Draft CC&Rs~~ 04 CgMn~~
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•~~CH AR~•
CITY of CAMPBELL
Community Development Department
August 21, 2007
Mr. Nick Gera
DBI Construction, Inc.
100 S. Murphy Street
Sunnyvale, CA 94086
RE: C, C & R's First Street Estates
154 & 160 S. First Street (George Court )
Dear Mr. Gera:
The City Attorney and Community Development Director have reviewed the draft C.C. & R.'s
for the referenced project and offer the following comments prior to recordation:
It is not clear whether or not the C.C. & R.'s provide for the maintenance of the "front yard."
If the "front yard" is within the common area, then the C.C. & R.'s are adequate. If the "front
yard" is not in the common area, then the "front yard" does not seem to be covered. Please
amend the C.C.&R.'s to address common maintenance of front yard areas.
If you should have any questions regarding these comments, please do not hesitate to contact
me at 408 866-2144 or via e-mail at timh~cr~cit oy_ fcampbelLcom.
Sincer
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Tim .Haley
Associate Planner
cc: Jackie Young Lind, Acting Community Development Director
J:\Correspondence\154-160 S. First St. CC&R's..doc
70 North First Street Campbell, California 95008-1 4 36 TES 408.866.2140 ~ Fnx 408.871.5140 ~ T~~ 408.866.2790
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•~.tCy,AgO. City of Campbell -- Community Development Department
70 N. First Street, Campbell, CA 95008
MEMORANDUM
To: Jackie Young Lind, Acting Community Development Director Date: July 5, 2007
William Seligmann, City Attorney
From: Tim Haley, Associate Planner
Subject: C, C & R's ~ 154 & 160 S. First Street
Please find attached the draft C,C & R's for the four unit project approved at 154 & 160 S. First Street.
The condition of approval required the following:
1. Covenants Codes and Restrictions: The applicant shall submit a draft copy of the Covenants, Conditions and Restrictions
(CC&R's) to the Planning Division for approval by the Community Development Director and City Attorney, prior to the
recordation of the Final Subdivision Map, which provide for:
a. Formation of a Homeowner's Association to ensure the long-term maintenance of shared driveway(s), front yard
landscaping and fencing.
b. Continued architectural controls to ensure the architectural integrity of the project.
C. Definition of common landscape areas and sound wall to be maintained and provision of maintenance for these
areas.
d. A funding mechanism to ensure maintenance and upkeep of common landscape areas and shared access facilities.
e. On-going maintenance of the front yard and common landscape areas for the project.
f. Requirement for the availability of garage space for the parking of vehicles at all times.
g. A prohibition on the use of parking spaces for storage purposes, including boats, trailers, and recreational vehicles.
Your review and comments would be appreciated by July 15, 2007.
If you should have any questions during the interim, please do not hesitate to contact me at 866-2144.
Encl: C, C & R's.(First Street Estates)
When Recorded Return To:
Hanna ~ Van Atta
525 University Avenue, Suite 705
Palo Alto, California 94301
DECLARATION OF COVENANTS, CONDITIONS 8~ RESTRICTIONS
OF
FIRST STREET ESTATES
PRELIMINARY WORKING DRAFT
'.THIS DECLARATION CONTAINS A BINDING ARBITRATION PROVISION IN ACCORDANCE WITH THE FEDERAL
ARBITRATION ACT. YOU MUST READ THE ARBITRATION PROVISION CAREFULLY AND SHOULD CONSULT
LEGAL COUNSEL WITH ANY QUESTIONS.
IF THIS DOCUMENT CONTAINS ANY RESTRICTION BASED ON RACE, COLOR, RELIGION,
SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, NATIONAL
ORIGIN, SOURCE OF INCOME AS DEFINED IN SUBDIVISION (P~ OF SECTION 12955, OR
ANCESTRY, THAT RESTRICTION VIOLATES STATE AND FEDERAL FAIR HOUSING LAWS
AND IS VOID, AND MAY BE REMOVED PURSUANT TO SECTION 12956.2 OF THE
GOVERNMENT CODE. LAWFUL RESTRICTIONS UNDER STATE AND FEDERAL LAW ON
THE AGE OF OCCUPANTS IN SENIOR HOUSING OR HOUSING FOR OLDER PERSONS
SHALL NOT BE CONSTRUED AS RESTRICTIONS BASED ON FAMILIAL STATUS.
PRINTED: 6/28/2p07 10:22 PM
T:IWPWIN60~PROJECTS~DBI -FIRST STREET ESTATESIDECLARATION DR1.doc
Law Offices of
Hanna & Van Atta
525 UNNERSRY AVENUE, SURE 705
P/LLO AL7o, CA 94301
TELEPHONE (650)321-5700
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS ......................................................................................................... 1
1.1. "Articles ........................................................................................................................... 1
1.2. "Assessment" :................................................................................................................ 1
1.3. "Assessment Lien" :......................................................................................................... 1
1.4. "Association" ................................................................................................................... 1
1.5. "Board" or "Board of Directors" ...................................................................................... 1
1.6. "Bylaws" :......................................................................................................................... 1
1.7. "City" :.............................................................................................................................. 1
1.8. "Common Area" :............................................................................................................. 1
1.9. "Common Expenses" :..................................................................................................... 1
1.10. "Declarant" :..........................................................•---....................................................... 1
1.11. "Declaration" :.................................................................................................................. 1
1.12. "Eligible Mortgages" ....................................................................................................... 1
1.13. "Eligible Mortgage Holder" :............................................................................................. 1
1.14. "Eligible Insurer or Guarantor' :....................................................................................... 1
1.15. "First Lender" :................................................................................................................. 1
1.16. "First Mortgage" :............................................................................................................. 1
1.17. "Foreclosure" :................................................................................................................. 1
1.18. "Lot": ............................................................................................................................... 1
1.19. „Map ..:............................................................................................................................. 1
1.20. "Member" :....................................................................................................................... 1
1.21. "Mortgage" :..................................................................................................................... 1
1.22. "Mortgagee" :................................................................................................................... 1
1.23. "Mortgagor" :.................................................................................................................... 1
1.24. "Notice of Delinquent Assessment" :............................................................................... 1
1.25. "Owner" :.......................................................................................................................... 1
1.26. "Person" :......................................................................................................................... 1
1.27. "Project" :......................................................................................................................... 1
1.28. "Project Documents" :...................................................................................................... 1
1.29. "Public Report" :............................................................................................................... 1
1.30. "Regular Assessments" :................................................................................................. 1
1.31. "Reimbursement Charge" :.............................................................................................. 1
1.32. "Residence" :................................................................................................................... 1
1.33. "Rules" :........................................................................................................................... 1
1.34. "Special Assessments": .................................................................................................. 1
1.35. "Utility Facilities" :............................................................................................................ 1
ARTICLE II. DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS ...................................................................................................................... 1
2.1. Description of Project :.................................................................................................... 1
2.2. Easements; Dedication of Common Area ...................................................................... 1
2.3. Easements to Accompany Conveyance of Lot :............................................................. 1
2.4. Delegation of Use :.......................................................................................................... 1
2.5. Conveyance of Common Area to Association :.............................................................. 1
2.6. Owners' Rights and Easements for Utilities :.................................................................. 1
2.7. Encroachment Easements :............................................................................................ 1
2.8. Maintenance Easement :................................................................................................. 1
2.9. Drainage Easements :..................................................................................................... 1
2.10. Other Easements :........................................................................................................... 1
2.11. Rights of Entry and Use :................................................................................................. 1
2.12. Partition of Common Area :.............................................•--............................................. 1
2.13. All Easements Part of Common Plan :............................................................................ 1
ARTICLE III. ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS ..... 1
3.1. Association to Own and Manage Common Areas :........................................................ 1
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3.2. Membership :...................................................................................................................1
3.3. Transferred Membership :.................................................................................. ............. 1
3.4. Membership and Voting Rights :........................................................................ ............. 1
ARTICLE IV. ASSESSMENTS AND LIENS .................................................................... ............. 1
4.1. Creation of the Lien and Personal Obligation of Assessments :....................... ............. 1
4.2. Purpose of Assessments :................................................................................. ............. 1
4.3. Assessments: .................................................................................................... .............1
A. Regular Assessments: ...................................................................................... ............. 1
B. Special Assessments :....................................................................................... ............. 1
4.4. Restrictions on Increases in Regular Assessments or Special Assessments : ............. 1
4.5. Notice and Quorum for Any Action Authorized Under Section 4.4 ................... ............. 1
4.6. Uniform Rate of Assessment :........................................................................... ............. 1
4.7. Date of Commencement of Regular Assessments; Due Dates :...................... ............. 1
4.8. Effect of Nonpayment of Assessments :............................................................ ............. 1
4.9. Transfer of Lot by Sale or Foreclosure: ............................................................. ............. 1
4.10. Priorities; Enforcement; Remedies: ................................................................... ............. 1
4.10. Reimbursement Charges; Fines and Penalties :............................................... ............. 1
4.11. Unallocated Taxes :............................................................................................ ............. 1
4.13. Estoppel Certificate :.......................................................................................... ............. 1
ARTICLE V. DUTIES AND POWERS OF THE ASSOCIATION ................................... ............. 1
5.1. Duties :................................................................................................................ .............1
5.2. Powers :.............................................................................................................. .............1
A. Easements :............................................................................................. .............1
B. Manager :................................................................................................. .............1
C. Adoption of Rules :................................................................................... ............. 1
D. Access :.................................................................................................... .............1
E. Assessments and Liens :...................................................................................... 1
F. Fines and Disciplinary Action :................................................................. ............. 1
G. Enforcement :........................................................................................................1
I. Acquisition and Disposition of Property :................................................. ............. 1
J. Loans :...................................................................................................... .............1
K. Dedication :.....................................................................................•--..... ..............1
L. Contracts :............................................................................................... ..............1
M. Delegation :............................................................................................. ..............1
N. Appointment of Trustee :........................................................................ .............. 1
O. Litigation/Arbitration :.............................................................................. ..............1
P. Other Powers :........................................................................................ .............. 1
Q. Common Area Improvements :............................................................... .............. 1
R. Granting Rights :..................................................................................... .............. 1
5.3. Commencement of Association's Duties and Powers :.................................... .............. 1
ARTICLE VI. ARCHITECTURAL CONTROL ................................................................. .............. 1
6.1. Purpose of Architectural Controls :................................................................... .............. 1
6.2. Requirement for Approval of Plans :................................................................. .............. 1
6.3. Architectural Control Committee Membership :................................................ .............. 1
6.4. Architectural Control Committee Action :.......................................................... .............. 1
6.5. Landscaping ..................................................................................................... .............. 1
6.6. Governmental Approval :................................................................................... .............. 1
6.7. Structural lntegrity :............................................................................................ ..............1
6.8. Completion of Work; Review of Work :............................................................. .............. 1
6.9. No Waiver of Future Approvals :....................................................................... .............. 1
6.10. Variances :......................................................................................................... ..............1
ARTICL E VII. USE RESTRICTIONS ............................................................................................. 1
7.1. Use of Lot :........................................................................................................ .............. 1
7.2. Nuisances :........................................................................................................ ..............1
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7.3. Vehicle Restrictions and Towing :................................................................................... 1
7.4. Parking :........................................................................................................................... 1
7.5. Commercial Activity :....................................................................................................... 1
7.6. Storage in Common Area :.............................................................................................. 1
7.7. Signs :.............................................................................................................................. 1
7.8. Animals :.......................................................................................................................... 1
7.9. Garbage and Refuse Disposal :...................................................................................... 1
7.10. Radio and Television Antennas: .................................................................................... 1
7.11. Basketball Standards and Sports Apparatus :................................................................ 1
7.12. Window Coverings :........................................................................................................ 1
7.13. Clothes Lines :................................................................................................................. 1
7.14. Power Equipment and Motor Vehicle Maintenance: ...................................................... 1
7.15. Liability of Owners for Damage to Common Area :......................................................... 1
7.16. Right to Lease :............................................................................................................... 1
7.17. Flags, Pennants, Banners, Etc .:..................................................................................... 1
7.18. Activities Causing Increase in Insurance Rates :............................................................ 1
7.19. Owner's Right and Obligation to Maintain and Repair :.................................................. 1
ARTICLE VIII. INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION ................... 1
8.1. Insurance :....................................................................................................................... 1
B. Representation for Claims ................................................................................... 1
C. Waiver of Subrogation ......................................................................................... 1
D. Review of Policies ................................................................................................ 1
G. Limitation on Liability ............................................................................................ 1
H. Policies and Procedures Regarding the Filing and Processing of Claims:......... 1
8.2. Damage or Destruction :................................................................................................. 1
A. Process For Repair or Reconstruction :............................................................... 1
B. Process If Repair or Reconstruction Not Undertaken: ........................................ 1
8.3. Condemnation :............................................................................................................... 1
ARTICLE IX. GENERAL PROVISIONS ....................................................................................... 1
9.1. Enforcement :.................................................................................................................. 1
9.2. Invalidity of Any Provision :.............................................................................................. 1
9.3. Term :.....................................................................................................•--...................... 1
9.4. Amendments :................................................................................................................. 1
9.5. Rights of First Lenders :.................................................................................................. 1
A. Copies of Project Documents :............................................................................. 1
B. Audited Statement :.............................................................................................. 1
C. Notice of Action .................................................................................................... 1
D. Consent to Action :................................................................................................ 1
E. Right of First Refusal :.......................................................................................... 1
F. Contracts :............................................................................................................. 1
G. Reserves :............................................................................................................. 1
H. Priority of Liens :................................................................................................... 1
I. Distribution of Insurance or Condemnation Proceeds :........................................ 1
J. Payment of Taxes or Insurance by Lenders :....................................................... 1
9.6. Limitation of Restrictions on Declarant :.......................................................................... 1
9.7. Termination of Any Responsibility of Declarant :............................................................ 1
9.8. Owners' Compliance :..................................................................................................... 1
9.9. Notice :............................................................................................................................. 1
9.10. Special Provisions Relating to Enforcement of Declarant's Obligation to Complete
Common Area Improvements :.................................................................................................... 1
9.11. Special Provisions Relating to Enforcement of Declarant's Obligation to Pay
Assessments :.............................................................................................................................. 1
9.12. Fair Housing :.................................................................................................................. 1
9.13. Dispute Resolution :........................................................................................................
iii 1
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A. Claims for Declaratory Relief or Enforcement of Project Documents:...........
B. Design or Construction Defect Claims :...........................................................
C. Notices to Members of Legal Proceedings Against Declarant .......................
D. Judicial Reference for Certain Disputes :........................................................
E. Arbitration of Disputes :....................................................................................
9.14. Number; Gender ........................................................................................................
iv
annum
PRELIMINARY W CONDITIONSF& RESTRICTIONS
DECLARATION OF COVENANTSO,F
FIRST STREET ESTATES
made on the date hereinafter set forth, by DBI CONSTRUCTION, a
• after referred to as "Declarant," is made with reference to the following
THIS DECLARATION,
California corporation, herein
facts: located in the City
Declarant is the owner of certain grope described as Lots 1
State of California, more particula y
A, Location of Prope~Y• ~~ "First Street Estates"] filed
of Campbell ("City"), County of Santa Clara, entitled `Tract - ] L
the Recorder of the County of SanltNaaClara, State of California,
-15 and the C~he O~CeeofLot 16] on the Map p )
for record in of Maps, pages = _.
2007, in Book
on this Declaration to impose
General Plan of Improvement. Declarant intends by
B' d and described in this Declaration, mutually beneficial restrictions under
upon the Project, as define
a general plan of improvement for the benefit of atl Owners of Lo s• ~ect described above shall
NOW, THEREFORE, Declarant hereby declares that all of the Prof
ort a ed, encumbered, rented, used, o ~ on-sacovenants~, and condifions,
be held, sold, leased, m 9 9
subject to the following declarations, limitations, easements, restn irabili of the Project and
e uitable servitudes pursuant to a generandl desor th development of the
which are imposed as q rotectin the value on Declarant and its
Project for the purpose of enhancing and P g c uirin any right, title or interest in or to the
a~Qry part thQrQOf, and which shall arut a hav ng or a Jget angel be binding re to the benefit
successors and assigns, and on all p
described Projector any part of it, their heirs, successors and assigns, and shall inu
of each Owner thereof.
ARTICLE I. DEFINITIONS
1.1. "Articles":The Articles of Incorporation of the Association, as amended from time to
time.
1.2. "Assessment": That portion of the cost of maintaining, improving, repairing,
eratin and managing the Project which is to be S iec al Asse oments, and Reimbursement
op 9
Association, and shall include Regular Assessments, p
Charges.
1.3. "Assessment Lien": Defined in section 4.10.D.
1.4. "Association":The FIRST STREET E mTb Tics of wOhich sOhalNbeRhe Ow eCs of Ots n
California nonprofit mutual benefit corporation, the Me
the Project.
1.5. "Board" or "Board of Directors": The governing body of the Association.
1.6. "Bylaws": The bylaws of the Association, as amended from time to time.
1 7, "City": The City of Campbell.
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~~ ; A Notice of Delinquent Assessment filed by
"Notice of Delinquent Assessment
1.24' ~ uent Assessment pursuant to section 4.10.C. of fee
1 or more persons or entities,
the Association for a del-nq whether one () those persons or entities
"Owner" : The record Owner, act but expressly excluding arson obtains
until suc p
1.25. art of the Proj
simple title to any Lot which is a P for the performance of an obligation,
leasehold interests in a Lof. If a Lot is sold un er a
merely as security than the holder of the fee
having an interest art-es who have rathe
and those P urchaser under the contract of sale,
act of sale, the p nd after the date the Association receives written no -c
fee title hereto,
recorded contr
interest, be coeds on{eache "Owner from a i a trustee, or other legal
of the recorde oration, a partnersh p,
1.26- "Person": A natural person, a corp
e above described on the Map including all improve-
entity.
subject to this Declaration.
1 27. "project : All of the real prop rtY
structures erected or to be erected on that real properfY~
meets and ether with the other basic documents
This Declaration, tog laws and Rules
1.28. "Project Documents": the Map, the Articles, and the By
used to create and govern the Project, including
adopted by the Board or the Association. ursuant to the
"Public Repo~'~: The official d tlceument and permit bs the State of California
1 29 11000 et seq.] y ublic.
Subdivided Lands Act [Busiautho z ng the offer ng of the Lots for sale to the p
Department of Real Estate the Association
"Regular Assessments": A Regular Assessment levied by
1.30.
pursuant to section 4.3.B. the Board against an Owner to
1.31. "Reimbursement Charge": A charge levied by
enses incurred in bringing the Owner andlor his or her
ursuant to
reimburse the Association for costs and exp
into compliance with the provisions of this Declaration, determined and levie p
Lot
sections 4.10 and 5.1 A of this Declaration.
1.32. "Residence": The residential structure that is located on a Lot.
"Rules": The rules adopted from time to time by the Board or the Association
1.33.
pursuant to section 5.2.C.
.34. "Special Assessments": A Special Assessment levied by the Association pursuant
1
to section 4.3.6.
1.35. "Utility Facilities": Defined in section 2.6.
3
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1.8. "Common Area": Lot 16 described on the Map shall be the "Common Area"
(including all improvements thereon) and is to be owned by the Association forthe common use and
enjoyment of the Owners.
1.9. "Common Expenses": The actual and estimated expenses the Association
incurred for maintaining, repairing, operating and replacing the Common Area and any reasonable
reserve for such purposes as found and determined by the Board and all sums designated Common
Expenses by or pursuant to the Declaration, Articles, or Bylaws.
1.10. "Declarant": DBI CONSTRUCTION, a California corporation, and any successor or
assign that expressly assumes the rights and duties of the Declarant under this Declaration in a
recorded written document.
1.11. "Declaration": This Declaration, as amended or supplemented from time to time.
1.12. "Eligible Mortgages": Mortgages held by "Eligible Mortgage Holders."
1.13. "Eligible Mortgage Holder": A First Lender who has requested notice of certain
matters from the Association in accordance with section 9.5.C.
1.14. "Eligible Insurer or Guarantor": An insurer or governmental guarantor of a First
Mortgage who has requested notice of certain matters from the Association in accordance with
section 9.5.C.
1.15. "First Lender": Any person, entity, bank, savings and loan association, insurance
company, or other financial institution holding a recorded First Mortgage on any Lot.
1.16. "First Mortgage": Any recorded Mortgage made in good faith and for value on a Lot
with first priority over other Mortgages encumbering the Lot.
1.17. "Foreclosure": The legal process by which a Lot owned by an Owner who is in
default under a Mortgage is sold, pursuant to California Civil Code § 2924a et se . or sale by the
Court pursuant to California Code of Civil Procedure § 725a et se .and any other applicable laws.
Area.
1.18. "Lot": Each Lot or parcel shown on the Map, with the exception of the Common
1.19. "Map": That Map, described above in Clause A.
1.20. "Member": A person entitled to membership in the Association as provided herein.
1.21. "Mortgage": A mortgage, deed of trust, assignment of rents, issues and profits or
other proper instrument (including, without limitation, those instruments and estates created by
sublease or assignment) given as security for the repayment of a loan or other financing which
encumbers a Lot, made in good faith and for value.
1.22. "Mortgagee": The holder of a Mortgage including the beneficiary of a deed of trust
that constitutes a Mortgage.
1.23. "Mortgagor": A Person who encumbers his Lotwith a Mortgage, including a trustor
of a deed of trust that constitutes a Mortgage.
2
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_~ ~i. DESCRIPTION OF PROJECT, pIVISION Of= PROPERTY, AND CREATION OF
PROPERTY RIGHTS
2.1. Description of Project: The Project is a planned development, consisting of the
fifteen (15) Lots containing the Residences and the Common Area, and all improvements thereon.
2.2. basements; Dedicatipn of Common Area: Each of the Lots shown on the Map
shall have appurtenant to it as the dominant tenement an easement over the Common Area(s) as
the servient tenement for ingress and egress, and for use, occupancy and enjoyment, and for the
construction, maintenance and operation of utilities; subject to the following provisions:
A. The right of the Association to discipline Members and to suspend the voting
rights of a Member for any period during which any Assessment against the Member's Lot remains
unpaid, and for any infraction of the Declaration, Bylaws, Articles or written Rules in accordance
with the provisions of sections 4.10, 5.2.F and 9.1 hereof.
B. The right of the Association to dedicate, transfer or mortgage 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, provided, that in the case of the borrowing of
money and the mortgaging of its property as security therefor, the rights of such Mortgagee shall be
subordinate to the rights of the Members of the Association. No such dedication, transfer or
mortgage shall be effective unless an instrument signed or approved by two-thirds (2/3) of each
class of Members agreeing to such dedication, transfer or mortgage has been recorded.
C. The right of the Association to grant easements under, in, upon, across, over,
above or through any portion of the Common Area for purposes, including, without limitation,
access, utilities, and parking, which are beneficial to the development of the Project in accordance
with the general plan established by this Declaration.
D. The right of the Association or Declarant to install or have installed a cable or
central television antenna system. The system, if and when installed, shall be maintained by the
Association or cable television franchisee. To the extent required to effectuate the foregoing plan,
there shall be an easement in favor of each Lot for the purpose of connecting the same with the
master cable television terminal, central television antenna or line. Each Lot shall be subject to an
easement in favor of all other Lots and in favor of the entity holding the CATV franchise, to provide
for the passage through the Lot and any structure thereon of television connections from any other
Lot to the cable system, and shall be subject to a further easement for the placement and
maintenance of such connections.
E. Easements for work necessary to complete development and construction of
the Project, including all parcels annexed or to be annexed, as more particularly described in section
9.6.
The foregoing easements are granted and reserved subject to the condition that their use
and enjoyment shall not unreasonably interfere with the use, occupancy or enjoyment of ail or any
part of the Lot servient to them or to which they are appurtenant.
2.3. Easements to Accompany Conveyance of Lot: Easements that benefit or burden
any Lot shall be appurtenant to that Lot and shall automatically accompany the conveyance of the
Lot, even though the description in the instrument of conveyance may refer only to the fee title to the
Lot.
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4
2.4. Delegation of Use: Any Owner may delegate, in accordance with the Bylaws, his
right of enjoyment to the Common Area and facilities to the members of his family, guests, tenants,
or contract purchasers, who reside in the Project.
2.5. Conveyance of Common Area to Association: On or before conveyance of title to
the first Lot, Declarant shall deed the Common Area to the Association to be held for the benefit of
the Members of the Association.
2.6. Owners' Rights and Easements for Utilities: The rights and duties of the Owners
of Lots within the Project with respect to sanitary sewer, drainage, water, electric, gas, television
receiving, telephone equipment, cables and lines (hereinafter referred to, collectively, as "Utility
Facilities"), shall be as follows:
A. Whenever Utility Facilities are installed within the Project, which Utility
Facilities or any portion thereof lie in or upon a Lot or Lots owned by other than the Owner of a Lot
served by said Utility Facilities, the Owners of any Lots seared by said Utility Facilities, shall have the
right of reasonable access for themselves or for utility companies to repair, to replace and generally
maintain said Utility Facilities as and when the same maybe necessary, due to failure or inability of
the Board to take timely action to make such repairs or perform such maintenance.
B. Whenever Utility Facilities are installed within the Project which serve more
than one (1) Lot, the Owner of each Lot served by said Utility Facilities shall be entitled to the full
use and enjoyment of such portions of said Utility Facilities as service his Lot.
C. In the event of a dispute between Owners with respect to the repair or
rebuilding of said Utility Facilities, or with respect to the sharing of the cost thereof, then, upon
written request of one (1) Owner addressed to the other Owner(s), the matter shall be submitted first
to the Board for mediation, and thereafter, if the dispute remains unresolved, to binding arbitration
within sixty (60) days pursuant to section 9.13, and the decision of the Arbitrator(s) shall be final and
conclusive on the parties, and judgment may be entered thereon in any court having jurisdiction.
2.7. Encroachment Easements: [fhe City will provide sanitary sewer and storm drain
services up to the boundaries of the Project. The City will provide water service for domestic use
within the public utility easement areas of the Project up to and including the water meters.
Underground electric power service will be provided by the City up to and including the secondary
splice boxes, and will be separately metered to each Lot in the Project. Telephone service and gas
service will be provided by public utilities. The Association shall provide utility services to the
Common Area and shall maintain and repair sanitary sewer lines, storm drain system, in tract
domestic water lines, asphalt paved areas and fire protection lines to the extent the foregoing are
located in the Common Area, except as are maintained by a public utility. The costs and expenses
for such utility services and systems shall be Common Expenses to be allocated to the Owners.]
Each Lot as the dominant tenement shall have an easement over adjoining Lots and Common Area
as the servient tenements for the purpose of accommodating any encroachment due to foundations,
exterior wall, windows, roof overhang and fences or walls which are built in accordance with the
original design, plans and specifications of Declarant, or due to engineering errors, errors or
adjustments in original construction, settlement or shifting of the building, or similar causes. 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 intentional
conduct of said Owner or Owners other than adjustments by Declarant in the original construction.
In the event a structure is partially or totally destroyed, and then repaired or rebuilt, the Owners of
each adjoining Lot agree that minor encroachments over adjoining Lots and Common Area shall be
permitted and that there shall be valid easements for the maintenance of said encroachments so
5
a~~am~
e shall exist. In the eventthat an error in enginee togordontonan adjoiningoLot,sortsnto a
long as th y
encroachment of a building into the Common Area, or in
' ed setback area, a correcting modification may (ate of a' certificate ofecorrection and shalltbe
requ~r
subdivision map. Said modification shall be in the or
ed b Declarant (so long as Declarant is the soles fterrtitte to the Common AreDa has been
execut y
engineer and by the city engineer. If the correction occu
ed to the Association, the Association shall also exte~catoei h of the1daectors~authorize tthe
convey vote or written approval of a ) tY
Board of Directors may, by
execution of the certificate of correction.
,g, Maintenance Easement: An easement oveeenc uLootn th P oee b~oDperform su h
2 ur ose of ent g P
is hereby granted to the Association, for the p p
' enance, if any, as the Association may do in accordance with the provisions of section 5.1.
maint
and section 7.19 of this Declaration.
ur ose of
Z,g. Drainage Easements: An easemen the d m nantdtenement for the p p rvien
tenement is reserved in favor of each other Lot as
allowin the Association's agents to enter the Lot t ant shatal'commitanyoactthst would interfere
9
drainage system located thereon. No Owner or occup
' h the o eration of any drainage system (including draindao heWObstacles alt all t mes ORec psocal
wit P
each Owner shall maintain the system free of debris an
a urtenant easements between each Lot and the Common Area and between adjoining Lots are
pP
reserved for the flow of surface water.
2.10. Other Easements: The Common An on Hover andounder the Proje t las shownnon
dedications, and rights of way granted or reserved ,
the Map.
2.11. Rights of Entry and Use: The Lots and Common Area shall be subject to the
following rights of entry and use:
A, The right of the Association's ague fsnas receavedLnot ceuand na heaa ng as
this Declaration or the Bylaws, provided that the Ow
required by the Bylaws (except in the case of an emoe 9W thyn thirty (30) days after the finding of a
violation or take steps necessary to cure the wola
violation by the Association;
g, The access rights of the Association to maintain, repair or replace
improvements or property located in the Common Area as described in section 5.2.D;
C, The easements described in this Article I1;
p. The right of the Association's agents to enter any Lotto perform maintenance
as described in section 7.19;
E, The rights of the Declarant during the construction period as described in
section 9.6.
2.12, Partlltlpn of Common Area: Th t o~ o asubdivis on there' of. Notwit standing any
Common Area, not ~h~-11 any Owner seek any part
rovisions to the contrary contained in this Declaration and in order to provide for a means of
P
terminating the P .~p~ect if this should become necessn a ~ on for partition (asusuch conditions are
conditions atlowirl~ an Owner of a Lot to ma~ntam a
6
~i~urm
1359 or as such conditions in the future may be set forth
two-thirds (213) of the Owners of Lots
presently set forth in California Civil Code § under
amendment thereto or comparable provisions of law ' arable provisions of law, and to vest
in any the Superior Court having jurisdiction to alter or vacate the Map
shall have the right to petition 66499 21, et seq., or any comp artition of the Project in
California Government Code §
e to the Project in Owners as tenants i f common and order an equita e P
California. Nothing herein shall be construed to prohibit
titl
accordance with the laws ortco-tetnancy in any Lot.
partition of a joint tenancy easements are reserved or
2.13. All Easements Part of Common Plan: Whenever an e
created in this Declaration, such a venrrif only certa n Lots are
created or are to be reserved o roe in the Protect,
b'ect to or benefiting from a particular easement. Easements referred to
equitable servitudes for Shsu utual benefit of all p P ~ t to the date of this Declaration shall
specifically mentioned a ~ rant deeds subsequen a Owners within
in this Declaration that clan created b y his Declaration for the benefit of alt prop ~Y
be part of the common p
the Project.
OCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHT
ARTICLE III. ASS
tion to Own and Manage Common Area his Declarationt~oand the Articles
3.1. Assoc~a rovisions of t
manage the Common Area in accordance with the p
and Bylaws. the Owner of
The Owner of a Lot shall automatically, upon becoming
3.2. Membership: not be separated
ember of the Association, and shall remain a Mretenant t sand m Y such time as his
same, be a M
ownership ceases for any reason. Membership shall be app
ershi of a Lot. Membership shall be held in accordance with the Articles and Bylaws.
from own p
Transferred Membership: Membership in thehA sale'or1encumbrance of the Lotto
3.3. exce t u on t
or Mortgag
encumbered, pledged, or alienated in any way, P P ee, in the
which it is appurtenant, and then only On an Ptransfeeof'title to an Owner's Lot, including a transfer
case of an encumbrance of such Lot Y
on the death of an Owner, membership passes automatically with title to the transferee.
A Mortgagee does not have membership rights umake a paofl'bi'eld t ansfer istvohd uNo
Foreclosure or deed in lieu of Foreclosure. Any attempt to
Member may resign his membership. On notice of a transfer, the Association shall record the
transfer on its books.
3.4. Membership and Voting Rights: Membership and voting rights shall be asset forth
in the Bylaws.
ARTICLE IV. ASSESSMENTS AND LIENS
4.1. Creation of the Lien and Personal Obsi antd each Owner orf any~Lot y aDccept nce
for each Lot owned within the Project, hereby covenan ,
of a deed for that Lot, whether or not it shall be so expressed in such deed, covenants and agrees:
(1) to pay Regular Assessments or charges, Special Assessments, and
Reimbursement Charges to the Association as established in this Declaration; and
(2) to allow the Association to enforce a f ale orb any o'theemealns autho ed by
Declaration by nonjudicial proceedings under a power o Y
law.
7
anam~
The Regular Assessments and Special Assessments, including Reimbursement Charges,
together with interest, late charges, collection costs, and reasonable attorneys' fees, shall be a
charge on the land and shall be a continuing Assessment Lien upon the property against which
each such Assessment is made, the lien to become effective upon recordation of a Notice of
Delinquent Assessment. Each Assessment, together with interest, late charges, collection costs,
and reasonable attorneys' fees, shall also be the personal, joint and several, obligation of each
person who was the Owner of such property at the time when the Assessment fell due. The
personal obligation for delinquent Assessments shall not pass to his successors in title unless
expressly assumed by them. No Owner of a Lot may exempt himself from liability for his contribution
towards the Common Expenses by waiver of the use or enjoyment of any of the Common Areas or
by the abandonment of his Lot.
The interest of any Owner in the amounts paid pursuant to any Assessment upon the
transfer of ownership shall pass to the new Owner. Upon the termination of these covenants for any
reason, any amounts remaining from the collection of such Assessments after paying all amounts
properly charged against such Assessments shall be distributed to the then Owners on the same
pro rata basis on which the Assessments were collected.
4.2. Purpose of Assessments: The Assessments levied by the Association shall be
used exclusively to promote the economic interests, recreation, health, safety, and welfare of all the
Owners and other residents in the Project and to provide insurance, improvement and maintenance
of the Common Area, and of the homes situated in the Project for the common good of the Project.
4.3. Assessments:
A. Regular Assessments: The Board shall establish and levy Regular
Assessments in an amount that the Board estimates will be sufficient to raise the funds needed to
perform the duties of the Association during each fiscal year. Regular Assessments shall be made
for aone-year period and collected in monthly installments.
The Regular Assessment shall include a portion for reserves in such amounts as the Board
in its discretion considers appropriate to meet the costs of the future repair, replacement or additions
to the major improvements and fixtures that the Association is obligated to maintain and repair.
Reserve funds shall be deposited in a separate account and the signatures of at least two (2)
persons who shall either be members of the Board or one officer who is not a member of the Board
and a member of the Board shall be required to withdraw monies from the reserve account.
B. Special Assessments: The Board, at any time, may levy a Special
Assessment in order to raise funds for unexpected operating or other costs, insufficient operating or
reserve funds, or such other purposes as the Board in i#s discretion considers appropriate. Special
Assessments shall be allocated among the Lots in the same manner as Regular Assessments,
except in the case of an Assessment levied by the Board against a Member to reimburse the
Association for costs incurred in bringing the Member and his Lot into compliance with provisions of
the Project Documents.
4.4. Restrictions on Increases in Regular Assessments or Special Assessments:
A. Except as provided in section 4.4.B, without having first obtained the approval
of such action by the vote or written assent of Members casting a majority of the votes at a meeting
of the Association at which a quorum is present, the Board may not: (1) impose a Regular
Assessment on any Lot which is more than twenty percent (20%) greater than the Regular
Assessment for the immediately preceding fiscal year; or (2) levy a Special Assessment to defray
8
F~~Rim
the cost of any action or undertaking on behalf of the Association which in the aggregate exceeds
five percent (5%) of the budgeted gross expenses of the Association for that fiscal year. For
purposes of this section 4.4, a "quorum" means Members constituting more than fifty percent (50°~)
of the voting power of the Association. Any meeting of the Association for purposes of complying
with this section 4.4 shall be conducted in accordance with Chapter 5 (commencing with § 7510) of
Part 3, Division 2 of Title 1 of the California Corporations Code and § 7613 of the California
Corporations Code. The right of the Board to increase Regular Assessments by up to twenty
percent (20%) over the Regular Assessment for the immediately preceding fiscal year is subject to
the Board having complied with the provisions of California Civil Code § 1365(a), which provisions
are set forth in section 12.1(1) of the Bylaws or having obtained the approval of such increase by the
Members in the manner set forth above in this section 4.4.
B. Assessments -Emergency Situations. Notwithstanding the foregoing, the
Board, without membership approval, may increase Regular Assessments or levy Special
Assessments necessary for an emergency situation in amounts that exceed the provisions of
section 4.4.A, above. For purposes of this section, an emergency situation is one of the following:
(1) an extraordinary expense required by an order of a court,
(2) an extraordinary expense necessary to repair or maintain the Project or any part
of it for which the Association is responsible where a threat to personal safety on the Project is
discovered, or
(3) an extraordinary expense necessary to repair or maintain the Project or any part
of it for which the Association is responsible that could not have been reasonably foreseen by the
Board in preparing and distributing the pro forma operating budget, provided, however, that prior to
the imposition or collection of the Assessment, the Board shall pass a resolution containing written
findings as to the necessity of the extraordinary expense involved and why the expense was not or
could not have been reasonably foreseen in the budgeting process and the resolution shalt be
distributed to the Members with the notice of the Assessment.
The Association shall provide notice to the Owners by first-class mail of any increase in the
Regular Assessments or Special Assessments of the Association, not less than thirty (30) nor more
than sixty (60) days prior to the increased Assessment becoming due.
This section 4.4 incorporates the statutory requirements of California Civil Code § 1366. If
this section of the California Civil Code is amended in any manner, this section 4.4 automatically
shall be automatically amended in the same manner without the necessity of amending this
Declaration.
4.5. Notice and Quorum for Any Action Authorized Under Section 4.4: Any action
authorized under section 4.4, which requires a vote of the membership, shall be taken at a meeting
called for that purpose, written notice of which shall be personally delivered or mailed to all Members
not less than ten (10) nor more than ninety (90) days in advance of the meeting, specifying the
place, day and hour of the meeting and, in the case of a special meeting, the nature of the business
to be undertaken. The action may also be taken without a meeting pursuant to the provisions of
California Corporations Code § 7513.
4.fi. Uniform Rate of Assessment: Both Regular Assessments and Special
Assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly basis.
4.7. Date of Commencement of Regular Assessments; Due Dates: The Regular
Assessments provided for in this Declaration shall commence as to all Lots covered by this Declara-
tion on the first day of the month following the first conveyance of a Lot to the purchaser thereof
under authority of a Public Report. Subject to the provisions of section 4.3 hereof, the Board of
Directors shall use their best efforts to fix the amount of the Regular Assessment against each Lot
ar~uim
9
and send written notice thereof to every Owner at least forty-five (45) days in advance of each
Regular Assessment period, provided that failure to comply with the foregoing shall not affect the
validity of any Assessment levied by the Board. The due dates shall be established by the Board of
Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate
signed by an officer of the Association setting forth whether the Assessments on a specified Lot
have been paid. Such a certificate stating that Assessments have been paid shall be conclusive
evidence of such payment.
4.8. Effect of Nonpayment of Assessments: Any Assessment not paid within fifteen
(15) days after the due date shall be delinquent, shall bear interest at the rate of twelve percent
(12%) per annum from thirty (30) days after the due date until paid, and shall incur a late payment
penalty in an amount to be set by the Board from time to time, not to exceed the maximum permitted
by applicable law.
4.9. 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 Foreclosure of a First Mortgage
shall extinguish the Assessment Lien on that Lot (including attorneys' fees, late charges, or interest
levied in connection therewith 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. The unpaid
share of such Assessments shall be deemed to be Common Expenses collectible from all of the
Lots including such acquirer, and his successors or assigns. If a Lot is transferred, the grantor shall
remain liable to the Association for all unpaid Assessments against the Lot through and including
the date of the transfer. The grantee shall be entitled to a statement from the Association, dated as
of the date of transfer, setting forth the amount of the unpaid Assessments against the Lot to be
transferred, and the Lot shall not be subject to a lien for unpaid Assessments in excess of the
amount set forth in the statement, provided, however, the grantee shall be liable for any
Assessments that become due after the date of the transfer.
4.10. Priorities; Enforcement; Remedies: If an Owner fails to pay an Assessment when
due, the Association has the right, and option, to bring legal action against the Owner to enforce
collection of the unpaid and past due Assessment, or may impose an Assessment Lien on the Unit
owned by Owner pursuant to the provisions of Civil Code § 1367.1. Suit to recover a money
judgment for unpaid Assessments and attorneys' fees, shall be maintainable without foreclosing or
waiving the lien securing the same. The Association shall distribute the written notice described in
subdivision (b) of Civil Code § 1365.1 entitled "Notice Assessments and Foreclosure" to each
Member during the 60-day period immediately preceding the beginning of the Association's fiscal
year. The notice is to be printed in at least 12-point type.
A. Statement of Charges. At least 30 days prior to the Association recording an
Assessment Lien upon a Unit pursuant to Civil Code § 1367.1(a), the Association shall notify the
owner of record in writing by certified mail of the following:
(1) A general description of the collection and lien enforcement
procedures of the Association and the method of calculation of the amount owed, a statement that
the Owner has the right to inspect the Association's records, pursuant to section 8333 of the
Corporations Code, and the following statement in 14-point boldface type, if printed, or in capital
letters, if typed: "IMPORTANT NOTICE: IF YOUR SEPARATE INTEREST IS PLACED IN
FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR ASSESSMENTS, IT MAY BE SOLD
WITHOUT COURT ACTION".
(2) An itemized statement of the charges owed by the Owner, including
items on the statement which indicate the amount of any delinquent assessments, the fees and
10
anum~
reasonable costs of collection, reasonable attorney's fees (not to exceed $425.00 per Civil Code §
1366.3(a)), any late charges, and interest, if any.
(3) A statement that the Owner shall not be liable to pay the charges,
interest, and costs of collection, if it is determined the Assessment was paid on time to the
Association.
(4) The right to request a meeting with the Board as provided by Civil
Code Section 1367.1(c) (3).
(5) The right to dispute the Assessment debt by submitting a written
request for dispute resolution to the Association pursuant to the Association's "meet and confer"
program required in Article 5 (commencing with Section 1363.810) of Chapter 4 of the Civil Code.
(6) The right to request alternative dispute resolution with a neutral third
party pursuant to Article 2 (commencing with Section 1369.510) of Chapter 7 of the Civil Code
before the Association may initiate foreclosure against the Owner's Unit, except that binding
arbitration shall not be available if the Association intends to initiate a judicial foreclosure.
Prior to initiating a foreclosure for delinquent Assessments, the Association shall offer the
Owner and, if so requested by the Owner, shall participate in dispute resolution pursuant to the
Association's "meet and confer" program required in Article 5 (commencing with Section 1363.810)
of Chapter 4 or alternative dispute resolution with a neutral third party pursuant to Article 2
(commencing with Section 1369.510) of Chapter 7. The decision to pursue dispute resolution or a
particular type of alternative dispute resolution shall be the choice of the Owner, except that binding
arbitration shall not be available if the Association intends to initiate a judicial foreclosure. The
decision to record a lien for delinquent Assessments shall be made only by the Board of Directors of
the Association and may not be delegated to an agent of the Association. The Board shall approve
the decision by a majority vote of the Board members in an open meeting. The Board shall record
the vote in the minutes of that meeting.
B. Payment Plan. An Owner may submit a written request to meet with the
Board to discuss a payment plan for the Assessment debt noticed pursuant to section 4.9.A. The
Association shall provide the Owners the standards for payment plans, if any exist. The Board shall
meet with the Owner in executive session within forty five (45) days of the postmark of the request, if
the request is mailed within fifteen (15) days of the date of the postmark of the notice, unless there is
no regularly scheduled Board meeting within that period, in which case the Board may designate a
committee of one or more members to meet with the Owner. Payment plans may incorporate any
assessments that accrue during the payment plan period. Payment plans shall not impede the
Association's ability to record a lien on the Owner's Unit to secure payment of delinquent
Assessments. Additional late fees shall not accrue during the payment plan period if the Owner is in
compliance with the terms of the payment plan. In the event of a default on any payment plan, the
Association may resume its efforts to collect the delinquent Assessments from the time prior to
entering into the payment plan.
C. Notice of Delinquent Assessment. After compliance with the provisions of
Civil Code § 1367.1(a), the Association may record a Notice of Delinquent Assessment and
establish an Assessment Lien against the Unit of the delinquent Owner prior and superior to all
other liens recorded subsequent to the Notice of Delinquent Assessment, except (1) all taxes,
bonds, assessments and other levies which, by law, would be superior thereto, and (2) the lien or
charge of any First Mortgage of record recorded prior to the Notice of Delinquent Assessment. The
Notice of Delinquent Assessment shall include an itemized statement of the charges owed by the
Owner described in section 4.9.A above, a description of the Unit against which the Assessment
and other sums are levied, the name of the record Owner, and the name and address of the trustee
11
~rx~r,=,
n b sale. The notice shall be signed by any officer
Association to enforce the I1eretained by the Association a o a lOn sereCOrds no
ss
authorized by the management agent s after payment of the
of the Association or any Withintwenty-one (21) day
eve person whose name's tionwn as an Owner in the II record or cause to be
certified mail to 'y s after records
the Association s
10 calendar day
later than ten ( )
er in which the Notice of Delinq f th A en elease or
sums specified in the Notice of oun Y Record essment, a Owner a copy
rovide th
recorded in the Office of the
recorded a lien release or assessm nt has been satisfied. ure: The
notice that the delinquent eclat
rcement of Assessment Lien aAnd Limitations on Forec o dl
ssessments or delinquent Sn any
p, Enfo ular not Inclu 9
800)
collection by the Association of delinquent Reg ,s fees, or interest,
fan amount less than one thousand eight hundred dollars
attorney
Assessments o fees and costs of collection, be collected or secured in
h udicial or nonjudicial foreclosure, but ma
acceleratbee enforced throug a j charges,
may not
any of the following ways- ursuant to Chapter 5.5
(~) gy a civil action in small claims court, p enforce the
10 of Title 1 of the Code of Civilh rAssoc ation may ssociation
with Section 116.1 ) revalls, t
(commencing an action in small claims court, and p of Title 1 of the Code of
chooses to proceed by commencing with Section 116.810) on a debt for
judgment as permitted under Article 8
ure. The amount that may be recovered in small claims court to collec up
Civil Proced of exceed the jurisdictional limits of the small claims court and shall
delinquent Assessments may n
be the sum of the following: taint in the
(a) The amount owed as of the date of filing the comp
small claims court proceeding.
(b) In the discretion of the court, an additional amount to taint
ibed in subparagraph (a) equal to the amount owed for the period fron dude acc u ng unpaid
descr ment, which total amount may
is filed until satisfaction of the judg
ents and any reasonable late charges, fees and costs of collection, attorney's fees, an
assessm
interest, up to the jurisdictional limits of the small claims cou ,s Unit upon which the Association
(Z) By recording a lien on the Owner the lien, exclusive of
may not foreclose until the amount of the esllfees and casts of collections attorney's fees, mo a than
any accelerated assessments, late cha g , riot to
equals or exceeds one thousand eight hn choosesllto record0a lientunder these prov sions, p caner
12 months delinquent. If the Associatlo
recording the lien, the Association shall off nr Ahrt cO 5n(commenc ng with Sectiony1368.810) of
participate in dispute resolution as set forth I
Chapter 4.
(3) Any other manner provided by law, except for judicial or nonjudicial
foreclosure.
E, Foreclosure: The Association mthousanddeight hundRed dollars ($1 800) or
or delinquent Special Assessments of an amount of one
more not including any accelerated assessments, la(e ~ arg han 12 months delinquenteus ng
attorney's fees, or interest, or any Assessments that a
judicial or nonjudicial foreclosure subject to the following conditions:
(1) Prior to initiating a foreclosure on an artici' ate n d st ute resoluton
p
Association shall offer the O sn meetand confers" programeequ red n Art cle 5 (commencing with
pursuant to the Association 12
FnRm~
Section 1363.810) of Chapter 4 or altern ter 7. T'he dec s onlto' pursue despu~ehesolutio'nlor a
(commencing with Section 1369.510) of Chap
particular type of alternative dispute resossoc ationllint nds to~nitiat to jud c alrforeclosuret binding
arbitration shall not be available if the A
(2) The decision to initiate Foreclosure of an Assessment Lien for
delinquent Assessments that has been validly recorded shall be made only by the Board and may
not be delegated to an agent of the Associatsess on The Boardlshalpl record the vote n the m n1ut s
vote of the Board members in an executive
of the next meeting of the Board open to all ne t e mattes B the minutesaby the Un t number olf the
the Owner or Owners of the Unit by ident fy g rove foreclosure of a
property, rather than the name of the Owner or Owners. A Board vote to app
lien shall take place at least 30 days prior to any public sale.
(3) The Board shall provide notice by personal service to an Owner of a
Unit who occupies the Unit or to the owner's legal representative, if the Board votes to foreclose
upon the Unit. The Board shall provide written notice to an Owner of a Unit who does not occupy
the Unit by first-class mail, postage prepaid, at the most current address shown on the books of the
Association. In the absence of written notification by the Owner to the Association, the address of
the Owner's Unit may be treated as the Owner's mailing address.
(4) A nonjudicial foreclosure by the Association to collect upon a debt for
delinquent Assessments shall be subject to a right of redemption. The redemption period within
which the Unit may be redeemed from a foreclosure sale under this paragraph ends 90 days after
the sale.
In addition to the requirements of Civil Code Section 2924, a notice of default shall be served
by the Association on the Owner's legal representative in accordance with the manner of service of
summons in Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code
of Civil Procedure. Upon receipt of a written request by an Owner identifying a secondary address
for purposes of collection notices, the Association shall send additional copies of any notices
required by this section to the secondary address provided. The Association shall notify Owners of
their right to submit secondary addresses to the Association, at the time the Association issues the
pro forma operating budget pursuant to Section 1365. The Owner's request shall be in writing and
shall be mailed to the Association in a manner that shall indicate the Aovidedtthath f arsecondary
The Owner may identify or change a secondary address at any time, p
address is identified or changed during the collection process, the Association shall only be required
to send notices to the indicated secondary address from the point the Association receives the
request.
F. Sale by Trustee. Any sale by the trustee shall be conducted in accordance
with the provisions of §§ 2924, 2924b, 2924c, 2924f, 2924g, 2924h and 2924j of the California Civil
Code applicable to the exercise of powers of sale in mortgages and deeds of trust, including any
successor statutes thereto, or in any other manner permitted bylaw. The fees of a trustee may not
exceed the amounts prescribed in Civil Code §§ 2924c and 2924d. Nothing in this Declaration shall
preclude the Association from bringing an action directly against an Owner for breach of the
personal obligation to pay Assessments or from taking a deed in lieu of foreclosure.
13
ai~n~m
G. Association Rights to Acquire. The Association, acting on behalf of the
Owners, shall have the power to bid for the Lot at a Foreclosure sale, and to acquire and hold,
lease, mortgage and convey the Lot. If the purchase of a Lot would result in a five percent (5%) or
greater increase in Assessments, the purchase shall require the vote orwritten consent of a majority
of the total voting power of the Association, including a majority of Members other than Declarant.
During the period a Lot is owned by the Association, following Foreclosure:
(1) no right to vote shall be exercised on behalf of the Lot;
(2) no Assessment shall be assessed or levied on the Lot; and
(3) each other Lot shall be charged, in addition to its usual Assessment, its
share of the Assessment that would have been charged to such Lot had it not been acquired by the
Association as a result of Foreclosure.
After acquiring title to the Lot at Foreclosure sale following notice and publication, the
Association may execute, acknowledge and record a deed conveying title to the Lot which deed
shall be binding upon the Owners, successors, and all other parties.
The Board may temporarily suspend the voting rights and right to use Common Area
facilities of a Member who is in de#ault in payment of any Assessment, after notice and hearing, as
provided in the Bylaws.
In conformity to Civil Code§1367.1(e), fines and penalties imposed by the Association for
violation of this Declaration as a disciplinary measure for failure of an Owner to comply with this
Declaration or the Rules, except for late payments, are not "Assessments," and are not enforceable
by assessment lien, but are enforceable by court proceedings; provided, however, pursuant to Civil
Code § 1367(b), monetary penalties imposed by the Association to reimburse the Association for
costs incurred for repair of damage to Common Area or facilities for which the Owner, or guests or
tenants of an Owner, were responsible may become the subject of a lien. Provided however that
any such enforcement as a lien shall only be permitted if there are no Lots in the Project that are
subject to the jurisdiction of the Department of Real Estate under a Final Subdivision Public Report.
In the event that Civil Code §1367.1 (e) is amended to permit fines and penalties imposed by the
Association for violation of this Declaration as a disciplinary measure for failure of an Owner to
comply with this Declaration or the Rules to be enforceable by assessment lien, then this provision
shall be deemed amended to conform to any such amendment of Civil Code§1367.1(e).
Note: Any payments made by the Owner toward the debt shall first be applied to the
Assessments owed, and, only after the Assessments owed are paid in full shall the payments be
applied to the fees and costs of collection, attorneys' fees, late charges, or interest. When an
Owner makes a payment, the owner may request a receipt and the Association shall provide it. The
receipt shall indicate the date of payment and the person who received it. The Association shall
provide a mailing address for overnight payment of Assessments.
The Association need not accept any tender of a partial payment of an Assessment and all
costs and attorneys' fees attributable thereto. Acceptance of any such tender does not waive the
Association's right to demand and receive full payment. The provisions of this Section 4.9 are
intended to comply with the requirements of Civil Code section 1367.1 in effect as of January 1,
2007. If these sections are amended or rescinded in any manner the provisions of this Section 4.9
automatically shall be amended or rescinded in the same manner. Civil Code section 1367.1 may
have been amended by the State Legislature, and the Board should confirm the current statutory
requirements.
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4.10. Reimbursement Charges; Fines and Penalties: The Board may levy a
Reimbursement Charge against a Member to reimburse the Association for costs incurred by the
Association in the repair of damage to the Common Area and facilities for which the Member or the
Member's guests or tenants were responsible and in bringing the Member and his Lot into
compliance with the provisions of the Project Documents in the amount required to reimburse the
Association for the actual costs and expenses incurred and the amounts incurred to enforce the
Associations rights under this Declaration as are then permitted by law. Reimbursement Charges
shall be payable when directed by the Board after written notice to the Owners, which notice shall in
no event be less than thirty (30) days. If an Owner disputes a Reimbursement Charge, the Owner
may request a hearing before the Board. Except as hereinafter provided, Reimbursement Charges,
fines and penalties for violation of this Declaration or the Rules are not "Assessments," and are not
enforceable by an Assessment Lien, but are enforceable by court proceedings. After such time as
Declarant no longer owns any Lots in the Project that are subject to the jurisdiction of the
Department of Real Estate under a Public Report, pursuant to Civil Code §1367.1(e), monetary
penalties imposed by the Association to reimburse the Association for costs incurred for repair of
damage to Common Area or facilities for which the Owner, or guests or tenants of an Owner, were
responsible may become the subject of an Assessment Lien. If Civil Code section 1367.1 (e) is
amended to permit fines and penalties imposed by the Association for violation of this Declaration
as a disciplinary measure for failure of an Owner to comply with this Declaration or the Rules to be
enforceable by Assessment Lien, then this provision shall be deemed amended to conform to any
such amendment of Civil Code §§1367.1(e).
4.11. Unallocated Taxes: In the event that any taxes are assessed against the Common
Area, or the personal property of the Association, rather than being assessed to the Lots, said taxes
shall be included in the Assessments made under the provisions of section 4.1 and, if necessary, a
special Assessment may be levied against the Lots in an amount equal to said taxes, to be paid in
two (2) installments, thirty (30) days prior to the due date of each tax installment.
4.13. Estoppel Certificate: Within ten (10) days of the mailing or delivery of a written
request by any Owner, the Board shall provide the Owner with a written statement containing the
following information: (i) whether to the knowledge of the Association, the Owner or occupant of the
Owner's Lot is in violation of any of the provisions of this Declaration, the Articles, Bylaws or Rules;
(ii) the amount of Regular Assessments and Special Assessments, and Reimbursement Charges,
including installment payments, paid by the Owner during the fiscal year in which the request is
received; and (iii) the amount of any assessments levied against the Owner's Lot that are unpaid as
of the date of the statement, including any late charges, interest or costs of collection, and that, as of
the date of the statement, are or may be made a lien against the Owner's Lot as provided by this
Declaration. The Association may charge a fee to provide this information, provided the fee shall
not exceed the Association's reasonable cost to prepare and reproduce the requested items.
ARTICLE V. DUTIES AND POWERS OF THE ASSOCIATION
5.1. Duties: In addition to the duties enumerated in the Articles and Bylaws, or elsewhere
provided for in this Declaration, and without limiting the generality of those duties, the Association
shall perform the following duties:
A. Maintenance: The Association shall maintain and repair the following:
(1) The Common Area, all improvements and landscaping thereon, and
all property owned by the Association, including, without limitation, parking areas, driveways, private
streets, mailboxes, landscaping, irrigation systems, lighting fixtures, and utility, sewer or drainage
systems not maintained by a public entity, utility company, or improvement district, and all facilities
(including Utility Facilities);
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(2) The Association shall maintain everything it is obligated to maintain in
a clean, sanitary and attractive condition reasonably consistent with the level of maintenance
reflected in the most current budget, and in conformance with any Maintenance Guidelines and
Maintenance Manual.
(3) Landscaping in the Common Areas and on the Lots within those
portions of the Lots located within the unfenced areas of each Lot. The Association shall not
maintain the landscaping on Lots located within private fenced yards. Maintenance shall include
regular fertilization, irrigation, pruning and other prudent garden management practice necessary to
promote a healthy, weed-free environment for optimum plant growth. All dying or dead vegetation
shall be immediately removed and replaced. The Association shall take appropriate steps to
maintain the irrigation of the landscaping and to prevent damage resulting from misdirected andlor
excessive watering. The Association shall maintain the sidewalks and driveways of the Project,
whether located in the Common Area or within the Lots.
(4) The fences between Lots shall be maintained by the Association and
the Association shall maintain the soundwall of the Project.
(5) All maintenance and repair of the Residence shall be undertaken by,
and shall be at the expense of, the Owner of the Residence as required by section 7.19.
(6) Each Owner and occupant shall fully cooperate with the agents of the
Association in the performance of the Association's maintenance and repair obligations described
above. Such cooperation shall include, but is not limited to, immediate notification to the Board or its
managing agent of any maintenance or repair problems forwhich theAssociation is responsible and
access to the Owner or occupant's Lot as may be necessary to inspect and, if appropriate, to
perform any necessary maintenance or repairs.
Except as expressly assigned to the Association in this section 5.1.A, all other maintenance
and repair obligations for any Residence shall be done by and at the expense of the Owner of the
residence as described in section 7.19.
The responsibility of the Association for maintenance and repair shall not extend to repairs or
replacements arising out of or caused by the willful or negligent act or omission of any Owner, or his
guest, tenant, invitee or pet. Any such repairs or replacements not covered by insurance carried by
the Association shall be made by the responsible Owner, provided the Board approves the person
or entity actually making the repairs and the method of repair. If the responsible Owner fails to take
the necessary steps to make the repairs within a reasonable time under the circumstances, the
Association may cause the repairs to be made and shall impose a Reimbursement Charge upon the
responsible Owner, which charge shall bear interest at the rate of twelve percent (12%) per annum
(but no greater than the maximum rate allowed bylaw) until paid in full. If such repair is covered by
the insurance carried by the Association, the Association shall be responsible for making the
repairs, and the responsible Owner shall pay any deductible pursuant to the insurance policy. tf the
Owner fails to make such payment, then the Association may make such payment and charge the
cost thereof as a Reimbursement Charge to the Responsible Owner, which charge shall bear
interest at the rate of twelve percent (12%) per annum (but no greater than the maximum rate
allowed bylaw) until paid in full. If the Owner disputes the charge, the Owner shall be entitled to a
notice and a hearing as provided in the Bylaws before the charge may be collected.
B. Inspection and Maintenance Guidelines: The Declarant has provided the
Association and each Owner with the inspection and maintenance guidelines and schedules
including manufacturers' guidelines and schedules for the inspection and maintenance of the
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improvements within the Project ("Maintenance Guidelines"). When an Owner transfers a Lot, the
Owner shall deliver complete copies of the Maintenance Guidelines to the transferee of the Lot on or
before the date of the transfer of title. Replacement copies of the Maintenance Guidelines may be
obtained from the Declarant at Declarant's principal place of business. Declarant may charge a
reasonable fee for providing replacement copies of the Maintenance Guidelines. The Board shall
comply with the Maintenance Guidelines for the periodic inspection and maintenance of the
Common Area improvements and landscaping that the Association is required to maintain under this
Declaration, and any other improvements outside of the Common Area, which the Association has
the responsibility to maintain. The Board shall take all appropriate actions to implement and comply
with the Maintenance Guidelines. The Board periodically and at least once every three (3) years
shall review and update the Maintenance Guidelines.
The Association shall maintain and operate the Common Area of the Project in accordance
with all applicable municipal, state, and federal laws, statutes and ordinances, as the case may be.
The Association shall also, as a separate and distinct responsibility, insure that third parties
(including Owners and their guests) utilize the Common Area in accordance with the aforementioned
regulations. The Association shall, when it becomes aware of any violation of the aforementioned
regulations, expeditiously correct such violations.
C. Insurance: The Association shall obtain and maintain such policy or policies
of insurance as are required by section 8.1 of this Declaration.
D. Discharge of Liens: The Association shall discharge by payment, if
necessary, any lien against the Common Area and charge the cost thereof to the Member or
Members responsible for the existence of the lien after notice and hearing as provided in the
Bylaws.
E. Assessments: The Association shall fix, levy, collect and enforce
Assessments as set forth in Article IV hereof.
F. Payment of Expenses and Taxes: The Association shall pay alt 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.
G. Garbage Service: The Board shall have the authority and obligation to
acquire and pay for trash, garbage and recycling services for [all Residences situated on] the
Project [Common Area] as a Common Expense.
H. Enforcement: The Association shall be responsible for the enforcement of
this Declaration. The Association shall maintain and operate the Common Area of the Project in
accordance with all applicable municipal, state, and federal laws, statutes and ordinances, as the
case may be. The Association shall also, as a separate and distinct responsibility, insure that third
parties (including Owners and their guests) utilize the Common Area in accordance with the
aforementioned regulations. The Association shall, when it becomes aware of any violation of the
aforementioned regulations, expeditiously correct such violations.
5.2. Powers: In addition to the powers enumerated in the Articles and Bylaws, or
elsewhere provided for herein, and without limiting the generality thereof, the Association shall have
the following powers:
A. Easements: The Association shall have authority by document signed by the
President and the Secretary, to grant easements where necessary for roads, utilities,
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communication services, cable television, and sewer facilities over the Common Area to serve the
Common Areas and Lots, and/or where necessary to satisfy or achieve appropriate governmental
purpose or request. The Board of Directors may grant Exclusive Use Easement rights over a
portion of the Common Area to a Member with the affirmative vote of sixty-seven percent (67%) of
the separate interests in the Project, and without the approval of the Members in those limited cases
set forth in Civil Code ~ 1363.07.
B. Manager: The Association may employ a manager or other persons and
contract with independent contractors or managing agents to perform all or any part of the duties
and responsibilities of the Association, except for the responsibility to levy fines, impose discipline,
hold hearings, file suit, record or foreclose liens, or make capital expenditures, provided that any
contract with a firm or person appointed as a manager or managing agent shall not exceed a one (1)
year term, shall provide for the right of the Association to terminate the same at the first annual
meeting of the Members of the Association, and to terminate the same without cause or payment of
a termination fee on ninety (90) days' written notice, or for cause on thirty (30) days' written notice.
C. Adoption of Rules: The Association or the Board, by majority vote, may
adopt reasonable Rules not inconsistent with this Declaration relating to the use of the Common
Area and all its facilities, and the conduct of Owners and their tenants and guests with respect to the
Project and other Owners. Written copies of such Rules and any schedule of fines and penalties
adopted by the Board shall be furnished to Owners. All changes to the Rules will become effective
fifteen (15) days after they are either: (i) posted in a conspicuous place in the Common Area; or (ii)
sent to the Owners via first-class mail or by any system or technology designed to record and
communicate messages.
D. Access: For the purpose of performing construction, maintenance or
emergency repair for the benefit of the Common Area or the Owners in common, and/or to perform
maintenance work that an Owner has failed to perform as provided in section 7.19, the Association's
agents or employees shall have the right, after reasonable notice (except in emergencies, not less
than twenty-four (24) hours) to the Owner of the Lot in which maintenance work has not been
performed, to enter the Lot at reasonable hours. Such entry shall be made with as little
inconvenience to the Owner as practicable, and any damage caused by such entry shall be repaired
by the Board at the expense of the Association.
E. Assessments and Liens: The Board shall have the power to levy and
collect Assessments in accordance with the provisions of Article IV hereof.
F. Fines and Disciplinary Action: The Board may impose fines or take
disciplinary action against any Owner for failure to pay Assessments or for violation of any provision
of the Project Documents and the Rules. Penalties may include, but are not limited to, fines,
temporary suspension of voting rights, or other appropriate discipline, provided the Member is given
notice and a hearing as provided in the Bylaws before the imposition of any fine or disciplinary
action. The Board shall have the power to adopt a schedule of reasonable fines and penalties for
violations of the terms of this Declaration, and for violations of any Rules adopted pursuant to
section 5.2.C. The penalties prescribed may include suspension of all rights and privileges of
membership; provided, however, that suspension for failure to pay Assessments shall be for a
maximum period of thirty (30) days, renewable by the Board for an additional thirty (30) day period or
periods until paid; and provided further that suspension for infraction of Rules or violation of this
Declaration, other than for failure to pay Assessments, shall be limited to a maximum period of
thirty (30) days per infraction or violation, and shall be imposed only after a hearing before the
Board. The Board may extend that period for an additional thirty (30) day period or periods in the
case of a continuing infraction or violation, and no hearing need be held for such extension. Written
copies of Rules and the schedule of penalties shall be furnished to Owners. The Board shall levy
fines and penalties and shall enforce such Assessments as appropriate under applicable law.
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G. Enforcement: The Board shall have the authority to enforce this Declaration
as provide in section 9.1.
I. Acquisition and Disposition of Property: The Board shall have the power
to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain,
convey, sell, lease, transfer, or otherwise dispose of real or personal property in connection with the
affairs of the Association. Any transfer of property shall be by document signed or approved by
two-thirds (2/3) of the total voting power of the Association which shall includetwo-thirds (2/3) of the
Members other than Declarant, or where the two (2) class voting structure is still in effect, two-thirds
(2/3) of the voting power of each class of Members.
J. Loans: The Board shall have the power to borrow money, and, only with the
assent (by vote or written consent) of two-thirds (213) of the total voting power of the Association
including two-thirds (2/3) of the Members other than Declarant, or where the two (2) class voting
structure is still in effect, two-thirds (2/3) of the voting power of each class of Members, to mortgage,
pledge, deed intrust, or hypothecate any or all of its real or personal property as security for money
borrowed or debts incurred.
K. Dedication: The Board shall have the power to dedicate 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 shall be effective unless an
instrument has been signed by two-thirds (2/3) of the Members of the Association including
two-thirds (2/3) of the Members other than Declarant, or where the two (2) class voting structure is
still in effect, two-thirds (2/3) of the Members of each class of Members, agreeing to such dedication.
L. Contracts: The Board shall have the power to contract for goods and/or
services for the Common Area(s), for the Lots, or for the Association, subject to limitations set forth
in the Bylaws, or elsewhere in this Declaration. The Board shall not enter into any contracts with an
independent contractor until it meets the requirements of section 8.1(3) herein.
M. Delegation: The Board, and the officers of the Association shall have the
power to delegate their authority and powers to committees, officers or employees of the
Association, or to a manager employed by the Association, provided that the Board shall not
delegate its responsibility:
(1) to make expenditures for capital additions or improvements chargeable
against the reserve funds;
(2) to conduct hearings concerning compliance by an Owner or his or her
tenant, lessee, guest or invitee with the Declaration, Bylaws or Rules promulgated by the Board;
(3) to make a decision to levy monetary fines, levy Reimbursement Charges,
temporarily suspend an Owner's rights as a Member of the Association or otherwise impose
discipline;
(4) to make a decision to levy Regular Assessments or Special Assessments;
or
(5) to make a decision to bring suit, record a claim of lien or institute
Foreclosure proceedings for default in payment of Assessments.
N. Appointment of Trustee: The Board acting on behalf of the Association, has
the power to appoint or designate a trustee to enforce Assessment Liens by sale as provided in
section 4.9 and California Civil Code § 1367.1(d).
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O. Litigation/Arbitration: The Board of Directors has authority to enter into a
contingent fee contract with an attorney in a matter involving alleged design or construction defects
in the Project, only as to the facilities or improvements the Association is responsible for maintaining
as provided herein, and then only after getting the vote at a duty noticed and properly held
membership meeting, of a majority of a quorum of the Members other than Declarant. If, and to the
extent that, there is any inconsistency between this section 5.2.0 and applicable provisions of the
California Civil Code and/or the California Code of Civil Procedure pertaining to the commencement
of an action by the Association for construction defect litigation, the applicable provisions of the
California statutes shall control.
P. Other Powers: In addition to the powers contained herein, the Board may
exercise the powers granted to a nonprofit mutual benefit corporation under California Corporations
Code § 7140_
Q. Common Area Improvements: The Board shall have the authority and
power to demolish, remove and reconstruct any and all improvements on or over or under the
Common Area in a manner not inconsistent with this Declaration, and to construct, improve and
repair improvements that are appropriate for the use and benefit of the Members of the Association,
and to charge for the use of such improvements, provided that the Board shall not include in any
Regular Assessment or Special Assessments the cost of any new capital improvement which
exceeds $5,000 in cost to be expended in any one calendar year, unless fifty-one percent (51 %) or
more of the voting power of the Association previously shall have approved said expenditure.
R. Granting Rights: The power to grant exclusive ornon-exclusive easements,
licenses, rights of way or fee interests in the Common Area, to the extent any such grant is
reasonably required: (a) for utilities and facilities to serve the Common Area and the Lots; (b) for
purposes of conformity with the as-built location of improvements installed or authorized by
Declarant or the Association; (c) in connection with any lawful lot line adjustment; or (d) for other
purposes consistent with the intended use of the Project. This power includes the right to create
and convey [Restricted][Exclusive Use] Common Areas. The Association may deannex any real
property from the encumbrance of this Declaration in connection with any lawful lot line adjustment.
5.3. Commencement of Association's Duties and Powers: Until incorporation of the
Association, all duties and powers of the Association as described in this Declaration, including all
rights of consent and approval, shall be and remain the duties and powers of Declarant. After the
date of incorporation of the Association, the Association shall assume all duties and powers, and
Declarant shall be relieved of any further liability therefor.
ARTICLE VI. ARCHITECTURAL CONTROL
6.1. Purpose of Architectural Controls: The purpose and intent of this Article is to
empower the Association to preserve property values within the Project. The Board has the ultimate
responsibility, but may delegate that authority to an Architectural Control Committee. The Board and
the Architectural Control Committee shall operate pursuant to the following requirements and
guidelines.
The emphasis of the review of the Board or Architectural Control Committee shall be
upon uniformity of appearance, and consistency in carrying out Declarant's original design and
architectural scheme for the Project. The objective then becomes to prevent additions, alterations
or replacements which are reasonably likely to be detrimental to the overall ambiance of the Project,
and reasonably likely to adversely affect property values throughout the Project. The restrictions are
not intended to empower the Board or the Committee to act arbitrarily, capriciously, or whimsically in
the process of reviewing plans. Standards should be established which are both reasonable and
20
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objective, and which are reasonably ascertainable, and are uniformly and fairly applied to all, and in
all cases. The Board and the Committee shall base their decisions on what is in the best interests
of the Project as a whole, and not upon what will appease a particular Member or group of
Members.
6.2. Requirement for Approval of Plans: No building, fence, wall, pool, spa,
obstruction, outside or exterior wiring, balcony, screen, patio, patio cover, tent, awning, carport,
carport cover, trellis, improvement, or structure of any kind shall be commenced, installed, erected,
painted or maintained upon the Project, nor shall any alteration or improvement of any kind be made
thereto, or to the exterior of any residence, until the same has been approved in writing by the
Board, or by an Architectural Control Committee appointed by the Board. Plans and specifications
showing the nature, kind, shape, color, size, materials and location of such improvements,
alterations, etc., shall be submitted to the Board or to the Architectural Control Committee for
approval as to quality of workmanship and design and harmony of external design with existing
structures, and as to location in relation to surrounding structures, topography, and finish grade
elevation. No fence or wall shall be erected, placed or altered on any Lot nearer to any street than
the minimum building set back line. No permission or approval shall be required to repaint in
accordance with Declarant's original color scheme, or to rebuild in accordance with Declarant's
original plans and specifications. No permission or approval shall be required to repaint in
accordance with a color scheme previously approved by the Committee or the Board, or to rebuild in
accordance with plans and specifications previously approved by the Committee or by the Board.
Nothing contained herein shall be construed to limit the right of an Owner to remodel the interior of
his residence or to paint the interior of his residence any color desired. The Committee may
consider the impact of views from other Lots along with other factors, including reasonable privacy
right claims, passage of light and air, beneficial shading and other factors in reviewing, approving or
disapproving any proposed landscaping, construction or other improvements. However, neither the
Declarant nor the Association warrants that any views in the Property are protected. No Lot is
guaranteed the existence or unobstructed continuation of any particular view.
6.3. Architectural Control Committee Membership: The Architectural Control
Committee shall consist of three (3) members. Declarant may appoint all of the original members of
the Committee and all replacements until the first anniversary of the issuance of the original final
Public Report for the Project. The Declarant reserves to itself the power to appoint a majority of the
members to the Committee until ninety percent (90%) of all the Lots in the Project have been sold or
until the fifth anniversary of the issuance of the final Public Report for the Project, whichever first
occurs. After one (1) year from the date of the issuance of the original Public Report for the Project,
the Board shall have the power to appoint one (1) member to the Architectural. Control Committee
until ninety percent (90%) of all of the Lots in the development have been sold or until the fifth
anniversary date of the issuance of the final Public Report, whichever first occurs. Thereafter, the
Board shall have the power to appoint all of the Architectural Control Committee Members.
Members appointed to the Architectural Control Committee need not be Members of the
Association. A majority of the Architectural Control Committee may designate a representative to
act for it. In the event of death or resignation of any member of the Committee, the successor shall
be appointed by the person, entity or group which appointed such member until Declarant no longer
has the right to appoint any members to the Committee, and thereafter the Board shall appoint such
a successor. Neither the members of the Committee nor its designated representative shall be
entitled to any compensation for services performed pursuant hereto.
6.4. Architectural Control Committee Action: In the event the Committee fails to
approve or disapprove plans and specifications in writing within thirty (30) days after the same have
been submitted to it, approval will not be required and the related covenants shall be deemed to
have been fully complied with. Approval of plans by the Committee or the Board shall in no way
make the Committee or its members or the Board or its members responsible for or liable for the
improvements built after approval of the plans, and the Owner whose plans are approved shall
21
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defend, indemnify and hold the Committee, the Board, the Association, and the members thereof,
harmless from any and all liability arising out of such approval.
The Committee shall meet as necessary to perform its duties. The Committee may, by
resolution unanimously adopted in writing, designate a Committee Representative (who may be a
licensed architect or other professional consultant retained by the Committee) to review Applications
and recommend action to be taken by the Committee or to take any other action or perform any
other duties for and on behalf of the Committee except the granting of variances. In the absence of
such designation, the vote or written consent of a majority of the Committee constitutes an act of the
Committee. All approvals issued by the Committee must be in writing. Verbal approvals issued by
the Committee, any individual Committee member or any other representative of the Association are
not valid, are not binding on the Association and may not be relied on by any Person. In reviewing
and approving or disapproving a proposed alteration, modification or improvements to a Lot that is
subject to review under section this Declaration, the Committee shall satisfy the following
requirements in accordance with California Civit Code section 1378:
(1) The Committee in the Design Guidelines shall provide a fair, reasonable,
and expeditious procedure for making its decision. The procedure shall provide for prompt
deadlines. The procedure shall state the maximum time for response to an application or a request
for reconsideration by the Board of Directors.
(2) A decision on a proposed change shall be made in good faith any may
not be unreasonable, arbitrary, or capricious.
(3) A decision on a proposed change shall be consistent with any
governing provision of law, including, but not limited to, the Fair Employment and Housing Act (Part
2.8, commencing with Section 12900) of Division 3 of Title 2 of the Government Code.
(4) A decision on a proposed change shall be in writing. If a proposed
change is disapproved, the written decision shall include both an explanation of why the proposed
change is disapproved and a description of the procedure for reconsideration of the decision by the
Board of Directors.
(5) If a proposed change is disapproved, the applicant is entitled to
reconsideration by the Board of Directors that made the decision at an open meeting of the Board.
This paragraph does not require reconsideration of a decision that is made by the Board or a body
that has the same membership as the Board, at a meeting that satisfies the requirements of
California Civil Code section 1363.05. Reconsideration by the Board does not constitute dispute
resolution within the meaning of California Civil Code section 1363.820.
6.5. Landscaping: No landscaping or other physical improvements or additions shall be
made to any decks, balconies, patios or yards or portions of Lots which are visible from the street or
from any Common Area by any Owner until plans and specifications showing the nature, kind,
shape, and location of the materials shall have been submitted to and approved in writing by the
Architectural Control Committee, or the Board.
6.6. Governmental Approval: Before commencement of any alteration or improvements
approved by the Architectural Control Committee, the Owner shall comply with all appropriate
governmental laws and regulations. Approval by the Committee does not satisfy the appropriate
approvals that may be required by any governmental entity with appropriate jurisdiction. All exterior
changes to the Project, including the Residences, shall be referred to the City for architectural
review, including decks, gazebos and other such additions, except that routine operations, such as
painting and landscaping need not be submitted to the City for review. All improvements and
22
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modifications in the Project, including the Residences must comply with City codes and, if
applicable, Civil Code section 1360.
6.7. Structural Integrity: Nothing shall be done in or on any Lot or in or on the Common
Area which will impair the structural integrity of any building.
6.8. Completion of Work; Review of Work: Upon approval of the Committee or Board,
the Owner shall diligently proceed with the commencement and completion of all work so approved
by the Committee in compliance with the approvals granted. The work must be commenced within
six months from the date of approval unless the Committee or Board permits the work to be
commenced at a later time. If the work is not commenced within six months after the approval date,
or such later time as the Committee or Board has granted, then the approval shall be deemed
cancelled, and the Owner must reapply to the Committee or Board before undertaking any such
work.
The Committee or Board shall inspect work within sixty days after a notice of completion has
been delivered to the Committee or Board by the Owner. The Committee or Board may also inspect
the work at any time prior to completion as it deems appropriate to determine that the Committee or
Board approval is being followed. The Committee or Board is to inspect the work performed, and
determine whether it was performed and completed in compliance of the approval granted in all
material respects. If at any time during the construction of any work, the Committee or Board finds
that the work was not performed or completed in compliance of the approval granted in all material
respects, or if the Committee or Board finds that the appropriate approval which was required for
any work was not obtained, the Committee or Board shall notify the Owner in writing of the non-
compliance. The notice shall specify in writing the particulars ofnon-compliance, and shall set forth
the requirement of the Owner to remedy the non-compliance. The Committee or Board shall
determine in its reasonable judgment whether an alteration, modification or improvement complies
with the approval as granted in material respects. Minor changes, deviations or imperfections that
do not negatively affect or impact the Project shall not be considered as non-compliance. The
Board shall act under this section 6.8 only if the Board has undertaken the architectural review
functions under this Article.
if the Committee or the Board has determined an Owner has not constructed an
improvement in compliance of the approval granted in all material respects, and if the Owner fails to
remedy such non-compliance in accordance with provisions of the notice of non-compliance, then
after expiration of 30 days from the date of such notification, if the Committee is undertaken the
architectural review functions under this Article, the Committee shall notify the Board, and the Board
shall provide Notice and Hearing to consider the Owner's continuing non-compliance. If the Board
is undertaken the architectural review functions under this Article, the Board shall act after expiration
of 30 days from the date of such notification. At the Hearing, if the Board finds that there is no valid
reason for the continuing non-compliance, the Board shall then require the Owner to remedy the
non-compliance as necessary and appropriate in the determination of the Board as to result in the
improvement being rendered as reasonably in compliance as is appropriate forthe overall good and
benefit of the Project, or remove the same within a period of not more than 45 days from the date of
the Board's determination. If the Owner does not comply with the Board's ruling within such period,
or within any extension of such period as the Board, in its discretion may grant, the Board may (1)
remove the non-complying improvement, (2) remedy the non-compliance, or (3) institute legal
proceedings to enforce compliance or completion.
After ninety percent (90%) of the Lots in the Project have been sold by the Declarant, an
Owner who has submitted an application to the Committee may appeal a decision to deny or
conditionally approve the Owner's application to the Board by written appeal to the Board. The
Board shall notify the appealing Owner in writing of the date set for a hearing regarding the Owner's
appeal within ten (10) days after receipt of the Owner's appeal. The hearing shall be held within
23
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thirty (30) days after receipt of the Owner's appeal by the Board. The Board shall make its
determination on the appeal in writing delivered to the appealing Ownerwithin ten (10) days after the
hearing. The determination of the Board shall be final.
6.9. No Waiver of Future Approvals: The Committee's approval of any proposals,
plans and specifications or drawings for any work done or proposed in connection with any matter
requiring the Committee's approval does not waive the right to withhold approval of any similar
proposals, plans and specifications, drawings or matters subsequently or additionally submitted for
approval.
6.10. Variances: The Committee may authorize variances from compliance with any of
the architectural provisions of Declaration or the Design Guidelines, including restrictions on height,
size, floor area or placement of structure, or similar restrictions, when circumstances such as
hardship, aesthetic or environmental consideration require. Such variances must be evidenced in
writing, must be signed by a majority of the Committee, and become effective an recordation. After
Declarant's right to appoint a majority of the Committee's members expires, the Board must approve
any variance recommended by the Committee before any such variance becomes effective. If
variances are granted, no violation of the covenants, conditions and restrictions in this Declaration
shall be deemed to have occurred with respect to the matter for which the variances were granted.
The granting of a variance does not waive any of the provisions of this Declaration for any purpose
except as to the particular property and particular provisions of this Declaration covered by the
variance, nor does it affect the Owner's obligation to comply with all laws affecting the use of his Lot.
The Committee's written variance shall be recorded against applicant's Lot in the Official Records.
The cost of recording the variance shall be borne solely by the applicant.
ARTICLE Vil. USE RESTRICTIONS
In addition to all of the covenants contained in this Declaration, the use of the Project and
each Lot in the Project is subject to the following:
7.1. Use of Lot: No Lot shall be occupied and used except for residential purposes by
the Owners, their tenants, and social guests, except that Declarant, its successors or assigns, may
use the Project for a model homesite or sites, and display and sales/construction office during
construction until the last Lot is sold by Declarant or, where Declarant elects to retain one (1) or
more Lots as an investment, until three (3) years from the date of issuance of the public report,
whichever occurs first. A Lot may be used as a combined residence and executive or professional
office by the Owner or occupant thereof, so long as such use does not interfere with the quiet
enjoyment by other Owners of their Lots and does not include visiting clients, or advertising signs,
and such use is not visible from the Common Area, adjoining Lots or streets of the Project. No tent,
shack, trailer, basement, garage, outbuilding or structure of a temporary character shall be used on
any Lot at any time as a residence, either temporarily or permanently.
No health care facilities operating as a business or charity shall be permitted in the Project,
unless permitted by law or ordinance which preempts this restriction.
No family day care center shall be permitted within the Project except as specifically
authorized by California Health and Safety Code §1597.40 and other applicable state statutes. The
owner/operator of any such day care facility shall comply with all local and state laws regarding the
licensing and operating of a day care center and, in addition, shall:
A. Name the Association as an additional insured on the liability insurance policy
or bond carried by the owner/operator of the day care center;
24
ana~m
B. Defend, indemnify and hold the Association harmless from any liability arising
out of the existence and operation of the day care center,
C. Abide by and comply with all of the Association's Rules;
D. Supervise and be completely responsible for children at all times while they
are within the project;
E. Cooperate with the Association if the Association's insurance agent or carrier
requires proof of insurance, proof of the agreement of the owner or operator of the center to these
conditions, or other reasonable requests.
No Lot or Lots or any portion thereof in the Project shall be leased, subleased, occupied,
rented, let, sublet, or used for or in connection with any time sharing agreement, plan, program or
arrangement, including, without limitation, any so-called "vacation license," "travel club," "extended
vacation," or other membership or time interval ownership arrangement. The term "time sharing" as
used herein shall be deemed to include, but shall not be limited to, any agreement, plan, program, or
arrangement under which the right to use, occupy, or possess the Lot or Lots or any portion thereof
or residence thereon in the Project rotates among various persons, either corporate, partnership,
individual, or otherwise, on a periodically recurring basis for value exchanged, whether monetary or
like kind use privileges, according to a fixed or floating interval or period of time. This section shall
not be construed to limit the personal use of any Lot or any portion thereof in the Project by any
Owner or his social or familial guests.
7.2. Nuisances: No noxious, illegal, or seriously offensive (to a reasonable person)
activities shall be carried on within any Lot, or any part of the Project, nor shall anything be done
thereon that may be or may become a serious 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.
7.3. Vehicle Restrictions and Towing: Except as otherwise permitted in this section
7.3, only Permitted Vehicles shall be parked, stored or operated within the Project.
A. Permitted Vehicles shall mean appropriately licensed passenger automobiles,
sports utility vehicles, motorcycles, and trucks having carrying capacity of/2 ton or less, vans having
seating capacity of eight (8) persons or less. Owners and their tenants and invitees shall park their
Permitted Vehicles only in the garages appurtenant to or assigned to their Lot. Vehicles that are not
Permitted Vehicles shall not be parked or stored in the Project. Except for commercial vehicles or
construction equipment that are providing services to a Lot or the Association (but only during the
period of time in which such services are being provided and subject to the Rules), Permitted
Vehicles shall not include any commercial vehicle, construction equipment, trailer, camper, mobile
home, recreational vehicle, truck having carrying capacity of greater than'h ton, van having seating
capacity in excess of eight (8) persons or any vehicle which is too large to fit within the Owner's
garage, inoperable vehicles, boats or similar equipment. Vehicles that are otherwise Permitted
Vehicles that are used both for business and personal use are not prohibited, provided that any
signs or markings of a commercial nature on such vehicles shall be unobtrusive and inoffensive as
determined by the Board. No excessively noisy or smoky vehicles shall be operated on the Project.
No Owner or other occupant of any Lot shall park more than two (2) Permitted Vehicles within the
Project at any one time.
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B. No parking shall be permitted within the Common Area private street of the
Project, except in parking areas designated by the Board as guest parking areas. All such guest
parking areas shall be used in accordance with the Rules of the Association. There shall be no
parking of vehicles on the driveway or apron providing access to a garage, except for temporary
access, and in no event in a manner that extends into the Common Area private street.
C. The Association may install a sign at each vehicular entrance to the Project
containing a statement that public parking is prohibited and that all vehicles not authorized to park
on the Project wi11 be removed at the vehicle owner's expense. The sign shall be not be less than
17 x 22 inches in size with lettering not less than one (1) inch in height and shall contain such
information as is required bylaw, including the telephone number of the local traffic law enforcement
agency and the name and telephone number of each towing company that is a party to a written
general towing authorization agreement with the Association. The sign may also indicate that a
citation may also be issued for the violation. The Association shall enter into a written general
towing authorization agreement with one or more towing companies as required by Vehicle Code
section 22658.
D. The Association may cause the removal of any vehicle wrongfully parked on
the Project, including a vehicle owned by an occupant of a Unit. The Association shall not be liable
for any damages incurred by the vehicle owner because of the removal in compliance with this
section or for any damage to the vehicle caused by the removal, unless such damage resulted from
the intentional or negligent act of the Association or any person causing the removal of or removing
the vehicle. Unless the Board provides otherwise, any director or officer, any manager or manager's
agent or any Owner authorized to do so by any director or officer shall have the authority to act on
behalf of the Association to cause the removal of any vehicle wrongfully parked within the Project.
The provisions of this section 7.3 are intended to comply with Vehicle Code section 22658 in
effect as of January 1, 2007. If this Vehicle Code section is amended, this provision automatically
shall be amended in the same manner. If this section is repealed and no successor section is
enacted, this provision shall remain in full force and effect. Vehicle Code section 22658 may have
been amended by the State Legislature since this Declaration was recorded, and the Board should
confirm the current statutory requirements.
E. Garage space shall not be converted into any use (such as a recreational
room or storage room) that would prevent its use as parking space for the number of vehicles the
space was designed to contain. The Association may establish Rules from time to time for the
parking of vehicles in the Common Areas.
7.4. Parking: All Common Area parking spaces shall remain permanently available for
guest parking. Parking spaces shall be used for parking of permitted vehicles only and not for the
permanent parking or storage of boats, trailers or non-mobile vehicles of any description. The
Association may establish Rules from time to time for the parking of vehicles in unassigned parking
spaces in the Common Areas.
7.5. Commercial Activity: No business, professional, or commercial activity of any kind
shall be conducted on any Lot except as provided in section 7.1.
7.6. Storage in Common Area: Nothing shall be stored in the Common Area without the
prior consent of the Board.
7.7. Signs: Subject to Civil Code §§ 712, 713 and 1353.6, no signs shall be displayed to
the public view on any Lot or on any other portion of the Project except non-commercial signs may
be displayed within a Lot that are approved by the Board or a committee appointed by the Board,
26
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that conform to the Rules regarding signs that comply with the requirements of State law or that
conform to the requirements of State law, and applicable local ordinances. "For Sale" or "For Rent"
or "For Exchange" signs shall be allowed to be displayed within areas of the Project that are
designated in the Rules regarding such signs that comply with the requirements of State law or
conform to the requirements of State law, and applicable local ordinances, provided the design,
dimensions and locations are reasonable. An Owner or his or her agent may display one (1) such
For Sale or For Rent or For Exchange sign within his or her Lot and one sign in the Common Area
advertising directions to the Owner's Lot which is for sale, rent, or exchange, provided the design,
dimensions and locations are reasonable and comply with the Rules regarding signs that comply
with the requirements of State law, and applicable local ordinances.
7.8. Animals: Except as provided in this Declaration and permitted by the Rules, no
animals of any kind shall be raised, bred, or kept in any Lot, or on any other portion of the Project.
Trained dogs used for assistance by visually impaired, hearing impaired or physically handicapped
persons may be kept by an occupant or invitee of an Owner. Owners, their tenants or other
occupants of Lots may keep no more than two (2) dogs, or two (2) cats, or one (1) dog and one (1)
cat, within a Lot, and may keep birds or fish that are kept in cages or aquariums, provided that no
such dogs, cats or other animal or fish may kept, bred, or maintained for any commercial purposes.
All pets shall be kept under reasonable control at all times. No pets shall be allowed in the Common
Area except as may be permitted by Rules of the Board. No Owner shall allow his dog to enter the
Common Area except on a leash. After making a reasonable attempt to notify the Owner, the
Association or any Owner may cause any pet found within the Common Area in violation of the
Rules of the Board or this Declaration to be removed by the Association (or any Owner) to a pound
or anima( shelter under the jurisdiction of the City, or the County of Santa Clara, by calling the
appropriate authorities, whereupon the Owner may, upon payment of all expenses connected
therewith, repossess the pet. Owners shall prevent their pets from soiling all portions of the
Common Area and shall promptly clean up any mess left by their pets. Owners shall be fully
responsible for any damage caused by their pets.
Owner shall use reasonable efforts to prevent any animal within his Lot from making
disturbing noises that can be heard from any other Lot between the hours of 10:00 PM to 7:00 AM.
An Owner in violation of this section may be deemed to be permitting, or causing a serious
annoyance or nuisance to any other Owner.
7.9. Garbage and Refuse Disposal: All rubbish, trash and garbage shall be regularly
removed from the Lots, and shall not be allowed to accumulate thereon. Trash, garbage and other
waste shall only be kept in sanitary containers. All equipment for the storage or disposal of such
materials shall be kept in a clean and sanitary condition, and shall, except on the day of collection,
be kept in the garage of the residence, or within the enclosed yard area of the Lot, appropriately
screened from view of neighboring Lots, Common Area, Private Streets and public streets that are
adjacent to the Project. No toxic or hazardous materials shall be disposed of within the Project by
dumping in the garbage containers or down the drains, or otherwise. Each Owner shall be
responsible for removal of trash, garbage and recycling from his Lot. REVIEW -ASSUMES NO
CENTRAL DUMPSTERS OR CENTRAL PICKUP OF GARBAGE, REFUSE AND RECYCLING]
7.10. Radio and Television Antennas: No Owner shall construct, install and/or use and
operate a radio and/or television antenna, satellite dish, other signal reception or transmission
devices or related equipment in the Project, including without limitation, within any balconies, decks
or patios, without the consent of the Board, which the Board shall have the discretion to withhold,
subject to applicable legal requirements. In considering whether to approve applications for any
such devices to be located within any balcony, deck or patio, the Board shall consider and give great
weight to considerations of aesthetics, safety within the community, uniformity of appearance, and
the requirements of any applicable laws. The Board shall, in acting upon requests for approval of a
satellite dish or other signal reception or transmission devices comply with California Civil Code
§1376 and FCC [Federal Communications Commission} regu{ations. The Board may adopt other
27
Rules for installation and operation of any satellite dish or other signal reception or transmission
devices that comply with California Civil Code §1376 and FCC regulations.
7.11. Basketball Standards and Sports Apparatus: No basketball standard or fixed
sports apparatus shall be attached to the exterior surface of any residence or garage nor shall any
portable apparatus for basketball be permitted on any Lot. The purpose of this restriction is to
maintain uniformly high aesthetic standards, and to preserve the quiet enjoyment of the respective
Lots by the Owners thereof.
7.12. Window Coverings: All drapes, curtains, shutters, blinds or other window coverings
visible from the street or Common Areas shall be beige, white, or off-white in color or lined in beige,
white, oroff-white, or as the case may be, of colors, materials and patterns which are approved by
the Board or the Architectural Control Committee.
7.13. Clothes Lines: No exterior clothes lines shall be erected or maintained, and there
shall be no outside laundering or drying of clothes. No draping of towels, carpets, or laundry over
exterior railings shall be allowed.
7.14. Power Equipment and Motor Vehicle Maintenance: No power equipment, hobby
shops, or car maintenance (other than emergency work), or boat maintenance shall be permitted on
the Project except with prior written approval of the Board. Approval shall not be unreasonably
withheld and, in deciding whether to grant approval, the Board shall consider the effects of noise, air
pollution, dirt or grease, fire hazard, interference with radio or television reception, and similar
objections. All hazardous waste shall be disposed of properly by each Owner.
7.15. Liability of Owners for Damage to Common Area: The Owner of each Lot shall be
liable to the Association for all damage to the Common Area improvements (including landscaping)
caused by such Owner or the Owner's agents, occupants, invitees, or pets, except for that portion of
damage covered by insurance carried by the Association. The responsible Owner shall be charged
with the cost of repairing such damage (including interest thereon) as described in section 5.1.A.
7.16. Right to Lease:
A. Any Owner who wishes to lease his Lot must meet each of the following
requirements, and the lease will be subject to these requirements whether they are included within
the lease or not:
(1) all leases must be in writing;
(2) the lease must be for the entire Lot and not merely parts of the Lot, unless
the Owner remains in occupancy;
(3) all leases shall be subject in all respects to provisions of the Declaration,
the Bylaws, and all Rules adopted by the Board;
(4) all Owners who lease their Lots shall promptly notify the Secretary of the
Association in writing of the names of all tenants and members of tenants' family occupying such
Lots and shall provide the Secretary of the Association with a complete copy of the lease. All
Owners leasing their Lot shall promptly notify the Secretary of the Association of the address and
telephone number where such Owner can be reached;
(5) no Owner shall lease his Lot for a period of less than thirty (30) days.
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B. Any failure of a tenant to comply with the Declaration, Bylaws, and
Association Rules, shall be a default under the lease, regardless of whether the lease so provides.
In the event of any such default, the Owner immediately shall take all actions to cure the default
including, if necessary, eviction of the tenant;
C. If any tenant is in violation of the provisions of the Declaration, Bylaws, or
Rules of the Association, the Association may bring an action in its own name and/or in the name of
the Owner to have the tenant evicted and/or to recover damages. If the court finds that the tenant is
violating, or has violated any of the provisions of the Declaration, the Bylaws of the Association, or
the Rules of the Association, the court may find the tenant guilty of unlawful detainer notwithstanding
the fact that the Owner is not the plaintiff in the action and/or the tenant is not otherwise in violation
of tenant's lease. For purposes of granting an unlawful detainer against the tenant, the court may
assume that the Owner or person in whose name a contract (the lease or rental agreement) was
made was acting for the benefit of the Association. The remedy provided by this subsection is not
exclusive and is in addition to any other remedy or remedies which the Association has. If permitted
by present or future law, the Association may recover all its costs, including court costs and
reasonable attorneys' fees incurred in prosecuting the unlawful detainer action.
D. The Association shall give the tenant and the Owner notice in writing of the
nature of the violation of the Declaration and/or Rules, and twenty (20) days from the mailing of the
notice in which to cure the violation before the Association may file for eviction.
E. Each Owner shall provide a copy of the Declaration, Bylaws and all Rules of
the Association to each tenant of his or her Lot. By becoming a tenant, each tenant agrees to be
bound by the Declaration, the Bylaws and the Rules of the Association, and recognizes and accepts
the right and power of the Association to evict a tenant for any violation by the tenant of the
Declaration, the Bylaws, and Rules of the Association.
7.17. Flags, Pennants, Banners, Etc.: There shall be no exhibiting, flying or hanging of
any flags, pennants, banners, kites, towels, etc., from any area of the Project (except the Declarant's
sales office) that would be visible from the street, Common Area, or the other Lots, except in
conformance with Rules adopted by the Board or the Architectural Control Committee, and for flags,
banners and signs that are expressly permitted by statute. The Association may adopt Rules
regarding the display of flags, banners and signs provided that such Rules shall be consistent with
the then applicable laws.
7.18. Activities Causing Increase in Insurance Rates: Nothing shall be done or kept on
any Lot or in any improvements constructed in any Lot, or in the Common Area, which will increase
any applicable rate of insurance or which will result in the cancellation of insurance on any Lot or
any part of the Common Area, or which would be in violation of any law.
7.19. Owner's Right and Obligation to Maintain and Repair: Except for those portions
of the Project which the Association is required to maintain and repair, each Owner shall, at his sole
cost and expense, maintain and repair his Lot and Residence, and all landscaping in enclosed yard
areas, keeping the same in good condition. In addition, each Owner shall have the improvements
on the Owner's Lot periodically inspected for termites and immediately shall take appropriate
corrective measures thereof.
In order to reduce the presence of mold, fungi, spores, pollens and other botanical
substances, or other allergens (collectively "Mold") within the Lot, the Owners shall inspect the
interior of their dwellings not less frequently than once each quarter to check for water leaks or other
breaches of the watertight integrity of the improvements, and for the presence of Mold. If any water
leaks and/or Mold are detected within the Lot, the Owner shall immediately take appropriate
corrective steps to repair the leak, and/or remove the Mold and to maintain proper ventilation within
29
ar~Rim
enclosed areas, and to maintain humidity levels to reduce the risk of Mold growth, and take such
other prudent steps as may be appropriate to prevent Mold growth, or eliminate any existing Mold.
Each Owner shall maintain the improvements within his or her Lot in accordance with the
Maintenance Guidelines established by the Declarant. A copy of the Maintenance Guidelines shall
be delivered by Declarant to each Owner when the Lot is sold to the Owner. Each Owner shall
retain the Maintenance Guidelines and take all appropriate actions to comply with and implement
the Maintenance Guidelines. When an Owner transfers a Lot, the Owner shall deliver a complete
copy of the Maintenance Guidelines to the transferee of the Lot on or before the date the Lot is
transferred.
In the event an Owner of any Lot shall fail to maintain his Lot and the improvements thereon
as required herein, the Association's agents may, after notice and a hearing as provided in the
Bylaws, enter the Lot and perform the necessary maintenance. The cost of such maintenance shall
immediately be paid to the Association by the Owner of such Lot as a Reimbursement Charge,
together with interest at the rate of twelve percent (12%) per annum (but not to exceed the maximum
interest rate authorized bylaw) from the date the cost was incurred by the Association until the date
the cost is paid by the Owner.
ARTICLE VIII. INSURANCE; DAMAGE OR DESTRUCTION; CONDEMNATION
8.1. Insurance: The Association shall obtain and maintain the following insurance:
(1) a master property (casualty) policy insuring all improvements,
equipment and fixtures in the [Common Area of the] Project [(including the Residences as originally
constructed)] with policy limits of either: [a] full replacement value of the covered improvements or
(b] no less than 80% of replacement cost of the covered improvements, excluding foundations and
footings in either instance, unless otherwise required by FNMA or FHLMC requirements as set forth
in subparagraph 8.1 B, below. The following endorsements should be included in any such master
hazard policy, if commercially reasonable to obtain:
(a) changes in building codes ("ordinance or law endorsement");
(b) inflation guard coverage;
(c) demolition coverage;
(d) "agreed-amount" endorsement (to eliminate a coinsurance
problem);
(e) replacement cost endorsement; and
(f) primary coverage endorsement.
(2) an occurrence version comprehensive general liability policy insuring
the Association, its agents, the Owners and their respective family members, against liability incident
to the ownership or use of the Common Area or any other Association owned or maintained real or
personal property. The amount of general liability insurance that the Association shall carry at all
times shall be not less than the minimum amounts required by California Civil Code § 1365.7 and
1365.9;
(3) workers' compensation insurance to the extent required by law (or
such greater amount as the Board deems necessary). The Association shall obtain a Certificate of
Insurance naming it as an additional insured in regard to workers' compensation claims from any
independent contractor who performs any service for the Association, if the receipt of such a
certificate is practicable;
(4) fidelity bonds or insurance covering officers, directors, and employees
that have access to any Association funds;
30
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(5) officers and directors liability insurance in the minimum amounts
required by California Civil Code § 1365.7; and
(6) insurance against liability for non-owned and hired automobiles, and
such other insurance as the Board in its discretion considers necessary or advisable.
A. Amount, Term and Coverage. The amount, term and coverage of any
policy required hereunder (including the type of endorsements, the amount of the deductible, the
named insureds, the loss payees, standard mortgage clauses, notices of changes or cancellations,
and the insurance company rating) shall satisfy the minimum requirements imposed for this type of
project by the Federal National Mortgage Association ("FNMA") and the Federal Home Loan
Mortgage Corporation ("FHLMC") or any successor to either of those entities (except for earthquake
insurance, the purchase of which is within the discretion of the Board as provided by section
8.1A(8), above). If the FNMA or FHLMC requirements conflict, the more stringent requirement shall
be met. If FNMA and FHLMC do not impose requirements on any policy required hereunder, the
term, amount and coverage of such policy shall be no less than that which is customary for similar
policies on similar projects in the area. The Board shalt adopt a policy regarding payment of
deductibles on any insurance coverage. Unless the Board determines otherwise, the Association
shall pay deductibles required under any insurance claim from Association funds, unless insufficient
funds are available to the Association from the Association's accounts for from funds borrowed by
the Association in accordance with this Declaration, in which event the Association shall levy a
Special Assessment, in accordance with sections 4.3.B and 4.4 of this Declaration, with respect to
the amount of any such deductible which exceeds funds available to the Association from
Association funds or from borrowing.
B. Representation for Claims. Each Owner appoints the Association or any
insurance trustee designated by the Association to act on behalf of the Owners in connection with all
insurance matters arising from any insurance policy maintained by the Association, including without
limitation, representing the Owners in any proceeding, negotiation, settlement or agreement.
C. Waiver of Subrogation. Any insurance maintained by the Association shall
contain "waiver of subrogation" as to the Association and its officers, directors and Members, and
the Owners and occupants of the Lots (including Declarant) and Mortgagees; and cross-liability and
severability of interest coverage insuring each insured against liability to each other insured.
All individually owned insurance shall contain a waiver of subrogation as to the Association
and its officers, directors and Members, and the Owners and occupants of the Lots and Mortgagees;
and all Members are deemed to have waived subrogation rights as to the Association andlor other
Members, whether or not their policies so provide.
D. Review of Policies. The Association shall periodically (and not less than
once every three (3) years) review all insurance policies maintained by the Association to determine
the adequacy of the coverage and to adjust the policies accordingly.
E. Separate Insurance Limitations. [Each Owner shall obtain and maintain at
the Owner's expense a property insurance policy insuring his Lot and Residence against loss by fire
or other casualty normally covered by a "special form" policy or its equivalent in an amount not less
than the replacement cost of the insurable improvement on the Lots with such coverage and
endorsements normally obtained by the owners of residences in Santa Clara County, California. ]
[REVIEW INSURANCE]
[No Owner shall separately insure his Lot against loss by fire or other casualty covered by any
insurance carried by the Association. If any Owner violates this provision, any diminution in
insurance proceeds otherwise payable under the Association's policies that results from the
ai~arn~
31
existence of such other insurance will be chargeable to the Owner who acquired other insurance.
The insurance maintained by the Association does not cover the personal property in the residences
and does not cover personal liability for damages or injuries occurring in the Lots. Each Owner shall
insure his personal property against loss and obtain any personal liability insurance that he desires.
In addition, any improvements made by an Owner within his or her Lot maybe separately insured by
the Owner, but the insurance is to be limited to the type and nature of coverage commonly known as
"improvements insurance". The Owner shall not obtain such insurance if the policy referred to in
Section 8.1.A(1) will provide coverage for such "improvements."
F. Copies of Policies; Notice to Members. The Association shall make
available to all Members a copy of the Association's policy to enable Members to insure their Lots
without duplicating insurance carried by the Association and inadvertently triggering a co-insurance
clause in the Association's policy referred to in Section 8.1.A(1). The Association shall distribute
annually to the Members a summary of the Association's insurance policies as required by Civil
Code section 1365(e) and as provided in the Bylaws. The Association, as soon as reasonably
practical, shall notify its Members by first-class mail if any of the policies have been cancelled and
not immediately renewed or restored or if there is a significant change such as a reduction in
coverage or limits or an increase in the deductible for any policy. If the Association receives any
notice of non-renewal of a policy, the Association immediately shall notify its Members if replacement
coverage will not be in effect by the date the existing coverage will lapse. To the extent that the
information required to be disclosed, as described in Civil Code §1365(e), is specified in the
insurance policy declaration page, the Association may meet its disclosure obligations by making
copies of that page and distributing copies to all its Members.
G. Limitation on Liability. The Association, and its directors and officers, shall
have no liability to any Owner or Mortgagee if, after a good faith effort, it is unable to obtain the
insurance required hereunder, because the insurance is no longer available or, if available, can be
obtained only at a cost that the Board in its sole discretion determines is unreasonable under the
circumstances, or the Members fail to approve any Assessment increase needed to fund the
insurance premiums. In such event, the Board immediately shall notify each Member and any
Mortgagee entitled to notice that the insurance will not be obtained or renewed.
H. Policies and Procedures Regarding the Filing and Processing of Claims:
The Board shall adopt policies and procedures regarding the filing and processing of claims for
damage and destruction of Common Area improvements or any other matters covered by insurance
maintained by the Association.
8.2. Damage or Destruction: If Project Common Area improvements (excluding any
Residence) are damaged or destroyed by fire or other casualty, the improvements shall be repaired
or reconstructed substantially in accordance with the original as-built plans and specifications,
modified as may be required by applicable building codes and regulations in force at the time of
such repair or reconstruction and subject to such alterations or upgrades as may be approved by the
Architectural Control Committee, unless either of the following occurs: (1) the cost of repair or
reconstruction is more than fifty percent (50%) of the current replacement costs of all Project
improvements, available insurance proceeds are not sufficient to pay for at least eighty-five percent
(85%) of the cost of such repairs yr reconstruction, and three-fourths (3/4) of the total voting power
of the Association residing in Members and their First Lenders vote against such repair and
reconstruction; or (2) available insurance proceeds are not sufficient to substantially repair or
reconstruct the improvements within a reasonable time as determined by the Board, a Special
Assessment levied to supplement the insurance fails to receive the requisite approval (if such
approval is required) as provided in Section 4.4, and the Board, without the requirement of approval
by the Owners, is unable to supplement the insurance by borrowing on behalf of the Association
sufficient monies to enable the improvements to be substantially repaired or reconstructed within a
reasonable time.
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If any improvements or landscaping on any Lot are damaged or destroyed by frre or other
casualty, the Owner of such Lot shall repair or reconstruct the damaged or destroyed improvements
as promptly as reasonably possible, in accordance with the original as-built plans and specifications,
modified as may be required by applicable building codes and regulations in force at the time of
such repair or reconstruction or as authorized by the Board or Architectural Committee. The repair or
reconstruction shall commence as soon as reasonably practicable afterthe date of such damage or
destruction, and shall be completed as quickly as is reasonably practicable after commencement of
reconstruction, subject to delays that are beyond the control of the party responsible for making the
repairs. The Owner of the damaged or destroyed improvement immediately shall take such steps
as may be reasonably necessary to secure any hazardous condition and to screen any unsightly
views resulting from the damage or destruction. Unless there are unusual circumstances which
prevent commencement of the repair or reconstruction work which were not caused by the Owner,
the commencement of repair or replacement shall occur in no less than one year from the date of
the occurrence of the damage or destruction. [CONFIRM: THIS STATES THAT EACH OWNER IS
RESPONSIBLE FOR REPAIR OR RECONSTRUCTION OF ITS RESIDENCE.]
A. Process For Repair or Reconstruction: If the improvements are to be
repaired or reconstructed by the Association and the cost for repair or reconstruction is in excess of
twenty-five percent (25%) of the current replacement cost of all the Project improvements, the Board
shall designate a construction consultant, a general contractor, and an architect for the repair or
reconstruction. All insurance proceeds, Association monies allocated for the repair or
reconstruction, and any borrowings by the Association for the repair or reconstruction shall be
deposited with a commercial lending institution experienced in the disbursement of construction loan
funds (the "depository") as selected by the Board. Funds shall be disbursed in accordance with the
normal construction loan practices of the depository that require as a minimum that the construction
consultant, general contractor and architect certify within ten (10) days prior to any disbursement
substantially the following:
(1) that all of the work completed as of the date of such request for
disbursement has been done in compliance with the approved plans and specifications;
(2) that such disbursement request represents monies which either have
been paid by or on behalf of the construction consultant, the general contractor or the architect
and/or are justly due to contractors, subcontractors, materialmen, engineers, or other persons
(whose name and address shall be stated) who have rendered or furnished certain services or
materials for the work and giving a brief description of such services and materials and the principal
subdivisions or categories thereof and the respective amounts paid or due to each of those persons
in respect of such services and stating the progress of the work up to the date of the certificate;
(3) that the sum then requested to be disbursed plus all sums previously
disbursed does not exceed the cost of the work insofar as actually accomplished up to the date of
such certificate;
(4) that no part of the cost of the services and materials described in the
foregoing paragraph 8.2A(1) has been or is being made the basis for the disbursement of any funds
in any previous or then pending application; and
(5) that the amount held by the depository, after payment of the amount
requested in the pending disbursement request, will be sufficient to pay in full the costs necessary to
complete the repair or reconstruction.
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If the cost of repair or reconstruction of improvements to be repaired or reconstructed by the
Association is less than twenty-five percent (25%) of the current replacement cost of all the
Common Area improvements, the Board shall disburse the available funds for the repair and
reconstruction under such procedures as the Board deems appropriate under the circumstances.
The repair or reconstruction shall commence as soon as reasonably practicable after the
date of such damage or destruction and shall be completed as quickly as is reasonably practicable
after commencement of reconstruction, subject to delays that are beyond the control of the party
responsible for making the repairs. The Owner of the damaged or destroyed improvement
immediately shall take such steps as may be reasonably necessary to secure any hazardous
condition and to screen any unsightly views resulting from the damage or destruction.
to the event the work required to maintain or to repair or restore damage or destruction
involves work that is the responsibility of Owner and the Association as provided in sections 7.19
and 5.1A, then all of such work shall be directed by the Board, with the expense to be allocated
between Owner and the Association pursuant to sections 7.19 and 5.1A. If more than one Owner is
involved, the expense to be paid by each Owner shall be apportioned by the Board. If the
Association is involved in a dispute over the apportionment of such expenses, then the dispute shall
be settled by arbitration pursuant to any appropriate alternative dispute process.
If the Association undertakes any work which section 7.19 requires an Owner to undertake,
or any work which the Association is required to undertake at the expense of the Owner, the Board
shall assess the Lot of the Owner for such work and shall so inform the Owner thereof in writing;
provided, however, that the Assessment shall be reduced by the amount of any insurance proceeds
paid to the Association as a result of damage to or destruction of the residence or the Lot involved.
Such Assessment shall be a lien upon the Lot of the Owner and may be foreclosed, as set forth in
section 4.10.
B. Process If Repair or Reconstruction Not Undertaken: If the Project
improvements to be repaired or reconstructed by the Association are not required to be repaired or
reconstructed in accordance with the foregoing, all available insurance proceeds shall be disbursed
among the Owners of the damaged Lots and their respective Mortgagees in the same proportion
that the Owners are assessed, subject to the rights of the Owners' Mortgagees, after first applying
the proceeds to the cost of mitigating hazardous conditions on the Project, making provision for the
continuance of public liability insurance to protect the interests of the Owners until the property can
be sold, and complying with all other applicable requirements of governmental agencies.
8.3. Condemnation: If all or any part of a Lot (except the Common Area) is taken by
eminent domain, the award shall be disbursed to the Owner of the Lot, subject to the rights of the
Owner's Mortgagees. If the taking renders the Lot uninhabitable, the Owner shall be divested of any
further interest in the Project, including membership in the Association, and the interest of the
remaining Owners shall be adjusted accordingly. If all or any part of the Common Area is taken by
eminent domain, the proceeds of condemnation shall be used to restore or replace the portion of the
Common Area affected by condemnation, if restoration or replacement is possible, and any
remaining funds, after payment of any and all fees and expenses incurred by the Association
relating to such condemnation, shall be distributed among the Owners in the same proportion as
such Owners are assessed, subject to the rights of Mortgagees. If necessary, the remaining portion
of the Project shall be resurveyed to reflect such taking. The Association shall participate in the
negotiations, and shall propose the method of division of the proceeds of condemnation, where Lots
are not valued separately by the condemning authority by the court. The Association shall represent
the Owners in any condemnation proceedings or in negotiations, settlements and agreements with
the condemning authority for acquisition of the Common Area, or part of the Common Area(s).
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ARTICLE IX. GENERAL PROVISIONS
9.1. Enforcement: The Association, or any Owner, shall have the right to enforce, by any
proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and
charges now or hereafter imposed by the provisions of this Declaration, the Articles and the Bylaws,
and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by the
Court. Failure by the Association or by any Owner to enforce any covenant or restriction contained
in this Declaration shall in no event be deemed a waiver of the right to do so thereafter. The City
shall be entitled to enforce the provisions of this Declaration as a third party beneficiary.
9.2. Invalidity of Any Provision: Should any provision or portion of this Declaration 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.
9.3. Term: The covenants and restrictions of this Declaration shall run with and bind the
Project, and shall inure to the benefit of and shall be enforceable by the Association or the Owner of
any property subject to this Declaration,. their respective legal representatives, heirs, successors and
assigns, for a term of thirty (30) years from the date this Declaration is recorded, after which time
they shall be automatically extended for successive periods of ten (10) 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 each successive period of ten (10) years, agreeing to change said
covenants and restrictions in whole or in part, or to terminate the same.
9.4. Amendments: Prior to close of escrow on the sale of the first Lot, Declarant may
amend this Declaration, with the consent of the Department of Real Estate of the State of California.
After sale of the first Lot, this Declaration may be amended only by the affirmative vote (in person or
by proxy) or written consent of Members representing a majority of the total voting power of the
Association, and a majority of the affirmative votes or written consent of Members other than the
Declarant, or where the two (2) class voting structure is still in effect, a majority of each class of
membership. However, the percentage of voting power necessary to amend a specific clause shall
not be less than the prescribed percentage of affirmative votes required for action to betaken under
that clause. Any amendment must be certified in a writing executed and acknowledged by the
President or Vice President of the Association and recorded in the Recorder's Office of the County
of Santa Clara. No amendment shall adversely affect the rights of the holder of any Mortgage of
record prior to the recordation of such amendment.
A. Amendments Regarding Initiation of Construction Defect Claims:
Notwithstanding anything to the contrary contained in this Declaration, this section 9.4.A and section
9.13 of this Declaration shall not be amended without the vote or approval by written ballot of at least
(a) ninety percent (90%) of the voting power of the Members of the Association other than
Declarant, and (b) at least ninety percent (90%) of the First Lenders.
No amendments of this Declaration shall be effective until and unless approved by the City. The City
.shall have the right and authority to veto any proposed amendment to this Declaration that would
adversely affect the long term maintenance of the Project and the Common Areas of the Projector
.that would violate any conditions of approval or any development agreement for the Project, if any
,are imposed by or agreed upon by the City. Prior to any proposed amendment to this Declaration
'being effective, a copy of the proposed amendment shall be delivered to the City Council. Such
proposed amendment shall not be effective until the passage of sixty (60) days after notice of the
proposed amended has been filed with the City Council and the City Council has not voted to veto.
the ro osed amendment within si 60 da s after its submittal to the Ci Council.
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9.5. Rights of First Lenders: No breach of any of the covenants, conditions and
restrictions contained in this Declaration, nor the enforcement of any of its lien provisions, shall
render invalid the lien of any First Lender on any Lot made in good faith and for value, but all of
those covenants, conditions and restrictions shall be binding upon and effective against any Owner
whose title is derived through Foreclosure or trustee's sale, or otherwise. Notwithstanding any
provision in this Declaration to the contrary, First Lenders shall have the following rights:
A. Copies of Project Documents: The Association shall make available to
Owners and First Lenders, and to holders, insurers or guarantors of any First Mortgage, current
copies of the Declaration, Bylaws, Articles or other Rules concerning the Project and the books,
records and financial statements of the Association. "Available" means available for inspection and
copying, upon request, during normal business hours or under other reasonable circumstances.
The Board may impose a fee for providing the foregoing which may not exceed the reasonable cost
to prepare and reproduce them.
B. Audited Statement: Any holder of a First Mortgage shall be entitled, upon
written request, to have an audited financial statement for the immediately preceding fiscal year
prepared at its expense if one is not otherwise available. Such statement shall be furnished within
one hundred twenty (120) days of the Association's fiscal year-end.
C. Notice of Action: Upon written request to the Association, identifying the
name and address of the Eligible Mortgage Holder or Eligible Insurer or Guarantor, and the Lot
number or address, such Eligible Mortgage Holder or Eligible Insurer or Guarantor will be entitled to
timely written notice of:
(1) any condemnation loss or any casualty loss which affects a material
portion of the Project or any Lot on which there is a First Mortgage held, insured, or guaranteed by
such Eligible Mortgage Holder or Eligible Insurer or Guarantor, as applicable;
(2) any default in performance of obligations under the Project Documents or
delinquency in the payment of Assessments or charges owed by an Owner of a Lot subject to a First
Mortgage held, insured or guaranteed by such Eligible Mortgage Holder or Eligible Insurer or
Guarantor, which remains uncured for a period of sixty (60) days;
(3) any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association;
(4) any proposed action which would require the consent of a specified
percentage of Eligible Mortgage Holders as specified in section 9.5.D.
The Association shall discharge its obligation to notify Eligible Mortgage Holders or Eligible
Insurers or Guarantors by sending written notices required herein to such parties, at the address
given on the current request for notice, in the manner prescribed by section 9.9.
D. Consent to Action:
(1) Except as provided by statute or by other provision of the Project
Documents in case of substantial destruction or condemnation of the Project, and further excepting
any reallocation of interests in the Common Area(s) which might occur pursuant to any plan of
expansion or phased development contained in the original Project Documents:
(a) the consent of Owners of Lots to which at least sixty-seven percent
(67%) of the votes in the Association are allocated and the approval of Eligible Mortgage Holders
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holding Mortgages on Lots which have at least fifty-one percent (51 %) of the votes of Lots subject to
Eligible Mortgages, shall be required to terminate the legal status of the Project as a planned unit
development project;
(b) the consent of Owners of Lots to which at least sixty-seven percent
(67%) of the votes in the Association are allocated and the approval of Eligible Mortgage Holders
holding Mortgages on Lots which have at least fifty-one percent (51 %) of the votes of the Lots
subject to Eligible Mortgages, shall be required to add or amend any material provisions of the
Project Documents which establish, provide for, govern or regulate any of the following: (i) voting
rights; (ii) increases in Assessments that raise the previously assessed amount by more than
twenty-five percent (25%), Assessment Liens, or the priority of Assessment Liens; (iii) reductions in
reserves for maintenance, repair, and replacement of Common Areas; (iv) responsibility for
maintenance and repairs; (v) reallocation of interests in the general or Restricted Common Areas,
or rights to their use; (vi) convertibility of Lots into Common Areas or vice versa; (vii) expansion or
contraction of the Project, or the addition, annexation, or withdrawal of property to or from the
Project; (viii) hazard or fidelity insurance requirements; (ix) imposition or any restrictions on the
leasing of Lots; (x) imposition of any restrictions on an Owner's right to sell or transfer his or her Lot;
(xi) restoration or repair of the Project (after damage or partial condemnation} in a manner other
than that specified in the Project Documents; or (xii) any provisions that expressly benefit Eligible
Mortgage Holders, insurers, or guarantors;
(c) an Eligible Mortgage Holder who receives a written request to
approve additions or amendments without delivering or posting to the requesting party a negative
response within thirty (30) days after the notice of the proposed addition of amendment shall be
deemed to have approved such request, provided the notice has been delivered to the Eligible
Mortgage Holder by certified or registered mail, return receipt requested.
(2) unless the holder(s) of at least two-thirds (2/3) of the First Mortgages
(based upon one (1) vote for each First Mortgage or deed of trust owned), ortwo-thirds (2/3) of the
Owners (other than Declarant) of the individual Lots in the Project have given their prior written
approval, the Association and/or the Owners shall not be entitled to:
(a) by act or omission, seek to abandon or terminate the Project, or
abandon, partition, subdivide, encumber, sell or transfer the Common Area or property owned
directly or indirectly by the Association (the granting of easements for public utilities or for other
public purposes consistent with the intended use of such property shall not be deemed a transfer
within the meaning of this clause) except for abandonment or termination provided by law in the
case of substantial destruction by fire or other casualty, or in the case of a taking by condemnation
or eminent domain; or
(b) change the method of determining the obligations, Assessments or
dues or other charges which may be levied against an Owner; or
(c) by act or omission, change, waive or abandon any scheme of
regulations, or enforcement thereof, pertaining to the architectural design or the exterior appearance
of Lots, the exterior maintenance of Lots, the maintenance of the Common Area walks or fences
and driveways, or the upkeep of landscaping in the Common Area; or
(d) fail to maintain the hazard insurance required to be maintained under
section 5.1.6(1); or
(e) use hazard insurance proceeds for losses to any Association
Common Area property for other than the repair, replacement or reconstruction of such Common
Area property.
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E. Right of First Refusal: The rights of an Ownerto sell, transfer, or otherwise
convey his or her Lot shall not be subject to any right of first refusal or similar restriction.
F. Contracts: Any agreement for professional management of the Project, or
lease or any other contract providing for services of the developer, sponsor, or builder, may not
exceed one (1) year. Any such agreement, contract, or lease, including a management contract
entered into prior to passage of control of the Board to Lot purchasers, must provide for termination
by either party for cause on thirty (30) days' written notice, or without cause and without payment of
a termination fee or penalty on ninety (90) days' or less written notice.
G. Reserves: Association dues or charges shall include an adequate reserve
fund for maintenance, repairs, and replacement of those improvements which the Association is
obligated to maintain and that must be replaced on a periodic basis, and the Assessments therefor
shall be payable in regular installments of Regular Assessments rather than by Special
Assessments.
H. Priority of Liens: Any First Lender who obtains title to a Lot pursuant to the
remedies provided in the Mortgage or Foreclosure of the Mortgage will not be liable for such Lot's
unpaid Assessments and fees, late charges, fines or interest levied in connection with such claims
which accrue prior to the acquisition of title to such Lot by the Mortgagee (except for claims for a pro
rata share of such Assessments or charges resulting from a pro rata reallocation of such
Assessments or charges to all Project Lots including the mortgaged Lot, and except for Assessment
Liens as to which a Notice of Delinquent Assessment has been recorded prior to the Mortgage).
I. Distribution of Insurance or Condemnation Proceeds: No Owner or any
other party shall have priority over any rights of First Lenders pursuant to their Mortgages in the case
of a distribution to Owners of insurance proceeds or condemnation awards for losses to or taking of
Common Area property or of individual Lots.
J. Payment of Taxes or Insurance by Lenders: First Lenders may, jointly or
singly, pay taxes or other charges which are in default and which may or have become a charge
against the Common Area property and may pay overdue premiums on hazard insurance policies,
or secure new hazard insurance coverage on the lapse of a policy, for such Common Area property,
and First Lenders making such payment shat! be owed immediate reimbursement therefor from the
Association, provided that said lender(s) have given notice to the Association prior to the making of
such payment(s) and the Association has failed to pay the same.
9.6. Limitation of Restrictions on Declarant: Declarant is undertaking the work of
construction of a planned development and incidental improvements upon 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 Project as a residential community. In order that work may be
completed and the Project 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 doing on the Project
or any Lot, whatever is reasonably necessary or advisable in connection with the completion of said
work; or
B. Prevent Declarant or its representatives from erecting, constructing and
maintaining on the Project (except upon Lots owned by others), such structures as may be
reasonable and necessary for developing the Project as a residential community and disposing of
the same by sate, tease or otherwise; or
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38
C. Prevent Declarant from conducting on the Project (except upon Lots owned
by others) its business of completing the work and of establishing a plan of residential ownership
and of disposing of the Project in Lots by sale, lease or otherwise;
D. Prevent Declarant from maintaining or displaying such sign(s), pennants and
flag(s) on the Project (except upon Lots owned by others} as may be necessary for the sale, lease or
disposition thereof; or
E. Subject Declarant to the architectural control provisions of Article VI for the
construction of any residence or other improvement on the Project.
The foregoing rights of Declarant shall terminate upon sale of Declarant's entire interest in
the Project. So Fong as Declarant, or its successors and assigns, owns one (1) or more of the Lots
described herein, Declarant, or its successors and assigns, shall be subject to the provisions of this
Declaration. Declarant shall make reasonable efforts to avoid disturbing the use and enjoyment of
Lots and the Common Area by their Owners, while completing any work necessary to said Lots or
Common Area.
9.7. Termination of Any Responsibility of Declarant: In the event Declarant shall
convey all of its rights, title and interest in and to the Project to any successor Declarant, then and in
such event, Declarant shaft be relieved of the performance of any further duties or obligations under
this Declaration arising after such conveyance, and such successor Declarant shall thereafter be
obligated to perform all such duties and obligations of the Declarant. The obligations of Declarant to
the City contained in the conditions of approval for the Project, which obligations are intended to be
on-going after Declarant has sold its interest in the Project, shall become the obligations of the
Association, and the Association shall indemnify Declarant against any liability arising out of the
performance or non-performance of those obligations after Declarant has sold its interest in the
Project and/or turned over the maintenance and management of the Project to the Association.
9.8. Owners' Compliance: Each Owner, tenant or occupant of a Lot shall comply with
the provisions of this Declaration, and (to the extent they are not in conflict with the Declaration) the
Articles and Bylaws, and the decisions and resolutions of the Association or the Board, as lawfully
amended from time to time. Failure to comply with any such provisions, decisions, or resolutions
shall be grounds for an action (1) to recover sums due, (2) for damages, (3) for injunctive relief, (4)
for costs and attorneys' fees, or (5) any combination of the foregoing.
In the event of a violation of the Project Documents, the Association may if permitted by
applicable law, record a Notice of Violation against the Lot of the non-complying Owner. Upon
recording a Notice of Violation, the Association shall have complete discretion in deciding whether,
when and how to proceed with enforcement, and any delay after recording a Notice of Violation shall
not give rise to a defense of waiver orestoppel infavor of anon-complying Owner. The Association
may take action to enforce compliance against a subsequent Owner who acquires a Lot with a
recorded Notice of Violation. The right of the Association to record a Notice of Violation shall be in
addition to all other rights and remedies the Association may have at law or under the Project
Documents.
All agreements and determinations lawfully made by the Association in accordance with the
voting percentages established in this Declaration, or in the Articles or the Bylaws, shall be deemed
to be binding on all Owners, their successors and assigns.
9.9. Notice: Any notice permitted or required by the Declaration, Articles or Bylaws may
be delivered personally or by mail. tf delivery is by mail, it shall be deemed to have been delivered
seventy-two (72) hours after a copy of the same has been deposited in the United States mail, first-
class or registered, postage prepaid, addressed to the person to be notified at the current address
39
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given by such person to the Secretary of the Board or addressed to the Lot of such person if no
address has been given to the Secretary.
9.10. Special Provisions Relating to Enforcement of Declarant's Obligation to
Complete Common Area Improvements: Where the Project includes Common Area
improvements which have not been completed prior to the close of escrow on the sale of the first
Lots, and where the Association is obligee under a Bond or other arrangement (hereafter "Bond") to
secure performance of the commitment of Declarant to complete said improvements, 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 improvement for which a notice of completion has not been filed within
sixty (60) days after the completion date specified for those improvements 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 improvement, the Board shall consider and vote on the
aforesaid question if a notice of completion has not been filed within thirty (30) days after the
expiration of the extension. A special meeting of Members of the Association for the purpose of: (i)
voting to override a decision by the Board not to initiate action to enforce the obligations under the
Bond; or (ii) to consider the failure of the Board to consider and vote on the question shall be held
not less than thirty-five (35) days nor more than forty-five (45) days after receipt by the Board of a
petition for such a meeting signed by Members representing five percent (5%) or more of the total
voting power of the Association. At such special meeting a vote of a majority of Members of the
Association other than the Declarant shall be required to take action to enforce the obligations under
the Bond and a vote of a majority of the voting power of the Association, excluding Declarant, 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.
On satisfaction of the Declarant's obligation to complete the Common Area improvements,
the Association shall acknowledge in writing that it approves the release of the Bond and shall
execute any other documents as may be necessary to effectuate the release of the Bond. The
Association shall not condition its approval of the release of the Bond on the satisfaction of any
condition other than the completion of the Common Area improvements as described on the
planned construction statement. Any dispute between the Declarant and the Association regarding
the question of satisfaction of the Conditions for exoneration or release of the security shall, at the
request of either party, be submitted to arbitration pursuant to section 9.13 of this Declaration.
9.11. Special Provisions Relating to Enforcement of Declarant's Obligation to Pay
Assessments: Where the Association is obligee under a Bond or other arrangement (hereafter
"Bond") to secure performance of the commitment of Declarant to pay Assessments on Lots owned
by Declarant, 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 of Declarant's Assessments which are
delinquent for thirty (30) days. A special meeting of Members of the Association for the purpose of
voting to override a decision by the Board not to initiate action to enforce the obligations under the
Bond or such a meeting to consider the failure of the Board to consider and vote on the question
shall be held not less than ten (10) days nor more than twenty (20) days after receipt by the Board of
a petition for such a meeting signed by Members representing five percent (5%) or more of the total
voting power of the Association. At such special meeting a vote of a majority of Members of the
Association other than the Declarant shall be required to take action to enforce the obligations under
the Bond and a vote of a majority of the voting power of the Association, excluding Declarant, 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.
Upon satisfaction of the Declarant's obligation to assure the availability of funds to pay
Assessments upon unsold Lots as set forth in Title 10 Cal Code of Regs § 2792.9, the escrow
holder holding the Bond shall return the Bond to Declarant, after delivery to said escrow holder of
Declarant's written request for release of the Bond, and Declarant's written statement that [1]
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40
Declarant has paid, as and when due, all RegularAssessmentsavd Special Assessments levied by
the Association against Lots owned by the Declarant and that [2] 80% of the Lots in the Project
have been conveyed by Declarant, unless pursuant to Title 10 Cal Code of Regs § 2792.9, the
Association delivers to said escrow holder its written objection to the return of the Bond to Declarant
within forty (40) days after delivery of notice of Declarant's request from release and the statement
to the Association. The Association shall not condition its approval of the release of the Bond on the
satisfaction of any condition other than the payment of Assessments.
If the Association delivers to the escrow holder of the Bond a demand for remittance of the
Bond or a portion thereof, or the proceeds thereof to the escrow holder of the Bond, which demand
is accompanied by a written statement signed by an officer of the Association that the Declarant is
delinquent in the payment of Regular Assessments or Special Assessments which have been levied
by the Association against Lots owned by the Declarant, then all or some specified portion of the
security as demanded shall be remitted to the Association upon the Declarant's failure to give the
escrow holder within forty (40) days after receipt of delivery of the demand by the escrow holder, the
subdivider's written objection to remittance of the security. Both the Declarant and the Association
shall adhere and comply with the terms of escrow instructions with the escrow depository of the
Bond, which shall be in the form approved by the Department of Real Estate, with respect to the
holding of the Bond, the return or remittance of the Bond and other disposition of matters set forth in
said escrow instructions with respect to the Bond. Any dispute between the Declarant and the
Association regarding the question of satisfaction of the conditions for exoneration or release of the
security shall, at the request of either party, be submitted to Arbitration as provided in section 9.13.E
hereof.
9.12. Fair Housing: No Owner shall, either directly or indirectly, forbid or restrict the
conveyance, encumbrance, leasing, or mortgaging, or occupancy of his Lot to any person of a
specified race, sex, sexual orientation, age, marital status, color, religion, ancestry, physical
handicap, or national origin.
9.13. Dispute Resolution: The Board is authorized to resolve any civil claim or action
through alternative dispute resolution proceedings such as mediation, binding arbitration, or non-
binding arbitration proceedings.
A. Claims for Declaratory Relief or Enforcement of Project Documents:
Unless the applicable time limitation for commencing the action would run within 120 days, prior to
the filing of a civil action solely for declaratory relief or injunctive relief to enforce the Project
Documents, or for declaratory relief or injunctive relief to enforce the Project Documents in
conjunction with a claim for monetary damages not in excess of Five Thousand Dollars ($5,000), the
Board, or any Owner who seeks such relief, shall first endeavor to submit the matter to alternative
dispute resolution in compliance with the provisions of California Civil Code Section 1354(b). The
Board shall comply with the requirements of California Civil Code Section 1354(1) by providing
Members of the Association annually with a summary of the provisions of California Civil Code
Section 1354, including the following language: "Failure by any Member of the Association to
comply with the pre-filing requirements of Section 1354 of the Civil Code may result in the loss of
your rights to sue the Association or another Member of the Association regarding enforcement of
the governing documents."
B. Design or Construction Defect Claims:
Actions by the Association pertaining to or based upon a claim for defects in
the design or construction of improvements within the Project against the Declarant, or any architect,
engineer or other consultant, or any contractor, subcontractor or materials supplier engaged by or
on behalf of Declarant for the design and/or construction of the Project, or any element thereof, or
41
ai~am~
otherwise defined in Civil Code sections 896 or 897 as an Actionable Defect ("Claim"), shall be
resolved and administered in accordance with Civil Code sections 895 through 945.5, and Civit
Code sections 1375 and 1375.05, as such sections may be amended, revised or superseded, from
time to time.
If a Claim is subject to pre-litigation procedures in Civil Code sections 910 through 938, or
any successor statutes, each Owner, and the Declarant, prior to filing any civil action, arbitration or
action in judicial reference regarding such Claim shall comply with the prelitigation procedures of
Civil Code sections 910 through 938. Notices of Claims shall specify all of the matters as set forth in
Civil Code section 1368.4 and/or Civil Code sections 910 through 938, as applicable, and any
successor statutes or laws.
The Association and not the individual Members shall have the power to pursue any Claims
for alleged construction defects in the Common Area. Any recovery by the Association with respect
to any damage to or defect in the Common Area shall be utilized solely for the purpose of paying for
the costs of obtaining the recovery and for correcting such damage or defect.
If the Claim is not resolved by and pursuant to the prelitigation procedures of under Civit
Code sections 910 through 938, subject to the provisions of Civil Code section 1375 and 1375.05,
then notwithstanding the provisions of California Code of Civil Procedure Section 1298.7, the Claim
shall be resolved in accordance with the provisions of section 9.13.D of this Declaration [Judicial
Reference] and section 9.13.E of this Declaration [Arbitration of Disputes].
C. Notices to Members of Legal Proceedings Against Declarant In
accordance with Civit Code Section 1368.4, at least 30 days prior to filing any civil action, including
arbitration, against Declarant or other developer of the Project for alleged damage to (i) the
Common Area, (ii) all or portions of Lots which the Association is required to maintain, or (iii) the
Lots which arises from or is integrally related to alleged damage to the Common Area or all or
portions of the Lots which the Association is required to maintain, the Board shall provide written
notice to each Member specifying each of the following:
(1) That a meeting will take place to discuss problems that may lead to
the filing of a civil action;
problems; and
(2) The options, including civil actions, that are available to address the
(3) The time and place of the meeting.
If the Association has reason to believe that the applicable statute of limitations will expire
before the Association is able to give notice, hold the meeting and file the civil action, the
Association may file the civil action first and then give the notice within thirty (30) days after filing of
the action.
D. Judicial Reference for Certain Disputes: For any action by the Association
or any Owner against the Declarant, any architect, engineer or other consultant, or any contractor,
subcontractor or materials supplier engaged by or on behalf of Declarant for the design and/or
construction of the Project, or any element thereof ("Developer Parties"), subject to the provisions of
Civil Code sections 895 through 938, Civil Code section 1375 and Civil Code section 1375.05, or
any other action by the Association or any Owner against the Declarant, except as otherwise
provided herein, such claim shall be submitted to Judicial Reference as hereinafter provided:
(1) The dispute shall be submitted to binding general judicial reference
pursuant to California Code of Civil Procedure Sections 638(1) through 645.1, or any successor
42
ar~aim
statutes thereto pertaining to proceedings under judicial reference ("Judicial Reference"). The
parties shall cooperate in good faith to ensure that all necessary and appropriate parties are
included in the Judicial Reference proceeding. Declarant shall not be required to participate in the
Judicial Reference proceeding unless it is satisfied that all necessary and appropriate parties will
participate. The parties shall share the fees and costs of the Referee for the Judicial Reference
proceeding as determined by the Referee.
(2) The Referee shall have the authority to try all issues, whether of fact or
law, and to report a statement of decision to the court. The parties shall use the procedures
adopted by Judicial Arbitration and Mediation Services ("JAMS")for judicial reference (or any other
entity offering judicial reference dispute resolution procedures as may be mutually acceptable to the
parties), provided that the following rules and procedures shall apply in all cases unless the parties
agree otherwise:
(a) If the Declarant is a party to the Judicial Reference, then any fee to
initiate the Judicial Reference shall be paid by Declarant, provided however, that the cost of the
judicial reference shall ultimately be borne as determined by the Referee;
(b) The proceedings shall be heard in Santa Clara County, Califomia;
(c) The Referee must be a neutral and disinterested party who is a
retired judge or a licensed attorney with at least ten (10) years' experience in relevant real estate
matters;
(d) Any dispute regarding the selection of the Referee shall be
resolved by JAMS or the entity providing the reference services, or, if no entity is involved, by the
court with appropriate jurisdiction;
(e) The Referee may require one or more pre-hearing conferences;
(f) The parties shall be entitled to discovery, and the Referee shall
oversee discovery and may enforce all discovery orders in the same manner as any trial court judge;
(g) A stenographic record of the Judicial Reference proceedings shall
be made, provided that the record shall remain confidential except as may be necessary for post-
hearing motions and any appeals;
(h) The Referee's statement of decision shall contain findings of fact
and conclusions of law to the extent applicable;
(i) The Referee shall have the authority to rule on all post-hearing
motions in the same manner as a trial judge;
(j) The Referee shall be authorized to provide all recognized remedies
available in law or equity for any cause of action that is the basis of the Judicial Reference; and
(k) The statement of decision of the Referee upon all of the issues
considered by the Referee shall be binding upon the parties, and upon filing of the statement of
decision with the clerk of the court, or with the judge where there is no clerk, judgment may be
entered thereon. The decision of the Referee shall be appealable as if rendered by the court.
(I) If submission of a disputed matter referenced in this section 9.13.D
to Judicial Reference is not permitted under the then applicable law, then notwithstanding Califomia
Code of Civil Procedure Section 1298.7, if the dispute is not resolved through mediation, each
43
a~~A~m
Owner, the Association and Declarant shall resolve such dispute exclusively through binding
arbitration pursuant to section 9.13.E of this Declaration.
(3) Judicial Reference shall only proceed for any matter that is subject to the
requirements of California Civil Code section 1354 after the parties have attempted to reasonably
comply with the alternative dispute resolution requirements set forth in California Civil Code section
1354, as same may be amended from time to time.
(4) Notwithstanding the foregoing, any dispute under sections 9.10 and 9.11
of this Declaration between the Declarant and the Association regarding the question of satisfaction
of the conditions for exoneration or release of the security shall, at the request of either party, be
submitted to arbitration pursuant to section 9.13.E of this Declaration.
E. Arbitration of Disputes: If a dispute is the subject of binding arbitration
under this Declaration, the following shall apply:
(1) costs and fees of the arbitration, including ongoing costs and fees of the
arbitration shall be paid as agreed by the parties, and, if the parties cannot agree, as determined by
the arbitrator; provided, however, if the Declarant is a party to the arbitration, then any fee to initiate
arbitration shall be paid by Declarant, but the cost of arbitration shall ultimately be borne as
determined by the arbitrator;
(2) a neutral and impartial individual shall be appointed to serve as arbitrator,
with the arbitrator to be selected by mutual agreement of the parties. If the parties are unable to
agree on an arbitrator within fifteen (15) days after any party initiates the arbitration, a neutral and
impartial arbitrator shall be selected by the JAMS. In selecting the arbitrator, the provisions of
§1297.121 of the Code of Civil Procedure shall apply. An arbitrator maybe challenged for any of the
grounds listed in §1297.121, or in §1297.124 of the Code of Civil Procedure;
(3) venue of the arbitration to be in Santa Clara County, Califomia;
(4) the arbitration shall commence in a prompt and timely manner in
accordance with (i) the Commercial Rules of the JAMS, or if the rules do not specify a date by which
arbitration is to commence, then (ii) by a date agreed upon by the parties, and if they cannot agree
as to a commencement date, (iii) a date determined by the arbitrator. The arbitrator shall apply
Califomia substantive law in rendering a final decision. The arbitrator shall have the power to grant
all legal and equitable remedies and award compensatory damages. When the arbitrator is prepared
to make the award, the arbitrator shall first so inform the parties, who shall have ten (10) days to
attempt to resolve the matter by a binding agreement between them. If the parties resolve the
matter, the arbitrator shall not make any award. If the parties do not so resolve the matter within the
ten (10) day period, the arbitrator shall make the award on the eleventh day following the arbitrator's
notice of being prepared to make the award;
Rules of the JAMS;
manner;
(5) the arbitration shall be conducted in accordance with the Commercial
(6) the arbitration shall be conducted and concluded in a prompt and timely
(7) the arbitrator shall be authorized to provide all recognized remedies
available in law or equity for any cause of action that is the basis of arbitration;
44
ar~aim
arbitrator may be entered in
for udicial acceptance of the
on the award rendered bourt J arbitrator,
($) A judgment up be made to such b the decision of the
or applicat1On a~ tiles agree to be bound Y
any court ha~~n9 Jurisdiction ent• The p
f enforcem u~-eS xn tywner, Yne
an order o nOn_appealable. °r leaera+ +aw req
award and a final and encing an action in arbitration,
Which 3ha11 b tyl rreuminary rroceaures. ~~ s~ese roceclures, as
rocedures before com s or follow such p utes pursuant
Association or Declard~ tb'take steps °r p ple an c aim or Disp
ner,.the Association or Declarant at 9~ ~~u~tarrienc~e~ may be subject to the
er~t ~~ ~~e~i®83hlta~~•, nor to the
~. -ver trial pr cedures set addition nloth ng contained herein shalOt be deemed a waiver or
mii~ia~ion o~ any arbitration. In ,
limitation of the provisions of California Civil Code Sections 1368.4, 1375, 1375.05 or 1375.1;
(10) Participation by Other Parties. An Owner, the Association and
Declarant, to such extent any such party is defending a claim in the arbitration, may, if it chooses,
have all necessary and appropriate parties included as parties to the arbitration;
(11) Federal Arbitration Act. Because many of the materials and products
incorporated into the home are manufactured in other states, the development and conveyance of
the Property evidences a transaction involving interstate commerce and the Federal Arbitration Act
(9 U.S.C. §1 et seq.) now in effect and as it may be hereafter amended will govern the interpretation
and enforcement of the arbitration provisions set forth herein;
(12) AGREEMENT TO ARBITRATE; ARBITRATION OF DISPUTES. BY
EXECUTING THIS DECLARATION, DECLARANT AND BY ACCEPTING A DEED TO ANY
PORTION OF THE PROPERTY, EACH OWNER AND THE ASSOCIATION SHALL BE DEEMED
TO HAVE AGREED TO HAVE ANY DISPUTE DECIDED BY NEUTRAL ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE CALIFORNIA
ARBITRATION ACT, TO THE EXTENT THE CALIFORNIA ARBITRATION ACT IS CONSISTENT
WITH THE FEDERAL ARBITRATION ACT, AND DECLARANT, THE ASSOCIATION AND EACH
OWNER ARE GIVING UP ANY RIGHTS DECLARANT, THE ASSOCIATION AND EACH OWNER
MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT TRIAL. DECLARANT, THE
ASSOCIATION AND EACH OWNER ARE GIVING UP JUDICIAL RIGHTS TO DISCOVERY AND
APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THIS "ARBITRATION
OF DISPUTES" PROVISION. IF DECLARANT, THE ASSOCIATION OR ANY OWNER REFUSES
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, DECLARANT, THE
ASSOCIATION OR SUALI ORN A CODE OF CIVILMPROCEDUREARBITRATE UNDER THE
AUTHORITY OF THE C
9.14. Number; Gender. The singular and plural number and the masculine, feminine and
neuter gender shall each include the other where the context requires.
IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed this
Declaration this day of , 2007.
DBI CONSTRUCTION, a California corporation
By:
PRELIMINARY WORKING DRAFT
45
annm~
STATE OF CALIFORNIA
COUNTY OF
ss.
On this day of , 2007, before me, ,
a notary public for the state, personally appeared ,known to me or
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public, State of California
46
af~Am~
ARTICLES OF INCORPORATION
OF
FIRST STREET ESTATES HOMEOWNERS ASSOCIATION
ARTICLE I
NAME
The name of the corporation (hereinafter referred to as the "Corporation," or the
"Association") is FIRST STREET ESTATES HOMEOWNERS ASSOCIATION. The corporation is
formed to manage a common interest development under the Davis-Stirling Common Interest
Development Act.
ARTICLE II
AGENT FOR SERVICE OF PROCESS
The name of the corporation's initial agent for service of process is: Nicholas Gera. The
address of the initial agent of the corporation is: 331 Tish Way, Unit 310, San Jose, CA 95128-
ARTICLE III
BUSINESS ADDRESS AND MANAGING AGENT
The corporation has not yet appointed a managing agent. The location of the
Corporation's office, which is off-site, is: 331 Tish Way, Unit 310, San Jose, CA 95128- .The
Common Interest Development is situated in the City of Campbell, Santa Clara County, California,
fronting on First Street with the nearest cross street being E. Rincon Avenue. The nine-digit Zip
Code of the Common Interest Development is 95 -_
ARTICLE IV
PURPOSES OF THE ASSOCIATION
This corporation is a nonprofit mutual benefit corporation organized underthe Nonprofit
Mutual Benefit Corporation Law.
The purpose of this corporation is to engage in any lawful act or activity, other than
credit union business, for which a corporation may be organized under such law.
This corporation does not contemplate pecuniary gain or profit to the Members thereof,
and the specific purpose of this corporation is to provide for management, administration,
maintenance, preservation and architectural control of the residential Lots and Common Area, and
to promote the health, safety and welfare of all the residents within the property and any additions
thereto as may hereafter be brought within the jurisdiction of this Association for this purpose, all
according to the Declaration of Covenants, Conditions and Restrictions of First Street Estates,
hereinafter called the "Declaration", recorded or to be recorded with respect to said property in the
Office of the Recorder of Santa Clara County.
Notwithstanding any of the above statements of purposes and powers, this corporation
shall not, except to an insubstantial degree, engage in any activities or exercise any powers that are
not in furtherance of the specific purpose of this corporation.
Lrm O~cer of
Hanna & Van Atta
525 UNIYERSfI'! AYENlIE, SUITE 705
P,un AE'ro.CA 94301
TFe.FreoNE (G50) 321-57IX1
ARTICLE V
DISSOLUTION
This Association is intended to qualify as a homeowners' association under the
applicable provisions of the Internal Revenue Code, and of the Revenue and Taxation Code of
California. No part of the net earnings of this organization shall inure to the benefit of any private
individual, except as expressly provided in those sections with respect to the acquisition,
construction, or provision for management, maintenance, and care of the Association property, and
other than by a rebate of excess membership dues, fees, or Assessments. So long as there is any
Lot, or Parcel for which the Association is obligated to provide management, maintenance,
preservation or control, the Association shall not transfer all or substantially all of its assets or file a
certificate of dissolution without the approval of one hundred percent (100°~) of the Members. In the
event of the dissolution, liquidation, or winding-up of the Association, upon or after termination of the
project, in accordance with provisions of the Declaration, its assets remaining after payment, or
provision for payment, of all debts and liabilities of the Association, shall be divided among and
distributed to the Members in accordance with their respective rights therein.
ARTICLE VI
AMENDMENTS
These Articles may be amended only by the affirmative vote of a majority of the Board,
and by the affirmative vote (in person or by proxy) of Members representing a majority of the voting
power of the Association and a majority of the votes of Members other than Declarant, or where the
two (2) class voting structure is still in effect (as provided in the Bylaws), a majority of each class of
membership. However, the percentage of voting power necessary to amend a specific clause or
provision shall not be less than the prescribed percentage of affirmative votes required for action to
be taken under that clause.
IN WITNESS WHEREOF, for the purposes of forming this corporation underthe laws of
the State of California, the undersigned has executed these Articles of Incorporation this day
of , 200_
David M. Van Atta
Incorporator
I declare that 1 am the person who executed the above Articles of Incorporation, and
such instrument is my act and deed.
David M. Van Atta
Page 1 of 1
Tim Haley
From: William Seligmann
Sent: Tuesday, July 31, 2007 1:10 PM
To: 'William Seligmann'; Tim Haley; Jackie C. Young Lind
Cc: Edward Arango
Subject: RE: C,C & R Review - 154 & 160 S. First Street
Here are my comments to the CC&Rs:
It is not clear whether or not the CC&Rs provide for the maintenance of the "front yard." If the "front yard" is within
the common area, then the CC&Rs are adequate. If the "front yard" is not in the common area, then the "front
yard" does not seem to be covered.
Although section 7.4 prohibits storage of "boats, trailers or non-mobile vehicles" in Common Area parking spaces,
there is no prohibition on the storage of recreational vehicles or all other storage as required by the Conditions of
Approval. Additionally, if there are parking spaces located outside of the common areas, the CC&Rs do not
appear to prohibit storage in those spaces.
Otherwise, the CC&Rs look fine.
Let me know if you have any questions.
Bill
From: William Seligmann [mailto:william22@earthlink.net]
Sent: Thursday, July 19, 2007 11:09 AM
To: Tim Haley; William Seligmann; Jackie C. Young Lind
Cc: Edward Arango
Subject: Re: C,C & R Review - 154 & 160 S. First Street
I have not been able to get to it yet.
-----Original Message-----
From: Tim Haley
Sent: Jul 19, 2007 9:29 AM
To: William Seligmann , "Jackie C. Young Lind"
Cc: Edward Arango
Subject: C,C & R Review - 154 & 160 S. First Street
Bill and Jackie:
:1ny comment's on the First Street I?state C, C & R's.
Nick Gera is trying to final his subdivision map on the first Council meeting in august.
(hanks
lim
7/31 /2007