grants of easements, licenses, or rights-of-
way in or over the Common Area for purposes not inconsistent with the use of the
Properties as a residential development, no such dedication, release, alienation or
transfer shall be effective, unless an instrument signed by Members entitled to cast at
least two-thirds (2/3) of the voting power of the Association, agreeing to such
dedication, release, alienation or transfer, has been Recorded;
(e) The Association's right to reconstruct, replace or refinish any improvement or
portion thereof on the Common Area and Association Maintenance Areas;
(f) The Association's right to maintain and repair the Common Area,
including without limitation the right to replace and plant landscaping Improvements
upon any portion of the Common Area;
(g) The Association's right to reasonably restrict access to portions of the Common
Area; and
(h) The easements, rights and interests identified in Article II of This
Declaration.
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2.2. Easements for Vehicular/Pedestrian Traffic.
In addition to the general easements for use of the Common Area described herein, each Owner
has nonexclusive easements appurtenant to such Owner's Lot for vehicular and pedestrian traffic
over any private streets within the Properties, subject to the parking provisions set forth in
Section 10.5 hereof.
2.3. Easements for Public Service Use
The City has easements over the Properties for public services, including but not limited to, the
right of law enforcement and fire protection personnel to enter upon any part of the Properties
for the purpose of carrying out their official duties.
2.4. Easements for Water and Utility Purposes.
In addition to the foregoing easements over the Common Area, the Properties are subject to
easements for public and private utility purposes, including but not limited to, the right of any
public utility or mutual water district of ingress or egress over the Common Area for purposes of
reading and maintaining meters, and using and maintaining fire hydrants located in the
Properties.
2.5. Easement-Association Maintenance Areas.
The Board has an easement over the Association Maintenance Areas for maintenance thereof and
over the Lots for access, ingress and egress necessary to perform such maintenance. Subject to the
procedures described in Article VIII hereof, no Owner may interfere with the Association's
exercise of its rights under the easement described in this Section. In addition, no Owner may
alter or remove the Improvements on the Common Area or the Association Maintenance Areas.
2.6. Use of Common Area Recreational Facilities.
Any Owner entitled to the right and easement of use and enjoyment of the Common Area is
deemed to have delegated those rights and easements to such Owner's tenants, contract
purchasers or subtenants who reside in such Owner's Dwelling Unit. An Owner who has
delegated his right and easement may not use or enjoy the recreational facilities or equipment on
the Common Area for so long as such delegation remains in effect.
2.7. Waiver of Use.
No Owner may exempt himself from the personal liability for assessments duly levied by
the Association, nor release his Lot from the liens and charges hereof, by waiving the use
and enjoyment of the Common Area or any facilities thereon or by abandonment of such
Owner's Lot.
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ARTICLE III
3. Newport Hills Community Association.
3.1. Organization of Association.
The Association is incorporated under the name of NEWPORT HILLS COMMUNITY
ASSOCIATION, as a corporation not for profit organized under the California Corporation Law.
3.2. Duties and Power.
The Association has the duties and powers set forth in the Restrictions and also has the general
and implied powers of a nonprofit corporation, generally to do all things that a corporation
organized under the laws of the State of California may lawfully do which are necessary or proper
in operating for the peace, health, comfort, safety and general welfare of its Members, subject
only to the limitations upon the exercise of such powers set forth in the Restrictions.
3.3. Membership.
Every Owner shall automatically be a Member and shall remain a Member until such Owner's Lot
ownership ceases, at which time such Owner's Membership shall automatically cease. Ownership
of a Lot is the sole qualification for Membership. Every Membership is appurtenant to and may
not be separated from the fee ownership of such Lot.
3.4. Transfer.
The Membership of any Owner may not be transferred, pledged or alienated in any way, except
upon the transfer or encumbrance of such Owner's Lot, and then only to the transferee or
Mortgagee of such Lot. A prohibited transfer is void and will l not be reflected upon the books
and records of the Association. A Member who has sold his Lot to a contract purchaser under an
agreement to purchase may delegate his Membership rights to the contract purchaser. The
delegation must be in writing and must be delivered to the Board before the contract purchaser
may vote. The contract seller shall remain liable for all charges and agents attributable to the
contract seller's Lot which accrue before fee title to the Lot is transferred. If an Owner fails or
refuses to transfer his Membership to the purchaser of such Owner's Lot upon transfer of fee
title thereto, the Board may record the transfer upon the Association's books. Until satisfactory
evidence of such transfer has been presented to the Board, the purchaser will not be entitled to
vote at Association meetings.
ARTICLE IV
4. Voting Rights.
4.1. Classes of Voting Membership.
The Association has one (1) class of voting Membership. When more than one (1) Person owns
any Lot, all such Persons are Members. The vote for such Lot shall be exercised in accordance
with Section 4.2, but no more than one (1) vote may be cast for any Lot.
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4.2. Voting Rights.
All voting rights are subject to the Restrictions. Members are entitled to one (1) vote for each Lot in
which they hold the interest required for Membership. When more than one (1) Person holds such
interest or interests in any Lot ("co-owner"), all such co-owners are Members and may attend
Association meetings, but only one (1) such co-owner shall be entitled to exercise the vote to which
the Lot is entitled. Co-owners owning the majority interests in a Lot may designate in writing one
(1) of their number to vote. Fractional votes are not allowed, and the vote for each Lot shall be
exercised, if at all, as a unit. Where no voting co-owner is designated or if the designation has been
revoked, the vote for the Lot shall be exercised as the co-owners owning the majority interests in
the Lot agree. Unless the Board receives a written objection in advance from a co-owner, it shall be
conclusively presumed that the corresponding voting co-owner is acting with his co-owners'
consent. No vote may be cast for any Lot if the co-owners present in person or by proxy owning the
majority interests in such Lot cannot agree to said vote or other action. The nonvoting co-owner or
co-owners are jointly and severally responsible for all of the obligations imposed upon the jointly
owned Lot and are entitled to all other benefits of ownership. All agreements and determinations
lawfully made by the Association in accordance with the voting percentages established in the
Restrictions are binding on all Owners and their successors.
ARTICLE V
5. Jurisdiction of Association.
The Association has:
(a) The power and duty to maintain, repair and otherwise manage the
Common Area and Association Maintenance Areas in accordance with Articles VI and
IX hereof.
(b) The power and duty to maintain any private sewer systems and any
private storm drains or drainage facilities within the Common Area in accordance with
Articles VI and IX hereof.
(c) The power and duty to obtain, for the benefit of the Properties, all
commonly metered water, gas and electric services, and the power but not the duty to
provide for refuse collection and cable or master television service.
(d) The power and duty to grant easements and rights of way over portions
of the Common Area, to the extent any such grant is reasonably required for utilities and
sewer facilities to serve the Common Area and the Lots.
(e) The power but not the duty to grant or quitclaim easements, licenses or
rights of way in, on or over the Common Area for purposes consistent with the intended
use of the Properties as a planned residential development.
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(f) The power and duty to maintain liability and fire insurance with respect to the
Common Area, the Association Maintenance Areas and personal property, if any, owned by the
Association as provided herein in furthering the purposes and protecting the interests of the
Association and Members and as directed by the Restrictions.
(g) The power but not the duty to employ or contract with a professional Manager to
perform all or any part of the Association's duties and responsibilities, and the power to delegate
its powers to committees, officers and employees. The maximum term of any contract with a
Manager ("Management Contract") shall be one (1) year, unless a longer term is approved. either
by vote or written assent of a majority of the Association's voting power, in which case the
maximum term of the Management Contract shall be three (3) years. Each Management Contract
must provide for its termination by either party thereto without cause and without payment of a
termination fee upon no more than ninety (90) days' written notice to the other party.
(h) The power but not the duty to correct violations occurring on an Owner's Lot so
long as the Board has first satisfied the following procedural requirements:
(i) prepare a concise statement ("Complaint") describing the acts or omissions
with which the Owner is charged, and identifying the Sections of this Declaration that such acts
or omissions violate;
(ii) deliver or mail a copy of the Complaint to the Owner in accordance with
Section 14.3 of this Declaration, together with a statement substantially in the form set forth in
Section 12.2 of the Bylaws.
(A) If the Owner delivers or mails to the Association a response to the
Complaint within fifteen (15) days of the date the Complaint was mailed or
delivered to the Owner, then the Board shall schedule a hearing regarding the
Owner's alleged violation. The date of the hearing must be at least thirty (30) days
following the date on which the Complaint was mailed or delivered to the Owner.
The Board shall notify the Owner of the hearing by mailing or delivering a notice
substantially in the form set forth in Section 12.3 of the Bylaws. The hearing shall
be conducted in executive session. The minutes of the hearing must contain a
written statement of the results of the hearing and the sanction, if any, imposed.
(B) If the Owner fails to deliver or mail to the Association a
response to the Complaint within fifteen (15) says of the date the Complaint was
mailed or delivered to the Owner, then the Owner shall have waived the right to
a hearing, and the Board may impose a sanction.
(C) If no hearing is conducted (pursuant to Article V(h)(ii)(B)), or if a
hearing is conducted and a majority of the Board determines that the
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Owner has violated the Declaration, then the Board may impose one (1) or more
of the following sanctions on the Owner:
(1) levy a Special Assessment;
(2) suspend or condition the Owner's right to use any
recreational facilities the Association owns, operates or maintains;
(3) suspend the Owner's voting privileges as a Member;
(4) correct the violations on the Lot and charge the Owner
the cost thereof as a Special Assessment. If such correction of violations
occurs, neither the Association nor the persons who perform such
corrections shall be liable to the Owner of the Lot for trespass.
(D) A suspension may not exceed thirty (30) days for a
noncontinuing violation. A suspension for a continuing violation may be
imposed for so long as the violation continues.
(E) No sanction may become effective prior to five (5) days
following (1) the hearing, or (2) if no hearing is conducted, the deadline for the
Owner to deliver or mail to the Association a response to the Complaint.
(i) The power but not the duty to reasonably limit the number of guests and
tenants of the Owners using the Common Area.
(j) The power but not the duty to establish Rules and Regulations for the use of the
Common Area.
ARTICLE VI
6. Covenants for Maintenance Assessments.
6.1. Creation of Assessment Obligation.
Each Owner shall pay to the Association Annual Assessments and Special Assessments; such
Assessments to be established and collected as provided herein. The Association may not levy or
collect any Annual Assessment or Special Assessment that exceeds the amount necessary for the
purpose or purposes for which it is levied. All such assessments, together with interest, costs and
reasonable attorneys’ fees for the collection thereof, are a charge and continuing lien upon the Lot
against which such assessment is made. Each such assessment, together with interest, costs and
reasonable attorneys’ fees, is also the personal obligation of the Person who was the Owner of the
Lot at the time when the assessment fee due. The personal obligation for delinquent assessments
may not pass to any new Owner (“Purchaser”) unless expressly assumed by the Purchaser.
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6.2. Association Maintenance Funds.
The Board shall establish and maintain an Operating Fund and a Reserve Fund into which shall
be deposited all monies paid to the Association, and from which disbursements shall be made,
as provided herein, in the Association's performance of its functions under the Restrictions. The
monies in the Operating Fund and the Reserve Fund shall be segregated into the following funds
("Association Maintenance Funds") for internal bookkeeping purposes of the Association:
(a) General Operating Fund.
A General Operating Fund for current expenses of the Association exclusive of current
expenses attributable to the Improvements and maintenance responsibilities included
within the Cost Centers, if any.
(b) General Reserve Fund.
An adequate General Reserve Fund for the deposit of reserves attributable to
Improvements within the Common Area and Association Maintenance Areas, exclusive
of reserves attributable to Improvements included in the Cost Centers, if any.
(c) Cost Center Operating Fund.
A Cost Center Operating Fund for current expenses of each Cost Center, if any,
which the Association is required to maintain.
(d) Cost Center Reserve Fund.
An adequate Cost Center Reserve Fund for the deposit of reserves attributable to each
Cost Center, if any, which the Association is required to maintain.
(e) Miscellaneous Maintenance Funds.
Any other Association Maintenance Funds which the Board deems necessary.
6.3. Disbursements.
All amounts deposited into the Association Maintenance Funds must be used solely for the
purposes authorized by the Restrictions. The Board is authorized to transfer interest and other
earnings attributable to the General Reserve Fund and Cost Center Reserve Fund into the
respective Operating Fund in order to satisfy income taxes payable by the Association
attributable to such interest and earnings. The signatures of either two (2) Directors of the
Association or one (1) Director and one (1) officer who is not also a Director of the
Association are required for the withdrawal of money from the Association's reserve funds. As
used in Article VI of this Declaration, "reserve funds" means monies the Board has identified
from the Budget for use to defray the future repair and replacement of, or additions to, those
major components which the Association is obligated to maintain. Disbursements from the
particular Association Maintenance Funds shall be limited to specific purposes as follows:
(a) Cost Center Reserves. Disbursements from each Cost Center Reserve
Fund shall be made solely for the purpose of funding reserve expenditures attributable
to the Cost Center for which the fund was created.
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(b) Cost Center Operations. Disbursements from each Cost Center Operating
Fund shall be made solely for the purpose of funding the current operating Common
Expenses of the Cost Center for which the fund was created.
(c) General Reserves. Disbursements from the General Reserve Fund shall
be made solely for the purpose of funding those reserve expenditures which are not
budgeted to a Cost Center.
(d) General Operations. Disbursements from the General Operating Fund
shall be made for such purposes as are necessary for the discharge of the Association's
responsibilities under the Restrictions, for the common benefit of all Owners, other
than those purposes specified in Sections 6.3(a), (b) and (c).
Nothing contained herein precludes the establishment of additional
Maintenance Funds by the Association designated for specified purposes authorized by the
Restrictions.
6.4. Limitations on Annual Assessment Increases.
The Board may only levy Annual Assessments in accordance with Section 1366 of the
California Civil Code.
6.5. Annual Assessments — Allocation.
Each Annual Assessment shall constitute an aggregate of separate assessments for each of
the Association Maintenance Funds, reflecting an itemization of the amounts assessed and
attributable to prospective deposits into the General Operating and Reserve Funds, the Cost
Center Operating and Reserve Funds, and any other Association Maintenance Fund
established by the Association.
(a) General Assessment Component.
The Common Expenses exclusive of Common Expenses Budgeted to the Cost
Centers ("General Assessment Component") shall be allocated equally among all of
the Owners and their Lots.
(b) Cost Center Assessment Component. That portion of the Common
Expenses comprising Cost Center Operating and Reserve funds budgeted to any
particular Cost Center ("Cost Center Assessment Component") shall be assessed
equally to the Owners of Lots designated as Lots to which the exclusive or
disproportionate maintenance of such Cost Center has been allocated.
6.6. Annual Assessments.
The Board shall fix the amount of the Annual Assessment against each Lot at least thirty (30)
days in advance of each Annual Assessment period. Written notice of any change in the amount
of any Annual Assessment or Special Assessment shall be sent via first-class mail to every
Owner subject thereto not less than thirty (30) nor more than sixty (60) days prior to the
increased assessment becoming due. The due dates shall be established by the Board. The
Association shall, upon a reasonable charge, furnish a certificate signed by an Association
officer.
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or agent setting forth whether the assessments on a specified Lot have been paid. A properly
executed certificate as to the status of assessments against a Lot is binding upon the Association
as of the date of its issuance.
Each installment of Annual Assessments may be paid by the Member to the Association
in one check or payment or in separate checks as payments attributable to specified Association
Maintenance Funds. If any payment of an Annual Assessment installment is (a) less than the
amount assessed and (b) does not specify the Association Maintenance Fund or Funds into
which it should be deposited, then the amount received shall be credited in order of priority first
to the General Operating Fund, until that portion of the Annual Assessment has been satisfied,
second to any applicable Cost Center Operating Fund, until that portion of the Annual
Assessment has been satisfied, third to the General Reserve Fund, until that portion of the
Annual Assessment has been satisfied, and fourth to any applicable Cost Center Reserve Fund.
The Board may determine that funds remaining in the Operating Funds at the end of a
Fiscal Year be retained and used to reduce the following Fiscal Year's Annual Assessments.
Upon dissolution of the Association incident to the abandonment or termination of the
Properties as a planned development, any amounts remaining in any of the Maintenance Funds
shall be distributed to or for the benefit of the Members in the same proportions as such monies
were collected from the Members.
6.7. Exempt Property.
The following property subject to this Declaration is exempt from the assessments herein:
(a) All portions of the Properties dedicated to and accepted by a local
public authority; and
(b) The Common Area owned by the Association in fee.
ARTICLE VII
7. Nonpayment of Assessments: Remedies.
7.1. Nonpayment of Assessments: Remedies.
Any installment of an assessment is delinquent if not paid within fifteen (15) days of the due
date established by the Board. Any installment of Annual Assessments or Special Assessments
not paid within thirty (30) days after the due date, plus all reasonable costs of collection
(including attorneys' fees) and late charges as provided herein bears interest at the maximum
rate permitted by law commencing thirty (30) days from the date the assessment becomes due
until paid. The Board may also require the delinquent Owner to pay a late charge in accordance
with California Civil Code Section 1366(d)(2). The Association may bring an action at law
against the Owner personally obligated to pay the same, or foreclose the lien against the Lot.
The Association need not accept any tender of a partial payment of an assessment installment
and all costs and attorneys' fees attributable thereto, and any acceptance of any such tender does
not waive the Association's right to demand and receive full payments thereafter.
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7.2. Notice of Assessment
No action may be brought to enforce any assessment lien herein unless at least thirty (30) days
has expired following the date a Notice of Assessment is deposited in the United States mail,
certified or registered, postage prepaid, to the Owner of the Lot, and a copy thereof has been
Recorded by the Association. Such Notice of Assessment must recite (a) a good and sufficient
legal description of any such Lot, (b) the record Owner or reputed Owner thereof, (c) the
amount claimed (which may at the Association's option include interest and late charges on the
unpaid assessment as described above, plus reasonable attorneys' fees and expenses of collection
in connection with the debt secured by said lien), (d) the Association's name and address, and
(e) in order for the lien to be enforced by nonjudicial foreclosure, the name and address of the
trustee authorized by the Association to enforce the lien by sale. Recordation of the Notice of
Assessment creates a lien on the Lot as provided in Section 1367 of the California Civil Code.
The Notice of Assessment must be signed by an authorized Association officer or agent and said
lien is prior to any declaration of homestead. The lien continues until paid or otherwise satisfied.
7.3. Foreclosure Sale.
A sale to foreclose an Association lien may be conducted by the Board, its attorneys or other
persons authorized by the Board in accordance with the provisions of Sections 2924, 2924a,
2924b, 2924c and 2924f of the California Civil Code, or in accordance with any similar statute
hereafter enacted applicable to the exercise of powers of sale in Mortgages, or in any other
manner permitted by law, except that a Special Assessment levied as a disciplinary measure for
a Member's failure to comply with the Restrictions (except for late payments) may not become a
lien enforceable by nonjudicial foreclosure. The Association, through duly authorized agents,
may bid on the Lot at foreclosure sale, and acquire and hold, lease, mortgage and convey the
same. Upon completion of the foreclosure sale, the Association or the purchaser at the sale may
file suit to secure occupancy of the defaulting Owner's Lot, and the defaulting Owner shall be
required to pay the reasonable rental value of the Lot during any period of continued occupancy
by the defaulting Owner or any persons claiming under the defaulting Owner.
7.4. Curing of Default
Upon (a) the timely curing of any default for which the Association Filed a Notice of
Assessment, and (b) payment by the defaulting Owner of a reasonable fee to be determined by
the Board, the Association's officers shall Record an appropriate Release of Lien. A certificate
executed and acknowledged by any two (2) members of the Board 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. Such certificate shall be furnished to any Owner upon
request at a reasonable fee, to be determined by the Board.
7.5. Cumulative Remedies.
The assessment liens and the rights to foreclosure and sale thereunder shall be in addition to
and not in substitution for all other rights and remedies which the Association may have
hereunder and by law, including a suit to recover a money judgment for unpaid assessments, as
above provided.
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7.6. Mortgage Protection.
No breach of the covenants, conditions or restrictions herein contained, nor the enforcement of
any lien provisions herein, shall defeat or render invalid the lien of any Deed of Trust made in
good faith and for value, but all of said covenants, conditions and restriction shall be binding
upon and effective against any Owner whose title is derived through foreclosure or trustee's sale,
or otherwise.
7.7. Subordination of Assessment Liens.
If a Lot subject to a monetary lien created by any provision hereof shall be subject to the lien of a
Deed of Trust (1) the foreclosure of any lien created by anything set forth in this Declaration shall
not operate to affect or impair the lien of such Deed of Trust; and (2) the foreclosure of the lien of
Deed of Trust or the acceptance of the deed in lieu of foreclosure of the Deed of Trust shall not
operate to affect or impair the lien thereof, except that the lien hereof for said charges as shall
have accrued up to the foreclosure or the acceptance of the deed in lieu of foreclosure shall be
subordinate to the lien of the Deed of Trust, with the foreclosure purchaser or deed-in-lieu-taking
title free of the lien hereof for all said charges that have accrued up to the time of the foreclosure
or deed given in lieu of foreclosure, but subject to the lien hereof for all said charges that shall
accrue subsequent to the foreclosure or deed given in lieu of foreclosure.
7.8. Receivers.
In addition to the foreclosure and other remedies granted the Association herein, each Owner hereby
conveys to the Association all of such Owner's right, title and interest in all rents, issues and profits
derived from and appurtenant to such Lot, subject to the right, power and authority of the
Association to collect and apply such rents, issues and profits to any delinquent Assessments owed
by such Owner, reserving to the Owner the right, prior to any default by the Owner in the payment
of Assessments, to collect and retain such rents, issues and profits as they may become due and
payable. Upon any such default the Association may, upon the expiration of thirty (30) days
following delivery to the Owner of the "Notice of Assessment" described herein, either in person,
by agent or by receiver to be appointed by a court, and without regard to the adequacy of any
security for the indebtedness secured by the lien described herein, (a) enter in or upon and take
possession of the Lot or any part thereof, (b) in the Association's name sue for or otherwise collect
such rents, issues and profits, including those past due and unpaid, and (c) apply the same, less
allowable expenses of operation, to any delinquencies of the Owner hereunder, and in such order as
the Association may determine. The entering upon and taking possession of the Lot, the collection
of rents, issues and profits and the application thereof shall not cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to such notice.
ARTICLE VIII
8. Architectural Control.
8.1. Members of Committee.
The Architectural Review Committee, referred to herein as the "ARC," shall be comprised of a
minimum of three (3) members. The Board may increase and decrease the size of the ARC in its
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discretion (but not below three (3) members), and may appoint and remove all of the members of
the ARC. ARC members must be either (a) Members or (b) licensed design professionals (e.g.,
architects). Board members may also serve as ARC members. The ARC has the right and duty to
promulgate reasonable standards against which to examine any request made pursuant to this
Article in order to ensure that the proposed plans conform harmoniously to the exterior design and
existing materials of the buildings in the Properties.
8.2. Review of Plans and Specifications.
The ARC shall consider and act upon all plans and specifications submitted for its approval under
this Declaration and perform such other duties as the Board assigns to it, including inspection of
construction in progress to assure conformance with plans approved by the ARC. No construction,
installation or alteration of an Improvement to (a) the exterior of a Dwelling Unit, (b) the front yard
portions of a Lot, including landscaping, or (c) the rear yard of a Lot if the Improvement as
constructed, installed or altered would generate excessive or annoying odors or noises (e.g., air
conditioning compressors, pool or spa equipment, sports courts) or exceeds (or in the case of
landscaping Improvements, at maturity would exceed) six feet (6') in height above finished grade
level, may be commenced or maintained until the plans and specifications therefor showing the
nature, kind, shape, height, width, color, materials and location thereof have been submitted to and
approved in writing by the ARC; provided, however, that any Improvement may be repainted or
repaired without ARC approval so long as the Improvement is repainted or repaired, as applicable,
(i) with colors, materials and architectural styles as approved in the ARC guidelines, or (ii) to
substantially the same color or condition prior to the necessity for the repainting or repair arising.
Without limiting the generality of the foregoing, the provisions of this Article VIII apply to the
construction, installation and alteration of solar energy systems, as defined in Section 801.5 of the
California Civil Code, subject to the provisions of California Civil Code Section 714, the City
Building Code, applicable zoning regulations, and associated City ordinances. The Owner
submitting the plans and specifications ("Applicant") shall obtain a written, dated receipt therefor
from an authorized ARC agent. Until changed by the Board, the address for submission of such
plans and specifications is the Association's principal office. The ARC shall approve plans and
specifications submitted for its approval only if it determines that (a) the installation, construction or
alterations contemplated thereby in the locations indicated will not be detrimental to the appearance
of the surrounding area of the Properties as a whole, (b) the appearance of any structure affected
thereby will be in harmony with the surrounding structures, (c) the installation, construction or
alteration thereof will not detract from the beauty, wholesomeness and attractiveness of the
Common Area and Association Maintenance Areas or the enjoyment thereof by the Members, and
(d) the maintenance thereof will not become a burden on the Association.
The ARC may condition its approval of proposals or plans and specifications for any
Improvement upon any of the following: (1) the Applicant's furnishing the Association with
security acceptable to the Association against any mechanic's lien or other encumbrance which may
be Recorded against the Properties as a result of such work, (2) such changes therein as it deems
appropriate, (3) the Applicant's agreement to grant appropriate easements to the Association for the
maintenance of the Improvements, (4) the Applicant's agreement to install (at its sole cost) water,
gas, electrical or other utility meters to measure any increased consumption,
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(5) the Applicant's agreement to reimburse the Association for the cost of such maintenance, or
(6) the Applicant's agreement to complete the proposed work within a stated period of time, an may
require submission of additional plans and specifications or other information prior to approving or
disapproving material submitted. The ARC may also issue rules or guidelines setting forth
procedures for the submission of plans for approval, requiring a fee to accompany each application
for approval, or stating additional factors which it will consider in reviewing submissions. The
ARC may provide that the amount of such fee be uniform, or that it be determined in any other
reasonable manner, such as by the reasonable cost of the construction, alterations or installation
contemplated. The ARC may require such detail in plans and specifications submitted for its review
as it deems proper, including without limitation, landscape plans, floor plans, site plans, drainage
plans, elevation drawings and descriptions or samples of exterior material and colors. The ARC
may postpone review of any plans submitted for approval until it receives all required plans and
specifications. The ARC shall transmit its decision and the reasons therefor to the Applicant at the
address set forth in the application for approval within thirty (30) days after the first regularly
scheduled and held ARC meeting following the date the ARC receives all materials required. Any
application submitted pursuant to this Section 8.2 shall be deemed approved unless the ARC
transmits written disapproval or a request for additional information or materials to the Applicant
within thirty (30) days alter the first regularly scheduled and held ARC meeting following the date
the ARC receives all required materials. The Applicant shall meet any review or permit
requirements of the City prior to making any construction, installation or alterations permitted
hereunder. Following commencement of construction, installation or alteration of any Improvement
approved by the ARC, the Applicant shall diligently prosecute the same to completion.
8.3. Meetings of the ARC.
The ARC shall meet as necessary to perform its duties. The ARC may, by resolution unanimously
adopted in writing, designate an ARC representative (who may, but need not, be one of its
members) to take any action or perform any duties for and on behalf of the ARC. In the absence of
such designation, the vote or written consent of a majority of the ARC constitutes an act of the
ARC.
8.4. No Waiver of Future Approvals.
The ARC's approval of any proposals or plans and specifications or drawings for any work done or
proposed or in connection with any other matter requiring the ARC's approval does not waive any
right to withhold approval of any similar proposals, plans and specifications, drawings or matters
subsequently or additionally submitted for approval.
8.5. Compensation of Members.
The ARC's members shall receive no compensation for services rendered, other than (a)
reimbursement for expenses incurred by them in performing their duties, and (b) in the case of
ARC members who are licensed design professionals, such reasonable compensation as approved
by the Board.
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8.6. Inspection of Work.
The ARC or its duly authorized representative may inspect any work for which approval of plans
is required under this Article VIII ("Work"). The right to inspect includes the right to require any
Owner to take such action as may be necessary to remedy any noncompliance with the ARC-
approved plans for the Work or with the requirements of this Declaration ("Noncompliance").
(a) Time Limit. The Owner shall notify the ARC of completion of the Work
within five (5) days of such completion. The ARC'S right to inspect the Work and
notify the responsible Owner of any Noncompliance shall terminate sixty (60) days
after the ARC has received written notice from the Owner that the Work has been
completed. If the ARC fails to send a notice of Noncompliance to an Owner before this
time limit expires, the Work shall be deemed to comply with the approved plans.
(b) Remedy. If an Owner fails to remedy any Noncompliance within sixty
(60) days from the date of notification from the ARC, the ARC shall notify the Board
in writing of such failure. Upon Notice and Hearing, the Board shall determine whether
there is a Noncompliance and, if so, the nature thereof and the estimated cost of
correcting or removing the same. If a Noncompliance exists, the Owner shall remedy
or remove the same within a period of not more than forty-five (45) days from the date
that notice of the Board ruling is given to the Owner. If the Owner does not comply
with the Board ruling within that period, the Board may commence enforcement
proceedings pursuant to Section 14.1 hereof
8.7. Scope of Review.
The ARC shall review and approve, conditionally approve or disapprove all plans submitted to it
for any proposed construction, installation or alteration solely on the basis of aesthetic
considerations, consistency with this Declaration, and the overall benefit or detriment which
would result to the immediate vicinity and the Properties generally. The ARC shall consider the
aesthetic aspects of the architectural designs, placement of buildings, landscaping, color
schemes, exterior finishes and materials and similar features. The ARC's approval or disapproval
shall be based solely on the considerations set forth in this Article VIII. The ARC is not
responsible for reviewing, nor may 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.
8.8. Appeals.
The Board may adopt policies and procedures for the appeal of ARC decisions to the Board. The
Board has no obligation to adopt or implement any appeal procedures, and in the absence of
Board adoption of appeal procedures, all ARC decisions are final.
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ARTICLE IX
9. Maintenance and Repair Obligations.
9.1. Maintenance Obligations of Owners.
Each Owner shall, at the Owner's sole expense, subject to the provisions of this Declaration
requiring ARC approval, maintain, repair, replace and restore all Improvements located on the
Owner's Lot and the Lot itself (except for those portions of the Lot which constitute Association
Maintenance Areas) in a neat, sanitary and attractive condition. An owner's maintenance
obligations include the duty to trim or prune the landscaping Improvements on such Owner's Lot
in accordance with Rules and Regulations adopted by the Board.
If any Owner permits any Improvement which such Owner is responsible for
maintaining, to fall into disrepair or to become unsafe, unsightly or unattractive, or to otherwise
violate this Declaration, the Board may seek any remedies at law or in equity which it may have.
9.2. Maintenance Obligations of the Association.
No improvement, excavation or work which in any way alters the Common Area or the
Association Maintenance Areas may be made or done by any person other than the Association
or its authorized agents. The Association shall maintain, paint, repair and replace the Common
Area and Association Maintenance Areas and all Improvements thereon, including, but not limited
to, all landscaping, slope plantings, private irrigation systems, sewers, storm drains, driveways,
parking areas and recreational facilities, in a safe, sanitary and attractive condition and in good
order and repair, and shall provide for the commonly metered utilities serving the Common Area
and the Association Maintenance Areas. The Board shall determine, in its sole discretion, the level
and frequency of maintenance of the Common Area and Association Maintenance Areas. The
Association may add or remove any landscaping Improvements to or from the Common Area and
Association Maintenance Areas and shall ensure that the landscaping on the Common Area and
Association Maintenance Areas is maintained free of weeds and disease. The Association may
enter the Lots in order to maintain portions of an underground drainage system servicing the
Common Area. Upon completion of such maintenance, the Association shall restore the entered
Lots to as near a condition as existed prior to the Association's entry as is reasonably practical.
The Association is not responsible for the maintenance of any portions of the Common Area
which have been dedicated to and accepted for maintenance by a state, local or municipal
governmental agency or entity. All of the foregoing Association obligations shall be discharged
when and in such manner as the Board shall determine in its judgment to be appropriate. The
Association shall indemnify, defend and hold harmless the Owner of any Lot against whom
liability for personal injury or for damage or destruction of property is sought to be imposed as a
result of improper or negligent Association acts or omissions in connection with maintenance of
Association Maintenance Areas located on such Owner's Lot.
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9.3. Party Walls.
Each wall or fence which is placed on the dividing line between the Lots (the "Party Wall") is 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 apply thereto.
(a) Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of a Party Wall shall be shared equally by the Owners of the Lots
connected by such Party Wall. However, each Owner shall be solely responsible for
repainting the side of any Party Wall facing his Lot.
(b) Destruction by Fire or Other Casualty. If a Party Wall is destroyed or
damaged by fire or other casualty, any Owner whose Lot is affected thereby may restore
it, and the Owner of the other Lot which is affected thereby shall contribute equally to
the cost of restoration thereof without prejudice, however, to the right of any such
Owner to call for a larger contribution from the other under any rule of law regarding
liability for negligent or willful acts or omissions.
(c) Right to Contribution Runs With Land. The right of any Owner to a
contribution from any other Owner under this Section is appurtenant to the land and passes
to such Owner's successors in title.
9.4. Damage to Common Area by Owners.
The Board, after Notice and Hearing, may levy the cost of any maintenance, repairs or
replacements by the Association within the Common Area and Association Maintenance Areas
arising out of or caused by the willful or negligent act of an Owner, his tenants, or their families,
guests or invitees as a Special Assessment against such Owner.
9.5. Damage to Dwelling Units: Reconstruction.
If all or any portion of any Lot or Dwelling Unit is damaged or destroyed by fire or other
casualty, the Owner of such Lot shall rebuild, repair or reconstruct the Lot and the Dwelling Unit
thereon in a manner which will restore them substantially to their appearance and condition
immediately prior to the casualty or as otherwise approved by the ARC. The Owner of any
damaged Lot or Dwelling Unit and the ARC shall proceed with all due diligence, and the Owner
shall cause reconstruction to commence within six (6) months after the damage occurs and to be
completed within twelve (12) months after damage occurs, unless prevented by causes beyond
such Owner's reasonable control. A transferee of the Lot which is damaged or upon which is
located a damaged Dwelling Unit shall commence and complete reconstruction in the respective
periods which would have remained for the performance of such obligations if the Owner of the
Lot at the time of the damage still held title to the Lot. However, no such transferee may be
required to commence or complete such reconstruction in less than thirty (30) days from the date
such transferee acquired title to the Lot.
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9.6. Inspection.
The Board shall have the Common Area, Association Maintenance Areas and all Improvements
thereon inspected at least once every three (3) years in order to (a) determine whether the
Common Area and Association Maintenance Areas are being maintained adequately in
accordance with the standards of maintenance established in Section 9.2 hereof, (b) identify the
condition of the Common Area and Association Maintenance Areas and any Improvements
thereon, including the existence of any hazards or defects, and the need for performing additional
maintenance refurbishment, replacement, or repair, and (c) recommend preventative actions
which may be taken to reduce potential maintenance costs to be incurred in the future. The Board
may employ such experts and consultants as necessary to perform the inspection and make the
report required by this Section.
The Board shall have a report of the results of the inspection required by this Section
prepared. The report must include at least the following:
(a) a description of the condition of the Common Area and Association
Maintenance Areas, including a list of items inspected, and the status of
maintenance, repair and need for replacement of all such items;
(b) a description of all maintenance, repair and replacement planned for
the ensuing Fiscal Year and included in the Budget;
(c) if any maintenance, repair or replacement is to be deferred, the reason
for such deferral;
(d) a summary of all reports of inspections performed by any expert
or a consultant employed by the Board to perform inspections;
(e) a report of the status of compliance with the maintenance, replacement
and repair needs set forth in the inspection report for preceding years; and
(f) such other matters as the Board deems appropriate.
ARTICLE X
10. Use Restrictions.
The Properties shall be held, used and enjoyed subject to the following restrictions.
10.1. Single Family Residence.
Each Lot shall be used as a residence for a single Family and for no other purpose. An Owner
may rent his Lot to a single Family provided that the Lot is rented pursuant to a lease or rental
agreement which is (a) in writing and (b) subject to all of the provisions of this Declaration. Any
failure by the lessee of a Lot to comply with the Restrictions constitutes a default under the lease
or rental agreement.
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10.2. Business or Commercial Activity.
No part of the Properties may ever be used for any business, commercial (including auctions or
similar events), manufacturing, mercantile, storage, vending or other nonresidential purposes,
including without limitation any activity for which the provider is compensated or receives any
consideration, regardless of whether the activity is engaged in full or part-time, generates or does
not generate a profit, or requires or does not require a license. This Section 10.2 does not preclude
any of the above-described activities without external evidence thereof, provided that: (a) such
activities are conducted in conformance with all applicable governmental ordinances; (b) the
patrons or clientele of such activities do not visit the Lot or park automobiles or other vehicles
within the Properties; (c) the existence or operation of such activities is not apparent or detectable
by sight, sound or smell from outside the boundaries of the Lot; (d) no such occupation increases
the Association's liability or casualty insurance obligation or premium; and (e) such activities are
consistent with the residential character of the Properties and conform with the provisions of this
Declaration. Notwithstanding the foregoing, as many as two (2) garage or yard sales may be
conducted on a Lot per calendar year, so long as such activity does not constitute a nuisance.
10.3. Nuisances.
No noxious or offensive activities may be carried on upon the Properties or on any public street
abutting or visible from the Properties. No horns, whistles, bells or other sound devices, except
security devices used exclusively to protect the security of a Dwelling Unit and its contents, may
be placed or used on any Lot. Noisy, unsightly, unusually painted or smoky vehicles, large power
equipment and large power tools (excluding lawn mowers and other equipment utilized in
connection with ordinary landscape maintenance), off-road motor vehicles or items which may
unreasonably interfere with television or radio reception to any Lot, and objects which create or
emit loud noises or noxious odors may not be located, used or placed in the Properties or on any
public street abutting the Properties, or exposed to the view of other Owners without the Board's
prior written approval. The Board is entitled to determine if any noise, odor, or activity producing
such noise or odor constitutes a nuisance. No Owner may (a) permit or cause anything to be done
or kept on the Properties or on any public street abutting the Properties which may (i) increase the
rate of insurance in the Properties, (ii) result in the cancellation of such insurance, or (iii) obstruct
or interfere with the rights of other Owners, or (b) commit or permit any nuisance thereon or
violate any law. Each Owner shall comply with all requirements of the local or state health
authorities and with all other applicable governmental ordinances regarding occupancy and use of
a Dwelling Unit. Each Owner is accountable to the Association and other Owners for the conduct
and behavior of persons residing in or visiting his Lot. Any damage to the Common Area,
personal property of the Association, Association Maintenance Areas or property of another
Owner caused by such persons shall be repaired at the sole expense of the Owner of the Lot
where such persons are residing or visiting.
10.4. Signs
Subject to the provisions of California Civil Code Sections 712 and 713, no sign, poster,
display, billboard or other advertising device may be displayed on any portion of the Properties
or on any public street abutting or visible from the Properties without the ARC's prior written
consent, except (a) one (1) sign for each Lot, not larger than eighteen inches (18") by twenty-
four inches
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(24"), advertising the Lot for sale or rent, or (b) traffic and other signs installed by the Association
or as part of the original construction of the Properties. All signs or billboards and the conditions
promulgated for the regulation thereof must conform to the requirements of all applicable
governmental ordinances.
10.5. Parking and Vehicular Restrictions.
(a) Authorized Vehicles. The following vehicles are Authorized Vehicles:
standard passenger vehicles, including without limitation automobiles, passenger vans
designed to accommodate twelve (12) or fewer people, motorcycles and pickup trucks
having a manufacturer’s rating or payload capacity of one (1) ton or less. Authorized
Vehicles may be parked in any portion of the Properties intended for parking of.
motorized vehicles.
(b) Prohibited Vehicles. The following vehicles are Prohibited Vehicles: (i)
recreational vehicles (e.g., motorhomes, travel trailers, camper vans, boats, etc.), (ii)
commercial-type vehicles (e.g., stakebed trucks, tank trucks, dump trucks, step vans, concrete
trucks, etc.), (iii) buses or vans designed to accommodate more than twelve (12) people, (iv)
vehicles having more than two (2) axles, (v) trailers, inoperable vehicles or parts of vehicles,
(vi) aircraft, other similar vehicles or any vehicle or vehicular equipment deemed a nuisance
by the Board. Prohibited Vehicles may not be parked, stored or kept on any Lot or on any
public or private street within, adjacent to or visible from the Properties except for brief
periods for loading, unloading, making deliveries or emergency repairs. Notwithstanding the
foregoing, (A) Prohibited Vehicles may be parked within an Owner's fully enclosed garage
with the door closed so long as their presence on the Properties does not otherwise violate the
provisions of this Declaration, and (B) recreational vehicles may be parked in the Properties
for loading, unloading and cleaning purposes for up to forty-eight (48) hours prior to
departure on, and following return from, trips.
(c) General Restrictions. No repair, maintenance or restoration of any vehicle
may be conducted on the Properties except within an enclosed garage when the garage door
is closed, provided such activity is not undertaken as a business, and provided that such
activity may be prohibited entirely by the Board if the Board determines that it constitutes a
nuisance.
(d) Parking Regulations. The Board may establish additional parking regulations
and may enforce all parking and vehicle use regulations applicable to the Properties, including
removing violating vehicles from the Properties pursuant to California Vehicle Code Section
22658.2 or other applicable ordinances or statutes. If the Board fails to enforce any of the
parking or vehicle use regulations, the City may enforce such regulations in accordance with
applicable laws and ordinances.
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10.6. Animal Restrictions.
No animals may be raised, bred or kept on the Properties, except that dogs, cats, fish, birds and
other usual household pets may be kept on Lots, provided that they are not kept, bred or maintained
for commercial purposes, in unreasonable quantities, or in violation of the Restrictions. The Board
may limit the size of pets and may prohibit maintenance of any animal which, in the Board's
opinion, constitutes a nuisance to any other Owner. Animals belonging to Owners, occupants or
their licensees, tenants or invitees within the Properties must be either kept within an enclosure or
on a leash held by a person capable of controlling the animal. Any Owner shall be 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 such
Owner or by such Owner's family, tenants or guests. Each Owner shall clean up after such Owner's
animals which have used any portion of the Properties or public street abutting or visible from the
Properties.
10.7. Trash.
No trash may be kept or permitted upon the Properties, or on any public street abutting, or visible
from the Properties, except in sanitary containers located in appropriate areas screened from view,
and no odor may be permitted to arise therefrom so as to render the Properties or any portion
thereof unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof
or to its occupants. Such containers may be exposed to the view of neighboring Lots only when set
out for a reasonable period of time (not to exceed the day before and after the scheduled trash
collection day). No exterior fires are permitted except barbecue fires contained within receptacles
therefor and fire pits in enclosed areas and designed in such a manner that they do not create a fire
hazard. No clothing, household fabrics or other unsightly articles may be hung, dried, or aired on or
over any Lot in such a way as to be visible from any other Lot No plants or seeds infected with
noxious insects or plant diseases may be brought upon, grown or maintained upon the Properties.
10.8. Temporary Buildings and Facilities.
No outbuilding, tent, shack, shed or other temporary building, equipment or Improvement may
be placed upon any portion of the Properties either temporarily or permanently. No garage,
carport, trailer, camper, motor home, recreation vehicle or other vehicle may be used as a
residence in the Properties, either temporarily or permanently.
10.9. Common Area Facilities.
The Common Area and Association Maintenance Areas may not be altered without the Board's
prior written consent.
10.10. Antennae.
No radio station or short-wave operators of any kind may operate from any Lot or Dwelling Unit
unless approved by the ARC. With the exception of any master antenna maintained by the
Association and subject to Section 1376 of the California Civil Code and Federal
Communications Commission regulations adopted pursuant to the Telecommunications Act of
1996, no exterior radio antenna, "C.B." antenna, television antenna, earth receiving station,
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satellite dish or other antenna of any type may be erected or maintained in the Properties unless
approved by the ARC.
10.11. Drilling.
No oil drilling, oil, gas or mineral development operations, oil refining, geothermal exploration
or development, quarrying or mining operations of any kind may be conducted upon the
Properties, nor are oil wells, tanks, tunnels or mineral excavations or shafts permitted upon the
surface of any Lot or within five hundred feet (500') below the surface of the Properties. No
derrick or other structure designed for use in boring for water, oil, geothermal heat or natural gas
may be erected, maintained or permitted upon any Lot.
10.12. Further Subdivision.
Except as otherwise provided herein, no Owner may further partition or subdivide such Owner's
Lot, including without limitation any division of such Owner's Lot into time-share estates or time-
share uses. This provision does not limit the right of an Owner to (a) rent or lease his entire Lot
by means of a written lease or rental agreement subject to this Declaration; (b) sell such Owner's
Lot; or (c) transferor sell any Lot to more than one (1) Person to be held by them as tenants-in-
common, joint tenants, tenants by the entirety or as community property.
10.13. Drainage.
No one may interfere with or alter the established drainage pattern over any Lot unless an
adequate alternative provision is made for proper drainage with the ARC's prior written approval.
For the purpose hereof, "established" drainage means the drainage which existed at the inception
of the Properties as a planned development, and includes drainage from the Lots onto the
Common Area and from the Common Area onto the Lots. No Owner may alter, modify, remove
or replace any underground drainage Improvements located within such Owner's Lot without
receiving prior written approval from the ARC. In connection with obtaining such approval, the
Owner must submit a plan to the ARC for alternative drainage acceptable to the ARC. Drainage
from Lots must flow into adjacent streets and not onto other Lots. Slopes and terraces on Lots
must be maintained so as to avoid erosion onto streets and other Lots.
10.14. Water Supply Systems.
No individual water supply, sewage disposal, or water softener system is permitted on any Lot
unless such system is designed, located, constructed and equipped in accordance with the
requirements, standards and recommendations of any applicable water district, the City, the
ARC, and all other applicable governmental authorities.
10.15. View Obstructions.
Each Owner acknowledges that the Restrictions do not create any protected views for any Lots in
the Properties.
10.16. Inside Installations.
No window in any Dwelling Unit may be partially or completely covered, inside or outside, with
aluminum foil, newspaper, paint, reflective tint or any other material the ARC deems
inappropriate for such use.
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10.17. Solar Energy Systems.
Each Owner may install a solar energy system on his Lot which serves his Dwelling Unit so long
as (a) the design and location of the solar energy system meet the requirements of all applicable
ordinances, and (b) said design and location receive the prior written approval of the ARC.
10.18. Rights of Handicapped.
Subject to the provisions of Article VIII hereof, each Owner may modify his Dwelling Unit and
the route over the Lot leading to the front door of his Dwelling Unit, at his sole expense, in order
to facilitate access to his Dwelling Unit by persons who are blind, visually handicapped, deaf or
physically disabled, or to alter conditions which could be hazardous to such persons.
10.19. Lot Improvement Restrictions.
(a) Fence and Hedge Heights. No fence or hedge over three feet (3') in height
may be erected or permitted between the street and front setback line established by
applicable City ordinances. Other walls or fences may not exceed a height of eight feet
(8') from ground level.
(b) Wall and Fence Composition. Any wall or fence installed by an Owner
may only be composed of the following: redwood grape stake, tristake, board-on-board
design, cement block, split block, slump stone, brick or wrought iron.
ARTICLE XI
11. Damage and Condemnation.
Damage to or destruction of all or any portion of the Common Area, of the Association
Maintenance Areas and condemnation of all or any portion of the Common Area shall be
handled in the following manner:
(a) If the Common Area or such Association Maintenance Areas are damaged or
destroyed, the Association shall cause the Common Area and such Association
Maintenance Areas to be repaired and reconstructed. Any restoration or repair of the
Common Area and such Association Maintenance Areas shall be performed substantially
in accordance with the original plans and specifications or pursuant to such modifications
as may be approved by the ARC. If the cost of effecting total restoration of the Common
Area and such Association Maintenance Areas exceeds the amount of insurance
proceeds, then the Association shall levy a Special Assessment against the Lots and their
respective Owners equal to the difference between the total restoration cost and the
insurance proceeds.
(b) Each Owner is liable to the Association for any damage to the Common
Area or the Association Maintenance Areas not fully reimbursed to the Association by
insurance proceeds (including without limitation any deductible amounts under any
insurance policies against which the Association files a claim for such damage) which
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may be sustained due to the negligence or willful misconduct of said Owner or the
persons deriving their right and easement of use and enjoyment of the Common Area
from said Owner, or of such Owner's Family and guests. The Association may, after
Notice and Hearing, (i) determine whether any claim shall be made upon the insurance
maintained by the Association and (ii) levy against such Owner a Special Assessment
equal to any deductible paid and the increase, if any, in the insurance premium directly
attributable to the damage caused by such Owner or the persons for whom such Owner
may be liable as described herein. If a Lot is jointly owned, the liability of its Owners is
joint and several, except to the extent that the Association has previously contracted in
writing with such joint Owners to the contrary. After Notice and Hearing, the cost of
correcting such damage, to the extent not reimbursed to the Association by insurance,
shall be a Special Assessment against such Owner.
(c) If all or any portion of the Common Area is taken by right of eminent
domain or by private purchase in lieu of eminent domain, the award in condemnation
shall be paid to the Association and deposited in the Operating Fund. No Owner may
participate as a party, or otherwise, in any proceedings relating to such
condemnation.
ARTICLE XII
12. Insurance.
12.1. Casualty Insurance.
The Board shall obtain and maintain fire and casualty insurance with extended coverage for loss or
damage to all insurable Improvements on the Common Area and the Association Maintenance
Areas for the full replacement cost thereof without deduction for depreciation or coinsurance, and
may obtain insurance against such other hazards and casualties as the Association may deem
desirable. The casualty insurance shall include earthquake coverage unless the Board is directed
not to obtain earthquake coverage by a majority of the Association's voting power. The
Association may also insure any other real or personal property it owns against loss or damage by
fire and such other hazards as the Association may deem desirable, with the Association as the
owner and beneficiary of such insurance. The policies insuring the Common Area and the
Association Maintenance Areas must be written in the name of, and the proceeds thereof must be
payable to, the Association. Unless the applicable insurance policy provides for a different
procedure for the filing of claims, all claims made under such policy must be sent to the insurance
carrier or agent, as applicable, by certified mail and be clearly identified as a claim. The
Association shall keep a record of all claims made. Subject to Article X1(b) hereof, the
Association shall use insurance proceeds to repair or replace the property for which the insurance
was carried. Premiums for all insurance carried by the Association are a Common Expense.
12.2. Insurance Obligations of Owners.
The Association is not responsible for insuring any real or personal property of any Owner, nor
is the Association responsible for obtaining public liability insurance related to the activities or
property of any Owner. If any loss intended to be covered by insurance carried by or on behalf
of the Association occurs and the proceeds payable thereunder are reduced due to insurance
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carried by any Owner, such Owner shall assign the proceeds of such insurance to the
Association, to the extent of such reduction, for application by the Board to the same purposes-as
the reduced proceeds are to be applied.
12.3. Waiver of Subrogation.
All policies of physical damage insurance the Association maintains must provide, if reasonably
possible, for waiver of (a) any defense based on coinsurance; (b) any right of setoff,
counterclaim, apportionment, proration or contribution due to other insurance not carried by the
Association; (c) any invalidity, other adverse effect or defense due to any breach of warranty or
condition caused by the Association, any Owner or any tenant of any Owner, or arising from any
act or omission of any named insured or the respective agents, contractors and employees of any
insured; (d) any rights of the insurer to repair, rebuild or replace, and, if any Improvement is not
repaired, rebuilt or replaced following loss, any right to pay under the insurance an amount less
than the replacement value of the Improvements insured; (e) notice of the assignment of any
Owner of its interest in the insurance by virtue of a conveyance of any Lot; (f) any denial of an
Owner's claim because of negligent acts by the Association or other Owners; and (g) prejudice of
the insurance by any acts or omissions of Owners that are not under the Association's control. As
to each policy of insurance the Association maintains which will not be voided or impaired
thereby, the Association hereby waives and releases all claims against the Board, the Owners, the
Manager, 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 or breach of any agreement by
such persons, but only to the extent that insurance proceeds are received in compensation of such
loss.
12.4. Liability and Other Insurance.
The Association shall obtain comprehensive public liability insurance, including medical
payments and malicious mischief in such limits as it deems desirable and as set forth in Section
1365.9 of the California Civil Code, insuring against liability for bodily injury, death and
property damage arising from the Association's activities or with respect to property the
Association maintains or is required to maintain including, if obtainable, a cross-liability
endorsement insuring against liability to each other insured. The Association may also obtain
Worker's Compensation insurance and other liability insurance as it may deem desirable,
insuring each Owner, the Association, Board and Manager, against liability in connection with
the Common Area and Association Maintenance Areas, the premiums for which are a Common
Expense. The Board shall review all insurance policies at least annually and increase the limits in
its discretion. The Board may also obtain such errors and omissions insurance, indemnity bonds,
fidelity bonds and other insurance as it deems advisable, insuring the Board, the Association's
officers and the Manager against any liability for any act or omission in carrying out their
obligations hereunder, or resulting from their membership on the Board or any committee
thereof. However, fidelity bond coverage which names the Association as an obligee must be
obtained by or on behalf of the Association for any person or entity handling Association funds,
including, but not limited to, Association officers, directors, trustees, employees and agents and
Manager employees, whether or not such persons are compensated for their services, in an
amount not less than the estimated maximum of funds, including reserve funds, in the
Association's or Manager's custody during the term of each bond. The aggregate
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amount of such bonds may not be less than one-fourth (1/4) of the Annual Assessments on all
Lots in the Properties, plus reserve finds. The Association shall annually provide the Owners
with information regarding the Association's insurance policies as required by Section 1365 of
the California Civil Code within sixty (60) days preceding the beginning of the Fiscal Year.
ARTICLE XIII
13. Annexation of Additional Property
13.1. Required Approvals.
Additional real property may be annexed to the Properties and brought within the general plan of
this Declaration upon the approval by vote or written consent of Members entitled to exercise no
less than two-thirds (2/3) of the Association's voting power.
13.2 Rights of Added Territory Members.
Subject to the provisions of Section 13.3, upon the recording of a Notice of Addition containing
the provisions as set forth in this Section, all provisions contained in this Declaration will apply
to the real property described in such Notice of Addition (the "added territory") in the same
manner as if it were originally covered by this Declaration. Thereafter, the rights, powers and
responsibilities of the parties to this Declaration with respect to be added territory will be the
same as with respect to the property originally covered hereby, and the rights, powers and
responsibilities of the Owners, lessees and occupants of Lots within the added territory, as well
as within the property originally subject to this Declaration, will be the same as if the added
territory were originally covered by this Declaration. From and after the first day of the first
month following Recordation of the Notice of Addition for the added territory, the Owners of
Lots located in the added territory shall share in the payment of assessments to the Association to
meet Common Expenses of the entire Properties as provided in Article VI hereof Voting rights
attributable to the Lots in the added territory do not vest until Annual Assessments have
commenced as to such Lots.
13.3. Notice of Addition.
The additions authorized under Section 13.1 must be made by Recording a Notice of Addition, or
other similar instrument with respect to the added territory ("Notice of Addition") which will
extend the general plan of this Declaration to such added territory. The Notice of Addition must
be signed by at least two (2) officers of the Association to certify that the requisite Member
approval was obtained. The Recordation of said Notice of Addition effectuates the annexation of
the added territory described therein, and thereupon said added territory will constitute a part of
the Properties, become subject to this Declaration and encompassed within the general plan of
covenants, conditions, restrictions, reservation of easements and equitable servitudes contained
herein, and become subject to the Association's functions, powers and jurisdiction; and the
Owners of Lots in the added territory will automatically become Members. Such Notice of
Addition may contain a Supplemental Declaration with such additions and modifications of the
covenants, conditions, restrictions, reservation of easements and equitable servitudes contained in
this Declaration as may be necessary to reflect the different character, if any, of the added
territory, and as are not inconsistent with the general plan of this Declaration, and must identify
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any Cost Centers in the added territory and the Lots the Owners of which will bear the Common
Expenses attributable to such Cost Centers. In no event, however, may such Notice of Addition or
Supplemental Declaration revoke, modify or add to the covenants, conditions, restrictions,
reservation of easements, or equitable servitudes established by this Declaration as the same pertain
to the real property originally covered by this Declaration.
ARTICLE XIV
14. General Provisions.
14.1. Enforcement of Restrictions
All disputes arising under the Restrictions shall be resolved as follows:
(a) Violations Identified by the Association. If the Board determines that
there is a violation of the Restrictions, or the ARC determines that an Improvement which is
the maintenance responsibility of an Owner needs installation, maintenance, repair,
restoration or painting, then the Board shall give written notice to the responsible Owner
identifying (i) the condition or violation complained of, and (ii) the length of time the Owner
has to remedy the violation including, if applicable, the length of time the Owner has to
submit plans to the ARC and the length of time the Owner has to complete the work
proposed in the plans submitted to the ARC.
If an Owner does not perform such corrective action as is required by the
Board and the ARC within the allotted time, the Board, after Notice and Hearing, may
remedy such condition or violation complained of, and the cost thereof shall charged to the
Owner as a Special Assessment.
If the violation involves nonpayment of any type of Assessment, then the
Board may collect such delinquent Assessment pursuant to the procedures set forth in
Article VII.
(b) Violations Identified by an Owner. If an Owner alleges that another Owner,
his family, guests or tenants, is violating the Restrictions (other than nonpayment of any
type of Assessment), the complaining Owner must first submit the matter to the Board for
Notice and Hearing before the complaining Owner may resort to arbitration pursuant to
Subsection (c) below for relief.
(c) Alternative Dispute Resolution. If a dispute exists between or among (i)
any Owner and another Owner, or (ii) the Association and any Owner, including any claim
based on contract, tort, or statute, arising out of or relating to the rights or duties of the
parties under the Restrictions, or relating to the validity or enforceability of this alternative
dispute resolution provision, the applicability of any statute of limitations or other defense
relating to the timeliness of the assertion of any claim or any matter relating to the
arbitrability of such claim (excluding disputes relating to the payment of any type of
Assessments or a claim for damages not in excess of the jurisdiction of the Small
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Claims Court), the matter will be submitted to binding arbitration to be conducted by a single
arbitrator familiar with California law regarding common interest developments selected from
the panels of arbitrators of either the American Arbitration Association ("AAA") or
J.A.M.S./Endispute. The arbitration shall be conducted in Orange County, California, in
accordance with AAA's Real Estate Dispute Resolution rules, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Notwithstanding the foregoing, a party to a dispute may file with a court of competent
jurisdiction an application for temporary or preliminary injunctive relief, writ of attachment,
writ of possession, temporary protective order and/or appointment of a receiver on the grounds
that the arbitration award to which the applicant may be entitled may be rendered ineffectual in
the absence of such relief.
The parties to a dispute may obtain discovery in aid of the arbitration in
accordance with California Code of Civil Procedure Section 1283.05.
The arbitrator shall have the authority to award any remedy or relief that a court of this
state could order or grant, including without imitation, specific performance of any obligation
created under this Declaration, the awarding of punitive damages, the issuance of an injunction,
or the imposition of sanction for abuse or frustration of the arbitration process. The arbitration
award shall be in writing and shall specify the factual and legal bases for the award.
(d) Schedule of Fines. The Board may adopt a schedule of reasonable fines or
penalties which, in its reasonable discretion, it may assess against an Owner for the failure of
such Owner, or of a resident of or visitor to such Owner's Lot, to comply with the Restrictions.
Such fines or penalties may only be assessed after Notice and Hearing.
(e) No Waiver. Failure to enforce any provision hereof does not waive the right
to enforce that provision, or any other provision hereof.
S(f) Right to Enforce. The Board or any Owner (not at the time in default
hereunder) may enforce the Restrictions as described in this Article XIV. Each remedy
provided for in this Declaration is cumulative and not exclusive or exhaustive.
(g) Attorneys' Fees. Any award rendered in any proceeding pursuant to this Declaration
shall include a sum for attorneys' fees in such amount as the court or arbitrator, as applicable,
may deem reasonable, in favor of the prevailing party, as well as the amount of any delinquent
payment, interest thereon, costs of collection and costs of court or alternative dispute resolution,
as applicable.
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14.2. Severability.
The provisions hereof are independent and severable, and a determination of invalidity or partial
invalidity or unenforceability of any one provision or portion hereof by a court of competent
jurisdiction does not affect the validity or enforceability of any other provision hereof.
14.3. Term.
This Declaration continues in full force unless a Declaration of Termination satisfying the
requirements of an amendment to the Declaration as set forth in Section 14.5 is Recorded.
14.4. Interpretation.
This Declaration shall be liberally construed to effectuate its purpose of creating a uniform plan for
the development of a residential community and for the maintenance of the Common Area and
Association Maintenance Areas, and any violation of this Declaration is a nuisance. The Article
and Section headings have been inserted for convenience only, and may not be considered or
referred to in resolving questions of interpretation or construction. As used herein, the singular
includes the plural and the plural the singular; and the masculine, feminine and neuter each include
the other, unless the context dictates otherwise.
14.5. Termination and Amendment.
(a) Notice of the subject matter of a proposed amendment to, or termination of
this Declaration in reasonably detailed form shall be included in the notice of any meeting
or election of the Association at which a proposed amendment or termination is to be
considered. The resolution can only be adopted by the vote, in person or by proxy, or
written consent of Members representing not less than seventy-five percent (75%) of the
Association's voting power; provided that the specified percentage of the Association's
voting power necessary to amend a specified Section or provision of this Declaration may
not be less than the percentage of affirmative votes prescribed for action to be taken under
that Section or provision. Notwithstanding the foregoing, this Section 14.5(a) may not be
amended to permit amendments to the Declaration with the approval of less than seventy-
five percent (75%) of the Association's voting power.
(b) Sections 7.6 and 7.7 of this Declaration may not be amended without
the consent of the Beneficiaries of all first Deeds of Trust (i.e., Deeds of Trust with first
priority over other Deeds of Trust).
(c) A copy of each amendment shall be certified by at least two (2)
Association officers, and the amendment will be effective when a Certificate of
Amendment is Recorded. The Certificate, signed and sworn to by at least two (2) officers
of the Association that the requisite number of Owners have either voted for or consented
in writing to any termination or amendment adopted as provided above, when Recorded, is
conclusive evidence of that fact. The Association shall maintain in its files the record of all
such votes or written consents for at least four (4) years. The certificate reflecting any
termination or amendment which requires the written consent of any of the
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Beneficiaries of first Mortgagees must include a certification that the requisite approval
of such first Mortgagees has been obtained. .
14.6. No Public Right or Dedication.
Nothing contained in this Declaration constitutes a gift or dedication of all or any part of the
Properties to the public, or for any public use.
14.7. Constructive Notice and Acceptance.
Every person who owns, occupies or acquires any interest in or to any Lot or other portion of the
Properties does hereby consent and agree, and shall be conclusively deemed to have consented and
agreed, to every limitation, restriction, easement, reservation, condition and covenant contained
herein, whether or not any reference to these restrictions is contained in the instrument by which
such person acquired an interest in the Properties or any portion thereof.
14.8. Notices.
Except as otherwise provided herein, notice to be given to an Owner must be in writing and may be
delivered personally to the Owner. Personal delivery of such notice to one (1) or more co-owners
of a Lot or to any general partner of a partnership owning a Lot constitutes delivery to all
co-owners or to the partnership, as the case may be. Personal delivery of such notice to any officer
or agent for the service of process on a corporation constitutes delivery to the corporation. In lieu
of the foregoing, such notice may be delivered by regular United States mail, postage prepaid,
addressed to the Owner at the most recent address furnished by such Owner to the Association or,
if no such address has been furnished, to the street address of such Owner's Lot. Such notice is
deemed delivered three (3) business days after the time of such mailing, except for notice of a
meeting of Members or of the Board, in which case the notice provisions of the Bylaws control
Any notice to be given to the Association may be delivered personally to any member of the Board,
or sent by United States mail, postage prepaid, addressed to the Association at such address as may
be fixed from time to time and circulated to all Owners.
14.9. Nonliabilitv and Indemnification.
(a) General Limitation. Except as specifically provided in the Restrictions or
as required by law, no right, power or responsibility conferred on the Board or the ARC by
the Restrictions may be construed as a duty, obligation or disability charged upon the
Board, the ARC, any member of the Board or of the ARC, or any other Association
officer, employee or agent. No such person is liable to any party (other than the
Association or a party claiming in the name of the Association) for injuries or damage
resulting from such person's acts or omissions within what such person reasonably
believed to be the scope of such person's Association duties ("Official Acts"), except to the
extent that such injuries or damage result from such person's willful or malicious
misconduct. No such person is liable to the Association (or to any party claiming in the
name of the Association) for injuries or damage resulting from such person's Official Acts,
except to the extent that such injuries or damage result from such person's negligence or
willful or malicious misconduct. The Association is not liable for damage
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to property in the Properties unless caused by the negligence of the Association, the Board,
the Association's officers, the Manager or the Manager's staff.
(b) Damages Limitation. A volunteer Board member or volunteer Association
officer shall not be personally liable in excess of the coverage of insurance specified below to
any person who suffers injury, including without limitation bodily injury, emotional distress,
wrongful death or property damage or loss as a result of the tortious act or omission of the
volunteer officer or Board member if all of the following conditions are satisfied:
(i) The Board member or officer is a tenant of a Lot or an Owner of no
more than two (2) Lots;
(ii) The act or omission was performed within the scope of the Board
member's or officer's Association duties;
(iii) The act or omission was performed in good faith;
(iv) The act or omission was not willful, wanton or grossly negligent; and
(v) The Association maintained and had in effect at the time the act or
omission occurred and at the time a claim was made one (1) or more policies of insurance which
include coverage for (A) general liability of the Association and (B) individual liability of
officers and Board members for negligent acts or omissions in that capacity; provided, that both
types of coverage are in the minimum amount specified in Section 1365.7(a)(4) of the California
Civil Code.
A Board member or Association officer who at the time of the act or omission was the
developer of the Properties or received direct or indirect compensation as an employee from the
developer of the Properties or from a financial institution that purchased a Lot at a judicial or
nonjudicial foreclosure of a Mortgage is not a volunteer for purposes of this Section 14.9(b). The
payment of actual expenses incurred by a Board member or Association officer does not affect
the member's or officer's status as a volunteer for purposes of this Section 14.9(b).
(c) Indemnification. The Association shall pay all expenses incurred by, and
satisfy any judgment or fine levied against, any person as a result of any action or threatened
action against such person to impose liability on such person for his Official Acts, provided
that:
(i) The Board determines that such person acted in good faith and in a
manner such person reasonably believed to be in the Association's best interests;
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(ii) In the case of a criminal proceeding, the Board determines that
such person had no reasonable cause to believe his conduct was unlawful; and
(iii) In the case of an action or threatened action by or in the right of
the Association, the Board determines that such person acted with such care, including
reasonable inquiry, as an ordinarily prudent person in a like position would use under
similar circumstances.
Any determination of the Board required under this Section 14.9(c) must be approved
by a majority vote of a quorum consisting of Directors who are not parties to the action or
threatened action giving use to the indemnification. If the Board fails or refuses to make any
such determination, such determination may be made by the vote of a majority of a quorum of
the Members voting at a meeting called for such purpose, provided that the person to be
indemnified may not vote. Payments made hereunder shall include amounts paid and expenses
incurred in settling any such action or threatened action. This Section 14.9(c) is intended to
authorize payments and indemnification to the fullest extent permitted by applicable law. The
entitlement to indemnification hereunder inures to the benefit of the estate, executor,
administrator, heirs, legatees, or devisees of any person entitled to such indemnification.
14.10. Priorities and Inconsistencies.
If there are conflicts or inconsistencies between this Declaration and either the Articles or
the Bylaws, then the provisions of this Declaration shall prevail.
14.11. Mergers or Consolidations.
Upon a merger or consolidation of the Association with another association, its properties, rights
and obligations may, by operation of law, be transferred to another surviving or consolidated
association or, alternatively, the properties, rights and obligations of another association may, by
operation of law, be added to the properties, rights and obligations of the Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association may
administer and enforce the covenants, conditions and restrictions established by this Declaration
governing the Properties, together with the covenants and restrictions established upon any other
property, as one (1) plan. If another association is merged into the Association, those items
maintained by the merged association shall be a Cost Center, the Common Expenses of which
shall be charged to the owners of the real property which had been subject to the jurisdiction of
the merged association.
14.12. Additional Provisions.
Notwithstanding the provisions contained in the Restrictions, the Association and the Owners
should be aware that there may be provisions of various laws, including without limitation the
Davis-Stirling Common Interest Development Act codified at Section 1350 et seq. of the
California Civil Code, and the federal Fair Housing Act codified at Title 42 United States
Code, Section 3601 et seq., which may supplement or override the Restrictions.
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This Declaration is dated for identification purposes AUGUST 17, 1998.
The undersigned officers of the Association hereby certify that this Declaration has been
approved by all necessary parties pursuant to the Order Granting Petition to Reduce Required
Voting Percentage (attached hereto as Exhibit "D") made by the Orange County Superior Court on
July 28, 1998.
NEWPORT HILLS COMMUNITY ASSOCIATION,
a California nonprofit corporation
"Association"
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STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On __AUGUST 17 _______ , 1998, before me, J . CARTER _______________
personally appeared __ JAMES SCHMIESING ______ and ROBERT ATTYAH _____
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) (is) (are) subscribed to the within instrument and acknowledged to me that (he) (she)
(they) executed the same in-this) (her) (their) authorized capacity(ies), and that by (his) (her) (their)
signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand official seal.
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EXHIBIT "A"
PROPERTIES
Lots 1 to 69, inclusive, of Tract No. 6938, as shown on a Subdivision
Map filed in Book 280, Pages 5 to 8, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 84, inclusive, of Tract No. 7027, as shown on a Subdivision
Map filed in Book 264, Pages 9 et seq., of Miscellaneous Maps, in the
Office of the Orange County Recorder.
Lots 1 to 79, inclusive, of Tract No. 7028, as shown on a Subdivision
Map filed in Book 266, Pages 43 to 47, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 71, inclusive, of Tract No. 7029, as shown on a Subdivision
Map filed in Book 267, Pages 21 to 24, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 71, inclusive, of Tract No. 7030, as shown on a Subdivision
Map filed in Book 269, Pages 18 to 22, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 76, inclusive, of Tract No. 7031, as shown on a Subdivision
Map filed in Book 277, Pages 21 to 24, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 75, inclusive, of Tract No. 7032, as shown on a Subdivision
Map filed in Book 278, Pages 26 to 29, inclusive, of Miscellaneous
Maps, in the Office of the Orange County Recorder.
Lots 1 to 12, inclusive, and Lots A, B, C, D, E, F and H of Tract No.
14533. as shown on a Subdivision Map filed in Book 710, Pages 34 to
37, inclusive, of Miscellaneous Maps, in the Office of the Orange
County Recorder.
The real property described on Exhibit "A-1" attached hereto and
incorporated herein by this reference.
EXHIBIT "A-1"
All that certain land situated in the City of Newport Beach, County of Orange, State of California,
being a portion of Block 92 of Irvine's Subdivision, as shown on a Map, Recorded in Book 1, Page
88, of Miscellaneous Record Maps, Records of said Orange County, California, described as
follows:
Beginning at the most Southerly corner of Tract No. 7029, as per Map of said Tract, Recorded in
Book 267, Pages 21 through 24, inclusive, of Miscellaneous Maps, Records of said Orange County,
California; thence along the Southerly prolongation of the Southeasterly line of said Tract 7029
South 45° 23' 00" West 95.00 feet to the beginning of a tangent curve, concave Northwesterly, and
having a radius of 56.00 feet, said point being also the True Point of Beginning of this description;
thence Southwesterly along said curve through a central angle of 57° 38' 06", an arc distance of
56.33 feet, a radial line from said point bears North 13° 01' 06" East; thence along the Southerly
prolongation of said radial line South 13° 01' 06" West 28.06 feet; thence South 45° 23' 00" West
86.00 feet; thence North 44° 37' 00" West 12.00 feet; thence South 45° 23' 00" West 92.39 feet;
thence South 44° 37' 00" East 150.50 feet to a point hereinafter referred to as Point "A"; thence
North 45° 23' 00" East 72.00 feet; thence North 44° 37' 00" West 4.75 feet; thence North 45° 23'
00" East 55.16 feet; thence North 44° 37' 00" West 1.17 feet; thence South 45° 23' 00" West 2.00
feet; thence North 44° 37' 00" West 25.08 feet; thence North 45° 23' 00" East 37.17 feet; thence
South 44° 37' 00" East 2.00 feet; thence North 45° 23' 00" East 2.00 feet; thence North 44° 37' 00"
West 94.50 feet; thence North 42° 41' 31" East 85.16 feet to the True Point of Beginning.
EXCEPTING THEREFROM, an easement for park maintenance purposes over that portion of
the above-described land, more particularly described as follows:
Beginning at a point hereinbefore designated as Point "A"; thence North 45° 23' 00" East 72.00
feet; thence North 44° 37' 00" West 4.75 feet; thence South 45° 23' 00" West 59.00 feet; thence
North 44° 37' 00" West 1.17 feet; thence North 45° 22' 00" East 2.0 feet; thence North 44° 37' 00"
West 51.16 feet; thence South 45° 23' 00" West 2.30 feet; thence North 44° 37' 00" West 7.52
feet; thence North 45° 23' 00" East 2.30 feet; thence North 44° 37' 00" West 24.40 feet; thence
South 45° 23' 00" West 8.67 feet; thence North 44° 37' 00" West 10.00 feet to the beginning of a
tangent curve, concave Southerly, and having a radius of 5.0 feet; thence Northwesterly and
Southwesterly along said curve through a central angle at 105° 25' 18", an arc distance of 9.20
feet, a radial line from said point bears South 60° 02' 18" East; thence non-tangent to said curve
South 44° 37' 00" East 103.82 feet to the point of beginning.
EXHIBIT "B"
COMMON AREA
Lots 84 of Tract No. 7027, as shown on a Subdivision Map filed in
Book 264, Pages 9 et seq., of Miscellaneous Maps, in the Office of
the Orange County Recorder.
Lots 79 of Tract No. 7028, as shown on a Subdivision Map filed in
Book 266, Pages 43 to 47, inclusive, of Miscellaneous Maps, in the
Office of the Orange County Recorder.
Lots 71 of Tract No. 7030, as shown on a Subdivision Map filed in
Book 269, Pages 18 to 22, inclusive, of Miscellaneous Maps, in the
Office of the Orange County Recorder.
Lots 76 of Tract No. 7031, as shown on a Subdivision Map filed in
Book 277, Pages 21 to 24, inclusive, of Miscellaneous Maps, in the
Office of the Orange County Recorder.
Lots A, B, C, D, E and F of Tract No. 14533, as shown on a
Subdivision Map filed in Book 710, Pages 34 to 37, inclusive, of
Miscellaneous Maps, in the Office of the Orange County Recorder.
The real property described on Exhibit "B-1" attached hereto and
incorporated herein by this reference.
EXHIBIT "B-1"
All that certain land situated in the City of Newport Beach, County of Orange, State of
California, being a portion of Block 92 of Irvine's Subdivision, as shown on a Map,
Recorded in Book 1, Page 88, of Miscellaneous Record Maps, Records of said Orange
County, California, described as follows:
Beginning at the most Southerly corner of Tract No. 7029, as per Map of said Tract,
Recorded in Book 267, Pages 21 through 24, inclusive, of Miscellaneous Maps, Records
of said Orange County, California; thence along the Southerly prolongation of the
Southeasterly line of said Tract 7029 South 45° 23' 00" West 95.00 feet to the beginning
of a tangent curve, concave Northwesterly, and having a radius of 56.00 feet, said point
being also the True Point of Beginning of this description; thence Southwesterly along
said curve through a central angle of 57° 38' 06", an arc distance of 56.33 feet, a radial
line from said point bears North 13° 01' 06" East; thence along the Southerly
prolongation of said radial line South 13° 01' 06" West 28.06 feet; thence South 45° 23'
00" West 86.00 feet; thence North 44° 37' 00" West 12.00 feet; thence South 45° 23' 00"
West 92.39 feet; thence South 44° 37' 00" East 150.50 feet to a point hereinafter referred
to as Point "A"; thence North 45° 23' 00" East 72.00 feet; thence North 44° 37' 00" West
4.75 feet; thence North 45° 23' 00" East 55.16 feet; thence North 44° 37' 00" West 1.17
feet; thence South 45° 23' 00" West 2.00 feet; thence North 44° 37' 00" West 25.08 feet;
thence North 45° 23' 00" East 37.17 feet; thence South 44° 37' 00" East 2.00 feet; thence
North 45° 23' 00" East 2.00 feet; thence North 44° 37' 00" West 94.50 feet; thence North
42° 41' 31" East 85.16 feet to the True Point of Beginning.
EXCEPTING THEREFROM, an easement for park maintenance purposes over that
portion of the above-described land, more particularly described as follows:
Beginning at a point hereinbefore designated as Point "A"; thence North 45° 23' 00" East
72.00 feet; thence North 44° 37' 00" West 4.75 feet; thence South 45° 23' 00" West 59.00
feet; thence North 44° 37' 00" West 1.17 feet; thence North 45° 22' 00" East 2.0 feet;
thence North 44° 37' 00" West 51.16 feet; thence South 45° 23' 00" West 2.30 feet;
thence North 44° 37' 00" West 7.52 feet; thence North 45° 23' 00" East 2.30 feet; thence
North 44° 37' 00" West 24.40 feet; thence South 45° 23' 00" West 8.67 feet; thence North
44° 37' 00" West 10.00 feet to the beginning of a tangent curve, concave Southerly, and
having a radius of 5.0 feet; thence Northwesterly and Southwesterly along said curve
through a central angle at 105° 25' 18", an arc distance of 9.20 feet, a radial line from said
point bears South 60° 02' 18" East; thence non-tangent to said curve South 44° 37' 00"
East 103.82 feet to the point of beginning.
EXHIBIT “D”
ORDER GRANTING PETITION TO REDUCE REOUIRED VOTING PERCENTAGE