HomeMy WebLinkAboutNewport Ridge Leaf Blower DocumentsASSOCIATION GOVERNING DOCUMENTS
In compliance with amendments to California Civil Code and Government Code, effective
January 1, 2000, please attach tbis cover page to your copy of the association's governing
documents.
If this document contains any restriction based on race, color,
religion, sex, familial status, marital status, disability, national
origin, or ancestry, that restriction violates state and federal
fair housing laws and is void. Any person holding an interest
in this property may request that the county recorder remove
the restrictive covenant language pursuant to subdivision (c) of
Section 12956.1 of the Government Code.
AFTER RECORDING MAIL TO: Doc# 93"()301553
05·MAY·1993 03:59 PM
Gibson, Dunn & Crutcher
4 Park Plaza, Suite 1800
Irvine, CA 92714-8557
Attention: Brian R. Kirchoff, Esq.
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
NEWPORT RIDGE COMMUNITY ASSOCIATION
Table Of Contents
Article Section
1.01
1.02
1.03
1.04
1.05
1.06
1.07
1.08
1.09
1.10
1.11
1.12
1.13
1.14
1.15
1.16
1.17
1.18
1.19
1.20
1.21
1.22
1.23
1.24
RECITALS
DEFINITIONS
Allowable Charges
Annexation Property
Annexed Property
Apartment Building
Apartment Lot
Apartment Lot Owner
Apartment Unit
Articles; Bylaws
Assessments
Board
Budget
Canyon Watch Park
Common Expenses
Common Facilities
Community Entry Monuments
Community Slopes
Condominium; Condominium Owner
County
Covered Property
Coyote Canyon Landfill
Crestridge Park
Debris Basin
Debris Basin Maintenance Easement Agreement
Declarant
1
3
3
3
3
3
4
4
4
4
4
5
5
5
5
7
7
7
7
7
7
7
8
8
8
8
DECLARATION OF
COVENANTS. CONDITIONS AND RESTRICTIONS
FOR
NEWPORT RIDGE COMMUNITY ASSOCIATION
ORANGE COUNTY, CALIFORNIA
THIS DECLARATION (the "Master Declaration") is made this 30th day of April,
1993 by The Irvine Company, a Michigan corporation (the "Declarant"), with reference to the
following Recitals:
RECITALS
A. Declarant is the fee owner of certain real property located in the
unincorporated territory of Orange County, Califomia described as Lots 1 2 through 20,
inclusive, Lots 71,72 and 81, and Lots B, C, F and S of Tract No. 14571 per map filed in
Book 697, Pages 28 to 39, inclusive, Miscellaneous Maps, Records of Orange County,
California, together with a nonexclusive easement on, over and across Lot A of said Tract No.
14571 for vehicular and pedestrian ingress, egress and access, the drainage of surface water
and the installation, maintenance and repair of utilities and other real property consisting of
Master Common Area described on Exhibit C attached hereto (collectively, the "Initial
Covered Property").
B. The Initial Covered Property is a portion of an overall project generally
known as the Newport Ridge Planned Community (the "Newport Ridge Project"), a portion of
which is proposed to be developed with a variety of residential housing products which may
include, single family detached housing, town homes , condominiums and apartments. In
addition, it is contemplated that the Newport Ridge Project will include private and public open
space, recreational and other community facilities and a retail/commercial center.
Because of the size of the overall Newport Ridge Project and time required to
develop the project and market and sell residential housing therein, the Owner and/or
occupant of a Residence or Apartment Unit within the Covered Property can expect to
experience the consequences of such development for an extended period of time.
In addition, an Owner and occupant should be aware that in connection with the
development of a project the size of the Newport Ridge Project, proposed plans for the type
of development and the timing for the completion thereof may be subject to change.
Article Section
1.25
1.26
1.27
1.28
1.29
1.30
1.31
1.32
1.33
1.34
1.35
1.36
1.37
1.38
1.39
1.40
1.41
1.42
1.43
1.44
1.45
1.46
1.47
1.48
1.49
1.50
1.51
1.52
1.53
1.54
1.55
1.56
1.57
1.58
1.59
1.60
1.61
1.62
1.63
1.64
1.65
1.66
1.67
1.68
Dedication Agreement
Delegate
Delegate District
Development
Drainage Easement Agreement
Drainage Encumbrance Agreement
ORE
EI Capitan Park
Exhibit
Family
Federal Agencies
Final Subdivision Public Report
Harbor Watch Park
Hazardous Material
Improvement
Initial Covered Property
Joint Use Agreement-School Site
Landfill Monitoring Program
Local Government
Lot
Maintenance Association
Maintenance Declaration
Master Architectural and Landscape Standards
Master Association
Master Association Management Documents
Master Association Rules
Master Common Area
Member
Mortgage; Mortgagee
MWD
Newport Ridge Park
Official Records
Owner
Park Dedication Agreement
Participating Builder
Phase
Residence
San Joaquin Reservoir Site
Scenic Easement
School District
School Site
Streetscape
Supplementary Declaration
Tract No. 14509
ii
9
9
9
9
9
9
10
10
10
10
10
10
10
11
11
12
12
12
12
12
13
13
13
13
13
13
13
14
14
15
15
15
15
15
15
16
16
17
17
17
17
17
17
18
Article Section Page
1 .69 Water Quality Control Plan 18
II EASEMENTS AND RIGHTS 18
2.01 Approval of Declarant and Participating Builders 18
2.02 Nature of Easements 18
2.03 Oil, Mineral Rights, Water Rights, Cable Television and
Landfill Drainage Monitoring Program 18
2.04 Reservations to Declarant and Participating Builders 19
2.05 Easements for Owners 21
2.06 Easements for Master Association 21
2.07 Support, Settlement and Encroachment 22
2.08 Utilities and Cable Television 23
2.09 Subordination 23
2.10 Delegation of Use 24
2.11 Waiver of Use 24
III THE MASTER ASSOCIATION 24
3.01 General Duties and Powers 24
3.02 Power of Attomey 25
3.03 Master Association to Defend 25
3.04 Membership 26
3.05 Transfer 26
3.06 Delegation of Membership Rights 26
3.07 Voting Rights for Special Actions 26
3.08 Classes of Membership 26
3.09 Voting Power 27
3.10 Approval of Membership 28
3.11 Certificate Evidencing Approval 28
3,12 Pledge of Assessment Rights 29
3.13 Establishment of Delegate Districts 29
IV ASSESSMENTS 29
4.01 Agreement to Pay 29
4,02 Collection and Disbursement 30
4.03 Maximum Assessments 30
4.04 Excessive Assessments and Fees 33
4.05 Assessment Allocation 33
4.06 Not Subject to Lien 33
4.07 Certificate of Payment 34
4.08 Exempt Property, Abatement or Reduction of Assessments 34
4,09 Date of Commencement 34
4.10 No Offsets 35
4.11 Homestead Waiver 35
4.12 Reserves 35
iii
Article Section Page
V ENFORCEMENT OF ASSESSMENT LIENS 35
5.01 Delinquency 35
5.02 Personal Obligation; Lien 36
5.03 Foreclosure Sale 36
5.04 Subordination of Assessment Liens 36
VI USE RESTRICTIONS 37
6.01 Residential Use 37
6.02 Signs 38
6.03 Nuisance 38
6.04 Hazardous Material 39
6.05 Noises and Noxious Odors 39
6.06 Temporary Structures 39
6.07 Oil and Mineral Rights 39
6.08 Unsightly Items 39
6.09 Antennae; Roof Structures 40
6.10 Drainage 40
6.11 Leases 40
6.12 Insurance Rates 41
6.13 Aircraft 41
6.14 View 41
6.15 California Vehicle Code 41
6.16 Maintenance Association Use Restrictions 42
6.17 Exemption of Declarant and Each Participating Builder 42
9.01 Use of Coyote Canyon Landfill. Commercial Retail Site
and Other Adjacent Property 42
9.01 Use of Reclaimed Water for Irrigation Purposes and Use
of Water Softeners 44
VII REPAIR AND MAINTENANCE 45
7.01 By Master Association 45
7.02 By Owner 49
7.03 Noncomplianct;; by Owner 50
7.04 Maintenance of Public Utilities 50
7.05 Transfer of Master Common Area 50
7.06 Relationship with Maintenance Association 52
VIII INSURANCE 52
8.01 Obligation to Insure 52
8.02 Notice of Cancellation or Modification 54
8.03 Waiver by Owners 54
8.04 Annual Insurance Review 55
IXDESTRUCTION OF IMPROVEMENTS 55
9.01 Definitions 55
iv
Article Section Page
9.02 Board Action 55
9.03 Reconstruction 56
9.04 Proceeds of Insurance 57
9.05 Reconstruction Assessments 57
9.06 Compliance with Plans 57
9.07 Determination of Allocable Proceeds 57
9.08 Distribution of Insurance Proceeds 58
9.09 Payment of Mortgagees 58
9.10 Requirements of Federal Agencies 58
X EMINENT DOMAIN 58
10.01 Definition of Taking 58
10.02 Representation by Board 58
10.03 Award 59
10.04 Inverse Condemnation 59
10.05 Requirements of Federal Agencies 59
XI ANNEXATIONS 59
11 .01 Plan of Development 59
11 .02 Annexation Without Approval 59
11.03 Annexation Pursuant to Approval 60
11 .04 Effectuation of Annexation 60
11.05 Mergers or Consolidations 61
11 .06 Dissolution and Transfer of Master Common Area
to Government Entity or District 61
11.07 Deannexation 62
XII MORTGAGEE PROTECTION 62
12.01 Priority of Mortgage Lien 62
12.02 Curing Defaults 63
12.03 Resale 63
12.04 Material Changes 63
12.05 Notice 65
12.06 Mortgagees Furnishing Information 66
12.07 Conflicts 66
12.08 Priority of Mortgagee 66
12.09 Payment of Taxes or Premiums 66
XIII ENFORCEMENT OF BONDED OBLIGATIONS 67
XIV APARTMENT LOT OWNERSHIP 68
14.01 Delegation of Vote 68
14.02 Delegation of Use 68
14.03 Subdivision and/or Conversion to Condominium 68
v
Article Section
XV
15.01
15.02
15.03
15.04
15.05
15.06
15.07
15.08
15.09
15.10
15.11
15.12
15.13
15.14
15.15
15.16
15.17
15.18
15.19
XVI
16.01
16.02
EXHIBITS
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
GENERAL PROVISIONS
Enforcement
No Waiver
Cumulative Remedies
Severability
Term
Construction
Number and Gender
Nuisance
Attorneys' Fees
Notices
Conflicts Between Documents
Conflicts Between Master Association Management
Documents and Maintenance Association Documents
Effect of Declaration
Personal Covenant
Nonliability of Officials
Construction by Declarant or a Participating Builder
Special Rights of Declarant and Participating Builders
Inapplicability to Govemment Property
Arbitration
AMENDMENT PROVISIONS
Vote of Association
Petition to Amend
Land Use Map
Annexation Property
Master Common Area in Initial Covered Property
Private Storm Drain Improvements
Community Entry Monuments
vi
Page
68
68
69
69
69
69
70
70
70
70
71
71
72
72
72
73
73
74
74
74
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75
DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS
FOR
NEWPORT RIDGE COMMUNITY ASSOCIATION
ORANGE COUNTY, CALIFORNIA
THIS DECLARATION (the "Master Declaration") is made this 30th day of April,
1993 by The Irvine Company, a Michigan corporation (the "Declaranf'), with reference to the
following Recitals:
RECITALS
A. Declarant is the fee owner of certain real property located in the
unincorporated territory of Orange County, California described as Lots 1 2 through 20,
inclusive, Lots 71, 72 and 81, and Lots B, C, F and S of Tract No. 14571 per map filed in
Book 697, Pages 28 to 39, inclusive, Miscellaneous Maps, Records of Orange County,
California, together with a nonexclusive easement on, over and across Lot A of said Tract No.
14571 for vehicular and pedestrian ingress, egress and access, the drainage of surface water
and the installation, maintenance and repair of utilities and other real property consisting of
Master Common Area described on Exhibit C attached hereto (collectively, the "Initial
Covered Property").
B. The Initial Covered Property is a portion of an overall project generally
known as the Newport Ridge Planned Community (the "Newport Ridge Project"), a portion of
which is proposed to be developed with a variety of residential housing products which may
include, single family detached housing, townhomes, condominiums and apartments. In
addition, it is contemplated that the Newport Ridge Project will include private and public open
space, recreational and other community facilities and a retail/commercial center.
Because of the size of the overall Newport Ridge Project and time required to
develop the project and market and sell residential housing therein, the Owner and/or
occupant of a Residence or Apartment Unit within the Covered Property can expect to
experience the consequences of such development for an extended period of time.
In addition, an Owner and occupant should be aware that in connection with the
development of a project the size of the Newport Ridge Project, proposed plans for the type
of development and the timing for the completion thereof may be subject to change.
A copy of the current land use map for the Newport Ridge Project is attached
hereto as Exhibit A. The land use map indicates the proposed plans of development for the
Newport Ridge Project and the uses of property surrounding the Covered Property as of the
date thereon. However, Declarant and each Participating Builder make no representation
concerning continued accuracy thereof and expressly disclaim any duty of responsibility to
advise the Owners and any other occupants of any changes to the vicinity map required after
the date of recordation of this Master Declaration in order to maintain the accuracy of this
Exhibit. However, as changes to the overall development of the Newport Ridge Project occur,
Declarant may, if it so chooses, cause a revised vicinity map to be attached to the then most
recent Supplementary Declaration.
C. The residential portion of the Newport Ridge Project is being developed by
the Declarant as a "master planned community" as such term is discussed and described in
Title 10, Section 2792.32 of the Califomia Administrative Code, consisting of a multi-phased
planned unit development with common areas which will be maintained by the Master
Association and with various Maintenance Associations to govern separate portions of the
Covered Property. It is desirable that each portion of the Covered Property be developed with
comparable and compatible architectural characteristics and with landscaping of a type and
species complementary to such architectural characteristics.
D. The Annexation Property is contemplated to be part of the residential portion
of the Newport Ridge Project.
E. The Declarant and Participating Builders are the fee owners of the
Annexation Property. Some or all of the Annexation Property may be added to the Initial
Covered Property to expand the property which is the Covered Property, from time to time,
under this Master Declaration.
For the above reasons, it is the desire and intention of the Declarant and each
Participating Builder to establish the Covered Property as a multi-phased planned
development in accordance with Section 1351 (k) of the California Civil Code, or any
successor statute thereof, and to establish covenants, conditions and restrictions which will
constitute a general scheme for the management, use, occupancy and enjoyment of the
Covered Property, all for the purpose of enhancing and protecting the value, desirability and
attractiveness of the Covered Property and enhancing the quality of life within the Covered
Property.
F. All persons who own or purchase a Residence within the Covered Property
shall be Owners and Members as defined herein.
NOW, THEREFORE, Declarant and the Participating Builders hereby covenant,
agree and declare that all of the Covered Property shall be held and conveyed subject to the
following covenants, conditions, restrictions and easements which are hereby declared to be
for the benefit of the Covered
2
Property, and the owners thereof, their successors and assigns. These covenants, conditions,
restrictions and easements shall run with the land and shall be binding upon all parties having
or acquiring any right or title in the Covered Property or any part thereof, and shall inure to the
benefit of each owner thereof and are imposed upon the Covered Property and every part
thereof as a servitude in favor of each and every portion of the Covered Property as the
dominant tenement or tenements.
Any property covered by this Master Declaration may also be subject to one or
more declarations of covenants, conditions and restrictions which will create planned unit
developments and/or condominium projects and may contain recreational facilities and
amenities intended for use and enjoyment by the members of the nonprofit mutual benefit
corporation established for the purpose of exercising the powers and functions of a
Maintenance Association established pursuant to such declaration of covenants, conditions
and restrictions.
ARTICLE I
DEFINITIONS
Unless the context clearly indicates otherwise, the following terms used in this
Master Declaration are defined as follows:
Section 1.01. "Allowable Charges" shall mean the costs, late charges and
interest in the amounts permitted by Section 1366(c) of the Califomia Civil Code, or any
successor statute thereof, which may be recovered by the Master Association when any
Assessment becomes delinquent which, as of the date hereof, permits (i) reasonable costs
incurred in collecting delinquent Assessments including reasonable attorneys' fees, (ii) a late
charge not exceeding ten percent (10%) of the delinquent Assessments or Ten Dollars
($10.00), whichever is greater, and (iii) interest on all sums imposed in accordance with this
Section, including the delinquent Assessment, reasonable costs of collection and late
charges, at an annual percentage rate not to exceed twelve percent (12%) interest,
commencing thirty (30) days after the Assessment becomes due.
Section 1.02. "Annexation Property" shall mean and refer to that real property
in Orange County, California described on Exhibit B attached hereto and incorporated herein
by this reference, which may be annexed to and become a part of the Covered Property.
Section 1.03. "Annexed Property" shall mean and refer to any property that is
described in a Supplementary Declaration that has been recorded in the Official Records and
has become a part of the Covered Property.
Section 1.04. "Apartment Building" shall mean and refer to a separate building
containing Apartment Units located within an Apartment Lot.
3
Section 1.05. "Apartment Lot" shall mean and refer to a Lot upon which one or
more Apartment Buildings have been or will be constructed, which Apartment Lot shall be
identified as such in the Supplementary Declaration annexing such Apartment Lot to the plan
of this Master Declaration. In the event of any further subdivision of an Apartment Lot into
more than one Lot each containing one or more Apartment Buildings, each such newly
created Lot shall, effective on the date of the recording of the Tract or Parcel Map effecting
such subdivision, be an "Apartment Lot."
Section 1.06. "Apartment Lot Owner" shall mean and refer to the fee owner of
an Apartment Lot.
Section 1.07. "Apartment Unif' shall mean and refer to a residential apartment
in an Apartment Building located within an Apartment Lot.
Section 1.08. "Articles" and "Bylaws" shall mean and refer to the Articles of
Incorporation and Bylaws of the Master Association as they may from time to time be duly
amended.
Section 1.09. "Assessments" shall mean each of the charges levied by the
Board pursuant to the provisions of the Master Association Management Documents for the
purposes indicated below:
(a) "Capital Improvement Assessment" levied against each Owner in
any calendar year applicable to that year only for the purpose of defraying, in whole or
in part, the cost of any installation, construction or replacement of a described capital
Improvement upon the Master Common Area to the extent the same is not covered by
Reconstruction Assessments, including the necessary fixtures and personal property
related thereto;
(b) "Penalty Assessment" levied against an Owner as a monetary
penalty as a disciplinary measure for failure of such Owner to comply with the
provisions of the Master Association Management Documents, the Master Association
Rules, the requirements of the Water Quality Control Plan or as a means of
reimbursing the Master Association for costs incurred by the Master Association in the
repair of damage to the Master Common Area for which the Owner was allegedly
responsible or bringing such Owner and his or her Residence into compliance with the
provisions of the Master Association Management Documents;
(c) "Reconstruction Assessment" levied against each Owner to cover
the cost to the Master Association for the repair, replacement or reconstruction of any
portion or portions of the Insured Improvements pursuant to the provisions of the
Article entitled "Destruction of Improvements" of this Master Declaration;
4
(d) "Regular Assessment" levied against each Owner for such
Owner's proportionate share of the estimated Common Expenses for the forthcoming
fiscal year; and
(e) "Special Assessments" levied against all Owners to cover the
cost of any action or undertaking on behalf of the Master Association which is not
specifically covered under any other Assessment. In the event the Master Association
undertakes to provide materials or services which benefit a particular Owner, such
Owner in accepting such materials and services agrees that the cost thereof shall also
be a Special Assessment.
Section 1.10. "Board" shall mean the Board of Directors of the Master
Association.
Section 1.11. "Budget" shall mean an itemized written estimate of the income
and Common Expenses of the Master Association prepared from time to time pursuant to the
provisions of the Bylaws.
Section 1.12. "Canyon Watch Park" shall mean and refer to that portion of the
Master Common Area located within the Annexation Property and the Common Facilities
thereon consisting of a passive trail system and view overlooks, together with landscaping
and appurtenant irrigation improvements. Canyon Watch Park is depicted on Exhibit A
attached hereto. Canyon Watch Park will be conveyed to the Master Association, subject to
the terms and conditions of the Dedication Agreement which, in part, may result in the
acceptance by Local Government of an offer of dedication, in which event Canyon Watch
Park shall be transferred to the Local Government and be available for use by the general
public.
Section 1.13. "Common Expenses" shall mean and refer to the actual and
estimated costs or amounts established by the Board, and set forth either in specified line
items or covered in the contingency fund of the Master Association, all as set forth in the
Budget, to be paid for:
(a) maintenance management, operation, repair and replacement of
the Master Common Area pursuant to the provisions of this Master Declaration;
(b) unpaid Assessments;
(c) management and administration of the Master Association,
including, but not limited to, compensation paid by the Master Association to
managers, accountants, attorneys, consultants and employees;
(d) to the extent not separately metered or billed to a Maintenance
Association or the Owners, utilities, trash pickup and disposal,
5
gardening and other services which generally benefit and enhance the value and desirability
of the Covered Property;
(e) premiums on all insurance and fidelity bonds maintained by the Master
Association pursuant to the Article entitled "Insurance" of this Master Declaration (except for
fidelity bonds obtained by a management agent for its officers, employees and agents);
(f) adequate contingency funds to cover the deductible amounts of any
insurance policies maintained by the Master Association and adequate reserves for the
periodic maintenance, repair and replacement of Improvements maintained by the Master
Association pursuant to this Master Declaration, including reserves for replacements for
structural elements and mechanical equipment of recreational or other facilities maintained by
the Master Association;
(g) taxes paid by the Master Association;
(h) discharge of any lien or encumbrance levied against the Master
Common Area or portions thereof;
(i) expenses incurred by committees established by the Board;
0) reimbursement of invoiced expenses to the MWD attributable to the
maintenance of the Debris Basin pursuant to the terms and conditions of the Debris Basin
Maintenance Easement Agreement;
(k) maintenance, repair, replacement and restoration of the "Drainage
System" (as such improvements are described in the Drainage Encumbrance Agreement)
upon the transfer by the Declarant to the Master Association of the easements described in
the Drainage Easement Agreement. The Drainage System is depicted on Exhibit D attached
hereto or attached any Supplementary Declaration;
(I) costs and expenses associated with the implementation of the Water
Quality Control Plan;
(m) to the extent not performed by the Local Government, the maintenance,
repair, restoration and replacement of the underground private storm drain line, together with
appurtenant Improvements, located, in part, within the public street more commonly known as
Terrace Ridge and, in part, within EI Capitan Park, all of which Improvements are depicted on
Exhibit D attached hereto or attached to any Supplementary Declaration;
6
(n) maintenance, repair, restoration and replacement of the
Community Entry Monuments which are depicted on Exhibit E attached hereto or
attached to any Supplementary Declaration; and
(0) other expenses incurred by the Master Association for any reason
whatsoever in connection with the Master Common Area, or the costs of any other
item or items designated by the Master Association Management Documents, or in
furtherance of the purposes of the Master Association or in the discharge of any duties
or powers of the Master Association.
Section 1.14. 'Common Facilities" shall mean and refer to the
Improvements upon the Master Common Area which may be installed by the
Declarant or a Participating Builder prior to or subsequent to the transfer of the
Master Common Area to the Master Association.
Section 1.15. "Community Entry Monuments" shall mean and refer to the
community entry walls, lighting, landscaping, signage and other appurtenant improvements
which are described on Exhibit E attached hereto or on any similar exhibit to a Supplementary
Declaration.
Section 1.16. "Community Slopes" shall mean and refer to that portion of the
proposed Master Common Area located within the Annexation Property and the Common
Facilities thereon that is described and depicted as the "Community Slopes" on Exhibit C
attached hereto or on any similar Exhibit to a Supplementary Declaration, including shrubs,
groundcover and other landscaping, together with irrigation Improvements and any other
appurtenant Improvements.
Section 1.17. "Condominium" and "Condominium Owner" shall mean,
respectively, the estate and the Owner thereof of any condominium within the Covered
Property within any condominium project established pursuant to Sections 1350 seq. of the
Civil Code of the State of Califomia or any similar statute hereinafter enacted.
Section 1.18. "County" shall mean and refer to the County of Orange, State of
California.
Section 1.19. "Covered Property" shall mean and refer to the real property
consisting of the Initial Covered Property and, subsequent to the annexation thereof, any
Annexed Property. The Covered Property is a common interest development as defined in
Section 1351 (c) of the California Civil Code which is being developed as a multi-phased
planned unit development.
Section 1.20. "Coyote Canyon Landfill" shall mean and refer to the former
landfill site which is located northeast of and adjacent to the Development.
7
The location of the Coyote Canyon Landfill is depicted on Exhibit A (Vicinity Map) attached
hereto.
Section 1.21. "Crestridge Park" shall mean and refer to that portion of the
proposed Master Common Area located within the Annexation Property and the Common
Facilities thereon which is proposed to be improved by the Declarant as an open landscaped
area consisting of picnic and play areas and pedestrian walkways which may be used for
recreational purposes by the Members but which shall also serve to collect and detain
drainage runoff from the Development as well as adjacent real property. The location of
Crestridge Park is depicted on Exhibit A (Vicinity Map) attached hereto. Crestridge Park will
be conveyed to the Master Association, subject to the terms and conditions of the Park
Dedication Agreement which, in part, may result in the acceptance by Local Government of
an offer of dedication, in which event Crestridge Park shall be transferred to the Local
Government and be available for use by the general public.
Section 1.22. "Debris Basin" shall mean and refer to that portion of the Master
Common Area located within the park more commonly known as EI Capitan Park adjacent to
the San Joaquin Reservoir Site which because of the topography thereof can not be readily
accessed or used by the Master Association or the Members and which shall be maintained
by the MWD pursuant to the terms and conditions of the Debris Basin Maintenance
Agreement. The Debris Basin is depicted on Exhibit A (Vicinity Map) attached hereto.
Section 1.23. "Debris Basin Maintenance Easement Agreement" shall mean
and refer to that certain easement granted by the Declarant (as Grantor) to MWD (as
Grantee), recorded June 17, 1992, as Instrument No. 92-407857, of Official Records.
Section 1.24. "Declarant" shall mean and refer to:
(a) The Irvine Company, a Michigan corporation, its successors and
assigns, by merger, consolidation or by purchase of all or substantially all of its assets;
and
(b) any person or entity, his or its successors and assigns, to which
the foregoing Declarant has assigned any or all of its rights and obligations as
Declarant by an express assignment referring to this Master Declaration incorporated
in a recorded instrument, including but not limited to a deed, lease, option agreement,
land sale contract or assignment, as the case may be, transferring such interest if such
assignee agrees in writing with Declarant to accept such assignment.
(c) The term "Declarant" shall not mean or refer to any Participating
Builder, unless a specific assignment is made by Declarant to a Participating Builder in
accordance with paragraph (b) above.
8
Section 1.25. "Dedication Agreement" shall mean and refer to that
certain agreement entitled "San Joaquin Hills-Buck Gully Irrevocable Offer of
Dedication," which shall be recorded as an encumbrance against Canyon Watch
Park and Harbor Watch Park prior to the transfer thereof to the Master
Association.
Section 1.26. "Delegate" shall mean and refer to the persons appointed in the
manner provided in the Master Association Management Documents to represent all of the
Members other than Declarant and the Participating Builders within the portion of the Covered
Property comprising the Delegate District of such Delegate and to represent the collective
voting power of all such Members at meetings of the Master Association, and shall also mean
and refer to the persons elected by each of the Declarant and Participating Builders to
represent the collective voting power of each of the Declarant and Participating Builders
separately as provided in more detail in the Master Association Management Documents.
Section 1.27. "Delegate District" shall mean and refer to a particular portion of
the Covered Property which is created in the manner described in the Section entitled
"Establishment of Delegate Districts" of the Article entitled "The Master Association" of this
Master Declaration.
Section 1.28. "Development" shall mean and refer to the Covered Property and
the Annexation Property.
Section 1.29. "Drainage Easement Agreement" shall mean and refer to that
certain easement recorded June 17, 1992, as Instrument No. 92-407855, of Official Records,
pursuant to which MWD has granted to the Declarant for the benefit of the Development a
nonexclusive easement for drainage purposes over the San Joaquin Reservoir Site together
with a nonexclusive easement for the maintenance of certain drainage system improvements
more particularly described as the "Drainage System" in the Drainage Encumbrance
Agreement.
Section 1.30. "Drainage Encumbrance Agreement" shall mean and refer to that
certain agreement between the Declarant and MWD recorded June 17, 1992, as Instrument
No. 92-407854, of Official Records pursuant to which the Declarant has installed certain
improvements described therein as the "Drainage System" within the San Joaquin Reservoir
Site for the benefit of the Development and has made certain Improvements to the Debris
Basin. In addition, the Drainage Encumbrance Agreement contains certain covenants which
run with the land and which burden and benefit both the San Joaquin Reservoir Site and
portions of the Development and mutual indemnities with respect to the use and discharge of
certain "hazardous materials" as defined therein which shall be binding upon the successors
in interest of the parties to title to the MWD Site and said portions of the Development,
including the Master Association.
9
Section 1.31. "ORE" shall mean and refer to the Department of Real Estate of
the State of California.
Section 1.32. "EI Capitan Park" shall mean and refer to that portion of the
Master Common Area within the Initial Covered Property described and depicted on Exhibit C
attached hereto and the Common Facilities thereon which consist of a park facility with play
fields. a trail system and a gazebo overlook. EI Capitan Park shall be transferred to the
Master Association subject to an offer of dedication and an existing but unimproved roadway
easement in favor of the City of Newport Beach for the purpose of constructing extensions of
local collector roads.
Section 1.33. "Exhibit" shall mean and refer to any document so designated
herein and attached hereto or so designated in a Supplementary Declaration and attached
thereto. Each of such Exhibits is by this reference incorporated into this Master Declaration or
such Supplementary Declaration.
Section 1.34. "Family" shall mean: (1) a group of natural persons related to
each other by blood or legally related to each other by marriage or adoption. or (2) a group of
natural persons not all so related who maintain a common household in a Residence.
Section 1.35. "Federal Agencies" shall mean and refer to collectively one or
more of the following agencies and the following letter designation for such agencies shall
mean and refer to respectively the agency specified within the parentheses following such
letter designation: FHA (Federal Housing Administration). FHLMC (Federal Home Loan
Mortgage Corporation). FNMA (Federal National Mortgage Association). GNMA (Government
National Mortgage Association), VA (Veterans Administration).
Section 1.36. "Final Subdivision Public Report" shall refer to that report issued
by the ORE pursuant to Section 11018.2 of the California Business and Professions Code or
any similar statute hereafter enacted.
Section 1.37. "Harbor Watch Park" shall mean and refer to that portion of the
Master Common Area located within the Annexation Property and the Common Facilities
thereon consisting of a passive trail system and view overlook. together with landscaping and
appurtenant irrigation improvements. Harbor Watch Park is depicted on Exhibit A attached
hereto. Harbor Watch Park will be conveyed to the Master AssOCiation. subject to the terms
and conditions of the Dedication Agreement which, in part. may result in the acceptance by
Local Government of an offer of dedication. in which event Harbor Watch Park shall be
transferred to the Local Government and be available for use by the general public.
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Section 1.38. "Hazardous Material" means any substance:
(a) which is or becomes defined as a "hazardous waste" or "hazardous
substance" under any government environmental requirement, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
section 9601 seq.) or the Resource Conservation and Recovery Act (42 U.S.C. section 6901
at seq.); or
(b) which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is or becomes regulated by any
governmental authority, agency, department, commission, board, agency or instrumentality of
the United States, any State of the United States, or any political subdivision thereof; or
(c) the presence of which causes or threatens to cause a nuisance to other
properties or poses or threatens to pose a hazard to the Covered Property or to the health or
safety of persons on or about the Covered Property, including, but not limited to, refuse,
debris, weeds, pet wastes, chlorinated water from a pool or spa, and household and garden
chemicals and sprays; or
(d) which contains gasoline, diesel fuel or other petroleum hydrocarbons or
volatile organic compounds; or
(e) which contains polychlorinated biphenyls (PCBs) or asbestos or urea
formaldehyde foam insulations.
Section 1.39. "Improvement" shall mean:
(a) all structures and appurtenances thereto of every type and kind, including
but not limited to, buildings, outbuildings, gazebos, walkways, underpass crossings, sprinkler
and sewer pipes or lines, drainage lines and catch basins, garages, swimming pools, tennis
courts, parks and other recreational facilities, attendant gates, attendant houses, roads,
driveways, walkways and other hardscape, parking areas, fences, gates, screens, screening
walls, entry walls, retaining walls, awnings, patiO and balcony covers, stairs, decks,
landscaping, hedges, slopes, windbreaks, the exterior surfaces of any visible structure, trees
and shrubs, flowers, poles, signs, lighting fixtures, solar or wind powered energy systems or
equipment, communications and any other electronic or security systems, and heater or air
conditioning and heating fixtures and equipment;
(b) the demolition or destruction by voluntary action of any structure or
appurtenance thereto of every type and kind;
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(c) the grading, excavation, filling, or similar disturbance to the
surface of the land including, without limitation, change of grade, change of ground
level, change of drainage pattern or change of streambed;
(d) slopes, medians and parkways, including, without limitation, the
landscaping, fuel modification Improvements, and other plantings thereon;
(e) trees and other landscaping and planting, and the clearing or
removing of trees, shrubs, grass, or plants; and
(f) any change or alteration of any Improvement including any
change of exterior appearance, color or texture.
Section 1.40. "Initial Covered Property" shall mean and refer to the real
property described in Recital C of this Master Declaration.
Section 1.41. "Joint Use Agreement-School Site" shall mean and refer to that
certain agreement which may be entered into by the Declarant and the School District
pursuant to which the students which attend the school which is proposed to be constructed
upon the School Site shall be entitled to utilize EI Capitan Park. If entered into, the Joint Use
Agreement-School Site would encumber EI Capitan Park, and the Master Association would
be conveyed title to EI Capitan Park, subject to the terms and conditions thereof, and the use
of EI Capitan Park would be subject thereto, including the possible use for more active
recreational type activities.
Section 1.42. "Landfill Monitoring Program" shall mean and refer to that
certain program developed by Kleinfelder and Mandeville, draft dated March 1993, as
amended, entitled "Newport Ridge Project Perimeter Probe Monitoring Program", pursuant to
which certain probes and related devices shall be installed within the land which comprises a
portion of the proposed Newport Ridge Park for the purpose of determining whether or not
landfill gas has migrated into the land beneath the Development and shall be maintained and
monitored by: (a) the Declarant on a temporary basis and (b) Local Government on a
permanent basis.
Section 1.43. "Local Government" shall mean and refer to any city in which
the Covered Property is located. If the Covered Property is not located within a city, "Local
Government" shall mean and refer to the County.
Section 1.44. "Lot" shall mean and refer to a lot shown on a final map or a
parcel shown on a parcel map filed for record in the County, which lot or parcel is described in
this Master Declaration or on any Supplementary Declaration as part of the Covered
Property, as such lot or parcel may be adjusted from time to time by any recorded lot fine
adjustment. Lot shall not include any Master Common Area which is transferred in fee title to
the Master Association.
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Section 1.45. "Maintenance Association" shall mean and refer to any nonprofit
mutual benefit corporation which is formed among other reasons to facilitate the maintenance
and operation of any portion of the Covered Property. which is either owned in common by
the Owners who are members of such nonprofit mutual benefit corporation or which is owned
by such nonprofit mutual benefit corporation for the benefit of the Owners who are its
members, or to enforce or administer any Maintenance Declaration.
Section 1.46. "Maintenance Declaration" shall mean any declaration of
covenants, conditions and restrictions recorded by Declarant or a Participating Builder, other
than those contained herein or in a Supplementary Declaration, which shall be applicable to
only a particular portion of the Covered Property.
Section 1.47. "Master Architectural and Landscape Standards" shall mean and
refer to (a) those certain building material features, color and materials palette and related
information applicable to the construction and installation of Improvements upon the Covered
Property which may be initially established by Declarant and adopted by the Board and as
may be revised by the Board from time to time, and (b) the list of the type and species of
trees, plants and plant materials, together with standards and guidelines for the maintenance
thereof which shall regulate landscape Improvements installed and maintained within the
Covered Property which may be established by Declarant and adopted by the Board and as
may be revised by the Board from time to time.
Section 1.48. "Master Association" shall mean and refer to Newport Ridge
Community Association, a Califomia nonprofit mutual benefit corporation, its successors and
assigns.
Section 1.49. "Master Association Management Documents" shall mean and
refer to the Articles, Bylaws, Master Declaration and any amendments to any of the foregoing.
Section 1.50. "Master Association Rules" shall mean and refer to rules
adopted, amended and repealed from time to time by the Board pursuant to the Article of the
Bylaws entitled "Discipline of Members".
Section 1.51. "Master Common Area" shall mean and refer to real property and
the Common Facilities thereon owned in fee, by easement, located within rights-of-way or
leased from time to time by the Master Association for the benefit of the Owners, including,
without limitation, Canyon Watch Park, the Newport Ridge Park, Harbor Watch Park. EI
Capitan Park, Crestridge Park, Community Slopes. Streetscapes, Community Entry
Monuments and other areas and Improvements thereon. The Master Common Area within
the Initial Covered Property is described and depicted on Exhibit C attached hereto and
incorporated herein by this reference. Master Common Area in Annexation Property shall be
described on a similar Exhibit to a Supplementary Declaration which annexes all or any
portion of the Annexation
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Property to this Master Declaration. Because of the uncertainty in development plans for
Annexation Property, a precise legal description for the Master Common Area within
Annexation Property may not be available at the time of recordation of such Supplementary
Declaration. In such event, the Declarant and each Participating Builder reserves the right to
attach a pictorial which approximately describes such Master Common Area to such
Supplementary Declaration provided that a precise legal description shall be attached to the
instrument which conveys said Master Common Area either in fee or by easement to the
Master Association which shall be recorded concurrently with the close of the first escrow for
a Residence within the Phase of which the Master Common Area is a part.
Section 1.52. "Member" shall mean and refer to any person or entity who is an
Owner, including Declarant and any Participating Builder or Apartment Lot Owner as long as
Declarant, a Participating Builder or an Apartment Lot Owner continues to be an Owner.
Section 1.53. "Mortgage" and "Mortgagee" shall mean and refer respectively to
any duly recorded mortgage or deed of trust encumbering a Residence and the holder of the
mortgagee's or beneficiary's interest under any such Mortgage. "First Mortgage" and "First
Mortgagee" shall mean and refer respectively to a Mortgage which has priority over all other
Mortgages encumbering a specific Residence and the holder of the mortgagee's or
beneficiary's interest under any such First Mortgage.
The following additional terms describe Mortgagees or insurers or guarantors of
Mortgages who are entitled to specific rights described in the Master Association
Management Documents:
"Eligible Mortgage Holder" shall mean a First Mortgagee who is entitled
to receive notification from the Master Association and who has the right to vote or
approve any proposed 'amendment or action that requires the consent of a percentage
of Eligible Mortgage Holders. Such Eligible Mortgage Holder shall be entitled to
receive such notification and to vote on such matters only if such Eligible Mortgage
Holder delivered to the Board a prior written request therefor. Wherever the approval
of all or a specified percentage of Eligible Mortgage Holders is required it shall be
deemed to mean the vote or approval of all or of a specified percentage only of those
First Mortgagees who have become Eligible Mortgage Holders by reason of having
provided such notification to the Board. Wherever the vote or written approval of
Eligible Mortgage Holders is required, it shall be deemed to mean such vote or
approval of the percentage specified based on one (1) vote for each First Mortgage
held.
"Requesting Mortgagee, Insurer or Guarantor" shall mean the
Mortgagee, insurer or guarantor of a Mortgage entitled to receive timely written
notification from the Master Association of certain matters as
14
provided elsewhere in the Master Association Management Documents. To be entitled
to receive such notification, the Mortgagee, insurer or guarantor must deliver to the
Master Association a written request therefor stating the name and address of such
Mortgagee, insurer or guarantor and the address or other identification of the
Residence encumbered by the Mortgage held, insured or guaranteed by such
Mortgagee, insurer or guarantor.
Section 1.54. "MWD" shall mean and refer to The Metropolitan Water District of
Southern California, a public entity, as Trustee under the San Joaquin Reservoir Trust
Agreement dated July 1, 1980.
Section 1.55. "Newport Ridge Park" shall mean and refer to that portion of the
proposed Master Common Area located within Annexation Property and the Common
Facilities thereon consisting of a park with basketball courts, tennis court facilities, open play
fields, pedestrian paths, trails, trellis structures, restroom facilities and parking facilities,
together with landscaping and appurtenant irrigation improvements. Newport Ridge Park is
depicted on Exhibit A (Vicinity Map) attached hereto. Newport Ridge Park will be conveyed to
the Master Association, subject to the terms and conditions of the Park Dedication Agreement
which, in part, may result in the acceptance by Local Government of an offer of dedication, in
which event Newport Ridge Park shall be transferred to and shall be maintained by the Local
Government and shall be available for use by the general public.
Section 1.56. "Official Records" shall mean the Official Records in the Office of
the County Recorder of the County.
Section 1.57. "Owner" shall mean and refer to one or more persons or entities
who are alone or collectively the record owner of a fee simple title to a Residence, including
Declarant, each Participating Builder and each Apartment Lot Owner, but excluding those
having any such interest merely as security for the performance of an obligation. If a
Residence has been sold under a land sale contract in which the State of California is the
vendor, then the vendee shall be deemed to be the Owner of such Residence.
Section 1.58. "Park Dedication Agreement" shall mean and refer to that certain
agreement between the Declarant and County entitled "Irrevocable Offer of Declaration for
Crestridge Park and Newport Ridge Community Park" in which an offer of dedication is
contained which shall be recorded as an encumbrance against Newport Ridge Park and
Crestridge Park prior to the transfer thereof to the Master Association.
Section 1.59. "Participating Builder" shall mean a natural individual, a
corporation or any other entity with the legal right to hold title to real property, who owns a
portion of the Covered Property and/or Annexation Property and who acquires same for the
purpose of developing such portion for resale to the general
15
public, or for improving and transferring same to the Master Association or a Maintenance
Association; provided, however, that the term "Participating Builder" shall not mean or refer to
Declarant, an Apartment Lot Owner or its successors. There is no Participating Builder for the
Initial Covered Property. The Participating Builder for any portion of the Annexation Property
shall be identified in the Supplementary Declaration which annexes the Annexation Property
or any portion thereof to this Master Declaration.
Section 1.60. "Phase" shall mean and refer to each increment of the Covered
Property on which the DRE has issued a separate Final Subdivision Public Report and, with
respect to which, upon the close of escrow of the first Residence therein, Assessments and
the right to vote shall commence as to all Residences in such Phase and the Owners thereof.
A Phase which consists only of Apartment Units shall be described as such in a
Supplementary Declaration. "First Phase" shall mean the first of any such Phases to have
had a conveyance of a Residence which requires the delivery of a Final Subdivision Public
Report.
Section 1.61.
(a) "Residence" shall mean and refer to:
(i) a Lot improved with a completed residential dwelling
which has been transferred to a member of the home buying public requiring
the delivery of a Final Subdivision Public Report;
(ii) an unimproved or partially improved Lot owned by the
Declarant or a Participating Builder located within a Phase for which
Assessments have commenced;
(iii) a Condominium; and
(iv) an Apartment Building.
(b) "Residence" shall specifically not include:
(i) Master Common Area;
(ii) any real property owned or leased by a Maintenance
Association for the common use and enjoyment of its members; and
(iii) an unimproved or partially improved Lot which is either
owned by the Declarant or which has been conveyed by Declarant to a
Participating Builder for the purpose of constructing or creating thereon
Residences for sale or lease to the public for which Assessments have not
commenced.
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Section 1.62. "San Joaquin Reservoir Site" shall mean and refer to the one (1 )
billion gallon water reservoir which is operated by the MWD. The location of the San Joaquin
Reservoir Site is depicted on Exhibit A (Vicinity Map).
Section 1.63. "Scenic Easement" shall collectively mean and refer to those
certain Grants of Easement: (a) recorded by Declarant in favor of the County over a portion of
the proposed Master Common Area located within Annexation Property more particularly
described as Lots C through L, inclusive, of Tract No. 14509 which was recorded on February
26,1992, as Instrument No. 92-114052, of Official Records; and (b) recorded or offered for
dedication on any recorded final subdivision map by a Participating Builder or the Declarant
along certain portions of the Annexation Property located adjacent to the right-of-way for San
Joaquin Hills Road.
Section 1.64. "School District" shall mean and refer to the Newport-Mesa
Unified School District.
Section 1.65. "School Site" shall mean and refer to that certain real property
located adjacent to the Initial Covered Property which is reserved for possible development
by the School District as a school facility. The School Site is depicted on Exhibit A (Land Use
Map) attached hereto.
Section 1.66. "Streetscape" shall mean and refer to that portion of the Master
Common Area and the Common Facilities thereon consisting of landscaping with appurtenant
irrigation systems and hardscape which are located adjacent to public rights-of-way. The
Streetscape may also include certain medians, those portions of parkways and any other
Improvements located within public rights-of-way to the extent not maintained by the Local
Government or other government entity or a Maintenance Association, which Improvements
the Master Association either elects to maintain or concerning which the duty to maintain is
assigned to the Master Association as described in this Master Declaration, a Supplementary
Declaration, a grant deed or grant of easement which conveys such Master Common Area to
the Master Association. The Streetscape within the Initial Covered Property is described and
depicted on Exhibit C attached hereto. Any Streetscape within Annexation Property shall be
described and depicted on a similar Exhibit to a Supplementary Declaration which annexes
such Annexation Property to the Covered Property.
Section 1.67. "Supplementary Declaration" shall mean a writing annexing
additional property extending the plan of this Master Declaration to such additional property
as provided in the Article entitled "Annexations" of this Master Declaration. Such writing must
be recorded in the Official Records of the County and shall incorporate by reference all of the
covenants, conditions, restrictions, reservations, easements and other provisions of this
Master Declaration. Also, such Supplementary Declaration shall contain such other provisions
set forth in this Master Declaration relating to Supplementary Declarations and such
17
complementary additions and modifications of the covenants, conditions and restrictions
contained in this Master Declaration as may be necessary to reflect the different character, if
any, of the Annexed Property, but which are not inconsistent with the plan of this Master
Declaration.
Section 1.68. "Tract No. 14509" shall mean and refer to final subdivision map
for Tract No. 14509, recorded February 26, 1992, in Book 688, Pages 1 to 1 6, inclusive, of
Miscellaneous Maps of the Official Records.
Section 1.69. "Water Quality Control Plan" shall mean and refer to the program
described in the document entitled "Water Quality Control Plan" prepared by Rivertech, Inc.,
dated April 1992, which has been developed by the Declarant in response to the conditions of
approval imposed upon Development by the County upon the Newport Ridge Project, which,
in part, provides for: (a) the periodic distribution to Members by the Master Association or by
a Maintenance Association of educational information regarding: (i) the proper means of
disposal of Hazardous Materials and pet wastes, (ii) the problems associated with and rules
and regulations to address non-point pollution generated from the Development, (iii) the
establishment of proper practices for the use of fertilizers, pesticides and herbicides and (iv)
the establishment of proper irrigation methods, and (b) the maintenance by the Master
Association or a Maintenance Association of warning signs installed by the Declarant or a
Participating Builder at the entrance to storm drains and other drainage devices within the
Development prohibiting the disposal of Hazardous Materials therein.
ARTICLE II
EASEMENTS AND RIGHTS
Section 2.01 • Approval of Declarant and Participating Builders. As long as
Declarant and a particular Participating Builder (who is the holder of a particular easement or
right which is sought to be modifled) is an Owner, any attempt to modify or eliminate this
Article or any other easement or right reserved to Declarant and a particular Participating
Builder in this Master Declaration shall require the prior written approval of Declarant and the
particular Participating Builder.
Section 2.02 • Nature of Easements. Unless otherwise set forth herein, all
easements reserved to Declarant herein shall be non-exclusive.
Section 2.03 -Oil. Mineral Rights. Water Rights. Cable Television and
Landfill Monitoring Program. Declarant hereby reserves, together with the right to grant and
transfer all or a portion of same:
(a) All oil, oil rights, minerals, mineral rights, natural gas rights, and
other hydrocarbons by whatsoever name known, geothermal
18
steam, and all products derived from any of the foregoing, that may be within or under
the Covered Property, together with the perpetual right of drilling, mining, exploring
and operating therefor and storing in and removing the same from said land or any
other land, including the right to whipstock or directionally drill and mine from lands
other than the Covered Property, oil or gas wells, tunnels and shafts into, through or
across the subsurface of the Covered Property and to bottom such whipstocked or
directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior
limits thereof, and to red rill , retunnel, equip, maintain, repair, deepen and operate any
such wells or mines; but without, however, the right to drill, mine, store, explore and
operate through the surface or the upper five hundred (500) feet of the subsurface of
the Covered Property;
(b) Any and all water, water rights or interests therein appurtenant or
relating to the Covered Property or owned or used by Declarant in connection with or
with respect to the Covered Property (no matter how acquired by Declarant), whether
such water rights shall be riparian, overlying, appropriative, littoral, percolating,
prescriptive, adjudicated, statutory or contractual, together with the right and power to
explore, drill, red rill , remove and store the same from or in the Covered Property or to
divert or otherwise utilize such water, rights or interests on any other property whether
or not such other property is owned or leased by Declarant; but without, however, any
right to enter upon the surface of the Covered Property in the exercise of such rights.
(c) The right to place on, under or across the Covered Property,
transmission lines and other facilities for a community antenna television system and
thereafter to own and convey such lines and facilities, and an easement to enter upon
the Covered Property to service, maintain, repair, reconstruct and replace said lines
and facilities; provided, however, that the exercise of such rights shall not
unreasonably interfere with an Owner's reasonable use and enjoyment of the Covered
Property.
(d) An easement over the proposed Master Common Area within the
Annexation Property more particularly described as Newport Ridge Park (Lots 8 and
10 of Tract No. 14509), for the purpose of conducting the Landfill Monitoring Program.
(e) Any easements shown on any recorded final tract or parcel map
covering the Covered Property, including, but not limited to, easements for ingress and
egress over any bicycle, pedestrian, equestrian or other trail shown. The reservation of
this easement shall not imply any right of public use of the Covered Property or
Improvements.
Section 2.04 • Reservations to Declarant and Participating Builders.
There is hereby reserved to Declarant for itself over the entire Covered
Property and to
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each Participating Builder over that portion of the Covered Property ("pertinent portion")
subject to a Maintenance Declaration recorded by the Participating Builder, together with the
right to grant and transfer all or a portion of same:
(a) Imorovements. Easements (i) over all (with respect to the
Declarant) or the pertinent portion (with respect to each Participating Builder) of the
Master Common Area for the purpose of constructing, erecting, operating and
maintaining thereon, therein or thereunder roads, streets, walks, driveways, parkways
and park areas and (ii) over all (with respect to the Declarant) or the pertinent portion
(with respect to each PartiCipating Builder) of the Covered Property for the installation
and maintenance of electric, telephone, cable television, water, gas, sanitary sewer
lines and drainage facilities.
(b) Construction and Sales. Easements for construction, display,
maintenance, sales and exhibit purposes over all (with respect to the Declarant) or the
pertinent portion (with respect to each Participating Builder) of the Master Common
Area in connection with the erection and sale or lease of Residences within the
Covered Property provided, however, that such use shall not be for a period beyond:
(i) the sale by Declarant and each Participating Builder of all Residences within the
Development, or (ii) the later of: (A) the third (3rd) anniversary of the conveyance of
the first Residence in the most recent Phase of the Development, other than the First
Phase, to a member of the home buying public requiring the delivery of a Final
Subdivision Public Report, or (B) the fifth (5th) anniversary of the conveyance of the
first Residence in the First Phase of the Development to a member of the home buying
public requiring the delivery of a Final Subdivision Public Report, whichever of either (i)
or (ii) shall occur first.
(c) Utilities Shown on Tract Mao. Easements over all (with respect to
the Declarant) or the pertinent portion (with respect to each Participating Builder) of
the Covered Property for the installation and maintenance of electric, telephone, cable
television, water, gas. and sanitary sewer lines and drainage facilities as shown on any
pertinent recorded final tract or parcel map covering the Covered Property.
(d) Maintenance Association. Easements over all (with respect to the
Declarant) or the pertinent portion (with respect to each Participating Builder) of the
Covered Property for the purpose of permitting a Maintenance Association or
Maintenance Associations to discharge its or their respective maintenance obligations
on the Master Common Area or on any other portion of the Covered Property located
immediately adjacent to Master Common Area as described in any Maintenance
Declaration recorded by Declarant or a Participating Builder, as applicable, for a
portion of the Covered Property. By way of example, but not limitation, a particular
Maintenance Association shall have a nonexclusive easement over that
20
portion of Master Common Area which consists of the Streetscape located
immediately adjacent to the portion of the Covered Property which is subject to the
jurisdiction of the particular Maintenance Association for the purpose of maintenance,
repair, restoration and replacement of any project perimeter walls or similar walls or
fences as described and/or depicted in greater detail in the applicable Maintenance
Declaration. Each Maintenance AssOCiation, in connection with the exercise of the
above-described easements, shall defend, indemnify and hold harmless the Master
Association, the Board, the Members (other than Members who are also a member of
the particular Maintenance Association), and the employees and agents of the Master
Association (collectively, "Indemnified Parties") from any liability, loss, claim, cost or
expense (including attomeys' fees) caused by or arising from the exercise of the
above-described easement rights, except to the extent caused by or arising from the
negligent or willful misconduct of an Indemnified Party.
The easements reserved to Declarant and each Participating Builder in this
Section shall not unreasonably interfere with the Owner's use and enjoyment of the Covered
Property and, if any damage results from any such installation, construction or maintenance,
the necessary restoration shall be completed by Declarant or the Participating Builder,
whomever causes such damage, within a reasonable time after the occurrence of such
damage.
Section 2.05 -Easements for Owners. There is hereby reserved to Declarant
for itself and each Participating Builder, together with the right to grant and transfer all or a
portion of same to each Owner, easements for ingress, egress, use and enjoyment (which
includes, without limitation, the unrestricted right of ingress and egress to such Owner's
Residence) on and upon the Master Common Area. Such rights shall be subject to control
and management by the Master Association as provided in more detail in the Master
Association Management Documents. Subject to the terms and conditions of the Drainage
Easement Agreement, a nonexclusive easement for drainage purposes through the
"Drainage System" as described therein has been established as an easement appurtenant to
the Development and shall pass to each Owner upon the transfer of title to a Residence to an
Owner.
Section 2.06 -Easements for Master Association. There is hereby reserved
to Declarant for itself and each Participating Builder, together with the right to grant and
transfer the same to the Master Association with the right of the Master Association to grant
and transfer same, non-exclusive easements over the Covered Property for the purpose of
permitting the Master Association to discharge its obligations and powers as described in the
Master Association Management Documents, including, without limitation, a right of entry for
such purpose as provided in the Bylaws. Subject to the terms and conditions of the Drainage
Easement Agreement and Drainage Encumbrance Agreement, a
21
nonexclusive easement for drainage purposes through the "Drainage System" as described
therein has been established as an easement appurtenant to the Development and shall pass
to the Master Association upon the transfer of Master Common Area to the Master
Association. In addition, the Drainage Easement Agreement provides for the granting of a
nonexclusive easement to the Declarant for the purpose of maintaining said Drainage
System, which easement has been or will be granted to the Master Association.
Section 2.07 -Support. Settlement and Encroachment. There is hereby
reserved to Declarant for itself and each Participating Builder, together with the right to grant
and transfer all or a portion of same. the following reciprocal easements for the purposes set
forth below:
(a) An easement appurtenant to each Residence which is contiguous
to another Residence or Master Common Area which Residence shall be the dominant
tenement and the contiguous Residence or Master Common Area shall be the servient
tenement;
(b) An easement appurtenant to the Master Common Area
contiguous to a Residence, which Master Common Area shall be the dominant
tenement and which contiguous Residence shall be the servient tenement;
(c) It is provided, however, that in the event Master Common Area is
the dominant tenement in an easement described in this Section, Declarant or the
Participating Builder shall have the right to transfer said easement to the Master
Association, but not to Owners;
(d) Said easements shall be for the purposes of:
(i) allowing for engineering errors, errors in construction,
reconstruction, repair, and support, and the natural settlement or shifting of any
portion of the improvements and for the maintenance thereof;
(ii) allowing for minor encroachments by reason of a roof
or eave overhang from a Residence and for the maintenance of such roof or
eave overhang by the Owner of the dominant tenement for as long as such
encroachments exist; and
(iii) allowing for encroachment of fireplaces, doorsteps,
foundations, footings, garage doors, utilities and other appurtenances or
fixtures and the maintenance thereof by the Owner of the dominant tenement,
which, in the construction of the structures upon the dominant tenement or from
any reconstruction or
22
modifications of such structures, project beyond the external surface of the
outer walls of such structures.
The rights and obligations of Owners shall not be altered in any way by said
encroachments, settlement or shifting; provided, however, that in no event shall an easement
for encroachment be created in favor of an Owner if said encroachment occurred due to the
willful misconduct of any Owner. In the event any portion of a structure on the Covered
Property is partially or totally destroyed and then repaired or rebuilt, each Owner agrees that
minor encroachments over adjoining Residences or Master Common Area shall create
easements for the maintenance of such encroachments as long as such encroachments shall
exist.
Section 2.08 • Utilities and Cable Television. Wherever sanitary sewer house
connections, water house connections, air conditioning connections or ducts, electricity, gas,
telephone and cable television lines or drainage facilities are installed within the Covered
Property, the Master Association or any Owner as the owner of any property served by said
connections, lines or facilities shall have the right, and there is hereby reserved to Declarant
for itself and each Participating Builder, together with the right to grant and transfer the same
to any such Owner and the Master Association, an easement to the full extent necessary for
the full use and enjoyment of such portion of such connections which service such Owner's
property or Master Common Area (as the case may be), and to enter, or have utility
companies enter upon any portion of the Covered Property including without limitation, upon
the Residence in or upon which said connections, lines or facilities or any portion thereof lie,
to repair, replace and generally maintain said connections, lines and facilities as and when
the same may be necessary, provided that any damage caused by such entry shall be
repaired by such Owner, the Declarant, a Participating Builder, the Master Association or
utility company (whichever party is the entering party, as the case may be) as promptly as
possible after completion of work thereon. Entry for emergency purposes may be immediate.
Entry for other than emergency repairs shall be made only "fter notice has been given to the
Owner or the Master Association (whichever party is the owner of the property being entered)
as required under the provisions of the Bylaws and shall be made with as little inconvenience
as possible to such Owner or the Master Association and any damage caused thereby shall
be repaired by the entering party.
Section 2.09 • Subordination. Except for the easements and other rights
reserved to Declarant in Section 2.03 of this Master Declaration or as may be otherwise
provided in the grant or dedication of an easement, any easement conveyed in favor of a
public authority shall be prior and superior to all other easements described herein, and any
easement conveyed pursuant to the provisions of this Article to a utility company shall be
prior and superior to all other easements described herein except any easement in favor of a
public authority. Grantor and any grantee by acceptance of a conveyance of any easement
23
described in this Master Declaration, whether or not so stated in such conveyance document,
agree that the easement shall be subordinate to any such prior and superior easements
conveyed to a public authority and further agree to execute any document acknowledging
such subordination that may be required by the holder of any such prior easement.
Section 2.10 Delegation of Use. Any Owner may delegate his or her right of
enjoyment to the Master Common Area to the members of his or her family or his or her
tenants who reside in his or her Residence, or to his or her guests, or to a vendee under a
land sales contract subject to the rules and regulations adopted by the Board. In the event
and for so long as an Owner delegates said rights of enjoyment to his or her tenants or a
vendee, said Owner shall not be entitled to the use and enjoyment of any facilities or
equipment belonging to or controlled by the Master Association for the use and enjoyment of
its Members.
Section 2.11 • Waiver of Use. No Owner may exempt himself from personal
liability for Assessments duly levied by the Master Association, or release the Residence
owned by him from the liens, charges and other provisions of the Master Association
Management Documents by waiver of the use and enjoyment of the Master Common Area or
the abandonment of his or her Residence.
ARTICLE III
THE MASTER ASSOCIATION
Section 3.01 • General Duties and Powers. Subject to the limitations and
restrictions enumerated in the Master Association Management Documents, including without
limitation, the Article entitled "Mortgagee Protection" of the Master Declaration and the Article
entitled "Powers, Duties and Limitations" of the Bylaws, the Master Association, through the
Board, shall have the duty and obligation to manage and maintain the Covered Property
pursuant to the provisions of the Master Association Management Documents, and in the
performance of such duties and obligations shall have all of the powers of a nonprofit mutual
benefit corporation permitted by Califomia statute as set forth in Corporations Code Section
7140, Code of Civil Procedure Section 374 and Civil Code Section 1363, or any successor
statute of any of the foregoing. Such powers, duties and obligations are more particularly
described elsewhere in the Master Association Management Documents but generally
include, without limitation, the duty and obligation to manage and maintain real and personal
property in which the Master Association holds an interest, the power to borrow money and
mortgage Master Common Area to which the Master Association holds fee title, dedicate or
transfer all or any portion of the Master Common Area, grant permits, licenses and
easements on, over and under the Master Common Area, sell real or personal property
belonging to the Master Association and enter upon any Residence as necessary in the event
of any emergency involving illness,
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maintenance and repairs, or as may otherwise be necessary in the perfonmance of such
powers, duties and obligations. The foregoing powers of the Master Association shall also
include, without limitation, the right of the Board to join with the Declarant, a Participating
Builder, a Maintenance Association or any Owner in the execution of any lot line adjustment,
grant deed or grant of easement for the purpose of accepting or conveying title to additional
property, including without limitation any Master Common Area, as necessary to transfer title
provided that any such lot line adjustment and conveyance is made (i) for the purpose of
eliminating encroachments due to engineering errors or errors in construction of any
Improvements upon any of the affected property, (ii) to penmit changes in the development
plan in circumstances where such changes are the result of topography, obstruction,
hardship, aesthetic or other environmental conditions, (iii) to fulfill the requirement of a
regulatory agency, (iv) in a manner which does not have a significant negative impact upon
the Master Association or the Owners, or (v) to transfer the burden of management and
maintenance of any Master Common Area which in the reasonable judgment of the Board is
generally inaccessible or is not likely to be of any particular use or benefit to the Owners.
Section 3.02 • Power of Attorney. In addition to any other rights, duties,
obligations and powers granted to the Master Association herein, and not in limitation of any
such rights, duties, obligations and powers, each Owner appoints the Master Association as
attorney-in-fact for the purpose of handling any losses or proceeds from the condemnation or
destruction of the Master Common Area and Common Facilities therein, and any other
portion of the Covered Property maintained by the Master Association and any Improvements
therein or the liquidation of the Master Association. All such proceeds shall be retained in the
general funds of the Master Association except as specifically provided in the Articles entitled
"Destruction of Improvements· and "Eminent Domain" of this Master Declaration.
Section 3.03 Master Association to Defend. In the event that a lawsuit is filed
against all or substantially all pf the Owners, or a lien is levied against all or substantially all of
the Covered Property, the Master Association shall, after the providing of notice to the
affected Owners, defend such lawsuit or seek to cause such lien to be removed. The costs of
such litigation or removal shall be a Special Assessment against all Owners joined as
defendants in such lawsuit or whose property is covered by the lien, provided, however, that
in the event that an insurance carrier is obligated to provide such defense under a policy of
insurance carried by the Master Association, the Master Association shall be relieved of the
obligation to provide such defense. Nothing contained herein shall in any way limit the rights
of any Owner or Owners to retain counsel of their choice to represent them in such lawsuit at
their own expense. In such event such Owner or Owners shall not be relieved of liability for
the Special Assessment provided for in this Section.
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Section 3.04 • Membership. Membership of Owners shall be appurtenant to
and may not be separated from the interest of such Owner in any Residence. A Member may
own more than one membership in the Master Association by complying with the
qualifications of membership as to more than one (1) Residence.
Section 3.05 • Transfer. The membership held by any Owner shall not be
transferred, pledged or alienated in any way, except that such membership shall
automatically be transferred to the transferee of the interest of an Owner required for
membership. Any attempt to make a prohibited transfer is void and will not be reflected upon
the books and records of the Master Association. The Master Association shall have the right
to record the transfer upon the books of the Master Association without any further action or
consent by the transferring Owner.
Section 3.06 • Delegation of Membership Rights. A Member who has leased
or sold his or her Residence to a contract purchaser under an agreement to purchase shall be
entitled to delegate to such lessee or contract purchaser, as applicable, his or her
membership rights in the Master Association. Such delegation shall be in writing and must be
delivered to the Board before such lessee or contract purchaser may vote. However, the
lessor or contract seller shall remain liable for all charges and Assessments attributable to his
or her Residence as long as such lessor or contract seller continues to be an Owner.
Section 3.07 • Voting Rights for Special Actions. All voting rights shall be
subject to the restrictions and limitations provided in the Master Association Management
Documents. A Member's right to vote shall vest immediately upon the date Regular
Assessments are levied against the Residence of such Member. Except as provided in the
Article entitled "Enforcement of Bonded Obligations" of this Master Declaration, wherever a
provision of the Master Association Management Documents requires the approval of a
prescribed percentage of the total voting power of the Members, it shall be deemed to mean:
(a) as long as there is a Class B membership, the vote of the
prescribed percentage of the total voting power of each class of membership; and
(b) after the Class B membership has been converted to Class A
membership, the vote of the prescribed percentage of the total voting power of the
Master Association and the approval of a prescribed percentage of Members other
than Declarant.
Section 3.08· Classes of Membership. The Master Association shall have
three (3) classes of voting membership.
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Class A. Class A Members shall be all Owners with the
exception of the Declarant, each Participating Builder and each Apartment
Lot Owner, until the Class B membership has been converted to Class A
membership. After such conversion, all Owners (including Declarant, each
Participating Builder and each Apartment Lot Owner) shall be Class A
Members.
Class B. The Class B Members shall be the Declarant and each
Participating Builder. The Class B membership shall forever cease and be
converted to Class A membership on the happening of any of the following
events, whichever shall occur first:
(a) The fourth (4th) anniversary of the conveyance of
the first Residence in the First Phase of the Development to a member
of the homebuying public requiring the delivery of a Final Subdivision
Public Report if, as of such date, the total number of Apartment Units
and Residences (excluding Apartment Buildings) for which the
obligation to pay Assessments has commenced is not less than
1,325.
(b) If, as of the date specified in subparagraph (a)
above, the obligation to pay Asses.;;ments has not commenced
against 1,325 Apartment Units and Residences (excluding Apartment
Buildings), the sixth (6th) anniversary of the conveyance of the first
Residence in the First Phase of the Development to a member of the
homebuying public requiring the delivery of a Final Subdivision Public
Report.
Class C. The Class C Member shall be each Apartment Lot
Owner. Subject to the provisions of the Article entitled "Apartment Lot
Ownership" of this Master Declaration, an Apartment Lot Owner shall be
entitled to one (1) vote for every two (2) Apartment Unit(s) in each
Apartment Building on the Apartment Lot owned by the Apartment Lot
Owner. Fractional votes shall be disregarded for purposes of determining
the number of votes to which an Apartment Lot shall be entitled. The
Class C membership shall forever cease and be converted to Class A
membership (i) with respect to a particular Apartment Lot, upon the
conversion of the Apartment Lot to a condominium project as hereinafter
provided in the Article entitled "Apartment Lot Ownership" of this Master
Declaration or (ii) with respect to all Apartment Lots, when the Class B
membership is converted to Class A membership; whichever shall occur
first.
Section 3.09 -Voting Power. Class A Members, other than Members
who are Apartment Lot Owners, shall be entitled to one (1) vote for each
Residence in which they hold the interest required for membership. The Class B
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OA921250.078 27
Member shall be entitled to three (3) votes for each Residence in which it holds the interest
required for membership. An Apartment Lot Owner shall, as either a Class A or Class C
Member, be entitled to one (1) vote for every two (2) Apartment Units owned. Fractional votes
shall be disregarded for purposes of determining the number of votes to which an Apartment
Lot shall be entitled. Upon the conversion of an Apartment Lot to a condominium project as
hereinafter provided in the Article entitled "Apartment Lot Ownership", each Condominium
therein shall be entitled to one (1) vote. When more than one person owns a portion of the
interest in a Residence required for membership, each such person shall be a Member and
the vote for such Residence, shall be exercised as they among themselves determine, but in
no event shall the total number of votes for each Residence exceed the total number
permitted for such Residence as provided in this Section. The Master Association may, but
shall not be obliged to, refuse to recognize the vote or written assent of any such co-Owner,
except the vote or written assent of the co-Owner designated in a writing executed by all of
such co-Owners and delivered to the Master Association.
Section 3.10 Approval of Membership. Unless otherwise specifically provided
elsewhere in this Master Declaration, any provision of this Master Declaration which requires
the vote or written assent of either the total voting power of the Master Association or of
Members other than Declarant shall be deemed satisfied by the following:
(a) The vote in person or by proxy of the specified percentage of all
of the votes which are entitled to be cast. Said vote shall be at a meeting duly called
and noticed pursuant to the provisions of the Bylaws dealing with annual or special
meetings of the Members;
(b) Written consents signed by the specified percentage of all of the
votes which are entitled to be cast. Said vote by written consent shall be solicited
pursuant to the procedures provided in the Bylaws.
Nothing in this Section or in any other provision of any of the Master
Association Management Documents shall preclude Members from assenting to the
amendment of any of the Master Association Management Documents by joining in the
execution of, or attaching their written consent to, such amendment.
Section 3.11 • Certificate Evidencing Approval. The certificate of any officer
or officers, authorized by resolution of the Board, or of the president and secretary certifying
that the required total voting power of the Master Association has approved the execution,
delivery and/or recordation of an amendment to any of the Master Association Management
Documents, to a Supplementary Declaration or to any other document requiring the approval
of the total voting power of the Master Association, shall be deemed conclusive proof thereof.
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Section 3.12 • Pledge of Assessment Rights. The Master Association shall
have the power to pledge the right to exercise its Assessment powers in connection with
obtaining funds to repay a debt of the Master Association; provided, however, that any such
pledge shall require the prior affirmative vote or written assent of not less than sixty-seven
percent (67%) of the total voting power of the Master Association. Said power shall include,
but not be limited to, the ability to secure a debt with an assignment of Assessments which
are then payable to or which will become payable to the Master Association. Said assignment
may be then presently effective, but must allow said Assessments to continue to be paid to
and used by the Master Association as set forth in this Master Declaration, in part, to first pay
for all Common Expenses, unless and until the Master Association defaults on the repayment
of the debt which is secured by the assignment. The Master Association may also levy
Special Assessments against the Members to obtain such funds. Upon the failure of any
Member to pay such Special Assessment when due, the Master Association may exercise all
rights, including, without limitation, the right to foreclose upon any lien pursuant to the Article
hereof entitled "Enforcement of Assessment Liens." Without limiting the generality of the
foregoing, any pledge of Assessment rights in excess of an amount equal to twenty-five
percent (25%) of the total Regular Assessments collected by the Master Association in the
then preceding fiscal year shall require the prior written approval of seventy-five percent
(75%) of the Eligible Mortgage Holders. The levying of Special Assessments pursuant to this
Section must also comply with the requirements of the Section entitled "Maximum
Assessments" of the Article entitled" Assessments" of this Master Declaration.
Section 3.13 • Establishment of Delegate Districts. All of the Residences
within the Covered Property shall be divided into Delegate Districts. In the event that a
Maintenance Association is created for the administration of any of the property subject to this
Master Declaration, the real property subject to the Maintenance Declaration of such
Maintenance Association shall constitute a Delegate District. The Residences within the Initial
Covered Property shall be a part of Delegate District NO.1. For any portion of the Covered
Property not covered by a Maintenance Association, the Supplementary Declaration annexing
property to the Covered Property shall designate the Delegate District or Districts being
established by the Declarant for such Annexed Property or the Delegate District or Districts to
which such Annexed Property is being annexed.
ARTICLE IV
ASSESSMENTS
Section 4.01 • Agreement to Pay. Subject to limitations contained in the
Master Association Management Documents, the Master Association shall levy
Assessments sufficient to perform its obligations under the Master Association
Management Documents. Each Owner, including the Declarant to the extent
Declarant is an Owner as defined herein, is deemed to covenant and agree to pay
29
Assessments to the Master Association to be fixed, established and collected from time to
time as provided in this Master Declaration.
Section 4.02 • Collection and Disbursement. Funds of the Master
Association collected for the purpose of maintaining a reserve fund described herein below
shall be segregated within the Budget and shall be maintained in a separate district account
at a banking or savings and loan institution and shall not be commingled with the general
operating funds of the Master Association. The accounting records of the Master Association
shall reflect deposits and disbursements in a manner that will insure that the· funds collected
as Capital Improvement Assessments, Reconstruction Assessments and Regular
Assessments will be used only for the purposes for which such funds were collected.
Section 4.03 • Maximum Assessments.
(a) Phased Annexation of Master Common Area: Modified Range of
Assessments Budget. During the period the Covered Property is being developed,
Declarant and each Participating Builder may annex one or more Phases into the
Covered Property in accordance with the provisions of this Master Declaration. Since
annexations of additional Phases by Declarant and various Participating Builders
might occur in quick succession and in an undetermined sequence, in order to
facilitate the orderly annexation of Phases, Declarant, with the DRE's approval, has
established a "Modified Range of Assessments" procedure which, subject to the
provisions set forth herein below, shall be applicable to all Phases annexed into the
Covered Property and under which certain Master Common Areas will be annexed
and transferred to the Master Association only upon the commencement of
Assessments against a prescribed number of Residences. Unless terminated earlier
by Declarant with the DRE's approval, this "Modified Range of Assessments"
procedure shall be effective during the period that additional Phases may be annexed
without approval of the Members of the Master Association, as set forth in the Article
herein below entitled "Annexations".
(b) Calculation of the Range of Assessments. Under the Modified
Range of Assessments procedure, a range of Assessments has been established by
calculating an initial "Minimum Authorized Regular Assessment" and a "Maximum
Authorized Regular Assessment". Subject to the provisions of subparagraph (d) below,
the Minimum and Maximum Authorized Regular Assessments represent the lowest
and the highest Regular Assessments that may be established by the Board during the
development of the Newport Ridge Project. Creation of the Modified Range of
Assessments procedure contemplates that as additional Phases are annexed into the
Newport Ridge Project, and as certain deSignated Master Common Areas are
transferred to the Master Association upon the commencement of Assessments
against the prescribed number of
30
Residences, the Regular Assessments levied by the Master Association will fall within the
range of Assessments which has been approved by the DRE and which is set forth in all Final
Subdivision Public Reports issued by the DRE for such Phases, if a Public Report is required.
Notwithstanding the foregoing, the initial Assessments set forth in the proposed
Budgets which have been approved by the DRE may be recalculated and adjusted with the
approval of Declarant and the DRE in order to account for various changes in circumstances
(including, but not limited to, an acceleration in the timing of the tumover of completed Master
Common Area and Common Facilities to the Master Association for maintenance,
construction of additional Common Facilities on the Master Common Area, the delegation to
or assumption by the Master Association of other additional maintenance responsibilities, and
the incurring of unanticipated extraordinary expenses by the Master Association).
(c) Fluctuation of Regular Assessments Within the Range of Assessments.
As additional Phases are annexed into the Newport Ridge Project, the Regular Assessment
may automatically and without approval of the Master Association fluctuate upwards or
downwards (subject to the limitations set forth herein below) as frequently as monthly until the
first close of escrow for the sale of a Residence and the first occupancy of an Apartment
pursuant to a Certificate of Occupancy (or other similar document) has occurred in all Phases
of the Newport Ridge Project. In order to facilitate the orderly levy and collection of Regular
Assessments, the Board may enter into a subsidy or maintenance agreement with Declarant
and/or any Participating Builder, in which case Regular Assessments for all Residences shall
be reduced and abated as provided in said agreement.
(d) Member Approval. Except for an increase in the Regular Assessment
due to the annexation of ooe or more Phases pursuant to the terms and conditions of
paragraphs (a) and (b) above, the Board may not, without the vote or written assent of
Delegates carrying the votes of Members constituting a quorum (casting a majority of the
votes at a meeting or election of the Delegates), impose a Regular Assessment per
Residence which is more than twenty percent (20%) greater than the Maximum Authorized
Regular Assessment for any given fiscal year.
(e) Assessment for Other Acts or Undertakings. In any fiscal year, the Board
may not, without the vote or written assent of: (i) Members constituting a quorum and casting
a majority of the votes at a meeting of the Master Association, or (ii) Delegates representing a
sufficient number of Members as described in (i) above, levy an Assessment to defray the
costs of any action or undertaking on behalf of the Master Association
31
which in the aggregate exceeds five percent (5%) of the Common Expenses of the
Master Association for that fiscal year.
(f) Quorum and Meeting. For purposes of paragraphs (d) and (e)
above, a quorum means more than fifty percent (50%) of the total voting power of the
Master Association. Any meetmg or election of the Master Association for the
purposes of complying with this Section shall be conducted in accordance with
Chapter 5 (commencing with Section 7510) of Part 3, Division 2 of Title 1 of the
Califomia Corporations Code and Section 7613 of the Califomia Corporations Code.
(g) Emergency Situations. Notwithstanding any other provision
contained in this Section, the Board may increase Assessments as necessary to pay
for emergency expenses. For purposes of this Section, an emergency expense is any
one of the following:
(i) an extraordinary expense required by an order of a
court:
(ii) an extraordinary expense necessary to repair or
maintain the Covered Property or any part of it for which the Master Association
is responsible where a threat to personal safety on the property is discovered:
or
(iii) an extraordinary expense necessary to repair or
maintain the Covered Property or any part of it for which the Master Association
is responsible that could not have been reasonably foreseen by the Board in
preparing and distributing the Budget. However, prior to the imposition or
collection of an Assessment under this subdivision, the Board shall pass a
resolution containing written findings as to the necessity of the extraordinary
expense involved and why the expense was not or could not have been
reasonably foreseen in the budgeting process and the resolution shall be
distributed to the Members with the notice of Assessment.
In the event the Board shall determine that the estimate of total charges for the
current year is, or will become inadequate to meet all Common Expenses for any reason, it
shall then immediately determine the approximate amount of such inadequacy, issue a
supplemental estimate of the Common Expenses, and to the extent permitted in this Section
determine the revised amount of the Regular Assessment and the installments thereof, if
applicable, allocable to each Residence, and the date or dates when due. In the event the
amount budgeted to meet Common Expenses for the then current year proves to be
excessive in light of the actual Common Expenses, the Board in its discretion may either
reduce or abate the amount and collection of Regular Assessments as it deems appropriate,
except that, subject to the provisions of Section 4.08 which
32
provide for: (i) the power of the Board to reduce and abate Assessments, or (ii) the exemption
of the payment of any portion of any Assessment attributable to uncompleted Master
Common Area or Common Facilities, as long as the Declarant or a Participating Builder is
offering Residences for sale pursuant to a Final Subdivision Public Report, the Regular
Assessment may not be decreased by ten percent (10%) or more without the express written
consent of the Declarant and the DRE.
Section 4.04 • Excessive Assessments and Fees. The Master Association
shall comply with Section 1366.1 and 1368(c) of the Califomia Civil Code and, until such
Sections are amended to provide otherwise, shall not:
(a) impose or collect an Assessment. penalty or fee that exceeds the
amount necessary for the purposes for which it is levied; and
(b) impose or collect any Assessment, penalty or fee in connection
with a transfer of title or any other interest except the Master Association's actual cost
to change its records and that authorized in connection with providing copies of Master
Association Management Documents, copies of financial statements and statements
of unpaid Assessments and Allowable Charges, as described in the Bylaws.
Section 4.05 • Assessment Allocation. Regular Assessments, Capital
Improvement Assessments, Reconstruction Assessments and Special Assessments levied
against all Residences for an act or undertaking of the Master Association not covered under
Regular Assessments and Capital Improvement Assessments shall be fixed at an equal
amount for each Residence other than an Apartment Building. For each Apartment Building,
Regular Assessments, Capital Improvement Assessments, Reconstruction Assessments and
Special Assessments levied against all Residences for an act or undertaking not covered
under Regular Assessments, shall be fixed for each Apartment Building in an amount equal to
the product of one-half (1/2) ofthe amount of any such Regular Assessment, Capital
Improvement Assessment, Reconstruction Assessment or Special Assessment paid by all
Residences other than an Apartment Building, multiplied by the total number of Apartment
Units within the Apartment Building.
All Assessments may be collected at intervals selected by the Board except
that Regular Assessments which include reserves must be paid in regularly scheduled
installments.
Section 4.06 • Not Subject to lien. Penalty Assessments may not be
characterized nor treated as an Assessment which may become a lien against an Owner's
Residence enforceable in accordance with the Section entitled "Foreclosure Sale" of the
Article entitled "Enforcement of Assessment Liens" of this Master Declaration. Nothing in this
Master Declaration, however, shall
33
prevent the Master Association from bringing an action at law or in equity against an Owner to
collect Penalty Assessments.
Section 4.07 • Certificate of Payment. The Master Association shall, upon
demand, furnish to any Owner liable for Assessments a certificate in writing signed by an
authorized agent of the Master Association or by the president of the Master Association
setting forth whether the Assessments on such Owner's Residence have been paid, and the
amount of delinquency, if any. A reasonable charge may be collected by the Board for the
issuance of these certificates. Such certificates shall be conclusive evidence of payment of
any Assessment therein stated to have been paid.
Section 4.08 • Exempt Property, Abatement or Reduction of Assessments.
The Declarant, each Participating Builder, and any other Owner shall be exempted from the
payment of that portion of any Assessment which is:
(a) for the purpose of defraying expenses and reserves directly
attributable to the existence and use of a Master Common Area and the Common
Facilities thereon that are not complete at the time Assessments commence. Any
exemption from the payment of Assessments attributable to Master Common Area or
Common Facilities shall be in effect only until the earliest of the following events:
(i) a Notice of Completion of the Master Common Area
and the Common Facilities has been recorded;
(ii) the Master Common Area and the Common Facilities
have been placed into use; or
(iii) upon request of the Declarant or a Participating
Builder, if necessary to comply with any regulations of any Federal Agencies;
(b) a result of the adoption of a resolution by the Board to reduce or
abate the collection of any Assessment as a consequence of and pursuant to the
terms of any subsidy and/or maintenance agreement entered into by the Board and
the Declarant.
(d) All properties dedicated to and accepted by, or otherwise owned
or acquired by, a public authority shall be exempt from the Assessments created
herein.
Section 4.09 • Date of Commencement. Regular Assessments shall
commence with respect to all Residences in a Phase on the first day of the month following
the first conveyance of a Residence within such Phase. With respect to a Phase comprised of
only Apartment Units, Regular Assessments shall commence
34
as to all Apartment Units within an Apartment Building on the first day of the month following
the date of the issuance of a Certificate of Occupancy for an Apartment Unit within such
Apartment Building. The first Regular Assessment shall be adjusted according to the number
of months remaining in the fiscal year. All other Assessments may be levied against an
Owner when Regular Assessments have commenced against such Owner's Residence. The
Declarant shall, in the event of the termination of the Subsidy and Maintenance Agreement
(Phase I and II Master Common Area), be responsible for any deficit in the Common
Expenses so that the monthly installment of the Regular Assessment paid by Declarant, any
Owner or Participating Builder shall not exceed the following amounts set forth in the interim
Budgets approved by the DRE: (a) until the first of the month immediately following the close
of escrow for the 87th Residence -$163.69, and (b) from the first of the month immediately
following the close of escrow for the 87th Residence until the first of the month immediately
following the close of escrow forthe 160th Residence $164.22.
Sect jon 4.10· No Offsets. All Assessments shall be payable in the amount
specified by the Assessment, and no offsets against such amount shall be permitted for any
reason.
Section 4.11 • Homestead Waiver. Each Owner, to the extent permitted by
law, does hereby waive, to the extent of any liens created pursuant to this Master Declaration,
whether such liens are now in existence or are created at any time in the future, the benefit of
any homestead or exemption laws of the State of California now in effect or in effect from time
to time hereafter.
Section 4,12· Reserves. The Regular Assessments, which are payable in
regular installments as established by the Board, include amounts to maintain an adequate
reserve fund, established by the Board to cover the periodic maintenance, repair and
replacement of Master Common Area and the Common Facilities thereon that may be
required to be maintained by the Master Association.
ARTICLE V
ENFORCEMENT OF ASSESSMENT LIENS
Sect jon 5.01 • Delinquency. Any Assessment provided for in this Master
Declaration which is not paid when due shall be delinquent fifteen (15) days after such
Assessment became due (the "delinquency date"). Allowable Charges may be recovered if an
Assessment becomes delinquent. The Master Association may at its option, and without
waiving the right to judicially foreclose its lien against the Residence, pursue any available
remedies, including, without limitation, (i) bringing an action at law against the Owner
personally obligated to pay the same, and/or (ii) upon compliance with the notice provisions
set forth in the Section entitled "Personal Obligation; Lien" of this Article, foreclosing the lien
against such Owner's Residence under the power of sale granted herein. Each
35
Owner vests in the Master Association, or its assigns, the right and power to bring all actions
at law or any lien foreclosure against such Owner or other Owners for the collection of such
delinquent Assessments.
Section 5.02 • Personal Obligation: Lien. An Assessment and any Allowable
Charges shall be a debt of the Owner of the Residence at the time the Assessment and/or
Allowable Charges are levied. The amount of the Assessment, plus any Allowable Charges,
shall be a lien on the Owner's Residence. A Notice of Delinquent Assessment shall be
recorded in the Official Records and shall state: (i) the amount of the Assessment and
Allowable Charges; (ii) a description of the Owner's Residence against which the Assessment
and Allowable Charges are levied; (iii) the name of the record Owner of the Residence
against which the lien is imposed, and (iv) in order for the lien to be enforced by nonjudicial
foreclosure as hereinafter provided, the name and address of the trustee authorized by the
Master Association to enforce the lien by sale. The Notice of Delinquent Assessment shall be
signed by the officers authorized for such purpose by resolution of the Board or by the
president of the Master Association. Upon payment of the sums specified in the Notice of
Delinquent Assessment, the Master Association shall cause to be recorded a further notice
stating the satisfaction and release of the lien thereof. A lien created pursuant to this Section
shall be prior to all other liens recorded subsequent to the Notice of Delinquent Assessment,
except (i) any taxes, bonds, assessments and other levies which, by law, would be superior
thereto, and (ii) the lien or charge of any First Mortgage.
Section 5.03 • Foreclosure Sale. The lien created pursuant to this Article may
be enforced in any manner permitted by law, including sale by the court, sale by the trustee
designated in the Notice of Delinquent Assessment, or sale by a trustee substituted pursuant
to Section 2934a of the California Civil Code, or any successor statute thereof. Any sale by a
trustee provided for above is to be conducted in accordance with the provisions of Section
1367 and Sections 2924 et seq. of the Califomia Civil Code as said statutes may from time to
time be amended, as they apply to the exercise of powers of sale in mortgages and deeds of
trust. Upon the affirmative vote of a majority of the total voting power of the Master
Association, the Master Association, through its duly authorized agents, shall have the power
to bid on the Residence at the foreclosure sale, using Master Association funds, or funds
borrowed for such purpose, at the sale, and to acquire and hold, lease, mortgage and convey
the same. Nothing in this Section prohibits actions against any Owner to recover sums for
which a lien is created pursuant to this Article or the Master Association from taking a deed in
lieu of foreclosure.
Section 5.04 • Subordination of Assessment Liens. The lien of the
Assessments and Allowable Charges provided for in this Master Declaration shall be
subordinate to the lien of any First Mortgage upon any Residence. The foreclosure of any lien
provided for in this Article for the payment of Assessments and Allowable Charges shall not
operate to affect or impair the lien of a First
36
Mortgage; and, the foreclosure of the lien of a First Mortgage or the sale under a power of
sale included in such First Mortgage (such events being hereinafter referred to as "Events of
Foreclosure") shall not operate to affect or impair such Assessment lien, except that any
persons who obtain an interest through any of the Events of Foreclosure, and their
successors in interest, shall take title free of such Assessment lien or any personal obligation
for said charges as shall have accrued up to the time of any of the Events of Foreclosure, but
subject to the Assessment lien for all said charges that shall accrue subsequent to the Events
of Foreclosure. Notwithstanding the foregoing, any such delinquent Assessments that were
extinguished pursuant to this paragraph may be reallocated and assessed to all Residences
as a Common Expense.
A First Mortgagee's rights pursuant to this Section shall not be affected by the
failure of such First Mortgagee to deliver a notice to the Board.
The lien of the Assessments and Allowable Charges as aforesaid shall also be
subordinate to the interests of the Department of Veterans Affairs of the State of California as
the vendor under its Cal-Vet loan contracts to the same extent that the said liens are made
subordinate to the liens or charges of First Mortgages as provided above.
ARTICLE VI
USE RESTRICTIONS
Section 6.01 -Residential Use. Subject to the subsection entitled "Construction
and Sales" of the Section entitled "Reservations to Declarant and Participating Builder" of the
Article entitled "Easements and Rights" of this Master Declaration: (a) no part of a Residence
shall be used or caused to be used or allowed or authorized in any way, directly or indirectly,
to be used for any business, commercial, manufacturing, mercantile, storing, vending, or any
other nonresidential purposes and, (b) all Residences shall be used for single Family
residential use. Notwithstanding the above: (a) the Apartment Lot Owner shall have the right
to lease or rent Apartment Units, (b) the Master Association shall have the right to provide or
authorize non-residential services on the Master Common Area as it deems appropriate for
the enjoyment of the Master Common Area or for the benefit of the Members, and (c) an
Owner may maintain an office and conduct business activity within his or her Residence
provided that: (i) there is no extemal evidence of such activity; (Ii) such activities are
conducted in conformance with all applicable governmental ordinances; (iii) the patrons or
clientele of such activities do not visit the Residence or park automobiles or other vehicles
within the Covered Property; (iv) the existence or operation of such activities is not apparent
or detectable by sight, sound or smell from outside of the boundaries of the Residence; (v) no
such activity increases the liability or casualty insurance obligation or premium of the Master
Association; and (vi) such activities
37
are consistent with the residential character of the Covered Property and conform with the
provisions of this Master Declaration.
Section 6.02 • Signs. No sign or billboard of any kind shall be displayed to the
public view on any portion of the Covered Property except (i) such signs as may be used by
Declarant or a Participating Builder and its sales agents in connection with the development
of the Covered Property and sale of the Residences, Oi) such signs as may be used by an
Apartment Lot Owner in connection with the conducting of a leasing program for an
Apartment Lot and (iii) signs installed or displayed by the Master Association. Notwithstanding
the above, an Owner may display on his or her Residence and the Owner of a Condominium
may display within common areas subject to the jurisdiction of a Maintenance Association
within such common areas as permitted by such Maintenance Association, a sign advertising
the sale or lease of his or her Residence so long as such sign complies with any customary
and reasonable standards promulgated by the Board as to the size, color, shape or other
qualification for permitted signs and any more restrictive applicable standards for temporary
signage established by a Maintenance Association. The Declarant shall repair any damage to
or complete any restoration of the Covered Property caused or necessitated by the display of
signs by Declarant or its sales agents within a reasonable time after the occurrence of such
damage or need for restoration. A Participating Builder shall repair any damage to or
complete any restoration of the Covered Property caused or necessitated by the display of
signs by the Participating Builder or its sales agents within a reasonable time after the
occurrence of such damage or need for restoration. An Apartment Lot Owner shall repair any
damage to or complete any restoration of the Covered Property caused or necessitated by
the display of signs by the Apartment Lot Owner or its leasing agents within a reasonable
time after the occurrence of such damage or need for restoration.
Section 6.03 • Nuisance. No noxious or offensive trade or activity shall be
permitted upon any part of the Covered Property, nor shall anything be done thereon which
shall in any way interfere with the quiet enjoyment of each of the Owners of his or her
respective Residence, or which shall in any way increase the rate of insurance on any other
Residence or the Covered Property. No plants or seeds infected with insects or plant
diseases, shall be brought upon, grown or maintained upon any part of the Covered Property.
No motorcycles, dirt bikes or other mechanized vehicles may be operated upon any portion of
the Master Common Area not improved as a street, without the prior written approval of the
Board, which approval may be withheld for any reason whatsoever. Alarm devices used
exclusively to protect the security of a Residence or an automobile and its contents, shall be
permitted, provided that such devices do not produce annoying sounds or conditions as a
result of frequently occurring false alarms. No rifle, shotgun, pistol, revolver or firearm of any
kind shall be shot, fired or discharged anywhere within the Covered Property. No explosive of
any kind shall
38
be detonated anywhere in the Covered Property, except to the extent permitted by Local
Government and then only upon the issuance of any required permit(s) by the Local
Government and/or other govemmental agencies having jurisdiction.
Section 6.04 • Hazardous Material. No Hazardous Material shall be stored or
permitted upon any portion of the Covered Property, except if in compliance with any and all
applicable laws, regulations, rules and standards of the County and any other governmental
body. No Hazardous Material may be disposed of in a manner contrary to Section 6.10
hereof.
Section 6.05 -Noises and Noxious Odors. No exterior speakers, horns,
whistles, bells or other sound devices (other than security devices used exclusively for
security purposes), noisy or smoky vehicles, unlicensed off-road motor vehicles or items
which may unreasonably interfere with the television or radio reception of any Residence,
shall be located, used or placed on any portion of the Covered Property, or exposed to the
view of other Owners. No loud noises or noxious odors shall be permitted to emanate from
the Covered Property. The Board shall have the right to determine in accordance with the
provisions for hearing and notice set forth in the Bylaws if any noise, odor, interference or
activity producing such noise, odor or interference constitutes a nuisance.
Section 6.06 -Temporary Structures. A construction trailer, temporary
storage shed and temporary on-site sanitary facilities shall be permitted upon a Lot during the
period of time during which a Residence is being constructed upon such Lot. Upon the
completion of construction activity any such temporary facilities shall be promptly removed
from the Lot. No structure of a temporary character, trailer, basement, tent, shack, garage,
barn or other out-building shall thereafter be used on any Residence at any time, either
temporarily or permanently.
Section 6.07 -Oil and Mineral Rights. No oil drilling, oil development
operations, oil refining, quarrying, or mining operations of any kind shall be permitted upon or
in the Covered Property nor, subsequent to the recording of this Master Declaration, shall oil
wells, tanks, tunnels, or mineral excavations or shafts be installed upon or below the surface
of the Covered Property except as otherwise provided in Section 2.03(a). No derrick or other
structure designed for use in boring for water, oil or natural gas shall be erected, maintained
or permitted upon the Covered Property.
Section 6.08 -Unsightly Items. All weeds, rubbish, debris, or unsightly
material or objects of any kind shall be regularly removed from the Residences and shall not
be allowed to accumulate thereon. All weeds, rubbish, debris or other unsightly materials or
objects until so removed from a Residence shall be kept in sanitary trash or refuse containers
located in appropriate areas screened and concealed from view, and no odor shall be
permitted to arise therefrom so as to render the Covered Property, or any portion thereof,
unsanitary, unsightly, offensive or detrimental to any other property in the vicinity thereof or to
its
39
occupants. Such trash and refuse containers shall be exposed to the view of neighboring
Residences only when set out for a reasonable period of time not to exceed twenty-four (24)
hours before and after scheduled trash collection hours. All clotheslines, woodpiles, storage
areas, machinery and equipment shall be prohibited upon any Residence unless obscured
from the view of adjoining streets or portions of the Covered Property from a height of six (6)
feet or less. No individual water supply system, water softener system or sewage disposal
system shall be permitted on any Residence unless such system is designed, located,
constructed and equipped in accordance with the requirements, standards, and
recommendations of the applicable water or sewer district and any applicable governmental
health authority having jurisdiction.
Section 6.09 • Antennae: Roof Structures. No television, radio, or other
electronic towers, aerials, antennae or devices of any type for the reception or transmission of
radio or television broadcasts or other means of communication shall hereafter be erected,
constructed, placed or permitted to remain on the Covered Property unless the same is
contained within a building or underground conduits. No other appliances or installations on
exterior roofs of structures including, without limitation, roof-top turbine ventilators, shall be
permitted, except for solar panels, satellite dishes and other mechanical equipment installed
by an Owner which must comply with any design specifications therefore set forth in the
Master Architectural and Landscape Standards which may be adopted by the Board.
Section 6.10 • Drainage. All drainage of water from any Residence shall drain
or flow into adjacent streets or alleys and shall not be allowed to drain or flow upon, across, or
under any other portion of the Covered Property unless an easement for such purpose is
granted. An Owner shall not alter the drainage of water which exists pursuant to the drainage
plan originally created at the time of the initial sale of his or her Residence by Declarant, or a
Participating Builder except through the use of a positive drainage device approved by the
architectural control committee -of the Maintenance Association, if such a committee shall
exist, and in the absence thereof, by the board of directors of the Maintenance Association
provided, however, that in no event shall such drainage device materially affect the
concentration or flow direction of drainage water under said drainage plan. No Owner shall at
any time dispose of any Hazardous Material into any drainage devices located on his or her
Residence.
Section 6.11 • Leases. Any agreement for the teasing or rental of a Residence
or an Apartment Unit (hereinafter in this Section referred to as a "tease" or "rental
agreement") shall provide that the terms of such lease shall be subject in all respects to the
provisions of the Master Association Management Documents and any applicable
agreements between the Master Association and any of the Federal Agencies. Said tease
shall further provide that any failure by the lessee thereunder to comply with the terms of the
foregoing documents shall be a default
40
under the lease. All leases and rental agreements shall be in writing. The Owner of said
teased or rented Residence has the duty and obligation to furnish the Board with the name or
names of the individuals currently leasing or renting said Residence and to maintain with the
Master Association a record of the current mailing address of said Owner. Any Owner who
leases or rents his or her Residence or an Apartment Lot Owner who teases or rents an
Apartment Unit shall be responsible for assuring compliance by the lessee or renting party
with the Master Association Management Documents. No Residence or Apartment Unit shall
be teased for transient or hotel purposes, which shall be defined as rental for any period less
than thirty (30) days or any rental whatsoever if the occupants of the Residence are provided
customary hotel services such as room service for food and beverage, maid service,
furnishing laundry and linen and bellboy service. Except as provided in the Section entitled
"Subdivision and/or Conversion to Condominium" of the Article entitled" Apartment Lot
OwnerShip", no Owner shall further partition or subdivide his or her Residence, including
without limitation any division into time-share estates or time-share uses; provided, however,
this provision shall not be construed to prohibit the transfer of a Residence to more than one
person to be held by them as tenants-in-common, joint tenants, tenants in the entirety or as
community property.
Sect jon 6.12 -Insurance Rates. Nothing shall be done or kept in the Covered
Property which will increase the rate of insurance on any property insured by the Master
Association without the approval of the Board, nor shall anything be done or kept in the
Covered Property which would be in violation of any law or which would result in the
cancellation of insurance on any property insured by the Master Association.
Section 6.13 -Aircraft. No helipad or other facility or facilities for landing
helicopters or other aircraft shall be constructed or placed upon any portion of the Covered
Property, nor shall there be launched from or landed on any portion of the Covered Property
any helicopter or other type of aircraft.
Sect jon 6.14 -View. Each Owner, by acceptance of a deed or other
conveyance of a Residence, acknowledges that any construction, installation, growth of
landscaping or other Improvements by: (a) Declarant, (b) any Participating Builder, (c) any
Apartment Lot Owner, (d) the Master Association, (e) any other Owner or (f) any owner of any
other property which is not a portion of the Covered Property, may impair or obstruct any view
that such Owner may have enjoyed at the time of the purchase of his or her Residence. Such
Owner hereby acknowledges that any rights acquired do not include the preservation of any
view and consents to such obstruction and/or impairment.
Section 6.15 -California Vehicle Code. The Local Government shall be
allowed to impose and enforce all provisions of the California Vehicle Code applicable to any
private streets contained within the Covered Property.
41
Section 6.16 • Maintenance Association Use Restrictions. Nothing herein
shall prevent a Maintenance Association from adopting use restrictions for its portion of the
Covered Property which are more restrictive than or in addition to those set forth herein,
provided that such restrictions shall in no way modify the provisions hereof.
Section 6.17 • Exemption of Declarant and Each Participating Builder.
As tong as Declarant and one or more particular Participating Builders are
utilizing the easements described in the Article entitled "Easements and Rights" of the Master
Declaration, Declarant and each of the particular Participating Builders utilizing such
easements and rights shall not be subject to the provisions of this Article and any amendment
to this Article shall require the prior written approval of Declarant and the particular
Participating Builder(s).
Section 6.18 • Use of Coyote Canyon Landfill. Commercial Retail Site and
Other Adjacent Property. The Covered Property is located adjacent to or in the vicinity of
real property which is proposed to be developed and operated or used as a closed landfill site
with methane gas recovery operation, a retail commercial center, the San Joaquin Reservoir
Site, open space areas, a School Site and a fire station. The location of these particular uses
are depicted upon the Land Use Map, Exhibit A to this Master Declaration.
Although it is contemplated that the particular sites designated in Exhibit A will
be developed and will be continued to be used and operated in a manner consistent with the
uses depicted on Exhibit A, there is no assurance and the Declarant and each Participating
Builder expressly disclaims any obligation to any Owner to so continue, operate and maintain
the sites in accordance with the uses designated upon Exhibit A.
In connection with the operation of the Coyote Canyon Landfill Site, the retail
and commercial center, the San Joaquin Reservoir Site, the fire station and the proposed
School Site and other uses of property adjacent to the Covered Property, the Owner is
advised that the use and enjoyment of his or her Residence and the Master Common Area
may be impacted by alt or some of the following:
(a) ingress and egress by patrons and employees by pedestrian and
vehicular means to and from the retail and commercial site and the providing of
services thereto;
(b) closure operations by the County of Orange and/or a commercial
operator of the Coyote Canyon Landfill Site, including but not limited to the extraction
and burning off of landfill gas, the operation of a power generation plant and the
conducting upon the Master Common Area of the Landfill Monitoring Program;
42
(c) use of portions of EI Capitan Park (excepting therefrom the Debris Basin)
by the School Site pursuant to the terms of the Joint Use Agreement-School Site;
(d) the use and enjoyment of Newport Ridge Park, Crestridge Park, Harbor
Watch Park and Canyon Watch Park which are initially proposed for use as park facilities for
the Members, but which will be conveyed to the Master Association subject to an offer of
dedication to the public described in the Park Dedication Agreement or the Dedication
Agreement and which, in the event of the acceptance of this offer of dedication in the future,
may result in one or more of the parks being converted to public use and used for any uses
permitted in the Park Dedication Agreement or the Dedication Agreement;
(e) the establishment, operation, use and maintenance of the Detention
Basin within the Covered Property for the purpose, in part, of receiving and temporarily
detaining drainage runoff from the Covered Property as well adjacent real property;
(f) the construction and operation of a school facility on the School Site (Lot
30) and a fire station on the fire station site (Lot 17) of Tract No. 14509. The locations of the
SchoolSite and fire station site are depicted on Exhibit A (Land Use Map) attached hereto;
(g) noise associated with traffic on Newport Coast Drive, San Joaquin Hilts
Road, the San Joaquin Hilts Transportation Corridor (to which San Joaquin Hilts Road may
connect at some future date) and other public streets, as well as any increase in noise and
traffic attributable to the construction and use of proposed extensions to local collector roads
both within and in the vicinity of the Newport Ridge Project. These road extensions include
the connection of EI Capitan Drive to San Joaquin Hilts Road, the connection of Terrace
Ridge Road to EI Capitan Drive and the connection of Lot M of Tract No. 14509 to a proposed
collector road in the proximity of Bonita Canyon Road which would run to the City of Irvine.
(h) the possible construction, operation and maintenance of helipad facilities
on real property in the vicinity of the Covered Property and the operation of helicopters
through helicopter corridors in the vicinity of the Covered Property; and
(i) the operation and maintenance by MWD of the San Joaquin Reservoir
Site. Portions of Newport Ridge have a view of or are in close proximity to an operational
water storage facility known as San Joaquin Reservoir Site. The San Joaquin Reservoir Site
is owned and managed by the MWD in trust for MWD, four local water districts and two cities
(collectively, the "Local Agencies"). The Local Agencies use San
43
Joaquin Reservoir Site for regulatory and emergency storage for their domestic water
systems, which serve thousands of customers in Orange County.
Because of the use of the San Joaquin Reservoir Site for emergency
and regulatory storage purposes, its level is subject to constant change and can also
be drawn down significantly at times. In addition, MWD and the Local Agencies have
determined that there is a need to improve the protection of water quality and remedy
current operational problems affecting the use of the San Joaquin Reservoir Site as a
domestic supply. MWD proposes to address these problems by making improvements
to the San Joaquin Reservoir Site, and it is likely that one such improvement wilt be
the installation of an opaque floating cover over the surface of the reservoir within the
San Joaquin Reservoir Site. When the cover is installed, it will completely obstruct any
view of the water contained within the reservoir.
Because of the direct use of the San Joaquin Reservoir Site as a
domestic water supply, there is no public access upon the San Joaquin Reservoir Site,
and no fishing, boating, swimming, hunting or other recreational use of the San
Joaquin Reservoir Site is permitted.
Maintenance and construction within the San Joaquin Reservoir Site
may periodically cause noise, glare or other disturbances to the surrounding area.
G) underground and overhead electric transmission and distribution
lines which are located within Newport Ridge. These tines are owned, operated and
maintained by Southern California Edison Company. Numerous scientific and
epidemiotogical studies have been conducted as to whether there are any adverse
health effects from magnetic and electric fields generated by electric power lines. The
California State Department of Education has established site selection standards for
locating new schools near power lines with voltages of 100 KV or greater. However,
the State of California has not established any setback or other limitations on
construction of residential housing in the vicinity of electric power lines. The California
Department of Health Services, in cooperation with the California Public Utilities
Commission, continues to perform research on this subject. Further information on this
subject is available from the Special Epidemiological Studies Program, California
Department of Health Services, 2151 Berkeley Way, Room 704, Berkeley, California
92704, (510) 540-2669.
Section 6.19· Use of Reclaimed Water for Irrigation Purposes and Use of
Water Softeners. in its efforts to conserve water, the irvine Ranch Water District ("IRWD")
has for years required the use of reclaimed water (treated wastewater)
44
to irrigate parks, school yards, golf courses, green belt areas and common areas. The water
used to irrigate all of the Master Common Areas and Maintenance Association common areas
in Newport Ridge will be reclaimed water, and the water used in the underground yard
irrigation system for a Residence may also be reclaimed water. The water used in a
Residence and outside in exterior hose bibs will be domestic potable water. The use of
reclaimed water will conserve the domestic potable water supply and may result in a savings
in the cost of water service.
Reclaimed water is not potable and therefore not suitable for human
consumption. Based upon a number of independent studies, the California Department of
Health Services has determined that inadvertent consumption of reclaimed water by domestic
pets and other animals will not cause harm and, further, that the use of reclaimed water has
not resulted in any significant adverse health consequences. As with any water spray, the
repeated spray of reclaimed water may stain or discolor personal property, fencing and
structural improvements over time.
According to IRWD, IRWD's reclaimed water is disinfected with chlorine and its
clarity to the human eye is indistinguishable from domestic water. The standards imposed
upon IRWD for reclaimed water quality are established by various governmental regulatory
agencies, and the standards may change from time to time.
Any questions concerning the use of reclaimed water within the Newport Ridge
Project in general should be addressed to Customer Service at
IRWD ((714) 476-75001.
Owners are advised that they are subject to the Rules and Regulations of the
Irvine Ranch Water District, one of which prohibits the use of self-generating water softeners
connected to the sewer facilities of the District. Further information regarding District
Regulations is available from the District at its Headquarters Office at 15600 Sand Canyon
Avenue, Irvine, California 92718, Telephone (714) 453-5300.
ARTICLE VII
REPAIR AND MAINTENANCE
Section 7.01 • By Master Association. Except to the extent that an Owner or
a Maintenance Association may be obligated to maintain and repair as hereinafter provided or
as described in a Supplementary Declaration, and without limiting the generality of the
statement of duties and powers contained in the Master Association Management
Documents, the Master Association acting through its Board and its officers shall have the
duty to accomplish the following
45
upon the Covered Property or other land in such manner and at such times as the Board shall
prescribe:
(a) manage, operate, control, maintain, repair, restore, replace and
make necessary improvements to the Master Common Area (excepting therefrom the
Debris Basin for so long as such maintenance is provided by The Metropolitan Water
District pursuant to the tenms of the Debris Basin Maintenance Easement Agreement),
including, without limitation, the following:
(i) private walkways, streets, bicycle paths, trails or
other pedestrian paths. Private streets shall be vacuum-swept on not less than
an annual basis and must be vacuum-swept at least once in the fall prior to
October 1 5;
(ii) drainage facilities and easements in accordance with
the requirements of the County Flood Control District. Maintenance shall
include the cleaning out of catch basins in the fall of each calendar year prior to
October 15;
(iii) Newport Ridge Park, Crestridge Park, Canyon
Watch Park and Harbor Watch Park which are depicted on Exhibit A (Vicinity
Map) attached hereto. The maintenance of any of the above-referenced parks
by the Master Association shall commence upon the conveyance thereof to the
Master Association of fee title thereto or an easement for the maintenance
thereof. notwithstanding that these parks will, at that time, be subject to an offer
of dedication as described in the Park Dedication Agreement or in the
Dedication Agreement. Maintenance of one or more of these parks by the
Master Association may tenminate if, in the future, the Local Government
accepts the offer to dedicate a particular park to the public. In the event of the
acceptance of the offer of dedication, the Master Association shall be relieved
from its responsibility to maintain the Private/Public Park, the Owners shall be
relieved from payment of such maintenance costs as a part of their Regular
Assessment and the Private/Public Park shall be opened to and available for
use by the public;
(iv) the Streetscapes and Community Slopes, as
described on Exhibit C to this Master Declaration or on any similar Exhibit to a
Supplementary Declaration;
(v) to the extent not performed by Local Government,
the maintenance, repair, restoration and replacement of the private
underground storm drain tine, together with appurtenant Improvements,
located, in part, within the public street more
46
commonly known as "Terrace Ridge" and, in part, within EI Capitan Park, all of which
Improvements are depicted on Exhibit D attached hereto or on a similar Exhibit to a
Supplementary Declaration;
(vi) the Community Entry Monuments upon the transfer to the
Master Association of an easement for maintenance purposes for a particular
Community Entry Monument or of fee title to property upon which a particular
Community Entry Monument is located;
(vii) EI Capitan Park which is depicted on Exhibit C to this
Master Declaration or on any similar Exhibit to a Supplementary Declaration. EI
Capitan Park shall be transferred to the Master Association subject to an offer of
dedication of a right of way in favor of the City of Newport Beach for the purpose of
constructing an extension of a local collector road and an existing unimproved
easement in favor of the City of Newport Beach for a road extension. In the event that
this offer of dedication is accepted or the City elects to improve the existing road
extension easement, then one or both of the collector road(s) will be extended through
portion(s) of EI Capitan Park and: (1) the Members shall no longer have the right to the
use of the affected portion(s) of EI Capitan Park as a community park, (2) the Master
Association shall be relieved from the duty to maintain, repair, replace and restore the
portion(s) of EI Capitan Park which consist of the hardscape paving and sidewalks and
any utility lines within the right(s) of way of the local collector road extensions and (3)
the Master Association shall continue to have the duty to maintain, repair. replace and
restore any landscaping and appurtenant irrigation systems within the right(s) of way
within the local collector roads located within EI Capitan Park.
(viii) any other Master Common Area and the Common Facilities
thereon, including, without limitation, trees. shrubs, landscaping. irrigation systems and
drainage devices, lighting and other electrical systems, hardscape. wails, fences and
entry monumentation. as described on Exhibit C to this Master Declaration or any
similar Exhibit to a Supplementary Declaration;
(b) maintain. repair, replace and restore the "Drainage System" (as such
improvements are described in the Drainage Encumbrance Agreement). which is depicted
upon Exhibit D attached hereto or attached to a Supplementary Declaration, upon the transfer
by the Declarant to the Master Association of the easements described in the Drainage
Easement Agreement;
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(c) maintain, repair, replace and restore the warning signs located
throughout the Master Association Common Area which are initially installed by the
Declarant or a Participating Builder in compliance with the Water Quality Control Plan,
which relate to the discharge and disposal of Hazardous Materials and which are
located at the point at which drainage runoff enters those certain storm drain
Improvements located within the Covered Property;
(d) maintain alt other areas, facilities, equipment, services or
aesthetic components of whatsoever nature as may from time to time be requested by
the vote or written consent of a majority of the total voting power of the Master
Association.
The maintenance performed by the Master Association shall at all times be
performed in compliance with any applicable Master Architectural and Landscape Standards,
the Drainage Encumbrance Agreement (which provides, in part, for the indemnification of the
MWD in the event of the discharge of certain Hazardous Materials from the Covered Property
into the San Joaquin Reservoir Site) and the Water Quality Control Plan. The Water Quality
Control Plan provides, in part, that:
(i) irrigation runoff from Master Common Areas shall be
limited by setting irrigation controllers to provide several short cycles instead of
a tong one for pertinent Master Common Areas,;
(ii) any irrigation system design or maintenance
deficiencies which cause excessive runoff of irrigation water shall be
immediately corrected;
(iii) the application of an chemicals to the Master
Common Areas less than three (3) days prior to the predicted chance of rain
shall be prohibited;
(iv) the application of fertilizer to landscaped areas
shall be followed with light irrigation so as to permit the fertilizer to be absorbed;
(v) an annual testing of turf soil within a particular
Master Common Area shall be performed until test results stabilize so as to
accurately determine the need for fertilization and to reduce the excessive use
of fertilizer; and
(vi) weed control methods shall be limited to the
use of either mechanical means or EPA-labeled herbicides.
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Any decision made by the Master Association concerning maintenance,
including but not limited to a decision to prune any trees, may be taken by the Master
Association acting through the Board in its discretion without consultation with or approval by
any Member.
The costs of any such maintenance and repair pursuant to this Section shall be
a Common Expense except as otherwise specified in this Master Declaration.
Section 7.02 • By Owner. Each Owner shall maintain alt Improvements upon
his or her Residence in good condition and repair and in compliance with any applicable
Master Architectural and Landscape Standards, and the Water Quality Control Plan. All
slopes and terraces on any Residence shall be maintained so as to prevent any erosion
thereof upon adjacent streets or adjoining property. The Water Quality Control Plan provides,
in part, that:
(a) irrigation runoff from the Owner's Residence shall be limited by
setting irrigation controllers to provide several short cycles instead of a long one for the
landscaped areas within the Residence;
(b) the Owner shall immediately correct any irrigation system design
or maintenance deficiencies within the Residence which cause excessive runoff of
irrigation water;
(c) the Owner shall not apply any chemicals to the landscaped areas
within the Residence less than three (3) days prior to the predicted chance of rain;
(d) the Owner shall follow the application of fertilizer to landscaped
areas with light irrigation so as to permit the fertilizer to be absorbed;
(e) the Owner shall perform an annual testing of turf soil within
landscaped areas within the Residence until test results stabilize so as to accurately
determine the need for fertilization and to reduce the excessive use of fertilizer; and
(f) the Owner shall limit weed control methods within the Residence
to the use of either mechanical means or EPA·labeled herbicides.
Owners shall be relieved of their obligations under this Section to the extent
that such obligations are the responsibility of the Master Association or a Maintenance
Association.
In the event the Board shall determine that any portion of the Covered Property
required to be maintained by the Master Association has been damaged or destroyed by any
negligent or malicious act or omission of any Owner, his or
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her guests, tenants, servants, agents or invitees, such Owner shall be responsible for the cost
of repairing such damage in accordance with the Article entitled "Discipline of Members" of
the Bylaws. Any increase in insurance payable by the Master Association as the result of
damage by any negligent or malicious act or omission of a particular Owner, or any of such
Owner's guests, employees, licensees, agents or invitees, shall also be paid by such Owner.
The Board shall have the power to levy a Penalty Assessment against such Owner for the
cost of repair or for an amount equal to any such increase in premium.
Section 7.03 • Noncompliance by Owner. In the event that an Owner fails to
accomplish any installation, maintenance or repair required by this Article, the Board shall
give notice to the Owner describing the deficiency and setting a date for a hearing concerning
the matter before the Board or a committee selected by the Board for such purpose. The
procedure for such notice and hearing and for the correction of the violation is described in
the Article entitled "Discipline of Members" of the Bylaws.
Section 7.04· Maintenance of Public Utilities. Nothing contained herein shall
require or obligate the Master Association to maintain, replace or restore the underground
facilities or public utilities which are located within easements in the Master Common Area
owned by such public utilities.
Section 7.05· Transfer of Master Common Area.
(a) The Master Common Area within the First Phase shall be
conveyed to the Master Association prior to or concurrently with the conveyance of a
Residence located within the First Phase. Master Common Area within a subsequent
Phase shall be conveyed to the Master Association prior to or concurrently with the
conveyance of the Residence within such Phase. In addition, certain Master Common
Areas shall be conveyed to the Master Association upon the commencement of
Assessments against the first of a prescribed total number of Residences, as
described in the initial Budgets prepared by the Declarant and approved by the DRE
as revised from time to time, or as otherwise permitted by the DRE. Declarant or the
Participating Builder shall convey the Master Common Area to the Master Association
free of alt liens and encumbrances except current real property taxes and any special
taxes and assessments (which taxes and assessments shall be prorated as of the
date of conveyance), title exceptions of record or apparent and the covenants,
conditions, reservations and restrictions contained in this Master Declaration and the
instrument which conveys the Master Common Area to the Master Association.
Subject to the terms of any maintenance agreement between the Master Association
and Declarant which has been approved by DRE, the Master Association shall be
deemed to have accepted the obligation to maintain the Improvements upon the
Master Common Area and any other Improvements required to be maintained by the
Master Association within any Phase when (i) such improvements have been
completed in substantial
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conformance with the plans and specifications therefor and (ii) Regular Assessments
have commenced upon the Residences within such Phase. The issuance of a
certificate by the architect who designed any such Improvements stating that such
Improvements are in substantial conformance with such plans and specifications shall
be satisfactory evidence of such completion. The Master Association shall release
Declarant or the Participating Builder from the Bond defined in the Article entitled
"Enforcement of Bonded Obligations" of this Master Declaration as to any
Improvements accepted for maintenance as provided above.
(b) Declarant, the Participating Builder and the subcontractors and
the agents and employees thereof shall have the right to come on the Master Common
Area to complete the construction of any landscaping or other Improvement to be
installed on the Master Common Area. Notwithstanding any other provision of this
Master Declaration, in the event that Declarant's subcontractors are contractually
obligated to maintain landscaping and/or other Improvements on the Master Common
Area, such maintenance shall not be assumed by the Association until the termination
of such contractual obligation. If any excess of Assessments collected over actual
Common Expenses incurred by the Master Association is caused by reason of
construction or maintenance pursuant to this Section, such excess shall be placed in
reserve to offset the future expenses of the Master Association in any manner
designated by the Board, or the Board, in its discretion, may elect to abate the
collection of or reduce Regular Assessments pursuant to Section 4.03 hereof. The
party causing such damage or performing such construction, be it either the Declarant
or the Participating Builder, shall repair any damage to and complete any restoration of
the Covered Property caused or necessitated by such construction within a reasonable
time after the occurrence of such damage or need for reconstruction.
Declarant's and the Participating Builder's rights to come on the Master
Common Area under this Section shall terminate upon: (i) the sate by Declarant and each
Participating Builder of all Residences within the Development, or (ii) the later of: (A) the fifth
(5th) anniversary of the conveyance of the first Residence in the first Phase of the
Development to a member of the home buying public requiring the delivery of Final
Subdivision Public Report, or (B) the third (3rd) anniversary of the conveyance of the first
Residence in the most recent Phase of the Development, other than the First Phase to a
member of the home buying public requiring the delivery of Final Subdivision PubliC Report,
whichever of (i) or (ii) shall occur first; provided, however, that in no event shall the rights of
Declarant or any Participating Builder hereunder terminate prior to the exoneration of any
Bond in favor of the Master Association described in the Article entitled "Enforcement of
Bonded Obligations" of this Master Declaration.
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Section 7.06 • Relationship with Maintenance Association. For purposes of
this Master Declaration, a Maintenance Association shall be deemed responsible for the
maintenance of an area if the Maintenance Declaration of such Maintenance Association
recorded by Declarant or a Participating Builder designates such area to be maintained by
such Maintenance Association. The Maintenance Association wilt perform such work in
compliance with the Master Architectural and Landscape Standards. The Master Association
shall be responsible for such maintenance and other obligations, if any, imposed in the
Maintenance Declaration, or any amendments thereto, recorded by Declarant or a
Participating Builder provided that such area to be maintained is described in a
Supplementary Declaration and the Master Association consents in writing, and in such event
no Maintenance Association shall be responsible therefor. The members of the Maintenance
Association shall not amend any such Maintenance Declaration to terminate or modify the
maintenance responsibilities of such Maintenance Association without the prior written
approval of the Board. In the event that a Maintenance Association does not execute its
maintenance responsibilities in compliance with the Master Architectural and Landscape
Standards, the Master Association may perform such maintenance itself and levy a Special
Assessment therefor on the Members who are owners of property under the Maintenance
Declaration of such Maintenance Association.
ARTICLE VIII
INSURANCE
Section 8.01 • Obligation to Insure. The Master Association shall obtain and
maintain in effect insurance and fidelity bond coverage in the amounts and with
endorsements deemed adequate by the Board which shall be not less than the coverage's
hereinafter required in this Section. In addition, the Master Association shall obtain such
additional endorsements and coverage's meeting the requirements established by any of the
Federal Agencies for planned unit development projects when any such Federal Agency first
becomes and as long as it continues to be either a Mortgagee, Owner, insurer or guarantor of
a Mortgage within the Covered Property except to the extent such coverage or endorsements
are not available or have been waived in writing by the applicable Federal Agencies.
(a) Public Liability Insurance. The comprehensive public liability
insurance policy shall insure the Master Association against any liability incident to the
ownership and/or use if the Master Common Area, the "Drainage System"(as such
term is defined in the Drainage Encumbrance Agreement) and any other areas under
the supervision of the Master Association and the use of owned, non-owned or hired
vehicles. The limits of such insurance shall not be less than One Million Dollars
($1,000,000) for claims arising out of a single occurrence for bodily injury, deaths of
persons, personal injury, and property damage. Coverage under this policy shall
52
include without limitation liability of the insured's for property damage, bodily injury, deaths of
persons and personal injury in connection with the operation, maintenance and use of the
Master Common Area, the above described "Drainage System" (as defined in the Drainage
Encumbrance Agreement) and any other areas under the supervision of the Master
Association and legal liability arising out of lawsuits related to employment contracts of the
Master Association. If such policy does not include "severability of interest" in its terms, a
specific endorsement will be required precluding the insurer from denying the claim of an
Owner because of negligent acts of the Master Association or other Owners and such other
coverage in kinds and amounts required by private institutional mortgage investors for
projects similar in construction, location and use.
(b) Property Insurance. The policy of property insurance shall cover alt of the
insurable Improvements upon the Master Common Area, including fixtures and building
service equipment that are part of the Master Common Area, the "Drainage System" (as such
term is defined in the Drainage Encumbrance Agreement) and all other areas under the
supervision of the Master Association as well as common personal property and supplies
belonging to the Master Association.
The policy shall be in an amount equal to one hundred percent (100%) of the
current replacement cost, without deduction for depreciation or coinsurance, of all of the
property covered by the policy. Such insurance must, at a minimum, afford protection against
loss or damage by fire and other perils normally covered by the standard extended coverage
endorsement and such other perils which are customarily covered and required by private
institutional mortgage investors with respect to similar planned developments in the area of
the Covered Property, including all perils normally covered by the standard "all risk"
endorsement. The policy shall name as insured the Master Association, for the use and
benefit of the Owners.
(c) Fidelity Bonds. The blanket fidelity bond shall cover losses resulting from
dishonest or fraudulent acts on the part of anyone who handles or is responsible for funds
held or administered by the Master Association, including directors, officers, trustees,
employees or volunteers of the Master Association. The fidelity bond should cover the
maximum funds that will be in the custody of the Master Association or its management agent
at any time while the bond is in force. In addition, the fidelity bond shall be written in an
amount equal to the aggregate of three (3) months' Regular Assessments on all Residences,
including reserves. Where the Master Association delegates some or all of the responsibility
for the handling of funds to a management agent, fidelity bonds are required for its officers,
employees and agents handling or responsible for funds of, or
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administrating on behalf of, the Master Association. A management agent who
handles funds for the Master Association should also be covered by its own fidelity
bond which must provide the same coverage required by the Master Association and
must submit evidence of such coverage to the Master Association. The fidelity bonds
shall name the Master Association as obligee and shall contain waivers of any defense
based on the exclusion of persons who serve without compensation from any
definition of "employee" or similar expression.
(d) Flood Insurance. If the Master Common Area or any other areas
under the supervision of the Master Association, or any portion thereof is located
within an area having special flood hazards and for which flood insurance has been
made available under the National Flood Insurance Program ("NFIP"), the Master
Association shall obtain a policy of flood insurance providing the coverage customarily
required by private institutional mortgage investors with respect to similar planned
developments in the area of the Covered Property.
(e) Worker's Compensation Insurance. The Board shall purchase
and maintain in force worker's compensation insurance, to the extent that the same
shall be required by law, for all employees of the Master Association.
(f) Mortgage Clause. All insurance policies must contain the
"standard mortgage clause" or equivalent endorsement providing that coverage of a
Mortgagee under the insurance policy will not be adversely affected or diminished by
an act or neglect of the Mortgagor, which is commonly accepted by private institutional
mortgage investors in the area in which the Covered Property is located, unless such
coverage is prohibited by applicable law. Notwithstanding the above, a mortgage
clause in favor of Mortgagees holding Mortgages on Residences is not required on a
policy insuring the Master Common Area.
Section 8.02 • Notice of Cancellation or Modification. All insurance policies
and fidelity bonds maintained by the Master Association must provide that such policies or
bonds may not be canceled, reduced or substantially modified without at least ten (10) days
prior written notice to the Master Association, and, in the case of fidelity bonds, to each
mortgage servicing contractor acting on behalf of any of the Federal Agencies.
Section 8.03 • Waiver by Owners. All insurance obtained by the Master
Association shall be maintained by the Master Association for the benefit of the
Master Association, the Owners and the Mortgagees as their interests may appear.
As to each of said policies which wilt not be voided or impaired thereby, the
Owners hereby waive and release ali claims against the Master Association, the
Board, other Owners, the Declarant and agents and employees of each of the
54
foregoing, with respect to any toss covered by such insurance, whether or not caused by
negligence or breach of any agreement by said persons, but such waiver and release of
claims shall be only to the extent of insurance proceeds received in compensation for such
loss.
Section 8.04· Annual Insurance Review. The Board shall at least annually
determine whether the amounts and types of insurance it has obtained provide adequate
coverage in tight of increased construction costs, inflation, practice in the area in which the
Covered Property is located, or any other factor which tends to indicate that either additional
insurance policies or increased coverage under existing policies are necessary or desirable to
protect the interest of the Owners and of the Master Association. If the Board determines that
increased coverage or additional insurance is appropriate, it shall obtain such increased
coverage or additional insurance.
ARTICLE IX
DESTRUCTION OF IMPROVEMENTS
Section 9.01 •• Definitions. The following terms used in this Article are defined
to mean as follows:
(a) "Insured Improvements" shall mean the Improvements on the
Covered Property insured under the fire and casualty insurance policy maintained by
the Master Association.
(b) "Affected Common Facility" shall mean a partially or totally
destroyed insured tmprovement.
(c) "Acceptable Range of Reconstruction Cost" shall mean that the
amount of the insurance proceeds paid for partially or totally destroyed Insured
Improvements together with the amount of any deductible amount designated in the
fire and casualty insurance policy maintained by the Master Association totals at least
sixty percent (60%) of the estimated cost to repair, replace or reconstruct such partially
or totally destroyed Insured Improvements.
(d) "Substantial Destruction" shall mean a destruction of Insured
Improvements representing at least seventy-five percent (75%) of the current
replacement cost value of all insured Improvements upon the Covered Property.
Section 9.02 • Board Action. In the event any Insured Improvements are
damaged, the Board shall take the following action:
(a) Acceptable Range of Reconstruction Cost. The Board shall
ascertain the cost of repair, replacement or reconstruction by obtaining
55
fixed price bids from at least two (2) reputable contractors, which bids shall include the
obligation of the contractor to obtain a performance bond, if the Board deems that
such bids are necessary or appropriate. The Board shall further have full authority to
negotiate with representatives of the insurer and to make settlement with the insurer
for less than full insurance coverage on the damage. Any settlement made by the
Board in good faith shall be binding upon alt Owners. After the settlement has been
approved by the Board, any two (2) directors of the Master Association may sign a
loss claim form and release form in connection with the settlement of a loss claim.
(b) Notice of Reconstruction Assessment. The Board shall promptly
cause notice to be delivered to alt Owners if, during the process of determining the
Acceptable Range of Reconstruction Cost, it appears likely that the repair,
replacement or reconstruction of a partially or totally destroyed Insured Improvement
will result in the levying of Reconstruction Assessments. Such notice shall specify the
estimated amount of any such Reconstruction Assessment.
(c) Vote of Members. The Board shall call a special meeting or shall
distribute written ballots to the Owners for action to be taken without a meeting to
determine whether or not to proceed with the repair, replacement or reconstruction of
partially or totally destroyed Insured Improvements upon the happening of anyone of
the following events:
(i) a Substantial Destruction;
(ii) a determination that the requirements of the
Acceptable Range of Reconstruction Cost have not been met;
(iii) receipt of a written request of Owners
representing at least five percent (5%) of the total voting power of the Owners
requesting such action; or
(iv) failure or inability to make a determination as to
the Acceptable Range of Reconstruction Cost within one hundred twenty (120)
days of the date of destruction.
Section 9.03 • Reconstruction. The repair, replacement or reconstruction shall
commence as soon as practicable following anyone of the following events:
(a) a determination that the requirements of the Acceptable Range of
Reconstruction Cost have been met, except that if Reconstruction Assessments must
be levied, such work shall not commence until ten (10) days have elapsed following
the delivery of the notice of the Reconstruction
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Assessment to all Owners required to pay Reconstruction Assessments. The notice of
estimated Reconstruction Assessment required to be delivered to each such Owner as
hereinabove provided in this Article shall satisfy this condition if the actual amount of
the Reconstruction Assessment does not exceed the estimated amount set forth in the
said notice;
(b) approval of such action by not less than thirty-three percent
(33%) of the total voting power of the Members; and
(c) failure to receive an objection to proceeding with the repair.
replacement or reconstruction by the required percentage of Eligible Mortgage Holders
and Owners required under the Article entitled "Mortgagee Protection" of this Master
Declaration within one hundred twenty (120) days of the date of the destruction.
Section9.04 -Proceeds of Insurance. All insurance proceeds shall be paid to
the Master Association to be used for the benefit of Owners. mortgagees and others as their
respective interests shall appear. If any portion of the insurance proceeds was paid to a
mortgagee. an amount equal to the amount paid to such mortgagee shall be paid to the
Board by the Owners whose Mortgagees received insurance proceeds. If any Owner fails to
pay such amount within thirty (30) days of a written demand therefor by the Master
Association. the Board may levy a Special Assessment against such Owner and his or her
Residence for such amount.
Section 9.05 • Reconstruction Assessments. If necessary. the Board shall
levy a Reconstruction Assessment against the Owners at such time and in such amount
determined necessary to cover the costs of repair. replacement or reconstruction in excess of
insurance proceeds.
Section 9.06 • Compliance with Plans. Any reconstruction undertaken
pursuant to this Article shall substantially conform to the original plans and specifications.
unless other action is approved by a majority of the total voting power of the Master
Association.
Section 9.07 -Determination of Allocable Proceeds. The amount of
insurance proceeds "allocated" or "allocable" to an Affected Common Facility shall be
determined pursuant to this Section as follows:
(a) In the event the insurance carrier allocates insurance proceeds
among Affected Common Facilities and such allocation is approved by the Board.
such allocation shall be final and binding upon the Owners and mortgagees.
(b) In the event the insurance carrier fails to allocate the insurance
proceeds. such allocation shall be determined by multiplying the
57
amount of insurance proceeds available for distribution by a fraction, the denominator
of which is the total decrease of MAL appraised fair market value of all of the Affected
Common Facilities and the numerator of which is the decrease of MAL appraised fair
market value of each such Affected Common Facility. The appraised values shall be
determined by an MAL appraiser selected by the Board. Such allocation shall be final
and binding on the Owners, the mortgagees and the Master Association.
Section 9.08 • Distribution of Insurance Proceeds. In the event there has
been a decision not to repair, replace or reconstruct one or more partially or totally destroyed
Insured Improvements, the Board shall retain the insurance proceeds allocated to each such
Affected Common Facility in the general funds of the Master Association subject to the prior
rights of alt mortgagees holding mortgages encumbering the particular Affected Common
Facility for which such insurance proceeds have been allocated.
Allocable proceeds paid to mortgagees shall be paid in the order of their
recorded priority on such Affected Common Facility.
Section 9.09 • Payment of Mortgagees. Any insurance proceeds paid to a
mortgagee pursuant to this Article shall be paid in the amount required by such mortgagee,
but such payment shall not exceed the lesser of (i) the outstanding indebtedness secured by
said mortgage, or (ii) the insurance proceeds allocated to such Affected Common Facility as
hereinabove provided in this Article.
Section 9.10· Requirements of Federal Agencies. In addition to the
foregoing, the Board must also comply with the requirements of the Article entitled
"Mortgagee Protection" of this Master Declaration as to notice which must be provided to
Requesting Mortgagees, Insurers and Guarantors. Notwithstanding the foregoing Sections of
this Article, any partially or totally destroyed Improvements wilt be replaced or restored
substantially to their condition prior to the destruction unless there has also been compliance
with the requirements of the said Article entitled "Mortgagee Protection". The vote or consent
of Eligible Mortgage Holders required under said Article may be solicited concurrently or
subsequent to the vote of the Owners required under this Article.
ARTICLE X
EMINENT DOMAIN
Section 10.01 • Definition of Taking. The term "taking" as used in this Article
shall mean condemnation by eminent domain, or by sale under threat thereof, of all or part of
the Master Common Area.
Section 10.02 • Representation by Board. In the event of a taking, the
Owners hereby appoint the Board and such persons as the Board may delegate to
58
represent all of the Owners in connection with the taking. The Board shall act in its sole
discretion with respect to any awards being made in connection with the taking and shall be
entitled to make a voluntary sate to the condemnor in lieu of engaging in a condemnation
action.
Section 10.03 • Award. Any awards received on account of the taking of
Master Common Area shall be paid to the Master Association and shall be retained in the
general funds of the Master Association subject to the prior rights of any mortgagee holding
an encumbrance upon any Master Common Area for which such award has been paid.
Section 10.04 • Inverse Condemnation. The Board is authorized to bring an
action in inverse condemnation. In such event, the provisions of this Article shall apply with
equal force.
Section 10.05· Requirements of Federal Agencies. In addition to the
requirements of this Article, the Board and the Owners must comply with the requirements of
the Article entitled "Mortgagee Protection" of this Master Declaration in the event of any
taking.
ARTICLE XI
ANNEXATIONS
Real property may be annexed to and become subject to this Master
Declaration by any of the methods set forth hereinafter in this Article, as follows:
Section 11.01· Plan of Development. Declarant intends to sequentially
develop the Annexation Property on a phased basis. However, Declarant may elect not to
develop alt or any part of such real property, to annex such real property to this Master
Declaration in increments of any size whatsoever, or to develop more than one such
increment at any given time and in any given order. Moreover, Declarant and each
Participating Builder reserve the right to subject all or any portion of the Annexation Property
to the plan of this Master Declaration or one or more separate declarations of covenants,
conditions and restrictions which subjects said property to the jurisdiction and powers of a
homeowner association or other entity with powers and obligations similar to the Master
Association and which is not subject to the provisions of this Master Declaration. Although
Declarant and each Participating Builder shall have the ability to annex the Annexation
Property as provided in this Article, Declarant and each Participating Builder shall not be
obligated to annex all or any portion of such property, and such property shall not become
subject to this Master Declaration unless and until a Supplementary Declaration shall have
been so executed and recorded.
Section 11.02 • Annexation Without Approval. AI! or any part of the
Annexation Property may be annexed to and become subject to this Master
59
Declaration and subject to the jurisdiction of the Master Association without the approval,
assent or vote of the Master Association or its Members, provided that
(a) the recordation of the Supplementary Declaration annexing a new
Phase is effected prior to: (i) the third (3rd) anniversary of the conveyance of the first
Residence within the immediately preceding Phase, other than the First Phase, to a
member of the home buying public requiring the delivery of a Final Subdivision Public
Report, or (ii) the fifth (5th) anniversary of the conveyance of the first Residence within
the First Phase to a member of the home buying public requiring the delivery of a Final
Subdivision Public Report, whichever of either (i) or (ii) shall occur later; and
(b) the DRE has agreed to issue a Final Subdivision Public Report
which shall be deemed to be evidence that Declarant or a Participating Builder has
fumished proof satisfactory to the DRE that: (i) no proposed annexation wilt result in
overburdening the common interests of the then existing Owners and (ii) no proposed
annexation will cause a substantial increase in Assessments against existing Owners
which was not disclosed in the Final Subdivision Public Reports under which pre-
existing Owners purchased their interests.
Section 11.03 • Annexation Pursuant to Approval. Upon approval in writing
of (i) the Declarant (for so tong as Declarant or a Participating Builder owns any portion of the
Covered Property) and (ii) the Master Association, pursuant to the vote or written assent of
sixty-seven percent (67%) of (a) the total voting power of the Master Association, and (b) the
total voting power of Members other than the Declarant and each Participating Builder, any
person who desires to add real property other than the Annexation Property to the plan of this
Master Declaration and to subject such property to the jurisdiction of the Master Association,
may file or record a Supplementary Declaration. The provisions of this Section shall also
apply to the Annexation Property subsequent to the expiration of the power of Declarant and
a Participating Builder to annex such property without the approval of the Members as
provided in this Article. The certificate of any officer or officers authorized by resolution of the
Board, or the president and secretary of the Master Association attached to any
Supplementary Declaration recorded pursuant to this Section certifying that the required total
voting power of the Master Association has approved the recordation of such Supplementary
Declaration shall be deemed conclusive proof thereof.
Section 11.04 • Effectuation of Annexation. Upon the satisfaction of alt of the
conditions contained in either the Section entitled "Annexation Without Approval" or
"Annexation Pursuant to Approval" of this Article, the recordation of a Supplementary
Declaration in the Official Records shall constitute and effectuate the annexation of the
Annexed Property described therein, making said Annexed Property subject to this Master
Declaration and subject to the functions, powers
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and jurisdiction of the Master Association, and thereafter said Annexed Property shall be part
of the Covered Property and alt of the Owners of Residences in said Annexed Property shall
automatically be Members. The Supplementary Declaration shall incorporate by reference all
of the covenants, conditions, restrictions, easements and other provisions of this Master
Declaration, and may contain such complementary additions or modifications of the
covenants. conditions and restrictions in this Master Declaration as may be necessary to
reflect the different character, if any, of the Annexed Property as are not inconsistent with the
plan of the Master Declaration. In no event, however, shall any such Supplementary
Declaration revoke, modify or add to the covenants established by this Master Declaration or
by any prior Supplementary Declaration with respect to property covered by this Master
Declaration at the time of the recording of the said Supplementary Declaration.
Section 11.05 • Mergers or Consolidations. Upon a merger or consolidation
of the Master Association with another association, which merger or consolidation must be
approved by the vote or written assent of (i) the Declarant (so tong as Declarant or any
Participating Builder owns any portion of the Covered Property) and, (ii) sixty-seven percent
(67%) of (a) each class of Membership, or (b) upon the termination of Class B and Class C
membership. the total voting power of the Master Association as well as the vote or written
assent of the same percentage of the total voting power of Members other than the Declarant
and each Participating Builder, the Master Association's properties, rights and obligations
may, by operation of law, be transferred to a surviving or consolidated association, or,
altematively, the properties, rights and obligations of another association may, by operation of
law, be added to the properties, rights and obligations of the Master Association as a
surviving corporation pursuant to a merger. The surviving or consolidated association may
administer the covenants, conditions and restrictions established by this Master Declaration
within the Covered Property, together with the covenants, conditions and restrictions
established upon any other property as one plan.
Section 11.06 • Dissolution and Transfer of Master Common Area to
Government Entity or District. Provided that no "taking" (as such term is defined in Article X
of this Master Declaration) has occurred with respect to alt or a particular portion of the
Master Common Area, the Master Association may, for the purpose of transferring the
maintenance responsibility for all or the particular portion of such Master Common Area,
transfer all or the portion of such Master Common Area and assign its duties to maintain such
Master Common Area to a govemment entity or district. Any such transfer and assignment, in
order to be effective, shall require the assent of: (i) Declarant (so tong as Declarant or any
Participating Builder owns any portion of the Covered Property), (ii) sixty-seven percent (67%)
of the total voting power of the Master Association, (iii) sixty-seven percent (67%) of the total
voting power of Members other than the Declarant and each Participating Builder, and (iv) in
the event that such transfer and assignment shall
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involve the transfer and assignment of alt of the Master Common Area together with
substantially all of the assets of the Master Association (thereby allowing the dissolution of
the Master Association), one hundred percent (100%) of the total voting power of the Master
Association. Notwithstanding the above, nothing contained within this section shall be
construed as prohibiting the Board from transferring title to all or any portion of EI Capitan
Park to the Local Government in accordance with the terms of any applicable offer of
dedication or similar agreement or from transferring title to Newport Ridge Park, Crestridge
Park, Canyon Watch Park or Harbor Watch Park, to the Local Government pursuant to the
terms of the Park Dedication Agreement without the approval of the Members.
Section 11.07 -Deannexation. Declarant may delete alt or a portion of a Phase
from coverage of this Master Dedaration and the jurisdiction of the Association (or may
amend the applicable Supplementary Dedaration insofar as it affects such Phase), so long as
Dedarant is the Owner of alt of such Phase, and provided that (i) a Notice of Deletion of
Territory is recorded in the same manner as the applicable Supplementary Dedaration was
recorded, (ii) no Association vote has been exercised with respect to any portion of the
Phase, (iii) Assessments have not yet commenced with respect to any portion of such Phase,
(iv) there has been no close of escrow for the sate of any Residence in such Phase, and (v)
the Association has not made any expenditures or incurred any obligations with respect to
any portion of such Phase. In the event that an offer of dedication which impacts any Master
Common Area or any portion thereof is accepted, the Dedarant may file a Notice of Deletion
of Territory covering the affected Master Common Area to delete the affected Master
Common Area from the Master Dedaration, if required by the terms of the offer of dedication
or if required by the Local Government. A Participating Builder may delete all or any portion of
a Phase from coverage of this Master Declaration and the jurisdiction of the Association (or
amend the applicable Supplementary Declaration insofar as it affects such Phase), so tong as
the PartiCipating Builder (and Dedarant, if applicable) are the Owners of all of such Phase of
Development and provided further, that (a) all requirements of items (i) through (v) set forth
above in this paragraph have been satisfied, and (b) Declarant has consented in writing to
such deletion or amendment by executing the Notice of Deletion of Territory or amendment to
Supplementary Declaration for such Phase.
ARTICLE XII
MORTGAGEE PROTECTION
Section 12.01 • Priority of Mortgage Lien. No breach of the covenants,
conditions or restrictions, nor the enforcement of any lien provisions contained in this Master
Dedaration, shall affect, impair. defeat or render invalid the lien or charge of any First
Mortgage made in good faith and for value encumbering any Residence, but all of said
covenants, conditions and restrictions shall be binding
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upon and effective against any Owner whose title is derived through foreclosure or trustee's
sale, or otherwise, with respect to a Residence.
Section 12.02 • Curing Defaults. A Mortgagee, or the immediate transferee of
such Mortgagee, who acquires title by judicial foreclosure, deed in lieu of foreclosure or
trustee's sate shall not be obligated to cure any breach of the provisions of this Master
Declaration which is noncurable or of a type which is not practical or feasible to cure. The
determination of the Board made in good faith as to whether a breach is noncurable or not
feasible to cure shall be final and binding on alt Mortgagees.
Section 12.03· Resale. It is intended that any loan to facilitate resale of any
Residence after judicial foreclosure, deed in lieu of foreclosure or trustee's sale is a loan
made in good faith and for value and entitled to all of the rights and protections afforded to
other Mortgagees.
Section 12.04 • Material Changes. Written approval of sixty-seven percent
(67%) of the Eligible Mortgage Holders and sixty-seven percent (67%) of the total voting
power of the Master Association is required to amend a material provision of the Master
Association Management Documents shown under subsection (a) of this Section, or to take
such other material actions and decisions shown under subsection (b) of this Section.
(a) Material Amendment of Master Association Management
Documents. A material provision in any of the Master Association Management
Documents shall be defined as a provision governing the following subjects:
(i) Voting rights;
(ii) Assessments, assessment liens, or subordination of
such liens;
(iii) Reserves for maintenance, repair and
replacement of the Master Common Area;
(iv) Responsibility for maintenance and repair of the
Covered Property;
(v) Right to use of the Master Common Area;
(vi) Boundaries of any Residence;
(vii) Convertibility of Residences into Master
Common Area or of Master Common Area into Residences;
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(viii) Expansion or contraction of the Covered Property or the
addition, annexation or withdrawal of property to or from the Covered Property;
(ix) Insurance or fidelity bonds;
(x) Leasing of Residences;
(xi) The imposition of any right of first refusal or
similar restriction on the right of an Owner to sell, transfer, or otherwise convey such
Owner's Residence; and
(xii) Any provision, which by its terms, is for the
express benefit of Mortgagees or insurers or guarantors.
(b) Material Actions and Decisions. A material action or decision by the Master
Association shall be defined as any of the following:
(i) Effectuate any decision to assume self-management of the
Covered Property when professional management had been previously required by an
Eligible Mortgage Holder;
(ii) Restore or repair the Covered Property (after a hazard
damage or partial condemnation) in a manner other than that specified in the Master
Association Management Documents;
(iii) Terminate the legal status of the Development for any reason,
including without limitation, the substantial destruction or condemnation of the Covered
Property;
(iv) 8y any act or omission, abandon, partition, sell, alienate,
subdivide, release, transfer, hypothecate or otherwise encumber the Master Common
Area; provided, however: (A) the granting of easements for public utilities or other
public purposes consistent with the intended use of the Master Common Area, (8) the
transfer of any Master Common Area, or any portion thereof, to Local Government
pursuant to the terms of the Dedication Agreement, the Park Dedication Agreement or
any other offer of dedication or similar agreement, (C) the transfer of Master Common
Area to Local Government or other governmental or quasi-governmental entity for the
purpose of ownership and/or maintenance purposes consistent with the intended
purposes and uses of such Master Common Area as described in Master Association
Management Documents and in the grant deed transferring such Master Common
Area to the Master Association, and (D) the granting to an Owner or Owners or to a
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Maintenance Association of exclusive easements over portions of the Master
Common Area or fee interests in portions of the Master Common Area pursuant
to a recorded lot tine adjustment approved by the Local Government. so tong
as each such grant to an Owner or Maintenance Association is reasonably
required for purposes of conformity with the as-built location of Improvements
installed by Declarant. a Participating Builder. an Owner or Maintenance
Association, or for the purposes set forth in Sections 2.07 or 3.01 of this Master
Declaration. shall not require such approval;
(v) Change the method of determining the obligations.
Assessments. dues or other charges which may be levied against an Owner;
(vi) Use hazard insurance proceeds for tosses to
any Master Common Area, for other than repair. replacement or reconstruction;
(vii) Fail to maintain fire and extended coverage
insurance on the Master Common Area and the improvements thereto in an
amount less than one hundred percent (100%) of the insurable value based on
current replacement cost;
(viii) Waive or abandon any scheme of regulations, or
enforcement thereof, pertaining to the architectural design or the exterior
appearance of Residences, the exterior maintenance of Residences. the
maintenance of the Master Common Area including, without limitation, the party
waits or common fences and driveways, or the upkeep of lawns and plantings.
An amendment or addition shall not be considered material under this Section if
it is for the purpose of correcting technical errors, or for clarification only. An Eligible Mortgage
Holder who receives a written request by certified or registered mail with a return receipt
requested to approve any addition or amendment described in subparagraph (a) above or to
approve any action or decision described in subparagraph (b) above who does not deliver to
the requesting party a negative response within thirty (30) days shall be deemed to have
approved such request.
Section 12.05 • Notice. A Requesting Mortgagee. Insurer or Guarantor shall be
entitled to timely written notice of:
(a) Destruction or Taking. Destruction, taking or threatened taking of
any Master Common Area and any Improvements thereto or any portion thereof
affecting the Mortgage held, insured or guaranteed by such Requesting Mortgagee.
Insurer or Guarantor. As used in this Master
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Declaration, "damaged" or "taking" shall mean damage to or taking of the Master
Common Area exceeding Ten Thousand Dollars ($10,000). If requested in writing by
such Requesting Mortgagee, Insurer or Guarantor, the Master Association shall
evidence its obligations under this subsection in a written agreement in favor of such
Requesting Mortgagee, Insurer or Guarantor;
(b) Default in Performance. Default in the performance of the
obligations imposed by this Master Declaration by the Owner whose Residence is
encumbered by a Mortgage held, insured or guaranteed by such Requesting
Mortgagee, Insurer or Guarantor which default remains uncured for a period of sixty
(60) days;
(c) Lapse. Cancellation or Modification of Insurance. Any lapse,
cancellation or material modification of any insurance policy or fidelity bond maintained
by the Master Association; and
(d) Action Requiring Consent. Any proposed action which under the
Master Declaration or the Bylaws requires the consent of a specified percentage of the
Eligible Mortgage Holders.
Section 12.06· Mortgagees Furnishing Information. Mortgagees are hereby
authorized to furnish information to the Board concerning the status of any Mortgage.
Section 12.07 • Conflicts. In the event of any conflict between any of the
provisions of this Article and any of the other provisions of the Master Association
Management Documents, the provisions of this Article shall control.
Section 12.08 • Priority of Mortgagee. Nothing in the Master Association
Management Documents shall give an Owner, or any other party, priority over the rights of a
First Mortgagee in the case of a distribution to such Owner of insurance proceeds or
condemnation awards for tosses to or a taking of any Master Common Area.
Section 12.09 • Payment of Taxes or Premiums. Mortgagees may, jointly or
singly, pay taxes or other charges which are in default and which mayor have become a
charge against the Master Common Area unless such taxes or charges are separately
assessed against the Owners, in which case the rights of Mortgagees shall be governed by
the provisions of their Mortgages. Mortgagees may, jointly or singly, also pay overdue
premiums on hazard insurance policies, or secure new hazard insurance coverage on the
lapse of a policy, for the Master Common Area. Mortgagees making payments pursuant to
this Section shall be owed immediate reimbursement therefor from the Master Association.
Entitlement to such reimbursement shall be reflected in an agreement in favor of any
Mortgagee which requests the same to be executed by the Master Association.
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ARTICLE XIII
ENFORCEMENT OF BONDED OBLIGATIONS
In the event that the Improvements to the Master Common Area have not been
completed prior to the issuance of a Final Subdivision Public Report covering the Covered
Property, and the Master Association is the obligee under a bond or other arrangement (the
"Bond") to secure performance of the commitment of Declarant or a Participating Builder to
complete such Improvements, the following provisions shall apply:
(a) The Board shall consider and vote on the question of action by
the Master Association to enforce the obligations under the Bond with respect to any
Improvements for which a Notice of Completion has not been filed within sixty (60)
days after the completion date specified for such Improvements in the planned
construction statement appended to the Bond. If the Master Association has given an
extension in writing for the completion of any Master Common Area Improvement, the
Board shall consider and vote on the aforesaid question if a Notice of Completion has
not been filed within thirty (30) days after the expiration of such extension.
(b) In the event that the Board determines not to initiate action to
enforce the obligations under the Bond, or in the event the Board fails to consider and
vote on such question as provided above, Members representing not less than five
percent (5%) of the total voting power of the Master Association may present a signed
petition to the Board or to the president or secretary of the Master Association
demanding a meeting for the purpose of voting to override such decision or such
failure to act by the Board. Such meeting shall be called according to the provisions of
the Bylaws dealing with meetings of the Members. but in any event such meeting shall
be held not less than thirty-five (35) days nor more than forty-five (45) days after
receipt by the Board of a petition for such meeting.
(c) The only Members entitled to vote at such meeting of Members
shall be the Members other than Declarant. A vote at such meeting of a majority of the
total voting power of such Members other than Declarant or a Participating Builder to
take action to enforce the obligations under the Bond shall be deemed to be the
decision of the Master Association. and the Board shall thereafter implement this
decision by initiating and pursuing appropriate action in the name of the Master
Association.
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ARTICLE XIV
APARTMENT LOT OWNERSHIP
Section 14.01 • Detention of Vote. An Apartment Lot Owner, in its sole
discretion, may from time to time delegate its vote to the tenants within any of its Apartment
Buildings provided that such Apartment Lot Owner shall notify the Master Association in
writing of such delegation, and provided further that the total number of votes allocated to the
tenants does not exceed the total number of votes allocated to such Apartment BUilding.
Section 14.02 • Detention of Use. The Apartment Lot Owner may delegate its
right of enjoyment in and to the Master Common Area to tenants of its Apartment Units and
such tenants may further delegate such rights of enjoyment to the members of their families
and guests (subject to such rules and regulations pertaining to guests as are applied to other
Members).
Section 14.03 • Subdivision and/or Conversion to Condominium. An
Apartment Lot Owner shall have the right to subdivide an Apartment Lot into two or more Lots
and/or to convert its Apartment Lot or Lots into a condominium project pursuant to Section
1350 seq. of the California Civil Code or any successor statute thereof. Effective upon the
recording of a tract or parcel map effecting a subdivision of an Apartment Lot and
presentation of such recorded tract or parcel map to the Board, each Lot shown on such tract
or parcel map shall be an Apartment Lot. Effective upon the conveyance of the first
Condominium within any such condominium project. and presentation of evidence of such
recording to the Board, each Condominium in such condominium project shall be a
Residence as defined in this Master Declaration. Upon either of the foregoing events, the
Owner or Owners of any such Apartment Lot or Residence shall have the voting rights and
the obligation to pay Assessments allocated in the manner prescribed for the calculation of
voting rights and Assessments in this Master Declaration, except that the Board, in its sole
discretion, may determine that the Assessments shall remain fixed for the remainder of the
fiscal year in which the subdivision and/or the conversion to condominiums occurred, with
each Owner of such Apartment Lot or Residence, as applicable, paying a pro rata portion of
the Assessments allocated to the property affected by such subdivision or conversion.
ARTICLE XV
GENERAL PROVISIONS
Section 15.01 -Enforcement. The Master Association, the Declarant (as tong
as Declarant is an Owner or has any right to annex any Annexation Property without the
approval of the Members), a PartiCipating Builder (as tong as the Participating Builder is an
Owner or has the right to annex any Annexation Property without the approval of the
Members) or any Owner shall have a right of action against any Owner, and any Owner shall,
subject to the application of any
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notice and hearing requirements in the Bylaws. have a right of action against the Master
Association to enforce by proceedings at law or in equity. alt restrictions. conditions.
covenants and reservations. now or hereafter imposed by the provisions of the Master
Association Management Documents or any amendment thereto. including the right to
prevent the violation of such restrictions. conditions. covenants. or reservations and the right
to recover damages or other sums due for such violation. except that Owners shall not have
any right of enforcement with respect to Assessment liens. With respect to Master
Association Rules or Master Architectural and Landscape Standards. the Master Association
shall have the exclusive right to the enforcement thereof. unless the Master Association
refuses or is unable to effectuate such enforcement. in which case any Owner shall have the
right to undertake such enforcement.
Section 15.02· No Waiver. Failure by the Master Association. the Declarant. a
Participating Builder. a Delegate or by any Owner to enforce any covenant. condition.
restriction or reservation contained in any of the Master Association Management Documents
in any certain instance or on any particular occasion shall not be deemed a waiver of such
right on any such future breach of the same or any other covenant. condition. restriction or
reservation.
Section 15.03 • Cumulative Remedies. All rights, options and remedies of
Declarant, the Participating Builders. the Master Association. the Delegates. the Owners
and/or the Mortgagees under the Master Association Management Documents are
cumulative, and no one of them shall be exclusive of any other. Declarant, the Participating
Builders, the Delegates. the Master Association, the Owners and the Mortgagees shall have
the right to pursue anyone or all of such rights, options and remedies or any other remedy or
relief which may be provided by law, whether or not stated in the Master Association
Management Documents.
Section 15.04 • Severability. Invalidation of anyone or a portion of the
covenants, conditions. restrictions or reservations of this Master Declaration by judgment or
court order shall in ns way affect any other provision. Any provision not invalidated by
judgment or court order shall remain in full force and effect.
Section 15.05· Term. The covenants. conditions and restrictions of this Master
Declaration shall run with and bind the Covered Property and shall inure to the benefit of and
be enforceable by the Master Association. the Declarant (as tong as the Declarant is an
Owner or has any right to annex Annexation Property without the approval of the Members), a
Participating Builder (as tong as the Participating Builder is an Owner or has any right to
annex Annexation Property without the approval ofthe Members), or any Owner. their
respective legal representatives, heirs. successors and assigns. for a term of sixty (60) years
from the date this Master Declaration is recorded, after which time said covenants, conditions
and restrictions shall be automatically extended for successive periods of ten (10) years,
unless an instrument, signed by not less than sixty-seven percent (67%) of the then Owners
and not less than sixty-seven percent (67%) of
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the Eligible Mortgage Holders has been recorded at least one (1) year prior to the end of any
such period, agreeing to terminate said covenants, conditions and restrictions.
Section 15.06 • Construction. The provisions of this Master Declaration shall
be liberally construed to effectuate its purpose of creating a plan for the development of a
residential community or tract and for the maintenance of the Covered Property. The Article
and Section headings have been inserted for convenience only, and shall not be considered
or referred to in resolving questions of interpretation or construction.
Section 15.07 • Number and Gender. Whenever the context of this Master
Declaration requires the same, the singular shall include the plural and the masculine shall
include the feminine and the neuter.
Section 15.08· Nuisance. The result of every act or omission where any
provision, condition, restriction, covenant, easement, or reservation contained in this Master
Declaration is violated in whole or in part, is hereby declared to be and constitutes a
nuisance, and every remedy allowed by law or equity against a private nuisance, shall be
applicable against every such result, and may be exercised by the Declarant, a Participating
Builder, the Master Association or any Owner. Such remedy shall be deemed cumulative and
not exclusive.
Section 15.09· Attorneys' Fees.
(a) Adversarial Actions. Should any party institute any action or
proceeding (i) to enforce or interpret the Master Association Management Documents,
(ii) for damages by reason of any alleged breach of this Master Declaration or of any
provision thereof, or (iii) for a declaration of rights under the Master Association
Management Documents, the prevailing party in any such action or proceeding shall
be entitled to receive from the other party or parties thereto alt attorneys' and other
fees incurred by the prevailing party in connection with such action or proceeding.
(b) Definitions. The term "attomeys' and other fees" shall mean and
include actual attomeys' fees (whether by retainer, salary or otherwise), accountants'
fees, expert witnesses' fees, and any and alt other similar fees, costs and expenses
incurred in connection with the action or proceeding and preparations therefor (which
actual fees may be in excess of what a court would determine to be reasonable, had
such issue been presented to the court). The term "action or proceeding" shall mean
and include actions, proceeds, suits, arbitrations, appeals and other similar
proceedings and other nonjudicial dispute resolution mechanisms.
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Section 15.10 • Notices. Any notice to be given to a Delegate, an Owner, the
Master Association, an Eligible Mortgage Holder or a Requesting Mortgagee, Insurer or
Guarantor under the provisions of this Master Declaration shall be in writing and may be
delivered as follows:
(a) Notice to a Delegate or an Owner shall be deemed to have been
properly delivered when personally delivered or when delivered by the United States
mail. If delivery is made by United States mail, it shall be deemed to have been
delivered three (3) business days after a copy of same has been deposited in the
United States mail, first class, postage prepaid and directed to the most recent
address furnished by such Owner or Delegate in writing to the Master Association for
the purpose of giving notice. If no such address shall have been furnished, notice to a
Delegate elected by Declarant and each Participating Builder may be sent to the
Declarant, and notice to any Owner or other Delegate may be sent to the street
address of the Residence owned by such Owner or Delegate. In the case of co-
Owners any such notice may be delivered or sent to anyone of the co-Owners on
behalf of all co-Owners and shall be deemed delivery on all such co-Owners.
(b) Notice to the Master Association shall be deemed to have been
properly delivered when placed in the first class United States mail, postage prepaid, if
addressed to the address furnished by the Master Association or the address of its
principal place of business.
(c) Notice to an Eligible Mortgage Holder or Requesting Mortgagee,
Insurer or Guarantor shall be deemed to have been properly delivered when placed in
the first class Uniteq States mail, postage prepaid, if addressed to the address
furnished to the Master Association by such Eligible Mortgage Holder or Requesting
Mortgagee, Insurer or Guarantor for the purposes of notice.
The affidavit of an officer or authorized agent of the Master Association
declaring under penalty of perjury that a notice has been mailed to any Delegate, Owner or
Owners, to any Mortgagee or Mortgagees, to any insurer or guarantor or to alt Owners or all
Mortgagees, or all insurers or alt guarantors to the address or addresses shown on the
records of the Master Association, shall be deemed conclusive proof of such mailing, whether
or not such notices are actually received.
Section 15.11 -Conflicts Between Documents. The terms and provisions set
forth in this Master Declaration are not exclusive. Owners shall also be subject to the terms
and provisions of the other Master Association Management Documents. In the event of a
conflict between any provisions of any of the Master Association Management Documents
with the provisions of another Master Association Management Document, the Master
Association Rules, or the Master
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Architectural and Landscape Standards, the provisions of the Controlling Document named
below in the first column shall be deemed to supersede the provisions of the Subordinate
Document or Documents named below in the second column to the extent of any such
conflict:
CONTROLLING DOCUMENTS SUBORDINATE DOCUMENTS
(a) Master Declaration
(b) Articles
(c) Bylaws
(d) Master Association Rules
Articles, Bylaws, Master Association
Rules, Master Architectural and
Landscape Standards
Bylaws, Master Association Rules, Master
Architectural and Landscape Standards
Master Association Rules, Master
Architectural and Landscape Standards
Master Architectural and Landscape
Standards
Section 15.12 • Conflicts Between Master Association Management
Documents and Maintenance Association Documents. In the event of a conflict between
any provisions of any of the Master Association Management Documents, the Master
Association Rules, or the Master Architectural and Landscape Standards and any provisions
of the Articles of Incorporation, Bylaws, Maintenance Declaration, architectural standards and
any rules and regulations of a Maintenance Association, the Master Association Management
Documents, the Master Association Rules, or the Master Architectural and Landscape
Standards shall be deemed to supersede such other documents of a Maintenance
Association to the extent of such conflict.
Section 15.13 • Effect of Master Declaration. This Master Declaration is
made for the purposes set forth in the Recitals to this Master Declaration, Declarant makes
no warranties representations, express or implied, as to the binding effect or enforceability of
all or any portion of this Master Declaration, or as to the compliance of any of these
provisions with public laws, ordinances and regulations applicable thereto.
Section 15.14· Personal Covenant. To the extent the acceptance or
conveyance of a Residence creates a personal covenant between the Owner of such
Residence and Declarant, a Participating Builder, or other Owners, such personal covenant
shall terminate and be of no further force or effect from or after the date upon which a person
or entity ceases to be an Owner, except to the extent this Master Declaration may provide
otherwise with respect to the payment of money to the Master Association.
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Section 15.15 • Nonliability of Officials. To the fullest extent permitted by law,
neither the Board, any committees of the Master Association or any member of such Board or
committee shall be liable to any Owner or the Master Association for any damage, loss or
prejudice suffered or claimed on account of any decision, approval or disapproval of plans or
specifications (whether or not defective), course of action, act, omission, error, negligence or
the like made in good faith within which such Board, committees or persons reasonably
believed to be the scope of their duties.
Section 15.16· Construction by Declarant or a Participating Builder.
Nothing in this Master Declaration shall limit the right of Declarant or a Participating Builder to
alter the Master Common Area or the Residences still owned by Declarant or the Participating
Builder, or to construct such additional Improvements as Declarant or a Participating Builder
deems advisable prior to completion of Improvements upon and sale of the entire
Development. Such right shall include, but shall not be limited to, erecting, constructing and
maintaining on the Covered Property such structures and displays as may be reasonably
necessary for the conduct of the business of completing the work and disposing of the same
by sate, lease or otherwise. Declarant or the Participating Builder shall repair any damage to
and complete any restoration of the Covered Property caused or necessitated by such
activities of Declarant or the Participating Builder, respectively, within a reasonable time after
the occurrence of such damage or need for restoration. This Master Declaration shall not limit
the right of Declarant or a Participating. Builder at any time prior to acquisition of title by a
purchase from Declarant or a Participating Builder to establish on the Covered Property
additional licenses, reservations and/or easements to itself, to utility companies, or to others
as may from time to time be reasonably necessary to the proper development and disposal of
the Development. Declarant and each Participating Builder reserves the right to alter its
construction plans and designs as it deems appropriate. Declarant and each Participating
Builder shall exercise its rights contained in this provision in such a way as to not
unreasonably interfere with the Owners' rights to use and enjoy the Covered Property.
The rights of the Declarant and each Participating Builder under this Section
shall terminate upon: (i) the sale by Declarant and each Participating Builder of all
Residences within the Development, or (ii) the later of: (A) the fifth (5th) anniversary of the
conveyance of the first Residence in the First Phase of the Development to a member of the
home buying public requiring the delivery of a Final Subdivision Public Report, or (B) the third
(3rd) anniversary of the conveyance of the first Residence in the most recent Phase of the
Development, other than the First Phase, to a member of the home buying public requiring
the delivery of a Final Subdivision Public Report, whichever of either (i) or (ii) shall occur first;
provided, however, that in no event shall the rights of the Declarant and each Participating
Builder hereunder terminate prior to the exoneration of any
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Bond in favor of the Master Association described in the Article entitled "Enforcement of
Bonded Obligations" of this Master Declaration.
Section 15.17 -Special Rights of Declarant and Participating Builders.
As long as the easements described in the subparagraph entitled "Construction
and Sales" of the Section entitled "Reservations to Declarant and Participating Builders" of
the Article entitled "Easements and Rights" of the Master Declaration remain in effect. (I)
Declarant and each Participating Builder shall not be subject to any provisions of the Master
Association Management Documents pertaining to use restrictions and (ii) any amendment to
any of the Master Association Management Documents shall require the prior written
approval of the Declarant.
Section 15.18 -Inapplicability to Government Property. The provisions of
this Master Declaration shall not be applicable to any portion of the Covered Property owned
by a governmental entity, authority or agency and held for a public purpose, but shall apply to
any Residence owned by such governmental entity. authority or agency.
Section 15.19 -Arbitration. Any controversy. dispute. or claim whatsoever
arising out of, in connection with, or in relation to the interpretation, performance or breach of
any of the provisions of the Master Association Management Documents, the Master
Association Rules or the Master Architectural and Landscape Standards, including. without
limitation. the validity, scope and enforceability of this general reference provision, shall be
settled. at the request of alt parties thereto. by general reference conducted in the County by
a judge pro tem appointed pursuant to the provisions of California Code of Civil Procedure
Section 638(1) seq .• as they may be amended from time to time, who shall be a retired judge
of the Superior Court of the State of Califomia. The referee shall follow all of the statutes and
rules applicable in a proceeding before the Superior Court of the State of California for the
County of Orange. including. without limitation, the statutes and rules pertaining to discovery.
If the parties cannot agree upon a referee, one shall be appointed by the Presiding Judge of
the Orange County Superior Court from among the court's list of retired judges of the
Superior Court.
ARTICLE XVI
AMENDMENT PROVISIONS
Section 16.01 -Vote of Association. Subject to the other provisions of this
Master Declaration, including, without limitation. the rights of Mortgagees, this Master
Declaration may be amended as follows:
(a) As long as all ofthe Initial Covered Property under the Master
Declaration is owned by Declarant and a Participating Builder and there are no Class
A or Class C Members under the Master Declaration. the
74
Master Declaration may be canceled or amended by the Declarant and the
Participating Builder with respect to such Initial Covered Property by a writing
executed by the Declarant and the Participating Builder. As long as Declarant or a
Participating Builder who is not an Apartment Lot Owner continues to own all of the
Annexed Property covered by a Supplementary Declaration. the Supplementary
Declaration may be canceled or amended as to all or any portion of such Annexed
Property by a writing executed by Declarant and such Participating Builder. Until such
time as an Apartment Lot Owner has rented or teased an Apartment Unit within an
Apartment Lot which comprises a portion of the Annexation Property covered by a
Supplementary Declaration. such Supplementary Declaration may be canceled or
amended as to all or any portion of such Annexed Property by a writing executed by
Declarant and such Apartment Lot Owner. All such cancellations or amendments must
be recorded in the Official Records. Thereafter. any amendments shall require the vote
or written assent of: (i) not less than sixty-seven percent (67%) of the total voting
power of each class of Members. (ii) not less than sixty-seven percent (67%) of the
total voting power of the Members other than Declarant as set forth in the Section
entitled "Voting Rights for Special Actions" of the Article entitled "The Master
Association" of this Master Declaration. and (iii) shall require compliance with the
provisions of the Master Declaration contained in the Article entitled "Mortgagee
Protection" and the Section entitled "Special Rights of Declarant and Participating
Builders" of the Article entitled "General Provisions."
(b) An amendment or modification that requires the vote and written
assent of the Members as hereinabove provided shall be effective when (i) executed
by any officer or officers authorized by resolution of the Board or by the president and
secretary. who shall certify that the amendment or modification has been approved as
hereinabove provided. and (ii) recorded in the Official Records. The notarized
signatures of the Members shall not be required to effectuate an amendment of this
Master Declaration.
(c) Notwithstanding the foregoing. any provision of the Master
Association Management Documents which expressly requires the approval of a
specified percentage of the total voting power of the Master Association for action to
be taken under said provision can be amended only with the affirmative vote or written
assent of not less than the same percentage of the total voting power of the Master
Association.
Section 16.02 • Petition to Amend. The Master Association or any Owner may
petition the superior court of the County for an order reducing the percentage of affirmative
votes necessary to amend the Master Declaration
75
pursuant to Section 1356 of the California Civil Code, or any successor statute thereof.
IN WITNESS WHEREOF, Declarant has executed this instrument the day and
year first herein above written.
"Declarant"
THE IRVINE COMPANY,
a Michigan corporation
By: /s/ Michael C. Ellis
Its: Senior Vice President
By: /s/ James R. Cavanaugh
Its: Assistant Secretary
76
69 72049
EXHIBIT "A"
Drawing Showing Location of Common Area
Maintenance Easement in Phase "2"
jsh133/20500/000/0420/addition.2
049/049 03-28-89
B9-i r '19
property already subject to the Declaration, as Phase 2 of
the Properties. This Notice of Addition constitutes a Notice
of Addition of Territory, as described in Section 16.4 of the
Declaration.
2. Membership in Corporation. Each Owner of one
or more Lots in the Added Territory shall automatically be-
come a member of Fieldstone Collection Laguna Niguel As-
sociation ("Association"), a California nonprofit mutual
benefit corporation, as provided in section 3.3 of the
Declaration.
3. Assessment Obligations. The rights and obli-
gations of all Owners of Lots located in the Added Territory
with respect to payment of assessments are set forth in Arti-
cle VI of the Declaration. The Annual Assessments to be paid
to the Association shall commence as to all Lots in the Added
Territory on the first day of the first calendar month fol-
lowing the first Close of Escrow for the sale of a Lot in the
Added Territory, as provided in section 6.7 of the Declara-
tion.
4. Annexation of COmmon Area. Declarant is the
Owner of certain easement property which is described on
Exhibit "A" attached hereto (the "Common Area"). Declarant
hereby declares that the Common Area herein described is
hereby annexed to the Common Area described in Article I,
section 1.16 of the Declaration. The Common Area shall be
conveyed to the Association prior to the first Close of
Escrow for the sale of a Lot in the Added Territory to a
purchaser from Declarant, pursuant to a Final Subdivision
Public Report issued by the California Department of Real
Estate ("DRE").
5. Maintenance Obligations. The maintenance
obligations of the Association, the owners, and Declarant are
described in the Declaration. The Association shall assume
its maintenance obligations with respect to the Added Terri-
tory upon the commencement of Annual Assessments in the Added
Territory.
6. conformity with pevelopment Plan. This Notice
of Addition is in conformity with the development plan cur-
rently on file with the DRE, and is being Recorded prior to
the seventh (7th) anniversary of the Recordation of the Dec-
laration. This Notice of Addition is being Recorded prior to
the third (3rd) anniversary of the original issuance of the
most recently issued Final Subdivision Public Report from the
DRE for a Phase of Development of the Properties, as de-
scribed in Sections 16.1 and 16.2 of the Declaration.
-2-
jsh133/20500/000/0420/addition.2
049/049 03-28-89
7. Miscellaneous. The provisions of this Notice
of Addition shall run with all of the Added Territory, the
Properties, and the Common Area, shall be binding upon all
persons having or acquiring any interest in the Added Terri-
tory, the Properties, the Common Area, or any part thereof,
shall inure to the benefit of and burden every portion of the
Added Territory, the Properties, the Common Area, and any
interest therein, and shall inure to the benefit of, be bind-
ing upon, and may be enforced by any Owner, Declarant, each
successor in interest of Declarant, the Association, and
their successive owners and assigns. Except as otherwise
provided herein, the terms in this Notice of Addition shall
have the same meanings as are given such terms by the Decla-
ration. Except as otherwise expressly provided herein, all
of the provisions of the Declaration are hereby incorporated
by reference as if fully set forth herein.
This Notice of -m u:.z.d.. ,;,.1 , 1989,
tsRecordation.
STATE OF CALIFORNIA
COUNTY OF ORANGE
Addition has been executed on
to be effective as of the date of
)
) ss.
)
THE FIELDSTO
Californi c
COMPANY, a
ration
By: ---~~F9--==>==~----------
Its: Vice President
By:
Its: secretary
On ':tn~ .;:).'1, 1989, before me, the undersigned,
a Notary Pub11C ~d for said State, personally appeared
b. g. ke." .. lo,X , personally known to me or
proved to me on the basis of satisfactory evidence to be the
persons who executed the withi~ ~nstrument as VIC~ PC'~I~~ot
president and tjtOIl)f r0bc.c., lllcretary or on behalf of THE
FIELDSTONE COMPANY, e corporation therein named, and ac-
knowledged to me that the corporation executed it.
WITNESS my hand and official seal.
~ OFFICIAL SEAl .-. MARIE OUCA
• .. Notary Pubhc-caJlfo,"",
• ORANGE COUNTY
;"",:r My Comm E>'Q. OCt. 22. 1991
Notary Public in and for said State
-3-
jsh133/20500/000/0420/addition.2
049/049 03-28-89
EXHIBIT C
Master Common Area in Initial Covered Property
Streetscape:
Lots Band C of Tract No. 14571 per map filed in Book 697, Pages 28 to 39, inclusive,
Miscellaneous Maps, Records of Orange County, California.
Lots C, D and E of Tract No. 14588 per map filed in Book 697, Pages 19 to 27,
inclusive, Miscellaneous Maps, Records of Orange County.
Lot 0 of Tract No.14711 per map filed in Book 696, Pages 11 to 14, inclusive,
Miscellaneous Maps, Records of Orange County, California.
Community Entry Monuments:
Lot 16 of Tract No. 14711 per map filed in Book 696, Pages 11 to 14, inclusive,
Miscellaneous Maps, Records of Orange County, California.
Lot 15 otTract No. 14588 per map filed in Book 697, Pages 19 to 27, inclusive,
Miscellaneous Maps, Records of Orange County, California.'
In addition to areas described above which are located within private property, certain
improvements within portions of the San Joaquin Hilts Road Streetscape which are to be
maintained by Master Association are located within the public right-of-way. These
improvements consist of landscaping and appurtenant irrigation improvements located within
parkways located between curbs and sidewalks and within medians. The San Joaquin Hills
Road Streetscape improvements located within private property and within the public right-of-
way are collectively depicted on Exhibit C (Page 3 of 3) to this Master Declaration.
Page 1 of 3
EXHIBIT 0
Private Storm Drain Improvements
None in Initial Covered Property
EXHIBIT E
Community Entry Monuments
Lot 16 of Tract No. 14711 per map filed in Book 696, Pages 11 to 14, inclusive,
Miscellaneous Maps, Records of Orange County, California.
Lot 15 ofTract No. 14588 per map filed in Book 697, Pages 19 to 27, inclusive,
Miscellaneous Maps, Records of Orange County, California.
The locations of the Community Entry Monuments are depicted on Exhibit C
(Page 3 of 3) to this Master Declaration and consist of those areas located on each
comer at the intersection of Newport Ridge Drive West and San Joaquin Hills
Road.