1075 Hacienda Ave. (89-196)
TO:
City Clerk
..-..
PUBLIC W8iKS FILE NO.
Please collect & receipt
for the following monies:
S /"- /7:k-
I
35-3396
ACCT. ITEM AMOUNT RECEIPT NO.
$
3372
3521
3521
3521
3372
Project Revenues (specify project)
Public Works Excavation Permit Fees:
Application Fee
Plan Check Deposit
Faithful Performance (Cash) Deposit
R-1:
($ 35)
Other.
($ 50)
($500)
(100% of)
(ENGR. EST)
(4% of FPB)
($500 min.)
(7% of FPB)
($ 35 min.)
Other Cash Deposit (specify)
($200)
Plan Check & Inspection Fee
3373
3373
3373
3373
3373
3380
3373
3373
3520
Project Plans & Specifications ($10)
General Conditions, Standard Provisions &
Details ($10 or $1/page)
"No Parking" signs ($1/ea. or $25/100)
Work Area Traffic Control Handbook ($5)
Traffic Flow Map ($10)
Traffic Data Services ($40/hr. + material costs)
Map Revisions to Map Companies ($10)
Copies of Engineering Maps & Plans ($.50/sq. ft.)
Fire Hydrant Maintenance ($195/ea.)
3372
~2
3372
3372
3372
3372
3372
3372
3370
3395
Tentative Parcel map Filing Fee ($350)
Final Parcel Map Filing Fee ($300)
Tentative Tract Map Filing Fee ($400)
Final Tract Map Filing Fee ($350)
Lot Line Adjustment Fee/Certificate of Compliance ($350)
Vacation of Public Streets and Easements ($500)
Assessment Segregation or Reapportionment
First Split ($500)
Each Additional Lot ($150)
Environmental Assessment:
Categorical Exemption ($500 plus actual cost
Negative Declaration above $500)
Storm Drainage Area Fee per Acre (R-1, $1,875; Multi-Res.,
$2,060; all other, $2,250)
Park Dedication In-lieu Fee per Unit ($1,132)
3380
3510
Public Works Special Projects
Postage
TOTAL
-~/~c",-( z,t~ l/ 5?
$ - ~CC- ('C'
PERMITTEE À 11-/ ý,¿ //1"-' ¡j ,....)¿c /¿ LJ¿ /c/.J / /~C-.
¡/I/ (' It IV IJ /-) ). - PHONE -ç"7/ - 91.J {!L
NAME OF APPLICANT' / - ¿ /1 (' é ---.J -
ADDRESS / c»)S/ (S /é) ,/ /~ ¡'('//¿ .S-/¿ /(' :,~)[t ~ (/'fJ) /r-/3¿..1 {ZIP 57.5 {C: ,f
FOR
CITY CLERK
ONLY
0M
RECEIVED BY
~
;-/ - ?- fþ- 1> c¡
DATE
TO:. City Clerk
.
PUBLIC W.S FILE NO.
/-v I {f?/)
Please collect & receipt
for the following monies:
35-3396
$
3372
3521
3521
3521
3372
3373
3373
3373
3373
3373
3380
3373
3373
3520
3372
3372
3372
3372
3372
3372
3370
3395
3380
3510
Project Revenues (specify project)
Public Works Excavation Permit Fees:
Application Fee
Plan Check Deposit
Faithful Performance (Cash) Deposit
R-1:
($ 35)
Other:
($ 50)
($500)
(100% of)
(ENGR. EST)
(4% of FPB)
($500 min.)
(7% of FPB)
($ 35 min.)
Other Cash Deposit (specify)
($200)
Plan Check & Inspection Fee
Project Plans & Specifications ($10)
General Conditions, Standard Provisions &
Details ($10 or $1/page)
"No Parking" signs ($1/ea. or $25/100)
Work Area Traffic Control Handbook ($5)
Traffic Flow Map ($10)
Traffic Data Services ($40/hr. + material costs)
Map Revisions to Map Companies ($10)
Copies of Engineering Maps & Plans ($.50/sq. ft.)
Fire Hydrant Maintenance ($195/ea.)
Tentative Parcel map Filing Fee ($350)
Final Parcel Map Filing Fee ($300)
Tentative Tract Map Filing Fee ($400)
Final Tract Map Filing Fee ($350)
Lot Line Adjustment Fee/Certificate of Compliance ($350)
Vacation of Public Streets and Easements ($500)
Assessment Segregation or Reapportionment
First Split ($500)
Each Additional Lot ($150)
Environmental Assessment:
Categorical Exemption ($500 plus actual cost
Negative Declaration above $500)
Storm Drainage Area Fee per Acre (R-1, $1,875; Multi-Res.,
$2,060; all other, $2,250)
Park Dedication In-lieu Fee per Unit ($1,132)
'e>';. 4~;?~
Public Works Special Projects
Postage
TOTAL
$ ~ fv ÇP--
PERMITTEE-1~ C\ L ) (" ['7 C\ c.,
FIx ( (
NAME OF APPLICANT
ADDRESS --L..:1 2 J"
FOR
CITY CLERK
ONLY
0M
PHONE
S,
~/¡/ ;1c-1; ~ s fr r
ZIP
cr.s -0 D If
sic-
ß/v/
/0 ].
RECEIVED BY ~. F
DATE ~/f4~I/tc¡
MEMORANDUM
To:
From:
Subject:
CITY OF CAMPBELL
Steven Piasecki
Director of Planning
April 6, 1989
Date:
Donald C. Wimberly
Director of Public Works
Parcel Hap - 1075 Hacienda Avenue
----------------------------------------------------------
We recommend approval of the attached parcel map subject to the
following conditions:
Process and file a parcel map creating the four lots.
Pay storm drain area fee of $1189.00.
Pay a fee in lieu of dedicating land for parks in the amount ot
$10,868.00.
Install standard street improvements in Hacienda and Sonuca
Avenues as directed by the City Engineer.
Obtain an excavation permit, pay fees and post surety for all
work within the City right-ot-way.
UPDATE
FIDELITY NATIONAL TITLE
INSURANCE COMPANY
CAMPBELL BRANCH:
51 East Campbell Avenue, Suite 150
Campbell, California 95008
(408) 378-7720
TO:
MAYLAND BUILDERS INC.
Attn: Mike
Your No.
Our No. 713367
Effective Date:
at 7:30 a.m.
Febraury 23, 1989
BUYER(S): MAYLAND BUILDERS INC.
Escrow Officer: MARY BETH FISHER
Today's Date: March 2, 1989
Property Address given as:
1075 Hacienda Avenue
Campbell, California
The Form of policy or Policies of title insurance contemplated by
this report is:
(X)
California Land Title Association
Standard Coverage policy - 1988
Schedule of Exclusions from Cover~ge, Schedule B
American Land Title Association Loan policy
with A.L.T.A. Endorsement Form 1 Coverage
Schedule of Exclusions Coverage
(X)
( )
Other:
The estate or interest in the land hereinafter described or
referred to covered by this Report is: A FEE AS TO PARCEL ONE
AN EASEMENT AS TO PARCEL TWO
Title to said estate or interest at the date hereof is vested in:
JOHN J. CARVALHO AND BETTY LOU CARVALHO,
husband and wife, as joint tenants
The land referred to in this Report is situated in the State of
California, City of Campbell, County of Santa Clara, and is
described as follows:
SEE EXHIBIT "A" ATTACHED HERETO FOR LEGAL DESCRIPTION
At the date hereof exceptions to coverage in addition to the
printed Exceptions and Exclusions in said policy form would be as
follows:
FOR EXCEPTIONS, SEE PAGE(S) ATTACHED HERETO
EXHIBIT "A"
That real property situated in the City of Campbell, County of
Santa Clara, State of California, described as follows:
PARCEL ONE:
PORTION OF LOT 13, as shown upon that certain Map entitled, "Map
of the subdivision of the E.N. PARR TRACT", which Map was filed
for record in the office of the recorder of the County of Santa
Clara, State of California, on April 2, 1887 in book B of Maps,
page 57, and more particularly described as follow:
BEGINNING at a point in a line that is parallel with and distant
North 0° 04' West 10.00 feet from the Northerly line of San Tomas
Aquino Road, 40.00 feet wide, said point of beginning being
distant along said parallel line, South 89° 52' West 94.98 feet
from the line dividing lots l2 and 13 of the E.N. PARR TRACT
hereinabove referred to; thence along said parallel line, South
89° 52' West 129.70 feet; running thence North 0° 04' West and
parallel with the dividing line between lots 12 and 13 for a
distance of 200.00 feet; running thence North 89° 59' 45" East
149.88 feet; running thence South 0° 04' East and parallel with
the dividing line between said lots 12 and 13, for a distance of
180.57 feet; thence on a curve to the right with a radius of
20.00 feet through an angle of 89° 56' for a distance of 31.39
feet to the point of beginning.
PARCEL TWO:
A right of way for ingress and egress over a strip of land
described as follows:
BEGINNING at the intersection of the Northerly line of the San
Tomas Aquino Road, 40.00 feet wide, with the line dividing lots
12 and 13 of the E.N. PARR TRACT, a Map of which was filed for
record in the office of the recorder of the County of Santa
Clara, State of California on April 2, 1887 in book B of Maps,
page 57; thence along said line of San Tomas Aquino Road, South
89° 52' West 179.68 feet; thence leaving said line of San Tomas
Aquino Road and running parallel with the line dividing said lots
12 and 13, North 0° 04' West 10.00 feet; thence parallel with
said line of San Tomas Road, North 89° 52' East 129.70 feet;
thence on a curve to the left with a radius of 20.00 feet through
an angle of 89° 56' for a distance of 31.39 feet; thence parallel
with the line dividing said lots 12 and 13, North 0° 04' West
180.57 feet; thence dividing said lots 12 and 13, North 0° 04'
West 180.57 feet; thence parallel with said line of San Tomas
Aquino Road, North 89° 52' East 30.00 feet to a point in the line
dividing said lots 12 and 13; thence along said dividing line,
South 0° 04' East 20 feet to the point of beginning.
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INDEX
L v ( (J~:J /
/
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
ARTICLE I:
ARTICLE II:
ARTICLE III.
ARTICLE IV
ARTICLE V:
ARTICLE VI:
ARTICLE VII:
ARTICLE VIII:
ARTICLE IX:
AR'fICLE X:
ARTICLE XI:
OF
HACIENDA PLACE HOMEOWNERS ASSOCIATION
DEFINITIONS
DESCRIPTION OF PROJECT,
DIVISION OF PROPERTY, AND CREATION
OF PROPERTY RIGHTS
HOMEOWNERS ASSOCIATION, MEMBERSHIP AND
VOTING RIGHTS
DU'fIES AND POWERS OF THE ASSOCIATION
ASSESSHENTS
EASEMENTS
USE RESTRICTIONS
ARCHITECTURAL CONTROL
MORTGAGEE RIGHTS AND PROTECTION
DAMAGE, DESTRUCTION OR CONDEMNATION OF
COHMON AREA IHPROVEHENTS
GENERAL PROVISIONS
PAGE
2
3
5
7
14
21
23
25
27
3Ø
32
ARTICLE
I
DEFINITIONS
1. The "Association" means the Hacienda Place Homeowners
Association, a non-profit mutual benefit corporation, membership
in which shall be limited to owners (as hereinafter defined) and
in which all owners have a membership interest.
2. "Beneficiary" means and refers to a mortgagee under a
mortgage or a beneficiary under a deed of trust encu~bering a
lot, as hereafter defined.
3.
the
"Board" or "Board of Di rectors"
Association.
means
the governing body of
4. "By-Laws" shall mean the By-laws of the Association which
are or shall be adopted by the Board.
5. "Common Area" means Lot 5, and any other real property owned
by or held in trust for the benefit of the Association for the
common use and enjoyment of its members, but does not include
real property over which the Association has only an easement.
6. "Declarant" means and refers to Shelley Terrace Corporation,
a California Corporation, and all successors and assigns of
Declarant, if such successors and assigns acquire more than one
lot for the purpose of resale to another.
7. "Declaration" means and refers to the within Declaration of
Covenants, Conditions and Restrictions.
8. "Director" means and
Directors.
refers
to a member of the Board of
9. "Eligible Mortgage Holder" means and refer:s to those holders'
of a first mortgage on a Lot who have requested the Association
to notify them on any proposed uction that requires the consent
of a specified percentuge of eligible mortgage holders.
lØ. "Institutional Lender" shall mean any bank, savings and
loan association, insurance company, or other financial
institution holding a recorded first mortgage on any Lot.
11. "Lots" mean those certain parcels of land together with
the single-family residential improvements attached thereto,
described on the Map of Tract as Lots 1 through 4,
inclusive, County of S~nta Clara, Sta-te-of California.
2
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
OF
HACIENDA PLACE HOMEOWNERS ASSOCIATION
THIS DECLARATION is made on the date hereinafter set forth by
HACIENDA PLACE CORPORATION, A CALIFORNIA CORPORATION
( he rei n aft ere all ed " Dee 1 a ran t" 0 r "G ran tor") .
WHEREAS, Grantor is the owner of all that certain real property
located in the City of Campbell, County of Santa Clara, State of
California, more particularly described as follows:
All of that certain r~al property as shown in that certain
Subdivision Map entitled "Tract # filed in Volume
of Maps at page, Official Records of the County----cJ'f
San t a Cia r a , S t a te-o f C a 1 i for n i a, 0 n 1 9 8
-----------
(hereinafter referred to as "the Map).
WHEREAS, it is Grantor's intention to impose upon the property
mutually beneficial restrictions as a planned development (as
defined in California Civil Code Section 1351 (k) under a common
scheme for the improvement, maintenance and benefit of all of
said lots and the owners thereof; and
WHEREAS, Grantor hereby establishes by this Declaration a plan
for the individual ownership of the real property estates,
consisting of those certain parcels of land together with those
single-family residential improvements thereon as well as the
" com m 0 n are a " ash ere aft e r d e fin ed .
NOW THEREFORE, Grantor hereby declares tha t the property is held
and shall be held, conveyed, hypothecated, encumbered, leased,
rented, used, occupied and improved, subject to the following
limitations, restrictions, covenants and conditions, all of which
are declared and agreed to be in furtherance of a plan for the
improvement of the property and are established and agreed upon
for the purpose of enhancing and perfecting the value,
desirability and attractiveness of the Project and every part
thereof. All of the limitations, covenants, restrictions, and
conditions shall run with the real property and shall be binding
upon all parties having or acquiring any right, title, or
interest therein or any part thereof, and shall be for the
benefit of each owner of any portion of said Project or any
interest therein, and shall inure to the benefit of and be
binding upon each successor in interest.
1
12. "Map" refers to that certain Subdivision Map entitled "Tract
filed in Volume of Maps at page --- County of Santa
Clara, on 198
13. "Member" means and refers to those lot owners who
members of the Association pursuant to Article III hereof.
are
14.
"Mortgage" means a deed of trust as well as a mortgage.
15. "Mortgagee" means a beneficiary under or holder of a deed of
trust as well as a mortgage.
16. "Owner" or "Owners" mean the record owner or owners, whether
one or more persons or entities, of a fee simple title to a lot,
and a contract vendee of a Lot, but excluding any person or
entity having such interest merely as security for the
performance of an obligation.
17. "Project" and "Property" means the entire parcel of real
property described above, and such additions thereto as may later
be brought within the jurisdiction of the Association.
18. "Restricted (exclusive use) common area" means and refers to
those portions of the common area set aside for exclusive use of
one or more lot owner(s), as hereinafter set forth.
19.
to
"Rules" means the Rules adopted by the Association pursuant
this Declaration.
ARTICLE II
DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS
Section 1. Property Subject to Declaration: All of the real
property shown on the Subdivision Map of Tract County
of Santa Clara, is hereby declared to be subject to this
Declaration.
Section 2. Partition Prohibited: The Common Area will remain
undivided as set forth above. No owner shall bring any action
for partition. It is agreed that this restriction is necessary
in order to preserve the rights of the owners with respect to the
operation and management of the project. Judicial partition by
sale of a single lot owned by two or more persons and division of
the sale proceeds is not prohibited hereby but physical partition
of a single lot is prohibited.
3
Section 3. Common Area Ownership: Prior to the conveyance of
title to the first lot, Declarant shall convey to the Association
the fee simple title to the Common Area free and clear of all
liens and encumbrances, except current real property taxes, which
taxes shall be pro-rated to date of transfer and reservations,
easements, covenants, conditions and restrictions, then of
record, including those set forth in the covenants, conditions
and restrictions for the Association. Every owner shall have a
right and easement of enjoyment in and to the Common Area which
shall be appurtenant to and shall pass with the title to every
Lot subject to the provisions in this Declaration.
Section 4. Restricted (Exclusive Use) Common Area(s):
Notwithstanding any other provision in this Declaration, the
internal and external telephone wiring designed to serve a
separate Lot, but located outside the boundaries of the Lot, are
restricted (exclusive use) areas allocated exclusively to that
par t i cuI ar Lo t.
A Lot owner shall be entitled to reasonable access to the Common
Area for the purpose of maintaining the internal and external
telephone wiring made part of a restricted (exclusive use) common
area pursuant to this section. Such access shall be subject to
the consent of the Board of Directors of the Association, whose
approval shall not be unreasonably withheld, and which may
include the Board's approval of telephone wiring upon the
exterior of the Common Area, and other conditions as the Board
determines reasonable.
Section 5. Party Walls: Each wall which is built as a part of the
original construction of the Townhome Dwellings in the Project
and placed on the dividing line between the Townhome Lots shall
constitute a party wall, and to the extent not inconsistent with
the provisions of this Section, the general rules of law
regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto. The
cost of reasonable repair and maintenance of a party wall shall
be shared by the owners who make use of the wall in proportion to
such use. If a party wall is destroyed or damaged by fire or
other casualty, any Owner who has used the wall may restore it,
and if the other Owners thereafter make use of the wall, they
shall contribute to the cost of restoration thereof in proportion
to such use without prejudice; subject however, to the right of
any such Owners to call for a larger contribution from the others
under any rule of law regarding liability for negligent or
willful acts or omissions.
Notwithstanding any other provision in this section, an Owner who
by his negligent or willful act causes the party wall to be
exposed to the elements shall bear the whole cost of furnishing
the necessary protection against such elements. The right of any
Owner to contribution from any other Owner under this section
shall be appurtenant to the land and shall pass to such Owner's
successors in title. In the event of any dispute arising
concerning a party wall, or under the provisions of this section,
4
such dispute shall be submitted in writing to the Board of
Directors and the written decision of the Board shall be final
and binding upon the parties.
ARTICLE III
HOMEOWNERS ASSOCIATION, MEMBERSHIP AND VOTING RIGHTS
Section 1. Organization: The Association is a Non-Profit
Mutual Benefit Corporation charged with the duties and empowered
with the rights set forth herein and in the By-Laws and Articles
of Incorporation. Its affairs shall be governed by this
Declaration, the Articles, the By-Laws and the Rules of the
Association. In the event that the Association as a corporate
entity is dissolved, a non-profit, unincorporated association
shall forthwith and without further action or notice be formed to
succeed to all the rights and duties of the Association. The
affairs of such unincorporated association will be governed by
the laws of the State of California and, to the extent consistent
therewith, by this Declaration, the Articles and the By-Laws of
the Association as if they were created for the purpose of
governing the affairs of an unincorporated association.
Section 2. Membership: The owner of a Lot shall automatically,
upon taking title to a Lot, be a member of the Association and
shall remain a member thereof until such time as his ownership
ceases for any reason, at which time his membership in the
A-ssociation will automatically cease. Membership is to be held
in accordance with the Articles and By-Laws of the Association.
Section 3. Transferred Membership: Membership in the
Association may not be transferred, pledged, or alienated in any
way, except upon the sale or encumbrance of the Lot to which it
is appurtenant, and then only to the purchac:er, in the case of a
sale, or mortgagee, in the case of an encumbrance of such a Lot.
A mortgagee does not have membership rights until he becomes an
owner by foreclosure or deed in lieu thereof. Any attempt to
make a prohibited transfer is void.
Section 4. Voting Classes: The Association shall have two (2)
classes of voting membership:
(1) Class A: Class A members shall be all owners with the
exception of the Declarant, and Class A members shall be entitled
to one vote for each Lot owned. When more than one person holds
an ownership interest in any Lot all such persons shall be
members; provided, however, that with respect to any matter
5
requiring the vote or consent of members, no more than one vote
shall be cast with respect to any Lot. The vote for such Lot
shall be exercised as the members holding an interest in such lot
among themselves determine. In the event of disagreement, the
decision of members holding a majority of interest in such Lot
shall govern. In the event two or more persons have equal
interests in a Lot, the vote shall be determined by a coin flip.
(2) Class B: The Class B member(s) shall be the Declarant,
and Declarant shall be entitled to three (3) votes for each Lot
owned. The Class B membership shall cease and be converted to
Class A membership on the happening of either of the following
events, whichever occurs first:
1. when the total votes outstanding in the Class A
membership equal the total votes outstanding in the Class B
membership; or
2. the second anniversary of the original issuance of the
subdivision public report from the California Department of
Real Estate.
Any action by the Association (with the excÐption of enforcing a
bond) which must have the approval of the members other than the
Declarant before being undertaken shall require the vote or
written assent of fifty-one percent (51%) of each class of
membership during the time that there are two outstanding classes
of membership. When only a single class exists after conversion
of Class B to Class A, any action by the Association which is
subject to the approval of members other than the Declarant shall
require the vote or written assent of fifty-one percent (51%) of
the total voting power of the Association as well as the vote or
written assent of the total voting power of members other than
the Declarant.
Voting rights attributable to Lot ownership shall not be vested
until assessments against the particular Lot have been levied by
the association.
Section 5. Voting Procedures and Meetings: Voting procedures
and the notice, quorum requirements and location of meetings of
the Association shall be as provided for in the By-Laws.
Section 6. Board of Directors: The Board shall undertake all
duties and responsibilities of the Association and the management
and conduct of the affairs thereof, except as expressly is
reserved herein to a vote of the Members. The initial Board of
the Association consisting of three (3) Directors shall be
appointed by Declarant. Such Board shall hold office until the
first regular meeting of the members is held pursuant to the By-
Laws. At said meeting a new Board of three (3) Directors shall
be elected by secret written ballot to serve until the next
regular annual meeting of the Association members or until their
successors are elected. The number of Directors may be changed
by amendment of the By-La ws.
6
ARTICLE IV
DUTIES AND P~ERS OF THE ASSOCIATION
Section 1. Duties: In addition to the duties enumerated in its
By-Laws or elsewhere provided for in this Declaration, and
w i tho u t 1 i m i tin g the g en era 1 i t Y the reo f, the As s 0 c i at i on s hall
perform the following duties:
Subsection 1.1 Duties of Association With Respect to
Maintenance of Common Area and Residential Lots: The Association
shall replace, repair and maintain the Common Area Lot 5
including any improvements, utilities and facilities located
thereon.
In addition, the Association shall have the following duties and
obligations with respect to each owner's Lot:
(a) to repair, maintain and replace (when replacement is
required because of aging and natural deterioration) roofs,
gutters and downspouts of buildings;
(b) to maintain and repair other exterior
except the owner and not the Association shall
maintaining and repairing glass surfaces.
maintenance shall include such painting or
reasonably appropriate; and
building surfaces,
be responsible for
As used herein,
repainting as is
Subsection 1.2 Repair and Maintenance of Common Area Da.aged
by Pests and Organisms: The Association shall be responsible for
repairing, replacing, or maintaining the Common Area, other than
exclusive use common areas, with respect to any damage caused by
the presence of wood-destroying pests or organisms.
Each owner of a Lot shall bear the costs of any damage to his Lot
or residence caused by the presence of wood-destroying pests or
organisms. However, by a majority vote of all Lot owners, such
responsibility may be delegated to the association which in turn
may levy a special assessment to recover such costs. In the
event such a vote is taken, and the Association assumes
responsibility for such maintenance and repair, the following
shall apply:
(1) The Association may cause the temporary summary removal of
any occupant of a Lot for such periods and at such times as may
be necessary for prompt, effective treatment of wood-destroying
pests or organisms; and
7
(2) The costs of temporary relocation during the repair and
maintenance of the areas within the responsibility of the
Association shall be borne by the individual Lot owner; and
(1) The Association shall give notice of the need to
temporarily vacate a Lot to the occupants and to the owner(s),
not less than fifteen (15) days nor more than thirty (3Ø) days
prior to the date of the temporary relocation. The notice shall
state the reason for the temporary relocation, the date and time
of the beginning of the treatment, the anticipated date and time
of termination of treatment, and that the occupants will be
responsible for their own accomodations during the temporary
relocation; and
(4) Notice by the Association shall be deemed complete upon
either personal delivery of a copy of the notice to the
occupants, and sending a copy of the notice to the owners, if
different than the occupants, by first-class mail, postage
prepaid at the most current address shown on the books of the
Association or by sending a copy of the notice to the occupants
at the Lot address and a copy of the notice to the owners, if
different than the occupants, by first-class mail, postage
prepaid, at the most current address shown on the books of the
Associa tion.
For purposes of the above sections, "occupant" means an owner,
resident, guest, invitee, tenant, lessee, sublessee, or other
person in possession of the Lot residence.
Subsection 1.3 Insurance: The Association (or Declarant
until the election of the first Board) shall purchase and
maintain the following insurance policies:
(a) A master blanket comprehensive liability bodily injury
and property damage policy insuring the interests of the Board
and the Owners against public liability as a result of their
ownership of the common area with a combined single limit of not
less than One Million Dollars ($l,ØØØ,Øøø.øØ) per occurrence
(such limits and coverage shall be reviewed at least annually by
the Board and increased at its discretion). Such policy shall be
maintained with respect to the common area and the structures, if
any, owned in common by the Owners. Such policy shall provide
for a cross liability endorsement wherein the rights of the named
insured under the policy or policies shall not be prejudiced as
respects his action against another named insured. Such policy
or policies shall also contain a provision requiring the insurer
to defend any suit against any insured, even if the allegations
are fraudulent, but authorizing the insurer to make such
investigation and settlement of any claim or suit within the
policy limits as it deems expedient. Such liability insurance
shall not cover the personal bodily injury and property damage
exposure of the individual Owner within his lot or in any other
lot in the development or upon any common area resulting from the
negligence of the Owner. Obtaining such insurance coverage by
each Owner is optional;
8
(b) A pol icy of insurance cover ing res idence build ing sand
all buildings, structures, furnishings, equipment and personal
property owned in common by the Owners, if any, or by the
Association for the interests of the Owners, and all the Owners
and mortgagees, as their interests may appear in an amount that
shall be at least equal to one hundred percent (100%) of the full
insurable replacement value of all of them against the perils
covered by California Standard Fire Policy, Extended Coverage
Endorsement (or its equivalent). Such policy shall name as
insureds Declarant, the Association, all Owners and mortgagees to
the extent of their insurable interests, if any; first mortgagees
of residences shall be entitled to ten (10) days prior notice of
cancellation of such policies. Such insurance shall not cover
personal household contents;
(c) Workers' Compensation Insurance shall at all times be
carried as required by law with respect to the employees, if any,
of the Association;
(d) A fidelity bond or insurance covering loss or theft of
funds, naming the Manager and such other persons as may be
designated by Declarant as principals and the Owners as obligees
in an amount equal to at least one-half (1/2) of the estimated
cash requirement of the Association for the succeeding year;
(e) No Owner shall separately insure his residence or any
of the improvements to the common area against loss by fire or
other casualty covered by the insurance maintained by the Board,
pursuant to the above. Should any Owner violate this provision,
any diminution of insurance proceeds resulting from the existence
of such separately carried insurance shall be chargeable to the
Owner and may be charged by the Board against his lot.
Notwithstanding the foregoing, the Owner may carry separate
insurance against loss by fire and other casualty to the contents
of his residence and any improvements to his residence installed
by Owner or hi s predeces sor in interest whi ch were not i ncl uded
in the original construction plan of the building in which the
residence is located (including improvements specifically ordered
by Owner or his predecessor in interest in contracting for the
purchase of a residence), and may carry separate insurance
covering any loss not covered by such insurance maintained by the
Board, such as rental value insurance and other casualties not
insured against in the master pol icy or pol icies. All separate
insurance carried by any Owner shall contain a waiver of
subrogation rights as to claims against a person who is an
insured under the policy or a member of Owner's household who is
not himself insured. At the request of any Owner, the Board
shall cause any insurance coverage which may be separately
carried by the Owner pursuant to the foregoing provisions to be
added to the coverage provided under one or more of the master
policies, provided that the addition of such coverage for the
benefit of the Owner is permitted by underwriting rules of the
insurer and such addition of coverage in no way prejudices the
protection provided by such master policy or policies to the
other per son or en tit i es i nsur ed ther eby. The pr em iurn fo r such
9
added coverage shall be paid by the Owner requesting the same and
may be assessed to such Owner if not promptly paid upon the
Board's written demand;
(f) Should the Board, despite its reasonable efforts to do
so, be unable to obtain insurance coverage meeting all of the
specifications set forth above, it shall observe such
specifications as closely as possible, and where forms of
coverage or insuring agreement specified above are unavailable,
the Board shall substitute available forms of coverage and
insuring agreements which in its judgment are the nearest
equivalent to those specified;
(g) Proceeds of all insurance policies owned by the
Association shall be r~ceived by the Association, held in a
separate account and distributed to the Association and the
Owners and their mortgagees subject to the provisions of these
Restrictions, as their interest may appear; provided, however,
whenever repair or reconstruction is required the proceeds of any
insurance received by the Association as a result of any loss
shall be applied to such repair or reconstruction. Upon the vote
or written assent of a majority of the voting power of the
As socia t i on res id i ng in m embers other than Decl ar ant, the Board
shall levy a special assessment against all Owners to make up for
any deficiency in making necessary repairs or reconstruction;
(h) Each Owner shall be deemed to appoint the Association
as his true and lawful attorney-in-fact to act in connection with
all matters concerning the maintenance of the Master Policy.
Without limitation on the generality of the foregoing, the
Association as said attorney shall have full power and authority
to purchase and maintain such insurance, to collect and remit the
premiums therefor, to collect proceeds and to distribute the same
to the Association, the Owners and their respective mortgagees
(subject to the provisions of these Restrictions) as their
interests may appear, to execute releases of liability and to
execute documents and to do all things on behalf of the Owners as
shall be necessary or convenient to the accomplishment of the
foregoing; and any insurer may deal exclusively with the
Association in regard to such matters. The Association shall not
be responsible for procurement or maintenance of any insurance
covering the contents or the interior of any residence nor the
liability of any Owner for occurrences therein not caused by or
connected with the Association's operation, maintenance, or use
of the common area.
Subsection 1.4 Discharge of Liens. The Association shall
discharge by payment, if necessar y, any 1 ien aga i nst the common
area, and charge the cost thereof to the member or members
responsible for the existence of said lien. Prior to any Board
decision to discharge a lien, the Owner shall be given written
notice and an opportunity for a hearing before the Board in order
to present any defenses which may exist.
lØ
Subsection 1.5 Assessments The Association shall fix,
collect and enforce assessments as set forth in Article V hereof.
Subsection 1.6 Payment of Expenses: The Association shall
pay all expenses and obligations incurred by the Association in
the conduct of its business including, without limitation, all
licenses, taxes or governmental charges levied or imposed against
the property of the Association.
Subsection 1.7 Enforcement: The Association shall enforce
this Declaration, the By-laws, and the Articles of Incorporation.
Subsection 1.8 Budget and Annual Report: Regardless of
the number of members or the amount of assets of the Association,
the Board shall prepare and maintain books,financial statements,
etc. in accordance with the provision of the By-laws.
Section 2. Powers: In addition to the powers enumerated in its
Articles and By-Laws, or elsewhere provided for herein, and
without limiting the generality thereof, the Association shall
have the following powers:
Subsection 2.1 Easements: The AsRQciation shall have
authority to grant easements where necessary for utilities and
sewer facilities over the common area to serve the common areas
and the Lots.
Subsection 2.2 Access: The Board and its agents or
employees shall have the exclusive right to enter a Lot as
necessary in connection with construction, maintenance or
emergency repair for the benefit of the common area or owners in
common. Except in case of emergency, forty-eight (48) hours
notice shall be given to the Owner or occupant.
Subsection 2.3 Manager: The Association shall have the
au thor i ty to em ploy a manager or other persons and to hire
independent contractors or employees to perform all or any part
of the duties and responsibilities of the Association, provided
that any contract with a firm or person appointed as a manager or
managing agent, or any contract providing for services by the
developer, sponsor or builder, shall not exceed a one (1) year
term, shall provide for termination by either party without cause
on ninety (9Ø) day or less written notice, and shall provide for
the right of the Association to terminate the same for cause on
thirty (3Ø) day written notice.
Subsection 2.4 Association Rules: The Board may, from time
to time, and subject to the provisions of this Declaration, adopt
such Rules as the Board may deem necessary for the management of
the Project in accordance with the provisions of the By-laws.
A copy of the Rules so adopted shall be furnished to each Owner,
and each 0 w n e r, his fa mil y, g u est s, em p 1 0 ye e s, in vi tee s ,
licensees and tenants shall comply with such Rules.
11
Subsection 2.5 Enforcement of Ru1es and Restrictions: The
Board shall have the power,obligation and duty to enforce the
provisions of this Declaration, the By-Laws and the Rules. In
the event of a breach of any of the restrictions contained in
this Declaration or of any Rules by an Owner, his family, guests,
employees, invitees, licensees or tenants, the Board may enforce
the obligations of each Owner to obey such Rules or restrictions
in any manner provided by law or in equity, including but not
limited to, appropriate legal action, suspension of the Owner's
voting right and right to use the common facilities of the
Project; provided, however, such suspension may not be for a
period in excess of thirty (3Ø) days, and may not be imposed
without notice and hearing as herein provided, for an infraction
of such Rules. In addition to the other remedies herein set
forth, the Board, by majority vote, may levy a fine against such
Owner, after appropriate notice and hearing as herein provided,
in an amount not to exceed Fifty Dollars ($5Ø.ØØ) for each such
violation. The right to levy fines, hold disciplinary hearings
or otherwise impose discipline on members under this section is
vested solely in the Board and may not be delegated to any
Director, officer, or manager or other employees of the Board or
Declarant.
Prior to making any decision that a breach has occurred or to
impose any penalty provided herein for breach of any Rules
enacted hereunder or restrictions contained in this Declaration,
the Board shall send written notice to the Lot Owner specifying
the nature of the infraction and provide an opportunity to the
Lot Owner for a hearing before the Board regarding such
infraction and the penalty to be imposed. In the event that the
Board determines that an infraction has occurred and that a
penalty shall be imposed, after a reasonable opportunity for a
hearing has been provided, the determination of the Board shall
be fin a 1 .
Notwithstanding anything to the contrary in this Declaration,
neither the Board nor the Association of Members shall have the
power to cause a forfeiture or abridgement of an Owner's right to
the full use and enjoyment of his individually owned Lot
including access thereto over and across the Common Area, because
of such Owner's failure to comply with the provisions of this
Declaration or of the By-Laws or any Rules adopted by the
Association except when such loss or forfeiture is the result of
a judgment of a court, a decision out of arbitration or on
account of a foreclosure, or under the power of sale granted
herein for failure of the Owner to pay the assessments levied
pursuant to the provisions of this Declaration. In the event
legal action is instituted by the Board pursuant to this section,
any judgment rendered in any such action shall incl ude costs of
collection, court costs and reasonable attorneys' fees.
A monetary penalty imposed by the Association as a disciplinary
measure for failure of a member to comply with the governing
instruments or as a means of reimbursing the Association for
costs incurred by the Association in the repair of damage to
12
common areas and facilities for which the member was allegedly
responsible or in bringing the member and his lot into compliance
with this Declaration may not be characterized nor treated in the
governing instruments as an assessment which may become a lien
against the member's lot enforceable by a sale of the lot.
The provisions of the above paragraph do not apply to charges
imposed against an owner consisting of reasonable late payment
penalties for delinquent assessments and/or charges to reimburse
the Association for the loss of interest and for costs reasonably
incurred (including attorneys' fees) in its efforts to collect
delinquent assessments.
Subsection 2.6 Acquisition of Property: The Association
shall have the power to acquire (by gift, purchase or otherwise),
own, hold, improve, build upon, operate, maintain, convey, sell,
lease, transfer, dedicate for public use or otherwise dispose of
real or personal property in connection with the affairs of the
Association. However, except with the vote or written assent of
a majority of the voting power of the Association residing in
members other than the Declarant, the Board is prohibited from
(1) incurring aggregate expenditures for capital improvements to
the common area in any fiscal year in excess of five percent (5%)
of the budgeted gross expenses of the Association for that fiscal
year and (2) selling during any fiscal year property of the
Association having an aggregate fair market value greater than
five percent (5%) of the budgeted gross expenses of the
Association for that fiscal year.
Subsection 2.7 Loans: The Association shall have the power
to borrow money and, with the vote or written consent of three-
fourths (3/4) of each class of members, to mortgage, pledge, deed
in trust, or hypothecate any or all of its real or personal
property as security for money borrowed or debts incurred.
Subsection 2.8 Dedication: The Association shall have the
power to dedicate, sell or transfer all or any part of the common
area to any public agency, authority, or utility for such
purposes and subject to such conditions as may be agreed to by
the members. No such dedication or transfer shall be effective
unless an instrument has been signed by three-fourths (3/4) of
each class of members, other than the Declarant or three-fourths
(3/4) of the tota 1 vot i ng member sh ip other than Decl ar ant after
conversion to a single class of members, agreeing to such
dedication, sale or transfer.
Subsection 2.9 Contracts: The Association shall have the
power to contract for goods and/or services for the common
area(s), for the common facilities or interests of the owners or
for the Association, subject to limitations elsewhere set forth
in this Declaration or the By-laws.
Subsection 2.1Ø Delegation: The Association shall have the
power to delegate its authority and powers to committees,
officers or employees of the Association. However, the authority
13
to levy fines, hold hearings, impose discipline, make capital
expenditures, file suit on behalf of the Association, record a
claim of lien or institute foreclosure proceedings for failure to
pay assessments, may not be delegated to an officer, employee or
comm it tee.
Subsection 2.11 Power of Attorney: Each owner, for
himself, his successors and assigns, shall be deemed upon
purchasing his Lot to have appointed the officers of the
Association, or any of them, as his true and lawful attorney, in
his name, place and stead, to prosecute, settle and/or release
any cia i m s a r i sin g 0 u t 0 f the 0 w n e r s' a c qui sit ion an d/ 0 r j 0 i n t
ownership of the common areas of the project. Such power shall
be utilized only upon express authorization of the Board given by
resolution adopted by the Board at a meeting for which all
members are given advance written notice specifying the nature of
the proposed action for which the power of attorney is to be
uti li zed.
ARTICLE V
ASSESSMENTS
Section 1 Co~enants for Maintenance Assessments: Declarant
hereby covenants and agrees for each Lot owned by it within the
Project, and each Owner of any Lot by acceptance of a deed is
deemed to covenant and agree, to pay to the Association the
assessments levied pursuant to this Article. Declarant and each
Owner thereby vest in the Association the right to bring all
actions for the collection of such charges and for the
enforcement of the lien created hereby. Such right remains with
the Association and such obligations run with the land so that
each success ive Owner or Owners of record of a Lot in the proj ect
will become liable to pay all assessments which become a lien
during the time they are the record Owner of any Lot in the
Project.
Each assessment levied by the Association under this Article
constitutes a separate assessment. Each assessment, together
with interest thereon, costs of collection and reasonable
attorneys' fees, will be a charge on the Lot and be a continuing
lien upon the Lot against which each such assessment is made.
The Association, as the agent of all Lot Owners, has a separate
lien, and a separate lien with power of sale is hereby created,
upon each Lot against which an assessment is made to secure the
payment of any assessments under this Article. Each such lien
for any particular month's charge will also secure interest
14
thereon, if the same is not paid when due, and costs of suit and
reasonable attorneys' fees to be fixed by the court if action or
suit is brought to collect such charge. The priority of all such
liens shall be in inverse order so that upon foreclosure of the
lien for a particular month's charge, any foreclosure sale
pursuant thereto will be made subject to all liens securing the
respective monthly charge on such Lot for succeeding months.
Each assessment, together with interest, attorneys' fees and
costs of collection, shall also be a separate, distinct and
personal obligation (debt) of the Owner of the Lot at the time
when the assessment is levied. The personal obligation for
delinquent assessments will not pass to a Lot Owner's successor
in title unless expressly assumed by such successor, but the lien
for such delinquent assessment shall remain and, if unpaid by
such successive Lot Owner, may be foreclosed as provided in this
Declaration. After a record Owner trë;\nsfers record ti tle to his
Lot he will not be liable for any charge thereafter assessed
against such Lot. A contract seller of any Lot will continue to
be liable for all such charges until a conveyance by him of the
Lot subject to the assessment is recorded in the Office of the
Santa Clara County Recorder.
Section 2 Regular Monthly Assessments: The Board shall
establish regular monthly assessments for operation and
maintenance of the Project by the procedures established in this
Section. The assessments shall be due and payable in monthly
installments on the first day of each month commencing on the
first day of the first month following conveyance of the first
Lot. Regular assessments shall be levied equally against all
Lots.
Notwi thstand ing the above paragraph, the Declarant and any other
owner of a subdivision interest may defer that portion of
assessments due which are directly attributable to residential
structures (including but not limited to roof replacement,
exterior maintenance, walkway and carport lighting, refuse
disposal, cable television, and domestic water supplied to living
units) until the earliest to occur of the following:
(1) A notice of completion of the structural improvements has
been recorded; or .
(2) Occupancy or use of the residence has been established;
or (3) Completion of all elements of the residences which the
Association is obliged to maintain has been accomplished.
Declarant and any other owner of a subdivision interest may defer
the payment of any portion of assessments which is for the
purpose of defraying expenses and reserves directly attributable
to the existence and use of a common facility that is not
complete at the time assessments commence, until the first to
occur of the following:
(1) .l\. notice of completion of the common facility has been
recorded; or
(2) The common facility has been placed into use.
15
Not less than sixty (60) days prior to the beginning of each
fiscal year, the Board shall estimate the total charges to be
paid out of the maintenance fund during such year (including a
reasonable reserve for contingencies) and distribute a copy of a
pro forma operating statement (budget) to each member. All funds
budgeted, allocated, assessed and collected for deferred
maintenance and capital improvements shall be designated and used
solely for those specific purposes.
The Board may not impose a regular assessment that is more than
t wen ty percen t (20%) grea ter than the reg ul ar asses sment for the
Association's preceding fiscal year or impose special assessments
which in the aggregate exceed five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year without
the approval of owners, constituting a quorum, casting a
majority of votes at a meeting or election of the Association
conducted in accordance with the voting requirements of Article
III, Section 4 of this Declaration. For purposes of this
section, quorum means more than fifty percent (50%) of the owners.
The above paragraph does not limit assessment increases necessary
for emergency situations, which are defined as extraordinary
expenses:
(1) required by an order of a court; or
(2) necessary to repair or maintain the Project or its Common
Area(s) where a threat to personal safety within the Project is
discovered; or
(3) necessary to repair or maintain the Project or its Common
Area(s) that could not have been reasonably foreseen by the Board
in preparing and distributing its pro forma operating budget
pursuant to the By-laws of the Association. However, prior to
the imposition or collection of an assessment under this
subsection (3), 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
foreseen in the budgeting process, and the resolution shall be
distributed to the members with the notice of assessment.
Within one hundred and twenty (120) days after the end of each
fiscal year, the owners shall receive an accounting of assessment
receipts and disbursements for that fiscal year.
Section 3 Special Assessments: In addition to the regular
assessments authorized herein, the Board may levy, in any fiscal
year, a special assessment applicable to that year for capital
improvements, correction of inadequacy of the maintenance fund,
defraying, in whole or in part, the cost of any construction or
unexpected repair or replacement of improvements in the common
area and such other matters as the Board may deem appropriate;
provided, however, that in any fiscal year the Board may not,
impose special assessments which in the aggregate eceed 5 percent
of the budgeted gross expenses for that fiscal year without the
approval of owners, constituting a quorum, casting a majority of
votes at a meeting or election of the Association conducted in
accordance with the voting requirement of Article III, Section 4
16
of this Declaration. For purposes of this section, quorum means
more than fifty percent (SØ%) of the owners. This section does
not limit assessment increases necessary for "emergency
situations" as defined in Section 2 of this Article. Any such
special assessment shall be levied among all Lots in equal
amounts except that a special assessment for major repair or
reconstruction shall be based upon the ratio of the square
footage of the residence of the Lot to be assessed to the total
square footage of the residence of all Lots to be assessed.
Section 4 Reimbursement Charges: The Board shall levy a
reimbursement charge against any Owner and the Lot owned by such
Owner whose failure to comply with this Declaration, the By-Laws
or the Rules has necessitated an expenditure of monies by the
Association from the maintenance fund to bring such Owner and
Lot into compliance with said instruments or in otherwise
performing its functions under this Declaration. Such charge
shall be for the purpose of reimbursing the Association and shall
be due and payable to the Association when levied.
Section 5 Non-Waiver of Assessments: The omission by the Board,
before the expiration of any year, to fix the assessments for
that or the next year shall not be deemed a waiver or
modification in any respect of the provisions of this Declaration
or a release of any Lot Owner from the obligations to pay the
assessments, or any installment thereof, for that or any
subsequent year. In the instance of such omission, the
assessment fixed for the preceding year shall continue until a
new assessment is fixed. No Lot Owner may waive or otherwise
escape liability for the assessments provided for herein by non-
use of the common area, abandonment of the Lot or any attempt to
renounce rights in the common area. .
Section 6 Enforcement: Each Owner of a Lot, upon becom ing such
Owner, s ha 11 be de em ed to covenan t and agr ee to pay to the
Association every assessment provided for in this Declaration and
shall be deemed to agree to the enforcement of all such
assessments in the manner specified herein. Any imposition of a
late charge levied by the Association for the delinquent payment
of regular and special assessments to defray expenses and
"enforcement" assessments or penalties imposed upon an Owner for
failure to comply with this Declaration, the By-laws, or Rules,
shall be subject to the provisions of the California Civil Code
Sections 1366-67. In the event an attorney is employed for
collection of any assessment or to enforce compliance with the
terms and conditions of this Declaration, each Lot Owner agrees
to pay reasonable attorneys' fees and any other costs thereby
incurred, in addition to any other amounts due or any other
relief or remedy to which the Association is entitled. Any
assessment not paid when due will be deemed to be delinquent.
Any assessment not paid within thirty (3Ø) days after the date on
which it becomes due shall thereafter earn interest from the date
of delinquency at the maximum rate permitted by Civil Code
Section 1366 (c) 3. In addition to any other remedies herein or
by law provided, the Association, or its authorized
17
representative, may enforce the obligations of the Owners to pay
the assessments provided for in this Declaration, and each of
them, in any manner provided by law or in equity, by either or
both of the folIo wing proced ures.
Subsection 6.1 Enforcement by Suit: The Association may
commence and maintain a suit at law against any Lot Owner or
Owners personally obligated to pay assessments for such
delinquent assessments and such suit will be maintained in the
name of the Association. Any judgment rendered in any such
action shall include the amount of the delinquency, together with
interest thereon, costs of collection, court costs and reasonable
attorneys' fees in such amount as the court may adjudge against
the delinquent Lot Owner. Suit to recover judgment for unpaid
assessments shall be maintainable without foreclosing or waiving
the lien provided for in the following Subsection. The
Association may not recover more than once in connection with a
single delinquent assessment.
Subsection 6.2 Enforcement by Lien: The amount of any
assessment levied pursuant to this Declaration, plus any costs of
collection, late charges, and interest thereon, shall be a lien
on an owner's Lot from and after the time the Association causes
a Notice of Delinquent Assessment, containing the name and
address of the trustee for foreclosure of the lien and signed by
the Board or its designated representative (or any Lot Owner if
the Board fails or refuses to act), to be recorded with the
County Recorder of Santa Clara County.
No action shall be brought to foreclose the lien securing an
unpaid assessment until the Notice of Delinquent Assessment has
been delivered to the Owner of the Lot subject to such assessment
and notice recorded in the Office of the Santa Clara County
Recorder. Said notice shall state the amount of the assessment
together with the interest, costs and reasonable attorneys' fees,
a description of the Lot against which the assessment has been
made and the name or names of the record Owner or Owners thereof.
After the expiration of thirty (3Ø) days from the date such
Notice of Delinquent Assessment has been recorded, an action may
be commenced in the name of the Association to foreclose the
lien, or such action may be commenced by any Owner if the
Association fails or refuses to act. Upon the declaration of an
assessment and the recording of notice thereof, the Association
may, at its option, declare the entire balance of all sums then
due from the Owner due and payable, which total sum may then be
included in any suit, action or proceeding brought to collect
said sum, including all costs, charges and attorneys' fees.
Notwithstanding anything contained in this Declaration to the
contrary, compliance must be made with Civil Code Sections 1366-
67, and no action may be brought to foreclose the lien created
hereunder, whether judicially, by power or sale or otherwise,
until the expiration of ten (lØ) days after a copy of said Notice
of Delinquent Assessment, showing the date of recordation
thereof, has been mailed to the Owner of the Lot which is
described in such Notice.
18
Each Owner does hereby waive, to the extent of any liens created
pursuant to the 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 in the future.
Section 7 Power of Foreclosure and Sale: Each of the Lot Owners
does hereby appoint the Association, as trustee, to enforce any
lien created pursuant to this Declaration and to foreclose such
lien by means of any available current California statute, as
such statutes may be revised, amended or altered from time to
time, or by judicial foreclosure, and does further grant the
Association, as such trustee, the power to sell the Lot of any
such defaulting Owner, or any part thereof, for lawful money of
the United States, to the highest bidder to satisfy such lien.
The lien provided for herein shall be in favor of the
Association, shall be for the benefit of all Lot Owners and shall
secure payment of all sums set forth in the Notice of Delinquent
Assessment together with all sums becoming due and payable in
accordance with this Declaration after the date of recordation of
said Notice of Assessment. The Association shall have the power
to bid at any foreclosure sale and to purchase, acquire, hold,
lease, mortgage and convey any Lot. In the event such foreclosure
is by action in court, reasonable attorneys' fees, court costs,
title search fees, interest and all other costs and expenses
shall be allowed to the extent permitted by law.
Section 8 Transfer of Lot by Sale or Foreclosure: Sale or
transfer of any Lot shall not affect the assessment lien.
However, the sale of any Lot pursuant to mortgage foreclosure
shall extinguish the lien of such assessments as to payments
which became due prior to such sale or transfer (except for
assessment liens recorded prior to the mortgage). No sale or
transfer shall relieve such Lot from liability for any
assessments thereafter becoming due or from the lien thereof.
Where the mortgagee of a first mortage of record or other
purchaser of a Lot obtains title to the same as a result of
foreclosure of any such first mortgage, such acquirer of title,
his successors and assigns, shall not be liable for the share of
the common expenses or assessments by the Association chargeable
to such Lot which became due prior to the acquisitions of title
to such Lot by such acquirer (except for assessment liens
recorded prior to the mortgage). No amendment of the preceding
sentence may be made without the consent of institutional lenders
in accordance with the provisions of Article IX of this
Declaration. Such unpaid share of common expenses or assessments
shall be deemed to be common expenses collectible from all of the
Lots including such acquirer, his successors and assigns.
Any grantee shall be entitled to a statement from the
Association, setting forth the amount of the unpaid assessments
against the grantor due the Association and such grantee shall
not be liable for, any unpaid assessments made by the Association
19
against the grantor in excess of the amount set forth in the
statement provided however, the grantee shall be liable for any
such assessment becoming due after the date of any such
s ta tement.
Section 9 Release of Lien: Upon payment of the delinquent
assessment or the satisfaction thereof, the Association shall
record, in the same manner as the Notice of Assessment, a further
certificate stating the satisfaction and release of the lien.
Section 19 Status of Assessment Lien: Upon request by any Lot
Owner, the Association will furnish, for the benefit of any
prospective purchaser or present or prospective encumbrancer of
such Lot a statement showing all amounts then due which are
secured by such lien. A reasonable fee, not to exceed Fifty
Dollars ($5Ø.ØØ), may be charged for the preparation of such
sta temen t.
Section 11 Subordination of Lien to Encumbrance:
Notwithstanding any provision to the contrary in this
Declaration, the lien for assessments created by this Declaration
shall be subject and subordinate to and shall not affect the
rights of the holder of any recorded first mortgage or first deed
of trust upon such Lot made in good faith and for value. In the
event any lien imposed under the provisions hereof is
extinguished by reason of the foreclosure of any mortgage or deed
of trust on the Lot subject to such lien, and there is a surplus
in such foreclosure, there shall be a lien on such surplus in
order to secure all assessments, whether regular or special,
charged to such Lot after the date of such foreclosure sale,
which lien shall have the same effect and be enforced in the same
manner as prov ided herein.
For purposes of this Section, a mortgage or deed of trust may be
given in good faith or for value even though the mortgagee or the
beneficiary of such mortgage or deed of trust has constructive or
actual knowledge of the assessment lien provisions of this
Declaration.
No amendment of this Section shall affect the rights of the
holder of any mortgage or deed of trust recorded prior to
recordation of such amendment unless the mortgagee or beneficiary
joins in the execution of such amendment.
Section 12 Association Fonds: The assessments collected by the
Association shall be held by the Association for and on behalf of
each Lot Owner and shall be used solely for the operation, care
and maintenance of the Project as provided in this Declaration.
The Board shall allocate a portion of said funds as collected for
the annual maintenance and operation of the Project as specified
in the annual budget and the Board shall allocate a portion of
said funds as collected as reserves for contingencies,
replacement and deferred maintenance of the capital improvements
of the Project as specified in the annual budget. Said funds
shall be deposited, as allocated, into the appropriate bank
2Ø
<". .
accounts and said accounts shall be separately maintained by the
Association. Upon sale or transfer of any lot by any Owner, the
Owner's interest in the funds shall be deemed automatically
transferred to the successor or transferee of such Owner.
In the event that the Board retains a professional management
service, the Board may delegate the authority to deposit or
withdraw funds to responsible representatives of the professional
management agent so retained. The professional management agent
may additionally be authorized to establish a common trustee
account for deposit of assessments as collected. Any funds
deposited in such a common trustee account shall be allocated as
previously specified herein.
Section 13 Books of Account: The board shall maintain full,
complete and correct books of account of the operation of the
Project and vouchers supporting expenditures. Any Lot Owner, or
the duly authorized representative thereof, may at any time and
at his own expense cause an aud it or inspection to be made of the
books and records of the Association.
ARTICLE VI
EASEMENTS
Section 1 Generally: There are hereby specifically reserved for
the benefit of the Lots and Lot Owners, in common and for each
Lot and Lot Owner severally, and for the Association, as their
respective interests apply, the easements, reciprocal negative
easements, and rights of way as particularly identified in this
Article.
Section 2 Easements for Utilities and Maintenance: The rights
and duties of the owners of Lots within the Project- with respect
to sanitary sewer, water, electricity, gas and telephone lines
and facilities, and heating facilities shall be as follows:
(a) Whenever sanitary sewer, water, electricity, gas,
television reception, telephone lines or connections are
installed within or upon any Lots owned by other than the owner
of a Lot served by said connections, the owners of any Lot served
by said connections shall have the right, and are hereby granted
a non-exclusive easement to the full extent necessary therefore,
to enter upon the Lot to repair, replace and generally maintain
said connections as and when necessary.
(b) Whenever sanitary sewer, water, electricity, gas, or
telephone lines or connections are installed within the property
which connections serve more than one Lot the owner of each Lot
served by said connection shall be entitled to the full use and
21
enjoyment of such portions of said connections as service his
Lot.
(c) In the event of a dispute between owners with respect
to the repair or rebuilding of said connections, or with respect
to the sharing of the cost thereof, then upon written request of
one of such owners addressed to the Association, the matter shall
be submitted to the Board of Directors who shall decide the
dispute, and the decision of the Board shall be final and
conclusive on the parties.
(d) Easements over and under the property for the
installation, repair, and maintenance of electric, telephone,
water, gas, and sanitary sewer lines and facilities, cable or
master television antenna lines, drainage facilities, walkways,
and landscaping as shown on the recorded map of the property, are
hereby reserved by Declarant and his successors and assigns,
including the Association. Following the sale of the first unit,
the Declarant and his successors and assigns shall only have
those powers which result from his voting rights.
Section 3 Ingress and Egress: There is hereby reserved to each
Lot, as dominant tenement, a non-exclusive easement appurtenant
to each Lot over and across the Common Area, as serv ient
tenement, for ingress, egress, use and enjoyment of said Common
Area subject to the limitations provided in this Declaration.
Section 4 Encroachment Easements: Each Lot wi thin the proj ect
is hereby declared to have an easement over all adjoining Lots
and the common area for the purpose of accommodating any minor
encroachment due to engineering errors, errors in original
construction, settlement or shifting of the building, or any
other cause. There shall be valid easements for the maintenance
of said encroachments as long as they shall exist, and the rights
and obligations of owners shall not be altered in any way by said
encroachment, settlement or shifting; provided, however, that in
no event shall a valid easement for encroachment be created in
favor of an owner or owners if said encroachment occurred due to
the wilful misconduct of said owner or OWDGrS. In the event a
structure is partially or totally destroyed, and then repaired or
rebuilt, the owners of each Lot agree that minor encroachments
over adjoining lots or common area shall be permitted and that
there shall be valid easements for the maintenance of said
encroachments so long as they shall exist.
Section 5 Public Utility Easement: There shall be "Public Utility
Easements" as shown on the Map.
22
ARTICLE VII
USE RESTRICTIONS
In addition to all of the covenants contained herein, the use of
the property and each Lot therein is subject to the following:
Section 1 Lot Use: Residents shall be limited as follows: No
Lot shall be occupied and used except for residential purposes by
the owners and their family members, tenants, and social guests,
and no trade or business shall be conducted therein, except that
Declarant, his successors or assigns, may use any Lot owned by
Declarant for a model home site and display and sales office
until the last Lot is sold by Declarant. No tent, shack,
trailer, basement, garage, outbuilding or structure of a
temporary character shall be used at any time as a residence,
either temporarily or permanently.
Section 2 Nuisances: No noxious, illegal, or offensive
activities shall be carried on in any Lot or residence nor on any
part of the property, nor shall anything be done thereon which
may be or may become an annoyance or a nuisance to or which may
in any way interfere with the quiet enjoyment of each of the
owners of his respective Lot or which shall in any way increase
the rate of insurance for the project, or cause any insurance
policy to be cancelled or to cause a refusal to renew a policy,
or which will impair the structural integrity of any building.
Section 3 Vehicle Restrictions: No trailer, camper, mobile
home, commercial vehicle, truck (other than standard size pickup
truck), inoperable automobile, boat or similar equipment shall be
permitted to remain upon any area within the Project unless
within an enclosed garage or hidden from view from the common
area. Commercial vehicles shall not include sedans or standard
size pickup trucks which are used both for business and personal
use, provided that any signs or markings of a commercial nature
on such vehicles are unobtrusive and inoffensive as determined by
the Board. No noisy or smoky vehicles shall be operated on the
property. No off-road unlicensed motor vehicles shall be
operated upon the property.
Section 4 Signs: No signs shall be displayed to public view on
any Lots or on any portion of the property except such signs as
are approved by the Board. IIFor Salell or "For Rentll signs shall
be allowed provided they do not exceed three (3) square feet in
size.
Section 5 Animals: No animals or birds of any kind, shall be
raised, bred, or kept in any Lot or on any portion of the
Project except that no more than two (2) usual and ordinary
23
household pets such as a dog, cat, bird, etc., may be kept so
long as they are not kept for any commercial purpose, and
provided they are kept under reasonable control at all times. No
pet may be kept on the property which results in a nuisance as
prohibited in Section 2 of this Article. No pets shall be
allowed in the common area except as may be permitted by rules of
the Board. No dog shall enter the common area except while on a
leash which is held by a person capable of controlling it.
Declarant or any owner may cause any unleashed dog found within
the common area to be removed to a pound or an imal shel ter under
the jurisdiction of the City of Campbell and/or the County of
Santa Clara. No dog whose barking disturbs other owners shall be
permitted to remain on the property. Owners shall prevent their
pets from soiling any portion of the common area.
Prior to any decision by the Board pursuant to this section that
an Owner is responsible for the maintenance of a nuisance or any
decision to remove a pet from the Project, the Owner shall be
provided with written notice specifying the nature of the
infraction and an opportunity for a hearing before the Board.
The remedies for an alleged nuisance shall not include any
measures which may be characterized as "private self-help action"
and any Board action in connection with this section shall be in
compliance with the provisions of Article IV, Section 2.5 of this
Declaration.
Section 6 Garbage and Refuse Disposal: All rubbish, trash and
garbage shall be regularly removed from the Project, and shall
not be allowed to accumulate thereon. Trash, garbage and other
waste shall not be kept except in sanitary containers.
Section 7 Satellite Dishes, Radio and Television Antennas: No
alteration to or modification of the central satellite dish,
television antenna system or any subsequent cable or other system
for television reception as maintained by the Association, if
any, shall be permitted. No owner shall be permitted to construct
and/or operate his own external satellite dish, radio and/or
television antenna which interferes with any other Lot Owner's
phone, television and/or radio reception. In the event of a
disagreement between Lot owners, the matter shall be submitted to
the Board which shàll make a final decision.
Section 8 Right To Lease: The Lots shall not be rented for
transient or hotel purposes, which shall be defined as (a) rental
for any period less than thirty (3Ø) days, or (b) any rental if
the occupants of the Lot are provided customary hotel service
such as room service for food and beverage, maid service, or
furnishing laundry and linen. Subject to the foregoing
restrictions, the owners of the Lot shall have the absolute right
to lease same provided that any lease shall be subject to the
covenants, conditions, restrictions, limitations and uses
contained in this Declaration and the Articles and By-Laws.
Section 9 Clothes Lines: No exterior clothes lines shall be
erected or maintained and there shall be no outside laundering or
24
drying of clothes.
Section 19 Power Equipment and Car Maintenance: No major power
equipment, hobby shops, or car maintenance (other than emergency
work) shall be permitted within the Project which unreasonably
causes disruption to any Lot Owner. In the event of a dispute
between Lot Owners, the decision of the Board shall be final. In
reaching a final decision, the Board shall consider the effects
of noise, air pollution, dirt or grease, fire hazard,
interference with radio, television or phone reception, and
sim ilar obj ections.
Section 11 Liability of Owners for Damage to Co.mon Area: The
owner of each Lot shall be liable to the Association for all
damages to the common area or improvements thereon caused by such
owner or any Occupant of his Lot or guest, except for that
portion of said damage, if any, fully covered by insurance.
Liability of an owner shall be established only after notice to
the owner and a hearing before the Board.
Section 12 Drapes: All drapes or curtains visible from the street
or Common Area shall be white or off-white.
ARTICLE VIII
ARCHITECTURAL CONTROL
Section 1 Committee Organization: There shall be no
modification, construction or reconstruction of any portion of
the residences or the Common Area without the express written
approval of the Architectural Control Committee which shall
consist of the three (3) persons who are the members of the
Board.
Section 2 Appointment, Removal and Ter. of Office: Declarant
shall appoint all replacements to the Architectural Control
Committee until the first anniversary of the issuance of the
original Final Subdivision Public Report for the Project.
Declarant shall have the right to appoint and remove a majority
of the members of the ~rchitectural Committee until such time as
the Lot Owners other than Declarant own ninety percent (90%) or
more of the Lots within the Project or five (5) years after the
issuance 0 f the or ig in al Fi nal Subd i v is i on Publ ic Repo rt of the
Department of Real Estate for the Project, whichever occurs
first. After one year from the date of issuance of the original
Final Public Report for the Project, the Board shall have the
right to appoint one member to the Committee. When Declarant
waives or no longer has the right to appoint and remove the
members of the Committee, said right shall be vested solely in
the Board. All members appointed by the Board shall be Lot
Owners. Exercise of the right of appointment and removal, as set
25
forth herein, shall be evidenced by the specification in the
Minutes of the Association of each new Committee member appointed
and each member replaced or removed from the Architectural
Control Committee. Vacancies on the Ar.::hitectural Control
Committee, however caused, shall be filled by the Declarant or
the Board, which ever then has the po wer to appo int m embers.
Section 3 Duties: It shall be the duty of the Architectural
Control Committee to consider and act upon such proposals or
plans submitted to it pursuant to the terms of Section 5 hereof,
to adopt Architectural Control Committee Rules, to perform other
duties delegated to it by the Association and to carry out all
other duties imposed upon it by this Declaration.
Section 4 Meetings: The Architectural Control Committee shall
meet from time to time as necessary to properly perform its
duties hereunder. The vote or written consent of any majority of
the Committee shall constitute an act by the Committee unless the
unanimous decision of its members is otherwise required by this
Declaration. The Committee shall keep and maintain a record of
all actions taken by it at such meeting or otherwise. The
Architectural Committee and its members shall be entitled to
reimbursement for reasonable out-of-pocket expenses incurred in
the performance of any Architectural Control Committee function.
Section 5 Application for Approval of Improvements: Any Lot
Owner, except Declarant and its designated agents, proposing to
perform any work of any kind whatever which requires the prior
approval of the Architectural Control Committee shall apply to
such Committee for approval by notifying the Architectural
Control Committee of the nature of the proposed work in writing
and furnishing such information as the Committee may require.
'Section 6 Approval: All approvals shall be in writing;
provided, however, that any request for approval not rejected
within thirty (3Ø) days from the date of submission thereof to
the Architectural Control Committee shall be deemed approved.
Section 7 Liability: Neither the Architectural Control Committee
nor any member thereof shall be liable to the Association or to
any Lot Owner for any damage, loss or prejudice suffered or
c 1 aim ed 0 n a c co un t 0 f : ( a) the a p pro valor d i sap pro val 0 fan y
plans, drawings and specifications, whether or not defective, (b)
the construction or performance of any work, whether or not
pursuant to approved plans, drawings and specifications, (c) the
development of any property within the Project, or (d) the
execution and filing of an estoppel certificate, whether or not
the facts therein are correct; prov ided, however, that such
member has acted in good faith on the basis of such information
as may be possessed by him.
Section 8 Appeals: Decisions of the Architectural Control
Committee may be appealed to the Board of Directors in writing.
Such appeals must be made within ten (10) days of receipt of the
decision.
26
ARTICLE IX
~ORTGAGEE RIGHTS AND PROTECTION
Notwithstanding any other provisions of this Declaration to the
contrary:
Section 1 Mortgage Permitted: Any Lot Owner may encumber his
Lot with a mortgage. For purposes of this Declaration a
"mortgage" means a deed of trust as well; and a "mortgagee" also
means the beneficiary under a deed of trust. A "first mortgage"
similarly also means "a first deed of trust".
Section 2 Subordination: Any lien created or claimed under the
provisions of this Declaration is expressly made subject and
subordinate to the rights of any first mortgage that encumbers
all or a portion of the Project, or any Lot made in good faith
and for value, and no such lien shall in any way defeat,
invalidate, or impair the obligation or priority of such first
mortgage unless the mortgagee expressly subordinates his
interest, in writing, to such lien.
Section 3 Amendment: No amendment to this Declaration, the
Articles or the By-Laws shall affect the rights of any mortgagee
under any mortgage made in good faith and for value and recorded
before the recordation of any such amendment unless the mortgagee
either joins in the execution of the amendment or approves it in
writing as a part of such amendment.
Section 4 Restrictions on Certain Changes: Amendments of a
material nature must be agreed to by Lot owners representing
sixty-seven percent (67%) of the total voting power of the
Association. In addition, approval must: be obtained from
fifty-one percent (51%) of the Eligible Mortgage Holders (as
de fin ed in Ar tic 1 e I 0 f t his De cIa rat ion) 0 f Lo t s t ha tar e
subject to first mortgages. A change to any of the following
would be considered as material:
(a) voting rights;
(b) assessments, assessment liens, or subordination of
assessment liens;
(c) reserves for maintenance, repair and replacement of
common areas;
(d) responsibility for maintenance and repairs;
(e) reallocation of interests in the general or restricted
common areas, or rights to their use;
(f) boundaries of any Lot;
(g) convertibility of Lots into common areas or vice versa;
(h) expansion or contraction of the project, or the
addition, annexation or withdrawal of property to or
27
from the project;
insurance or fidelity bonds;
leasing of any residences within any Lots;
imposition of any restrictions on a Lot owner's right to
sell or transfer his Lot;
(1) a decision by the Association to establish self-
management when professional management had been required
previously by an eligible mortgage holder;
(m) restoration or repair of the project (after a hazard
damage or partial condemnation) in a manner other than
that specified in the documents;
(n) any action to terminate the legal status of the project
after substantial destruction or condemnation occurs; or
(0) any provisions that expressly benefit mortgage holders,
insurers or guarantors.
(i)
( j)
( k)
When Lot owners are considering termination of the legal status
of the project for reasons other than substantial destruction or
condemnation of the property, the first mortgage holders
representing sixty-seven percent (67%) of the votes of the
El ig ible Mortgage Holders must agree.
Section 5 Right to Examine Books and Records: First mortgagees
can examine the books and records of the Association at any time
during normal business hours and can require the submission of
financial data concerning the Association including at their
request annual audited reports and operating statements as
furnished to the owners to be supplied them within ninety (9Ø)
days of the end of the fiscal year.
Section 6 Distribution of Insurance and Condemnation Proceeds:
No Lot owner, or other party, shall have priority over any right
of first mortgagees of Lots pursuant to their mortgages in case
of a distribution to Lot owners of insurance proceeds or
condemnation awards for losses to or a taking of Lots or any
common area. Any prov is ion to the con tr ary in this Declara tio n
or in the By-Laws or other documents relating to the Project is
to such extent void. All applicable fire and all physical loss
or extended coverage insurance policies shall contain loss
payable clauses acceptable to the affected mortgagees naming the
mortgagees, as their interests may appear.
Section 7 tilotices to Mortgagees of Record: On any loss to any
Lot covered by a mortgage, if such loss exceeds Two Thousand
Five Hundred Dollars ($25ØØ.ØØ), or on any loss to the common
area, if such loss exceeds Ten Thousand Dollars ($lØ,ØØØ.øØ), or
any taking of such common areas, notice in writing of such loss
or taking shall be given to each mortgagee of record. If any
Owner of a Lot is in default under any provision of this
Declaration, or the By-Laws, or the rules and regulations adopted
by the Association, which default is not cured within thirty (3Ø)
days after written notice to such owner, the Association shall
give to the mortgagee of record of such owner written notice of
such default and of the fact that said thirty (3Ø) day period has
expired. Further, if any Lot and/or the common area is made the
28
subject matter of any condemnation or eminent domain proceeding
or is otherwise sought to be acquired by a condemning authority,
then the first mortgagee on such Lot shall be given timely
written notice by the Association of such proceeding or proposed
acquisition.
Section 8 Effect of Breach: No breach of any provision of this
Declaration shall invalidate the lien of any mortgage in good
faith and for value, but all of the conditions, covenants and
restrictions contained herein shall be binding on any owner whose
title is derived through the foreclosure sale, trustee's sale, or
other wi se.
Section 9 Appearance at Meetings: Because of its financial
interest in the Project, any first mortgagee or its
representative may appear (but cannot vote) at meetings of the
members and the Board, and may at such meetings draw attention to
violations of this Declaration that have not been corrected or
made the subject of remedial proceedings or assessments. Upon
request, a first mortgagee shall also be given written notice of
all such meetings.
Section lØ Contracts Terminable: Any agreement between the
Association and Declarant or between the Association and a
professional manager pursuant to which the Declarant or Manager
agrees to provide services shall provide for termination by
either party without cause or payment of a termination fee on
thirty (3Ø) days written notice and shall have a maximum contract
term of one (1) year prov ided that the Board can renew any such
contract on a year to year basis.
Section 11 Additional Rights of Institutional Lenders:
Notwithstanding any provision in this Declaration to the
contrary, institutional lenders shall have the following rights:
A. First mortgagees of individual Lots may, jointly or
separately, pay taxes or other charges which are in default and
which may have become a charge against any association common
property and may pay overdue prem iums on hazard insurance
policies, or secure new hazard insurance coverage on the lapse of
a policy, for such common property and first mortgagees making
such payments shall be owed immediate reimbursment therefor from
the Association. Entitlement to such reimbursement shall be
reflected in an agreement in favor of all first mortgagees of
Lots duly executed by the Association;
B. Association dues or charges shall include an adequate
reserve fund for maintenance, repairs and replacement of those
common area improvements that must be replaced on a periodic
basis, and shall be payable in regular installments rather than
by special assessments;
c. Each holder of a first mortgage lien on a Lot who comes
into possession of the Lot by virtue of foreclosure of the
mortgage, or any purchaser at a foreclosure sale under a first
29
deed of trust, will take the Lot free of any claims for unpaid
assessments and charges against the Lot which accrue prior to the
time such holder comes acquires title to the Lot; and
D. The proj ect govern i ng instruments con ta in no prov i s ions
creating a "right of first refusal," but should any such rights
be created in the future, any such right shall not impair the
rights of any institutional lender to: (1) foreclose or take
title to a Lot pursuant to the remedies provided in the mortgage,
or (2) accept a deed (or assignment) in lieu of foreclosure in
the event of a default by a mortgagor, or (3) interfere with a
subsequent sale or lease of a Lot residence so acquired by the
mor tg agee.
ARTICLE X
DAMAGE, DESTRUCTION OR CONDEMNATION OF COMMON AREA IMPROVEMENTS
Section 1 Damage and Destruction: In the event of damage or
destruction of the property of the Association, or any part
thereof, it shall be the responsibility of the Association to
repair or replace the same in substantial accordance with the
original plans and specifications of the Project.
Subsection 1.1 Insured Losses: I f the d am age or destr uction
to the Association property is an insured loss the loss shall be
handled as follows:
A. Minor Casualties: If the insurance proceeds initially offered
or paid by the insurer do not exceed Fifty Thousand Dollars
($SØ,ØØØ) such insurance proceeds shall be paid to the
Association in accordance with Article IV, Section 1, Subsection
1.2 of this Declaration. The Board shall then contract to repair
or rebuild the damaged portions of the Association's property in
substantial accordance with the original plans and specifications
of the Project, obtain bids in accordance with the following
paragraphs, and the insurance funds held by the Association shall
be used for such reconstruction.
B. Major Casualty: If the insurance proceeds initially offered or
p aid by t he ins u r ere x c e ed F i f t Y Tho u s and Do 11 a r s ( $ 5 ø , ø ø Ø) ,
the following shall apply:
(1) All insurance proceeds shall be paid to the Association
and deposited in a newly-created account, and held for the
benefit of the Owner(s) of the relevant Lot and their mortgagees
as their respective interests may appear.
(2) The Board shall obtain firm bids from two or more
responsible contractors to rebuild the relevant portion of the
3Ø
Project in accordance with its condition prior to damage and
destruction, modified at the direction of the Board to comply
with the building codes and construction standard in effect at
the time of the rebuilding. To be considered, any contractor's
bid shall include the premium payaQle for a performance, labor
and material payment bond from a reputable bonding company.
(3) The Board shall then call a meeting of all affected
Owners to review all such submitted bids. A simple majority vote
of the affected Owners will be required to accept or reject any
bid. The failure by such Owners to either accept a bid or reject
all bids shall authorize the Board to accept an unrejected bid it
considers most favorable, or seek further bids.
Subsection 1.2 Uninsured or Insufficiently Insured Losses:
If any damage or destruction is uninsured or if the insurance
proceeds are insufficient to cover the cost of repairs or
replacement of the property damaged or destroyed, the Board will
make a Special Assessment, in accordance with the provisions
outlined in Article V, Section 3 of this Declaration, to cover
such cost. Such special assessment is in addition to any other
regular assessments and is subject to the rules herein relating
to Special Assessments. Any Special Assessment for the
rebuilding or major repair work of individual residences will be
levied upon the basis of the ratio of the square footage of the
lot residence to be assessed to the total square footage of the
residences of all Lots to be assessed.
Subsection 1.3 Full Insurance Settlement: Notwithstanding
any provision of this Article X, if the insurance carrier offers
the full amount required to repay and restore all of the damage,
then the Board shall contract to repair or rebuild the damaged
portions of all affected residences in the manner provided in
this Article X, Subsection 1.1 for a minor casualty.
Subsection 1.4 Emergency Repairs:without waiting to obtain
insurance settlements or bids, the Board may undertake such
emergency repair work after a casualty as it may deem necessary
or desirable under the circumstances, and the Board may charge
the operating accounts for the cost thereof. In the event of a
casualty, there is a substantial possibility that immediate
emergency repairs will be required to eliminate defective or
dangerous conditions and to comply with applicable laws,
ordinances and regulation, pending settlement of insurance claims
and prior to procuring bids for performance of restoration work.
Subsection 1.5 Decision Not to Rebuild: The decision not to
rebuild will require the affirmative vote or written assent of
not less than seventy-five percent (75%) of each class of Owner.
Upon conversion of Class B membership to Class A membership as
provided in this Declarat~on, a vote in accordance with this
Declaration, Article III, Section 4, shall be required for the
decision not to rebuild. In the event the membership elects not
to rebuild, the proceeds received by the Association as a result
of such decision shall be distributed by the Association among
31
the Owners of Lots and their respective mortgagees according to
the respective fair market values of the Lots at the time of
destruction. The fair market value shall be determined by taking
the average of two appraisals as commissioned by the Board.
Section 2 Distribution of Funds in Event of Condemnation: A
condemnation award affecting one or more lots which is not
apportioned among the owners by a court judgment or by agreement
between the condemning authority and each of the affected Owners,
shall be distributed among the Owners of Lots and their
respective mortgagees according to the respective fair market
values of the Lots at the time of destruction. The fair market
value shall be determined by taking the average of two
independent appraisals as commissioned by the Association.
ARTICLE XI
GENERAL PROVISIONS
Section 1 Enforcement of Bonded Obligations: When common area
improvements have not been completed prior to the issuance of the
fir st final publ ic report for the proj ect and the Assoc ia tion is
obliged under a bond or other arrangement (hereinafter called
"Bond") to secure performance of the commitment of Declarant to
complete the improvements, the following provisions relative to
the initiation of action to enforce the obligations of Declarant
and the surety under the Bond shall pertain:
(A) The Board shall consider and vote on the question of
action by the Association to enforce the obligations under the
Bond with respect to any improvements for which a Notice of
Completion has not been filed within sixty (6Ø) days after the
completion date specified for that improvement in the Planned
Construction Statement appended to the bond. If the Association
has given an extension in writing for the completion of any
common area improvements, the Board shall be directed to consider
and vote on the question if a Notice of Completion has not been
filed within thirty (3Ø) days after the expiration of any such
extension.
(B) There shall be a special meeting of the Members for the
purpose of voting to override a decision by the Board not to
initiate action to enforce the obligations under the Bond or on
the failure of the Board to consider and vote on the question.
The meeting shall be required to be held not less than thirty-
five(35) nor more than forty~five (45) days after receipt by the
Board of a petition for such a meeting signed by Members
representing not less than five percent (5%) of the total voting
power of the Association.
32
(C) There shall be a vote by Members of the Association
0 the r t h an De cIa r an tat t he s p e cia 1 me e tin g call ed . A v 0 t e 0 f
the majority of the voting power of the Association residing in
Members other than Declarant to take action to enforce the
obligations under the Bond shall be deemed to be the decision of
the Association and the Board shall thereafter implement this
decision by initiating and pursuing appropriate action in the
name of the Association.
Section 2 Invalidity of any Provision: Should any provision or
portion hereof be declared invalid or in conflict with any law of
the jurisdiction where this project is situated, the validity of
all other provisions and portions hereof shall remain unaffected
and in full force and effect.
Section 3 Term: The covenants and restrictions of this
Declaration shall run with and bind the property, and shall inure
to the benefit of and shall be enforceable by the Association or
the owner of any Lot subject to this Declaration and his legal
representatives, heirs, Successors and assigns, for a term of
thirty (3Ø) years from the date this Declaration is recorded,
after which time they shall be automatically extended for
successive periods of ten (IØ) years, unless an instrument in
writing, signed by a majority of the then owners of the Lots has
been recorded within the year preceding the beginning of any
successive period of ten (IØ) years, agreeing to change said
covenants and restrictions in whole or in part or to terminate
the sam e.
Section 4 Amendments: This Declaration may be amended only by
the affirmative vote or written assent of seventy-five percent
(75%) of each class of the owners. After conversion of Class B
membership to Class A, this Declaration may be amended only by
the affirmative vote or written assent of: (1) seventy-five
per c e n t (7 5 %) 0 f the tot a 1 v 0 tin g po we r 0 f the Ass 0 cia t ion; and
(2) seventy-five percent (75%) of the votes of members other than
the Declarant. The percentage of voting power necessary to
amend a specific clause or provision shall not be less than the
percentage of affirmative votes prescribed for the action to be
taken under that clause or provision. Any amendment must be
recorded and shall become effective upon being recorded in the
Recorder's Office of Santa Clara County.
Section 5 Development Rights: Declarant is undertaking the work
of developing for sale Lots and certa in improvements wi thin the
Project. The completion of that work and the sale, rental and
other disposal of said Lots is essential to the establishment and
welfare of the property as a residential community. In order
that this work may be completed and said property be established
as a fully occupied residential community as rapidly as possible,
nothing in this Declaration. shall be understood or construed to:
(A) Prevent Declarant, its contractors or subcontractors
from obtaining reasonable access over and across the common area
of the Project or from doing within any unsold Lot owned by
33
Declarant whatever is reasonably necessary or
connection with the completion of said work;
adv isable
in
(B) Prevent Declarant or its representatives from erecting,
constructing and maintaining within the common area such
structures as may be reasonably necessary for completing said
work and conducting its business of establishing said property as
a residential community and disposing of the same in parcels by
sa ie, lease, or other wise;
(C) Prevent Declarant from maintaining such signs on Lots
still owned by Declarant or on the common area as may be
necessary for the sale, lease or disposition of the Lots therein;
or
(D) Prevent Declarant from maintaining model homes, sales
offices, storage facilities or related such facilities in any
unsold Lots wi thin the proj ect necessary or reasonable, in the
opinion of Declarant, for sale or disposition of the Lots.
Declarant shall be entitled to reasonable use of the common areas
and common area facilities for undertaking its sale of the Lots.
The above rights of Declarant with respect to development and
marketing shall be limited to a period of three (3) years from
the date of the first sale of a Lot.
The Declarant shall be obligated to pay a reasonable rental
amount to the Association for use of the Common Area for
marketing purposes.
Section 6 Enforcement:
this document:
Notwithstanding any other provision in
(A) Except as otherwise provided herein, the Association or
any Owner shall have the right to enforce any and all of the
covenants, conditions and restrictions now or hereafter imposed
by this Declara tion upon the 0 wners or upon any property wi thi n
the proj ec t; and
(B) Any violation of any state, municipal or local law,
ord inance or reg ula tion perta in ing to the 0 wnership, occupa tion
or use of any property within the Project is hereby declared to
be a violation of this Declaration and subject to any or all of
the enforcement procedures herein set forth; and
(C) Each remedy provided by this Declaration is cumulative
and not exclusive; and
(D) The failure to enforce the provisions of any covenant,
condition or restriction contained in this Declaration shall not
constitute a waiver of any right to enforce any such provisions
or any other provision here."
34
Section 7 Fair Housing: No Owner shall, either directly or
indirectly, forbid or restrict the conveyance, encumbrance,
leasing or mortgaging, or occupancy of his lút to any person for
reasons of race, color, religion, sex, marital status, national
origin, adulthood of any vendee, lessee or occupant, or ancestry.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein,
has executed this declaration this day of
,198-
SHELLEY TERRACE CORPORATION
By:
ACKðI1IOWLEDGKENT
STATE OF CALIFORNIA
)
)
)
ss.
COUNTY OF SANTA CLARA
On
Notary Public
appeared
in
and
,
for
198_, before me, the undersigned, a
the County and State, personally
known to me (and proved by satisfactory evidence) to be the
officer of the corporation which executed the within instrument,
and acknowledged to me that he executed the same.
WITNESS my hand and seal.
35
-
I
CONSENT AND SUBORDINATION
as Beneficiary under the Deed of Trust made by
dated,
recorded
in
Book
,
at
page
of
Official
Records
of
------------------------- County,
hereby consents to the
execution of and also subordinates all the right, title, interest
and lien which they now have to that of the foregoing Declaration
of Covenant, Conditions and Restrictions, dated
as
if
and
as
tho ug h
said Declaration has been made, executed
and
recorded
prior to execution and recordation of said Deed of
Trust.
BY:
36
CITY OF CAMPBEll
70 NORTH FIRST STREET
CAMPBELL, CALIFORNIA 95008
(408) 866.2100
FAX # (408) 379.2572
Department:
Public Works
June 22, 1989
Fidelity Title Insurance Co.
51 East Campbell Ave.
Campbell, CA 95008
Attn: Mary Fisher
Re: Parcel Map 89-02
N/W Corner Hacienda/Sonuca
Gentlemen:
Enclosed is the original of the referenced parcel map to be filed for
record in the County of Santa Clara when the following conditions are
met:
Subdivider to pay to City:
1. Storm Drain Fee
2. Parks dedication in~lieu fee
3. Encroachment Permit Fee
$ 1,189.00
$10,868.00
$ 8,580.00
Subdivider to post a letter of credit for street improvements in
Hacienda Avenue, Sonuca Avenue, and the new private cul-de-sac in
the amount of $78,000.00.
,If these fees are not paid or the letter of credit is not posted the
map is not to be,recordeø but returned to the City of Campbell.
Sincerely:
;111
James Penoyer
Engineering Technician