1430 W. Latimer Ave. (89-08)
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CITY OF CAMPBELL
MEMORANDUM
Bill Helms December 4, 1990
To: Engineering Manager Date:
From: Jim Penoyer
Engineering Technician
Final Parcel Map
Subject: 1430 Latimer Avenue
This map is presented for Don's signature. It has been reviewed by
reference to the following:
TR 459
TR 2631
TR 7016
TR 7262
Preliminary Title Report dated 2-3-89
APN 307-47-32.
The original will be on the light table when Don is ready to sign it.
TO:' City Clerk
-
PUBLIC eKS FILE NO. L-cl f (.4 LI)
1
Please collect & receipt
for the following monies:
35-3396
ACCl. ITEM AMOUNT RECEIPT NO,
$
3372
3521
3521
3521
3372
Project Revenues (specify project)
Public W:>rks Excavation Permit Fees:
Application Fee
Plan Check Deposit
Faithful Performance (Cash) Deposit
R-1:
($ 35)
Other:
($ 50)
($500)
(100% of)
(ENGR. EST)
(4% of FPB)
($500 min.)
(7% of FPB)
($ 35 min.)
Other Cash Deposit (specify)
($200)
Plan Check & Inspection Fee
3373 Project Plans & Specifications ($10)
3373 General Conditions, Standard Provisions &
Details ($10 or $1/page)
3373 "No Parking" signs ($1/ea. or $25/100)
3373 Work Area Traffic Control Handbook ($5)
3373 Traffic Flow Map ($10)
3380 Traffic Data Services ($40/hr. + material costs)
3373 Map Revisions to Map Companies ($10)
3373 Copies of Engineering Maps & Plans ($.50/sq. ft.)
3520 Fire Hydrant Maintenance ($195/ea.)
Tentative Parcel map Filing Fee ($350)
Final Parcel Map Filing Fee ($300)
Tentative Tract Map Filing Fee ($400)
Final Tract Map Filing Fee ($350)
Lot Line Adjustment Fee/Certificate of Compliance ($350)
Vacation of Public Streets and Easements ($500)
Assessment Segregation or Reapportionment
First Split ($500)
Each Additional Lot ($150)
3372 Environmental Assessment:
Categorical Exemption ($500 plus actual cost
Negative Declaration above $500)
3370 Storm Drainage Area Fee per Acre (R-1, $1,875; Multi-Res.,
$2,060; all other, $2,250)
3395 Park Dedication In-lieu Fee per Unit ($1,132)
3380 Public Works Special Projects
3510 Postage
NAME OF APPLICANT IY Q J c c> n D -<" . \ h c.. .
.
) ~O I~. CCeU1 (? /?~() \; ?-e
I I
::::'VED BY f;i ~* '
PERMITTEE
ADDRESS
FOR
CITY CLERK
ONLY
0M
TOTAL
~
$ 350
PHONE
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ZIP
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CITY OF CAMPBELL
70 NORTH FIRST STREET
CAMPBELL. CALIFORNIA 95008
(408) 866-2100
Department: Planning
October 3, 1989
PM 89-08
(In Conjunction With File # PD 88-10)
APPROVAL OF TENTATIVE PARCEL MAP
LANDS OF NADCON DEVELOPMENT
APN: 307-47-032
SITE ADDRESS: 1430 W. Latimer Avenue
Final map, thereof, shall be filed with the City Engineer for examination,
approval and recordation in accordance with the provisions of the Subdivision
Map Act.
This approval is subject to the following conditions:
1. File and Process a Parcel Map
2. Pay a storm drain area fee of $491
3. Pay $10,868 in lieu of dedicating lands for parks
4. Install standard street improvements on Latimer Avenue
5. Obtain an encroachment permit, pay fees, and post surety for all the
work in the public right-of-way
6. Final map shall include provisions for maintenance of the "ColIUllon
Area"
APPROVED BY THE PLANNING DIRECTOR
A~-A/
Steve Piasecki, Planning Director
APPROVED BY THE CITY ENGINEER
~ OCTOBER 3, 1989
__::.~~T-~;t--"''i1, l:!;:~l:' r'r'
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Map; . t:g~t~e~':i~-'t~'p~:;is.!~~>s"~~r
withtbe Ge~e~al.J?lan:~f the ~j.t.Y,.of
MANDATORY FINDING: .This Tentative Parcel
its design and improvement, is consistent
Campbell.
't -,'. -...
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TO: City Clerk
PUBLIC )RKS FILE NO. R" 9 - '2 to
Please collect & receipt
for the following monies:
35-3396
ACCT. ITEM AMOUNT RECEIPT NO.
$
3372
3521
3521
Project Revenues (specify project)
Public ~ Excavation Permit Fees:
Application Fee
Plan Check Deposit
Faithful Performance (Cash) Deposit
R-1:
($ 35)
Other:
($ 50)
($500)
(100% of)
(ENGR. EST)
(4% of FPB)
($500 min.)
(7% of FPB)
($ 35 min.)
I ~ 1,.0 t..
Other Cash Deposit (specify)
($200)
1~L.Q5
Plan Check & Inspection Fee
Project Plans & Specifications ($10)
General Conditions, Standard Provisions &
Details ($10 or $1/page)
3373 "No Parking" signs ($1/ea. or $25/100)
3373 Work Area Traffic Control Handbook ($5)
3373 Traffic Flow Map ($10)
3380 Traffic Data Services ($40/hr. + material costs)
3373 Map Revisions to Map Companies ($10)
3373 Copies of Engineering Maps & Plans ($.50/sq. ft.)
3520 Fire Hydrant Maintenance ($195/ea.)
)
3372
,-
.,
Tentative Parcel map Filing Fee ($350)
Final Parcel Map Filing Fee ($300)
Tentative Tract Map Filing Fee ($400)
Final Tract Map Filing Fee ($350)
Lot Line Adjustment Fee/Certificate of Compliance ($350)
Vacation of Public Streets and Easements ($500)
Assessment Segregation or Reapportionment
First Split ($500)
Each Additional Lot ($150)
Environmental Assessment:
Categorical Exemption ($500 plus actual cost
Negative Declaration above $500)
Storm Drainage Area Fee per Acre (R-1, $1,875; Multi-Res.,
$2,060; all other, $2,250)
Park Dedication In-lieu Fee per Unit ($1,132)
3380 Public Works Special Projects
3510 Postage
TOTAL
~
$ 13, ~70 ..-
.
PERMITTEE
NAME OF APPLICANT L-t::t f,~, r- \/; II ~
ADDRESS f' 0 13(0 ;x ~ 2-0 I r
FOR
CITY CLERK
ONLY
0".
'P o.r1 "" r $0 t
S~~+(03 Of
ZIP
7.JD70
PHONE
RECEIVED BY
~
)- 9- 7'0
DATE
ORDINANCE NO. 1749
BEING AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF CAMPBELL APPROVING A PLANNED
DEVELOPMENT PERMIT. PLANS. ELEVATIONS.
DEVELOPMENT SCHEDULE J AND CONDITIONS OF
APPROVAL TO ALLOW CONSTRUCTION OF 4 TOWNHOMES
ON PROPERTY mOWN AS 1430 W. LATIMER AVE.
(APN 307-47-32) IN A PD (PLANNED DEVELOPMENT/
MEDIUM DENSITY RESIDENTIAL) ZONING DISTRICT.
APPLICATION OF S. SARAY, PD 89-02.
The City Council of the City of Campbell does ordain as follows:
SECTION ONE: That the Zoning Map of the City ~f Campbell is hereby changed
and amended on property known as 1430 W. Latimer Ave. by adopting the attached
Exhibit A entitled Plans and Elevations; Exhibit B entitled Development
Schedule; Exhibit C entitled Map of Said Property; and Exhibit D entitled
Conditions of Approval, as per the application of Mr. Steve Saray for plans,
elevations, and development schedule to allow the construction of 4 townhomes
in a Planned Development Zoning District. Copies of said Exhibits are on file
in the Planning Department.
SECTION TWO: This Ordinance shall become effective 30 days following its
passage and adoption and shall be published once within IS days upon passage
and adoption in the San Jose Mercury News. a newspaper of general circulation
in the City of Campbell. County of Santa Clara.
PASSED AND ADOPTED this 2nd
call vote:
day of MAY, 1989 . by the following roll
AYES:
NOES:
ABSENT :
Councilmembers:
Councilmembers:
Councilmembers:
KOTOWSKI, ASHWORTH, BURR, CONANT, WATSON
NONE
NONE
ATTEST:
THE FOREGOING INSTRUMENT IS A T'FIU1:
AND CORRECT COpy OF THE ORIGINAl
ON FILE IN THIS OFFICE.
ATTIEST: BARBARA OLSASKY. CITY CLERK.
CITY AMPBl!LL, CALIFORNIA.
#
BY
DATED ~"'57- ,3 -?t:J
fi~ 4?r,
EXHIBIT B
STANDARD DEVELOPMENT SCHEDULE
FILE NO: PD 89-02
APPLICANT: STEVE SARAY
SITE ADDRESS: 1430 w. LATIMER AVENUE
PC MTG: HARCH 28. 1989
1. Construction to begin within one year of final. approval.
2. Construction to be completed within one year of starting date.
NOTE: Above Development Schedule is a standard used by the Planning Department
when applicant has not submitted a schedule for his project.
* * *
F:pd89-02
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PUBLIC HEARING BEFORE PLANNING COMMIS. ~
SION ON 3-28-89. RES. 2585 RECOMMEND ~
....
ING APPROVAL - 4 TOWNHOMES - S. SARAY.
PD ZONING DIST. - VOTE: 6-0-1.
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EXHIBIT C - MAP OF SAID PROPERTY
CONDITIONS OF APPROVAL - FILE N PD 89-05
SITE ADDRESS: 1430 W. Latimer Avenue
APPLICANT: Steve Saray
PC MTG DATE: March 28, 1989
Exhibit D
The applicant is hereby notified, as part of this application, that he/she is
required to meet the following conditions in accordance with the Ordinances of
the City of Campbell and the Laws of the State of California. Additionally,
the applicant is hereby notified that he/she is required to comply with all
applicable Codes or Ordinances of the City of Campbell and the State of
California which pertain to this development and are not herein specified.
1. Elevations/Site Plan: Revised site plan indicating redlined parking
modifications to be submitted to the Planning Department and approved by
the Planning Director upon recommendation of the Architectural Advisor
prior to application for a bUilding permit.
2. FencinR/LandscapinR: Property to be fenced and landscaped as indicated
and/or added in red on the plans. Landscaping and fencing shall be
maintained in accordance with the approved plans.
3. LandscapinR/lrriRation: Landscaping plan indicating type and size of plant
material, and location of irrigation system to be submitted to the Planning
Department and approved by the Site and Architectural Review Committee
and/or Planning Commission prior to issuance of a building permit.
4. FencinR: Fencing plan indicating location and design details of fencing to
be submitted to the Planning Department and approved by the Planning
Director prior to issuance of a building permit.
5. Performance Bond - LandscapinR. FencinR. StripinR: Applicant to either (1)
post a faithful performance bond in the amount of $4000 to insure
landscaping. fencing, and striping of parking areas within 3 months of
completion of construction; or (2) file written agreement to complete
landscaping. fencing, and striping of parking areas. Bond or agreement to
be filed with the Planning Department prior to application for a building
permit.
6. Utility Boxes: Applicant to submit a plan to the Planning Department.
prior to installation of PC&! utility (transformer) boxes, indicating the
location of the boxes and screening (if boxes are above ground) for
approval of the Planning Director.
7. Mechanical Equipment/Utility Meter ScreeninR: All mechanical equipment on
roofs and all utility meters to be screened as approved by the Planning
Director.
8. BuildinR Occupancy: Building occupancy will not be allowed until public
improvements are installed.
9. ParkinR/Driveways: All parkins and driveway areas to be developed in
compliance with Chapter 21.50 of the Campbell Municipal Code. All parking
spaces to be provided with appropriate concrete curbs or bumper suards.
10. Utilities: Underground utilities to be provided as required by Section
20.36.150 of the Campbell Municipal Code.
CONDITIONS OF APPROVAL: FILE II PD 89-02
SITE ADDRESS: 1430 w. LATIMER AVENUE
APPLICANT: STEVE SARAY
PAGE 2
11. Mechanical EQuipment/Utilitv Meter ScreeninR: All mechanical equipment on
roofs and all utility meters to be screened as approved by the Planning
Director.
12. BuildinR Occupancy: Building occupancy will not be allowed until public
improvements are installed.
13. ParkinR/Drivewavs: All parking and driveway areas to be developed in
compliance with Chapter 21.50 of the Campbell Municipal Code. All parking
spaces to be provided with appropriate concrete curbs or bumper guards.
14. Utilities: Underground utilities to be provided as required by Section
20.36.150 of the Campbell Municipal Code.
15. Utilities: Plans submitted to the Building Department for plan check shall
indicate clearly the location of all connections for underground utilities
including water. sewer. electric. telephone and television cables. etc.
16. SiRninR: Sign application to be submitted in accordance with provisions of
the Sign Ordinance for all signs. No sign to be installed until
application is approved and permit issued by Planning and Building
Departments (Section 21.53 of the Campbell Municipal Code).
17. GarbaRe Collection: Ordinance No. 782 of the Campbell Municipal Code
stipulates that any contract for the collection and disposal of refuse.
garbage. wet garbage and rubbish produced within the limits of the City of
Campbell shall be made with Green Valley Disposal Company. This
requirement applies to all Single-family dwellings. multiple apartment
units. to all commercial. business. industrial. manufacturing. and
construction establishments.
18. Trash Containers/Enclosures: Trash container(s) of a size and quantity
necessary to serve the development shall be located in area(s) approved by
the Fire Department. Unless otherwise noted. enclosure(s) shall consist of
a concrete floor surrounded by a solid wall or fence and have self-closing
doors of a size specified by the Fire Department. All enclosures to be
constructed at grade level and have a level area adjacent to the trash
enclosure area to service these containers.
19. Noise Levels: Noise levels for the interior of residential units shall
comply with minimum State (Title 25) and local standards as indicated in
the Noise Element of the Campbell General Plan.
20. Park Dedication Fee: Applicant is hereby notified that he will be required
to pay Park Dedication In-Lie~Fee which will be assessed at the time the
subdivision map is submitted.
BUILDING DEPARTMENT
21. RetaininR Walls: Retaining walls at property lines are limited to a height
of 15 inches if constructed of wood.
CONDITIONS OF APPROVAL: ,&"ILE II PD 89-02
SITE ADDRESS: 1430 W. LATIMER AVENUE
APPLICANT: STEVE SARAY
PAGE 3
22. Fire retardant roofing required.
PUBLIC WORKS DEPARTMENT:
23. File and process a subdivision map.
24. Install street improvements in Latimer Avenue.
25. Obtain an Excavation Permit. pay fees. and post surety for all work in the
right-of-way.
26. Submit three copies of grading and drainage plans for review by City
engineer.
21. Pay storm drain area fee of $491.
28. Modify guest parking stalls 1. 2. and 3 to appropriate dimensions and aisle
width.
FIRE DEPARTMENT
29. Provide 20' wide Fire Department driveway access and/or vehicular
turnaround in accordance with the Uniform Fire Code 10.201(e).(g).. or
sprinklered with a 13D system.
30. Parking shall be prohibited on the fire access driveways. Approved signs
giving notice to that effect shall be posted. All curbs not designated for
parking shall be painted traffic red. Uniform Fire Code 10.201(k).
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RECORDING REQUESTED BY AND
AFIER RECORDING RETURN TO:
American Title Insurance Company
505 Race Street
San Jose, CA 95126
DECLARATION
OF
COVENANTS, CONDmONS, AND RESTRICI'IONS
OF
'l A TIM E R V I II A
SECTION 1.
1.01.
1.02.
1.03.
1.04.
SECTION 2.
SECTION 3.
3.01.
3.02.
3.03.
3.04.
3.05.
3.06.
3.07.
SECTION 4.
4.01.
4.02.
4.03.
4.04.
4.05.
4.06.
4.07.
4.08.
4.09.
4.10.
4.11.
4.12.
4.13.
4.14.
4.15.
4.16.
4.17.
4.18.
4.19.
DECLARATION
OF
COVENANTS, CONDmONS, AND RESTRICTIONS
OF
SUNNYOAKS GROVE
TABLE OF CONTENTS
RECITALS
Description of Real Property
Single Phase
Ownership Interests
Common Plan for Project
DEFINITIONS
PROPERTY RIGHTS
Common Area
Partition Prolubited
Annexation of Additional Property
Easements
Owners Easement for Party Wall
Party Walls
Provisions Restricting Delegation of Use
USE RESTRICTIONS
Use of Lots
Garages
Parking
Vehicle Restrictions
Signs
Animals
Trash; Storage of Materials
Antennae; Roof Projections
Right to Lease
Architectural Approval
Window Coverings
Clotheslines
Power Equipment and Car Maintenance
Drainage
Liability of Owners for Damage to Common Area
Recreational Facilities
Sports Fixtures
Nuisances
Compliance with Project Documents
Table of Contents
- 1 -
~
1.1
2.1
3.1
4.1
~
SECTION 5: MAINTENANCE OBUGATIONS 5.1
5.0l. Association Maintenance Obligations
5.02. Owners' Maintenance Obligations
SECTION 6: ASSOCIATION, ADMINISTRATION, MEMBERSlITP 6.1
AND VOTING
6.0l. Association to Manage Project
6.02. Membership
6.03. Transferred Membership
6.04. Classes of Membership and Voting
6.05. Termination of Class B Membership
6.06. Approval of Members Other than Declarant
6.07. Inspection of Books
6.08. Commencement of Voting Rights
6.09. Co-Owner Votes
6.10. Membership Meetings
6.1l. Notice and Place of Meetings
6.12. Board of Directors
SECTION 7: POWERS, DUTIES AND LIMITATIONS 7.1
OF THE ASSOCIATION
7.0l. Powers and Duties of Association
7.02. Property Taxes and Assessments
7.03. Insurance
7.04. Discharge of Liens
7.05. Payment of Expenses
7.06. Prohibited Acts
7.07. Action Requiring Consent
SECTION 8: ASSESSMENTS 8.1
8.0l. Agreement to Pay; Personal Obligation
8.02. Purpose of Assessments
8.03. Assessments of Vacant Lots
8.04. Common Facility Assessment Exemption
8.05. Regular Annual Assessments
8.06. Special Assessments
8.07. Individual Charges
8.08. Quorum
8.09. Equal Division of Regular and Special Assessments
8.10. Delinquent Assessments
8.1l. Commencement of Assessments and Individual Charges
8.12. Creation of the AsseSsment Lien
SECTION 9: ENFORCEMENT OF RESTRICTIONS 9.1
9.0l. General
9.02. Specific Enforcement Rights
Table of Contents
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..
SECTION 10:
BUDGETS, FINANCIAL STATEMENTS AND
BANK ACCOUNTS
~
10.1
10.01. Proposed Budget
10.02. Adopt Budget
10.03. Budgets, Financial Statements
10.04. Bank Accounts
SECTION 11:
INSPECTION OF BOOK AND RECORDS
11.1
11.01. Inspection by Members
11.02. Rules for Inspection by Members
11.03. Inspection by Directors
11.04. Review of Financial Records
11.05. Reserve Account Withdrawal Restrictions
SECTION 12:
INSURANCE,DESTRUCTION,CONDEMNATION
12.1
12.01. Insurance
12.02. Destruction
12.03. Condemnation
SECTION 13:
MORTGAGEE PROTECTIONS
13.1
13.01. Mortgages Permitted
13.02. Priority of Mortgage
13.03. Payment of Taxes or Premiums by Mortgagees
13.04. Effect of Breach
13.05. Mortgagee's Rights
13.06. No Restrictions on Owner's Right to Ingress and Egress
13.07. Notices to Mortgagees
13.08. FNMA, FHLMC, FHA, VA Mortgages
13.09. FHA/VA Approval
13.10. Additional FHA Provisions
13.11. Compliance with FHA/VA, FHLMC or FNMA Requirements
13.12. Waivers
13.13. Conflicts
SECTION 14:
SECTION 15:
ENFORCEMENT OF BONDED OBUGATIONS
AMENDMENTS
14.1
15.1
15.01. Prior to First Conveyance
15.02. After First Conveyance
15.03. Recordation
15.04. Unanimous Consent for Specific Amendments
15.05. FHA Requirements
Table of Contents
- 3 -
SECITON 16:
16.0l.
16.02.
16.03.
16.04.
16.05.
16.06.
16.07.
16.08.
16.09.
16.10.
16.1l.
16.12.
16.13.
16.14.
16.15.
EXHIBIT A:
~
GENERAL PROVISIONS
16.1
Term
Owners' Compliance
Notices
Notice of Transfer
Delivery of Project Documents to Transferee
Easements Reserved and Granted
Termination of Any Responsibility of Declarant
Mergers and Consolidations
Limitations of Restrictions on Declarant
Successor
Fair Housing
Severability
Estoppel Certificate
Conflict with Project Documents
Headings
DESCRIPTION OF PROPERTY SUBJEcr TO DECLARATION
Table of Contents
- 4 -
"
DEClARATION
OF
COVENANTS, CONDmONS, AND RESTRlCI'IONS
OF
LATIMER VILLA
THIS DECL\RATION is made on the date hereinafter set forth byLATIME-R V ILL~Inc., a
California Corporation, (herein referred to as "Declarant"):
SECITON 1: RECITALS
1.01. Description of Real PropertY. Declarant is the owner of that certain real
property in the City of Campbell, County of Santa Clara, State of California, which is more
particularly descnbed on Exhibit "A" attached hereto and incorporated herein.
1.02. Sin~e Phase. Declarant has improved or intends to improve the Project by
subdividing and constructing it into residential lots improved with dwellings ("Lots") and one
common area lot with improvements ("Common Area").
1.03. Ownership Interests. Each owner shall receive fee title to his Lot, a
membership in the Tract No. .. Homeowners Association ("Association"), which shall hold title
to the Common Area, a non-exclusive easement for use, enjoyment, ingress and egress over the
Common Area, and such other interests as are provided herein.
1.04. Common Plan for Project. By this Declaration, Declarant intends to establish a
common scheme and plan for the ~ossession. use, enjoyment, repair, maintenance, restoration and
improvement of the Project and mterests therein conveyed and to establish thereon a Planned
Development.
NOW, THEREFORE, Declarant hereby declares that the real property described on Exlubit
A shall be held, conveyed. mortgaged, encumbered, leased, rented, used, occupied, sold and
improved, subject to the following declarations, limitations, covenants, conditions, restrictions and
easements, all of which are for the purpose of enhancing and protecting the value and
attractiveness of the Project, in accordance with the plan for improvement of the Property and the
division thereof into Lots. Pursuant to California Civil Code Sections 1353 and 1354, all of the
limitations, covenants, conditions, restrictions and easements shall constitute covenants which shall
run with the land, be enforceable as equitable servitudes, and shall be binding upon Declarant and
its successors and assigns, and all parties having or acquiring any right, title or interest in or to any
part of the Property or the Project.
1.1
SECTION 2: DEFINITIONS
In addition to other definitions provided for herein, the following terms shall have the
following meanings:
2.01. "Articles" shall mean the Articles of Incorporation of Tract No.
Homeowners Association and any amendments thereto.
2.02. "Assessment" shall mean that portion of the cost of maintaining. improving.
repairing, operating and managing the Project which is to be paid by each Lot Owner as
determined by the Association.
2.03. "Association" shall mean the Tract No. Homeowners Association, a
California non-profit mutual benefit corporation, the members of which shall be the Owners of
Lots in the Project, their successors and assigns.
2.04. "Association Rules" shall mean rules and regulations regulating the use and
enjoyment of the Common Area which may be adopted by the Board from time to time.
2.05.
Association.
"Board" or "Board of Directors" shall mean the governing body of the
2.06.
time.
"Bylaws" shall mean the Bylaws of the Association, as amended from time to
2.07. "Common Area" means all real property owned by the .Association for the
common use and enjoyment of the Owners and shall include, upon conveyance to the Association,
the plot of land designated Lot , as shown on the Subdivision Map, and any other plot of land
which may be conveyed to the Association.
2.08. "Common E'QJenses" shall mean and include the actual and estimated expenses
of operating the Project 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 Project Documents.
2.09. "County" shall mean the County of Santa Clara, California, the County in which
the Project is located.
2.10. "Declarant" shall mean LATIMER VILLA, a California Corporation, its
successors and assigns, if such successors and assigns are assigned the rights of Declarant pursuant
to Section 16.10 hereof or if such successor or assign is a mortgagee acquiring Declarant's interest
in the Project by foreclosure or by deed in lieu of foreclosure.
2.11. "Declaration" shall mean this Declaration, and any amendments, modifications
or supplements thereto.
2.12. "EliiPole First Mort~a~ee" shall mean a First Mortgagee who has requested
notice by sending a written request to the Association, stating both its name and address and the lot
number or address of the lot it has the mortgage on.
2.1
2.13. "Final Public Report" shall mean the final public report issued by the California
Department of Real Estate or any successor state agency pursuant to the California Subdivided
Lands Act (Business & Professions Code Section 11000 et seq.) as it may be amended from time to
time.
2.14. "Improvements" shall mean all structures and improvements on the Project,
including, but not limited to, buildings, paving, fences, signs and landscaping.
2.15. :L.ur: shall mean any parcel of land shown on the Map, with the exception of the
Common Area.
2.16.
:Map.: shall mean that subdivision map entitled "Tract No. ", recorded on
, 1989, in Book _ of Maps, Page _' in the Official Records of Santa
Clara County.
2.17. "Member" shall mean a person or entity holding a membership in the Association
as provided herein. Each Owner or Co-Owner of a lot shall be a member.
2.18. "Mort~~e" shall mean a mortgage or deed of trust encumbering a Lot or other
portion of the Project. A "Mortgagee" shall include the beneficiary under a deed of trust and any
guarantor or insurer of a Mortgage. "First Mortgage" or "First Mortgagee" is one having priority
over all other Mortgages or holders of Mortgages encumbering the same lot or other portion of the
Project. A "First Mortgagee" shall include any holder (including FHLMC and FNMA), insurer
(including FHA), or guarantor (including VA) of a First Mortgage on a lot or other pomon of the
Project. "FHA" shall mean the United States Department of Housing and Urban Development,
Federal Housing Administration. "VA" shall mean the United States Department of Housmg and
Urban Development, Veterans Administration. "FHLMC' shall mean the Federal Home Loan
Mortgage Corporation. "FNMA" shall mean the Federal National Mortgage Association.
Where any provision of the Project Documents requires the approval of a First Mortgagee, the
approval of the holder, insurer or guarantor of that First Mortgage shall be deemed to be the
required approval
2.19. "Owner" or "Owners" shall mean the record holder or holders of title, if more than
one, to any Lot in the Project. This shallllQ1 include contract sellers or persons or entities having
any interest merely as security for the performance of an obligation. H a Lot is sold under a
recorded contract of sale, (or a recorded memorandum of such contract) the purchaser, rather than
the fee Owner, shall be considered the "Owner".
2.20. "Party Walls" means any improvements that are constructed on the property line
of any two adjoining Lots, a portion of which is located on each of the two adjoining Lots.
2.21. "Project" shall mean the entire real property described in Exhibit "A" attached
hereto, including all structures and improvements erected or to be erected thereon or on such
additional properties which may be brought within the jurisdiction of the Association.
2.22. "Project Documents" shall mean and include this Declaration, as amended from
time to time, the exhibits, if any, attached hereto, together with the other basic documents used to
create and govern the Project, including the Map, Articles and Bylaws (but excluding unrecorded
rules and regulations adopted by the Board or the Association).
..,..,
2.23. "Property" or "Properties" shall mean the entire real property described on
Exhibit "A" attached hereto, including all structures and improvements erected thereon or on such
additional properties which may be brought within the jurisdiction of the Association.
2.24. "Quorum" shall mean a majority of those entitled to act, except in the case of a
quorum necessary for the imposition of regular and special assessments set forth in Section 8.
2.25. "Subdivided Property" shall mean the entire real property described on ExhIbit "AW
attached hereto, including all structures and improvements erected thereon or on such additional
properties which may be brought within the Jurisdiction of the Association.
2.26. "Subdivider" shall mean the Declarant.
2.27. ~ shall mean a dwelling structure on a Lot.
2.3
SECTION 3: PROPERTY RIGHTS -
3.01. Common Area. The Common Area shall be owned by the Association for the use
and benefit of the Members. It shall be conveyed to the Association free of money encumbrances
prior to or concurrently with the close of escrow of the sale of the first lot. The Common Area
shall be maintained by the Association as provided in Section 5.01. When the Common Area is
conveyed by Declarant to the Association, an easement shall be deemed automatically reserved
over the Common Area in favor of Declarant for common driveway purposes, drainage and
encroachment purposes and for ingress and egress from the common areas for the purpose of
completing improvements thereon or for the performance of necessary repair work. Said
easement shall automatically terminate four years after the recordation of this Declaration.
3.02. Partition Prohibited. The common areas shall remain undivided as set forth above.
Except as provided by California Civil Code Section 1359, no owner shall bring any action for
partition, it being agreed that this restriction is necessary in order to preserve the rights of the
owners with respect to the operation and management of the project. Judicial partition by sale of
a single lot owned by two or more persons and division of the sale proceeds is not prolubited
hereby, but partition of title to a single lot is prohibited.
3.03. Annexation of Additional Property. Additional property may be annexed to and
become subject to this Declaration by any of the following methods set forth in this Section. Upon
annexation, additional parcels shall become subject to this Declaration without the necessity of
amending individual sections thereof.
a. Annexation Pursuant to Approval: Upon approval in writing of the
Association, pursuant to vote or written consent of 66-2/3% of the total votes residing in members
other than the Declarant, the Association and the owner of any property who desires to add it to
the scheme of this Declaration and to subject it to the jurisdiction of the Association, may file of
record a Declaration of Annexation. Said Declaration may contain such complementary additions
and modifications of the covenants and restrictions contained in this Declaration as may be
necessary to reflect the different character, if any, of the added property, as are consistent with the
scheme of this Declaration. Said Declaration shall include designation of Lots and/or Common
Areas for the purpose of this Declaration.
b. Effect of Annexation: Assessments collected from owners in the property
may be expended by the Association without regard to the particular phase from which such
assessments came. All owners shall have ingress and egress to all portions of the common area
throughout the property, subject to the provisions of this Declaration, the Bylaws of the Association
and the Rules and Regulations of the Association in effect from time to time.
c. Ouality of Construction: Future improvements to the Project will be
consistent with initial improvements in terms of quality of construction.
3.04. Easements. In addition to any and all other easements contained in this
Declaration, the Properties shall be subject to the following easements:
3.1
a. Owners' Easements. Every Owner shall have a right and nonexclusive
easement of enjoyment in and to the Common Area, including ingress and egress to and from his
Lot. However, such nonexclusive easements shall be subordinate to, and shall not interfere with,
exclusive easements over the Exclusive Use Common Area, if any. Each such nonexclusive
easement shall be appurtenant to and shall pass with the title to the Lot, subject to the following
provisions:
(1) Section 9 of this Declaration authorizes the Board to impose monetary
penalties, temporary suspensions of an Owner's rights as a member of the Association or other
appropriate discipline for failure to comply with the governing instruments provided that the
established procedures are followed for notice and hearing which satisfy the minimum
requirements of Corporations Code Section 7341 with respect to the accused member before a
decision to impose discipline is reached. These procedures are set out in Section 12 of the Bylaws.
(2) The right of the Association to dedicate or transfer all or any part of
the Common Area to any public agency, authority, or utility for such purposes and subject to such
conditions as may be agreed to by the members. No such dedication or transfer shall be effective
unless an instrument signed by two-thirds of the members agreeing to such dedication or transfer
has been recorded, provided, however, that no such dedication shall impair the ingress and egress
to any individual Lot.
b. Easements for Utilities and Maintenance. Easements over and under the
Project for the installation, repair and maintenance of electric, telephone, water, gas and sanitary
sewer lines and facilities, heating facilities, cable or master television antenna lines, drainage
facilities, walkways and landscaping as shown on the recorded map of the property, and as may be
hereafter required or needed to service the Project, are hereby reserved by Declarant and its
successors and assigns, including the Association, together with the right to grant and transfer the
same.
c. Encroachment Easements. Each Lot within the Project is hereby declared
to have an easement over all adjoining Lots and the Common Area for the purpose of
accommodating any encroachment due to engineering errors, errors in original construction,
settlement or shifting of the building, or any other cause. There shall be valid easements for the
maintenance of said encroachments as long as they shall exist, and the rights and obligations of
Owners shall not be altered in any way by said encroachment, settlement or shifting; provided,
however, that in no event shall a valid easement for encroachment be created in favor of an Owner
or Owners if said encroachment occurred due to the willful misconduct of said Owner or Owners.
In the event a structure is partially or totally destroyed, and then repaired or rebuilt, the Owners of
each Lot agree that minor encroachments over adjoining Lots or Common Area shall be permitted
and that there shall be valid easements for the maintenance of said encroachments so long as they
shall exist.
d. Entty for R~airs. The Board may authorize its agents and employees to
enter upon any Lot and/or Exclusive Use Common Area when necessary in connection with any
maintenance, landscaping or construction for which the Association IS responsible, to effect
emergency repairs or to effect necessary repairs which the Lot Owner has failed to perform as
required by this Declaration. Such entry shall be made with as little inconvenience to the
Owner as practicable and any damage caused thereby shall be repaired by the Board at the expense
of the Association. Except in case of an emergency, 24 hour advance notice shall be given to the
Owner or occupant.
3.2
e. Association Easement for Front Yard Maintenance. The term "front yard
area" herein shall mean and refer to that portion of each lot which would commonly be referred to
as a front yard or side yard. Front yard area shall not include those portions of a lot which are
covered by structural improvements or which are enclosed for the private use of an owner and shall
include any entry walkways. The precise area of each lot which constitutes front yard area shall be
determined by actual location of the unit and any fence improvements constructed thereon. The
Association shall have an easement in and across every front yard area within the development for
the purpose of planting, replanting, watering, cutting, removing or otherwise caring for the
landscaping and entry walkways in the front yard area of each Lot as may be reasonably necessary
to perform its obligations under this Declaration.
f. Declarant's Resetvation of Easements. Declarant hereby resetves
easements over the Common Area for common driveway purposes, for drainage and encroachment
purposes, and for ingress and egress from the common areas for the purpose of completing
improvements thereon or for the performance of necessary rel?air work. Said easement shall
automatically terminate four years after the recordation of this Declaration.
3.05. Owners Easement for Party Wall. Each attached Lot that shares a Party Wall
with an adjoining Lot and its Owner is declared to have an easement appurtenant, and the same is
granted by Declarant, on, over, and upon such adjoining Lot for such Party wall, including the right
to enter such adjoining Lot to setvice and maintain such easement and to setvice, maintain, repair,
or replace the improvements constituting such Party Wall. Such entry shall be at reasonable tImes
after prior notice, except that in case of emergency the right of entry shall be immediate. No
Owner shall alter the shape, size, or construction or use any materials different from those used in
the initial construction of any such Party Wall without the written consent of the Association.
3.06. Party Walls. The following provisions shall apply with regards to Party Walls in
this development:
a. General Rules of Law to Apply. Each wall which is built as a part of the
original construction of the homes upon the PropertIes and placed on the dividing line between the
Lots shall constitute a party wall, and, to the extent not inconsistent with the provisions of this
Section, the general rules of law regarding party walls and liability for property damage due to
negligence or willful acts or omissions shall apply thereto.
b. Sharin~ of R~air and Maintenance. The cost of reasonable repair and
maintenance of a party wall shall be shared by the Owners who make use of the wall in proportion
to such use.
c. Destruction by Fire or Other Casualty. If a party wall is destroyed or
damaged by fire or other casualty, any Owner who has used the wall may restore it, and if the other
Owner thereafter make use of the wall, they shall contribute to the cost of restoration thereof in
proportion to such use without prejudice, however, to the right of any such Owners to call for a
larger contribution from the others under any rule of law regarding liability for negligent or willful
acts or omissions.
d. Weathet:proofing. Notwithstanding any other provision of this Section, an
Owner who by his negligent or willful act causes the party wall to be exposed to the elements shall
bear the whole cost of furnishing the necessary protection against such elements.
3.3
e. Ri~t to Contribution Runs with Land. The right of any Owner to
contribution from any other Owner under this Section shall be appurtenant to the land and shall
pass to such Owner's successors in title.
f. Arbitration. If any dispute arises concerning a party wall, or under the
provisions of this Section, each party shall choose one arbitrator, and such arbitrators shall choose
one additional arbitrator, and the decision shall be by a majority of all arbitrators.
3.07. Provisions Restricting Delegation of Use. Any' Owner may delegate his rights of
use and enjoyment of the Project, including any recreational facilities, to the members of his family,
his guests, tenants, employees, and invitees, and to such other persons as may be permitted by the
Bylaws and the AssOCIation Rules, subject however, to this Declaration. However, if an Owner
has sold his Lot to a contract purchaser or has leased or rented it, the Owner, members of the
Owner's family, guests, tenants, employees, and invitees shall not be entitled to use and enjoy any of
such rights in the Project, including the recreational facilities, while the Owner's Lot is sold to the
contract purchaser or rented to tenants. Instead, the contract purchaser, or tenants, while
occuPying such Lot, shall be entitled to use and enjoy such rights, including the recreational
facilitIes, and can delegate the rights of use and enjoyment in the same manner as if such contract
purchaser or tenant were an Owner during the period of his occupancy. Each Owner shall notify
the secretary of the Association of the names of any contract purchasers or tenants of such Owner's
Lot. Each Owner, contract purchaser, or tenant also shall notify the Secretary of the Association
of the names of all persons to whom such Owner, contract purchaser, or tenant has delegated any
rights of use and enjoyment and the relationship that each such persons bears to the Owner,
contract purchaser, or tenant. Any delegated rights of use and enjoyment are subject to
suspension to the same extent as are the rights of Owners. No such delegation shall relieve an
Owner from liability to the Association or to other Owners for payment of assessments or
performance of the covenants, conditions and restrictions contained m this Declaration. Any
lease, rental agreement or contract of sale entered into between an Owner and a tenant or contract
purchase of a Lot shall require compliance by the tenant or contract purchaser with all of the
covenants, conditions and restrictions contained in this Declaration, which provision shall be for the
express benefit of the Association and each Owner. The Association and each Owner shall have a
right to action directly against any tenant or contract purchaser of an Owner, as well as against the
Owner, for nonperformance of any of the provisions of this Declaration to the same extent that
such right of action exists against such Owner.
3.4
SECTION 4: USE RESTRICTIONS
4.01. Use of Lots. No Lot, or any portion thereof, shall be occupied and used except
for single family residential purposes by the Owners, their contract purchasers, lessees, tenants, or
social guests. No trade or business or commercial activity shall be carried on or conducted upon
any Lot, except that Declarant, its successors or assigns, may use any Lot in the Project owned by
Declarant for a model home site and display and sales office during construction and until the last
Lot is sold by Declarant, or until 3 years from the date of closing of the first sale of a Lot in the
Project, whichever occurs first. The provisions of this section shall not prohibit home occupations
so long as they are merely incidental to the use of the Lot as a dwelling, are permitted by local law,
are conducted in such a manner as to not adversely affect other owner's use and enjoyment of the
Project, and have received prior written approval of the Board.
4.02. Gara~es. Each Owner shall keep his garage area in a neat and orderly condition
with any storage areas completely enclosed. Garage doors shall be kept closed when not in use.
Each Owner shall be entitled to the exclusive use of the driveway serving his garage and shall keep
said driveway clean and free to debris.
4.03. Parking. Unless otherwise permitted by the Board, no motor vehicles shall be
parked or left on any other portion of the Project other than within a Lot's driveway, garage,
designated Common Area parking place or other portion of the Project specifically designated for
parking.
4.04. Vehicle Restrictions. No trailer, camper, mobile home, commercial vehicle, truck
(other than a standard size pickup truck), inoperable automobile, or similar equipment shall be
permitted to remain upon any area within the Property, other than temporarily. Commercial
vehicles shall not include sedans or standard size pickup trucks which are used both for business
and personal use, provided that any signs or markings of a commercial nature on such vehicles shall
be unobstrusive and inoffensive as determined by the Board. Boats shall not be allowed on the
Property except within an Owner's enclosed garage. No noisy or smoky vehicles shall be operated
on the Property. No off-road unlicensed motor vehicles shall be operated upon the Property.
4.05. Sigm. No sign of any kind shall be displayed to the public view on or from any
Lot or any portion of the Project without the approval of the Association, except as follows:
a. One sign of customary and reasonable dimensions advertising a Lot for sale,
lease, rent or exchange displayed from a Lot; and .
b. Such signs as may be used by Declarant or its assignees in connection with
the development of the project and sale of Lots; and
c. Such other signs or notices as are required by law or as are otherwise
necessary to perfect a right provided for in law.
4.06. Animals. No animals, reptiles, rodents, birds, fish, livestock, or poultry shall be
raised, bred, or kept on any Lot or portion of the Project; except that no more than two usual and
ordinary household pets such as dogs, cats, fish or birds may be kept, provided that they are not
kept, bred, or maintained for any commercial purposes, and they are kept under reasonable control
at all times. Notwithstanding the foregoing, no pets may be kept on the Project which result in an
annoyance or nuisance to other Owners. No pets shall be allowed on the Common Area except as
may be permitted by rules of the Board. No dog shall enter the Common Area except while on a
4.1
leash which is held by a person capable of controlling it. Owners shall prevent their pets from
soiling any portions of the Common Area. The Association can prohibit the keeping of any
animal that in the sole and exclusive opinion of the Board constitutes a nuisance to any other
owner.
4.07. Trash: Storage of Materials. All garbage and trash shall be regularly removed
from the Project, and shall not be allowed to accumulate thereon. It shall be placed and kept in
covered sanitary containers where it is not visible from any neighboring lot except for a reasonable
time prior to or after collection. All woodpiles or storage piles shall be kept screened and
concealed from view of other Lots, streets and Common Areas. Garbage and trash shall be placed
for pick up as required by the disposal service and any rules adopted by the Association.
4.08. Antennae: Roof Projections. Except for any antennae, chimneys, vent stacks or
other items or equipment upon or projecting from the roof which are installed by Declarant as part
of the initial improvements, no such item or equipment shall be erected or maintained upon the
outside of any building on the properties unless the same has been approved by the Board. No
alteration to or modification of a central television antenna system or cable television system,
whichever is applicable, as developed by Declarant and as maintained by the Association, shall be
permitted, without the written consent of the Board.
4.09. Right to Lease. No Owner shall be permitted to lease or rent his Lot for transient
or hotel purposes, which shall include, but not be limited to rental for any period less than 30 days.
All leases must be in writing and be expressly subject to the Project Documents and the breach of
any provision shall be a default under the Lease or Rental Agreement. Subject to the foregoing
restrictions, the Owners of Lots shall have the right to lease the same, provided that the Board is
notified of the name of the tenant and the duration of the lease. The Owner shall provide the
Lessee with a copy of the Articles, Bylaws, Declaration and any Rules and Regulations of the
Association.
4.10. Architectural Approval. No building, fence, wall, obstruction, screen, awning, or
structure of any kind shall be commenced, erected or maintained upon the Project, nor shall any
alteration or improvement of any kind be made thereto until the same has been approved in writing
by the Board. Plan and specifications showing the nature, kind, shape, color, size, materials and
location of such improvements, alterations, etc., shall be submitted to the Board 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 landscaping on a Lot visible from the street or from the Common Area shall
be undertaken by any Owner until plans and specifications showin~ the nature, kind, shape and
location of the materials have been submitted to and approved m writing by the Board.
Failure of the Board to act within 30 days after the plans have been submitted to
it shall constitute approval.
In the event of the failure of any individual lot owner to comply with a written
directive or order from the Board, then in such event the Board shall have the right and authority to
perform the subject matter of such directive or order and the cost of such performance shall be
charged to the owner of the lot in question and may be recovered by the Board in an action of law
against such individual lot owner.
4.11. Window Coverings. Windows shall be covered by drapes, shades or shutters and
shall not be painted or covered by foil, cardboard or similar materials. All window coverings
visible from the Common Area shall be of a material, design and color which, in the opinion of the
Board, is compatible with the exterior design and coloration of adjacent portions of the Project.
4.2
4.12. Clotheslines. No exterior clotheslines or other outside clothes drying or airing
facility shall be erected or maintained on the properties in any location where the same would be
visible from any street or neighboring lot. Further, no clothes washers, clothes dryers,
refrigerators or freezers may be kept, stored or operated on any balcony, patio, porch or other
exterior area.
4.13. Power EqJlipment and Car Maintenance. No power equipment, work shops or
car maintenance of any nature shall be permitted on the Project without the prior written approval
of the Board. In deciding to grant approval, the Board shall consider the effects of noise, air
pollution, dirt or grease, fire hazard, mterference with radio or television reception and similar
objections.
4.14. Drainage. No Owner shall do any act or construct any improvement which would
interfere with the natural or established drainage systems or patterns within the Project without the
approval of the Board.
4.15. Liability of Owners for Dama~e to Common Area. The Owner of each Lot shall
be liable to the Association for all damages to the Common Area and/or improvements thereon
caused by such Owner, or any occupant of his Lot or guest, except for that portion of said damage,
if any, fully covered by insurance of the Association. Liability of an Owner shall be established
only after notice to the Owner and hearing before the Board.
4.16. Recreational Facilities.
a. Every member of the Association shall have a right to use the recreational
facilities situated on the Common Area, subject to the following provisions:
(1) The right of the Association to charge reasonable fees for the use of
any recreational facility by non-members; and
(2) The right of the Association to deny use after hearing for infringement
of rules and nonpayment of dues.
b. Any Owner may delegate, in accordance with the Bylaws, right of enjoyment
to the recreational facilities to family members, tenants or contract purchasers who reside on the
Project.
4.17. Sports Fixtures. No basketball standards, hoops or backboards or other fixed
sports apparatus shall be attached to the front of any Unit or erected in the front yard of any Lot.
4.18. Nuisances. No noxious, illegal, or seriously offensive activities shall be carried on
within any Lot, or in any part of the Project, nor shall anything be done thereon which may be or
may become an annoyance or a nuisance to or which may in any way interfere with the quiet
enjoyment of each Owner's Lot or Common Area, or which shall m any way increase the rate of
insurance for the Project or for any other Lot, or cause any insurance policy to be cancelled or to
cause a refusal to renew the same, or which will impair the structural integrity of any building.
4.19. Compliance with Project Documents. Each Owner, contract purchaser, lessee,
tenant, guest, invitee or other occupant of a Lot or user of the Common Area shall comply with the
provisions of the Project Documents.
4.3
SECfION 5: MAINTENANCE OBLIGATIONS
5.01. Association Maintenance Obli~ations. The Association shall be responsible for
maintaining the following in good condition and repair:
a Common Area Improvements. The Association shall maintain or provide
for the maintenance of all Common Area improvements, including but not limited to, any
recreational facilities, utility buildings and utility laterals located within the Common Area. The
Association shall also be responsible for major repair of the driveways located on the Common
Area serving the individual Lots. Lot Owners shall be responsible for the maintenance of said
driveways.
b. Landscaping. The Association shall provide gardening services to maintain
and replace as necessary, all the landscaping within the Common Area and the open areas of
individual Lots up to the exterior walls or fences of the Units. The sprinkling systems originally
installed on the Common Area in connection with the landscaping improvements shall also be
operated and maintained by the Association.
c. Exterior Painting. In order to preserve the exterior harmony and
appearance of the Project, the Association shall perform all paintin~ and/or staining of the exterior
wall surfaces and exterior trim of each Unit and shall repair, repamt or restain the fences and/or
walls within the Project.
d. ~. The Association shall repair and replace the roof of each Unit and
garage, as needed.
e. Gutters and Down~outs. All gutters and downspouts shall be maintained
and replaced as necessary by the Association.
f. Fences and Walls. All fences and Walls shall be maintained and replaced as
necessary by the Association except any fence separating lots which are not visible from the
Common Area.
g. Damage by the Presence of Wood-Destroying Pests. The Association shall
bear the costs of repair and maintenance of common area and units damaged by the presence of
wood-destroying pests or organisms, which may in turn levy a special assessment to recover such
costs.
(1) The costs of temporary relocation during the repair and
maintenance of the areas within the responsibility of the association shall be borne by the owner of
the separate interest affected.
(2) (i) The association may cause the temporary, summary removal of
any occupant for such periods and at such times as may be necessary for prompt, effective
treatment of wood-destroying pests or organisms.
(ii) The association shall give notice of the need to temporarily
vacate a separate interest to the occupants and to the owners, not less than 15 days nor more than
30 days pnor to the date of the temporary relocation. The notice shall state the reason for the
temporary relocation, the date and time of the beginning of treatment, the anticipated date and
time of termination of treatment, and that the occupants will be responsible for their own
accommodations during the temporary relocation.
5.1
either:
(iii) Notice by the association shall be deemed complete upon
(A) Personal delivery of a copy of the notice to the
occupants, and sending a copy of the notice to the owners, if different than the occupants, by first-
class mail, postage prepaid at the most current address shown on the books of the association.
(B) By sending a copy of the notice to the occupants at
the separate interest address and a copy of the notice to the owners, if different than the occupants,
by first-class mail, postage prepaid, at the most current address shown on the books of the
association.
(3) For purposes of this section, "occupant" means an owner, resident,
guest, invitee, tenant, lessee, sublessee, or other person in possession on the separate interest.
If any of the maintenance or repair work referred to above is necessitated by the
willful or negligent acts of the Owner, his family, guests or invitees, the costs of such special
restoration or repairs shall be chargeable to the Owner as provided in Section 8.
5.02. Owners' Maintenance Obligations. Except for the landscaping and limited
exterior maintenance to be performed by the Association as specified above, each Owner shall be
responsible for maintaining in good condition and repair his Unit and Lot, including specifically:
a. ~. Each Owner shall maintain and repair or replace the entryway
door(s) to his Unit, provided that any painting or staining shall be in the same color as originally
used unless a different color has been approved by the Board.
b. QIass. All windows and sliding glass doors shall be cleaned (outside as well
as inside), repaired and replaced by the individual Owners.
c. Appliances and Equipment. Each Owner shall be responsible for
maintaining, repairing and replacing all appliances within his Unit, including air conditioning and
heating equipment, water heaters, plumbmg and lighting fixtures, or other mechanical equipment
servicing his particular Unit.
d. Utility Connections. Utility lines and connections, including sewer,
electrical, plumbing and gas lines, which are located within a Unit and provide service. to the Unit,
shall be maintained and repaired by the Owner of the Unit in question and/or the utility company
involved, rather than by the Association.
e. Private Patios. Decks and Yards. Subject to any restrictions on planting
and grading contained elsewhere in this Declaration, each Owner shall plant, landscape and
maintain the patio spaces, decks and yards which are enclosed for private use as part of his
individual residence area.
f. Interior. Each Owner shall maintain the interior of his residence and shall
be entirely responsible for the painting, decorating, cleaning and maintenance thereof, including all
personal property and fixtures therein.
g. Fences. Any fence which separates the rear or side yard of two Lots which
is not visible from the Common Area shall be jointly maintained and replaced by the two Lot
Owners sharing said fence.
5.2
h. Exclusive Use Common Area. Each Owner shall be responsible for the
maintenance of his Exclusive Use Common Area.
If an Owner fails to maintain his Lot as provided herein in a manner which the Board
reasonably deems necessary to preserve the safety, appearance and/or value of the Project, the
Board may notify the Owner of the work required and request that it be done within a reasonable
and specific penod If the Owner fails to pedorm such maintenance and/or repairs within said
period, the Board shall, subject to the notice and hearing requirements set forth in the Bylaws, have
the right to enter upon the Lot to cause such maintenance and/or repair work to be pedormed.
Cost of any such repair or maintenance shall be charged to the Owner through an Individual
Charge as provided in Section 8 hereof.
Notwithstandin~ the foregoing, in the event of an emergency arising out of the failure of an
Owner to maintain his Lot, the Board shall have the right, through its agents and employees, to
immediately enter the Lot to abate the emergency and individually charge the cost thereof to such
Owner.
5.3
SECTION 6: ASSOCIATION. ADMINISTRATION.
MEMBERSHIP AND VOTING
6.01. Association to Manage Project. The management of the Project shall be vested in
the Association in accordance with the Project Documents, and all applicable laws, regulations and
ordinances of any governmental or quasi-governmental body or agency having jurisdiction over the
Project.
6.02. Membership. Each Owner shall be a member of the Association, and shall
remain a member thereof until such time as ownership ceases for any reason, at which time such
membership in the Association shall automatically cease.
6.03. Transferred Membership. Membership in the Association shall not be
transferred, pledged, or alienated in any way, except upon the sale or encumbrance of the Lot to
which it is appurtenant, and then only to the purchaser, in the case of a sale, or Mortgagee, in the
case of an encumbrance of such Lot. A Mortgagee does not have membership rights until it
becomes an Owner by foreclosure or deed in lieu thereof. Any attempt to make a prohibited
transfer is void. Any person or entity acquiring fee title or equitable tltle to a Lot, whether by
reason of a deed from the Owner or through a foreclosure, shall within 15 days of acquiring such
title inform the Association in writing of the date such title transferred and the name or names in
which title is held.
6.04. Classes of Membership and Votin&. The Association shall have two classes of
voting members:
Class A Class A members shall be all Owners except Declarant and shall be
entitled to one vote for each Lot owned. When more than one person or entity owns a Lot, all
such persons and entities shall be members and the vote for such Lot shall be exercised as they
among themselves determine, but in no event shall more than one vote be cast with respect to any
Lot.
Class B. The Class B member shall be the Declarant, who shall be entitled to
three votes for each Lot owned.
6.05. Termination of Class B Membership. The Class B membership shall be
irreversibly converted to Class A membership on the occurrence of whichever of the following is
first in time:
(a) When the total outstanding votes held by Class A members equal the total
outstanding votes held by Class B members, or
(b) On the second anniversary of the original issuance of the Final Public
Report for the Project.
6.06. Approval of Members Other Than Declarant. With the exception of actions
authorized for the Enforcement of Bonded Obligations, no action which requires the approval of a
prescribed majority of the voting power of members of the Association other than the Declarant
shall preclude the Declarant from casting votes attributable to subdivision interests which he owns.
Where a two class voting structure is still in effect, any action requiring the
approval by the vote or written assent of a prescribed majority of the Class A voting power shall
also require the vote or written assent of a bare majority of the Class B voting power.
6.1
Where a single class voting structure exists, after the conversion of Class B to
Class A membership, approval of any action by the vote or written assent of a prescribed majority
of the total voting power of Owners other than the Declarant shall also require the approval by vote
or written assent of a bare majority of the total voting power of the Association.
6.07. Inspection of Books. All members shall have reasonable access to inspect the
books, records and financial statements of the Association, including annual audited financial
statements when such are prepared, pursuant to this Declaration and subject to the same.
6.08. Commencement of Votin2 Ri2hts. Voting rights attributable to Lots shall not
vest until assessments against those Lots have been levied by the Association.
6.09. Co-Owner Votes. The vote for each Lot may not be cast on a fractional basis. H
the Co-Owners of a Lot are unable to agree among themselves as to how their vote shall be cast,
they shall forfeit the vote on the matter in question. H only one Owner exercises the vote of a
particular Lot, it shall be conclusively presumed for all purposes that he was acting with the
authority and consent of all other Owners of the same Lot. H more than one Co-Owner exercises
the vote for a particular Lot, their votes shall not be counted and shall be deemed void.
6.10. Membership Meetin2s. Regular and special meetings of members and of the
Board shall be held with the freqency at the time and place and in accordance with the provisions of
the Bylaws.
6.11. Notice and Place of Meetings. Written notice of each meeting of the members
shall be given by, or at the direction of, the secretary or person authorized to call the meeting, by
mailing a copy of such notice, postage prepaid, at least 10 days but not more than 90 days before
such meeting to each first mortgagee requesting notice and to each member, addressed to the
member's address last appearing on the books of the Association, or supplied by such member to
the Association for the purpose of notice. Such notice shall specify the place, day and hour of the
meeting, and, in the case of a special meeting, the purpose of the meeting. Meetings shall be held
within the Project or at a meeting place as close thereto as possible.
6.12. Board of Directors. The affairs of the Association shall be managed by a Board
of Directors, which shall be established, and which shall conduct regular and special meetings
according to the provisions of the Bylaws.
6.2
SECTION 7: POWERS. DUTIES AND LIMITATIONS OF THE ASSOCIATION
7.01. Powers and Duties of Association. In addition to the powers and duties
enumerated in its Articles and Bylaws or elsewhere provided for herein, and without limiting the
generality thereof, the Association shall have the following powers and duties:
a. Delegation of Powers. To delegate all powers to committees, officers or
employees of the Association as expressly authorized by the Project Documents.
b. Management Agent. To employ a management agent and to contract with
independent contractors to perform all or any part of the duties and responsibilities of the
Association, provided that any contract with a fIrm or person appointed as a managing agent or any
other contract providing for services of the developer, sponsor or builder shall not exceed a 1 year
term renewable by the parties for successive one year periods and shall provide for the right of the
Association to terminate the same at the first annual meeting of the members of the Association, to
terminate the same for cause on 30 days written notice, and either party may terminate without
cause and without payment of a termination fee on 60 days written notice.
Declaration.
c. Maintenance. To maintain the Project as required by the provisions of this
d. Supervision. To supervise all officers, agents and employees of the
Association and see that their duties are properly performed.
e. Assessments. Liens, and Fines. To levy and collect assessments and as
provided in the Project Documents, impose fines or take disciplinary action against Owner for
failure to pay assessments or for violation of any provision of the Project Documents. Penalties
may include, but are not limited to: fines, temporary suspension of voting rights, rights to use of
the facilities on the Common Area, or other appropriate discipline for failure to comply with the
governing instruments, provided that the accused member is given notice and the opportunity to be
heard by the Board with respect to the alleged violations before a decision to impose discipline is
reached. Such notice and hearing procedures shall satisfy the minimum requirements of
Corporations Code Section 7341, which are set forth in Section 12 of the Bylaws.
f. Enforcement of Project Documents. To enforce applicable provisions of
the Project Documents for the ownership, management and control of the Project.
g. Adoption of Rules. To adopt, amend and repeal reasonable rules
consistent with this Declaration relating to the use of the Common Area and all facilities thereon,
and the conduct of Owners and their tenants and guests with respect to the Project and other
Owners. A copy of the Association Rules as adopted, amended or repealed shall be mailed or
otherwise delivered to each Owner and a copy shall be posted in a conspicuous place within the
Common Area.
h. Records. Cause to be kept a complete record of all its acts and corporate
affairs and to present a statement thereof to the members at the annual meeting of the members,
or at any special meeting when such statement is requested in writing by 5% or more of the total
voting power of the Association; keep adequate and correct books and records of account, minutes
of proceedings of its members, Board and committees, and a record of its members giving their
names and addresses and classes of membership.
7.1
i Water and Other Utilities. To acquire, provide and pay for water, sewer,
garbage disposal, refuse and rubbish collection, electrical, telephone, gas and other utility services
as necessary for the Common Area.
j. Granting of Easements. To grant easements where necessary for utilities
and sewer facilities over the Common Area to selVe the Common Area and the Lots.
Ie. Exercise of Easements. To exercise all easement rights as granted to it in
this Declaration for the purpose of performing the maintenance authorized herein or for any other
purpose reasonably related to the performance by the Association or the Board of their
responsibilities, the Association's agents or employees.
L Contracts. To contract for goods and/or selVices for the Common Area
facilities and interests or for the Association, subject to limitations elsewhere set forth in the
Project Documents.
m. Limit Number of Guests. To limit the number of an Owner's guests who
may use any facilities on the Common Area.
n. Title to Common Area. To accept title to the Common Area conveyed to
it by Declarant.
o. Acquisition of Property. To acquire (by gift, purchase or otherwise), own,
hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, dedicate for public use or
otherwise dispose of real or personal property in connection with the affairs of the Association.
p. Budgets. To prepare budgets and financial statements for the Association
as prescribed in this declaration.
q. Le.ial and Accountin&. To obtain and pay the cost of legal, accounting and
other professional services necessary or proper for the maintenance and operation of the Project
and the enforcement of the Project Documents.
r. Emergen~ R~air. To enter upon any privately owned Lot as necessary in
connection with construction, maintenance or emergency repair for the benefit of the common area
or the owners in common.
s. Election of the Board of Directors. To elect the members of the Board.
t. Filling Vacancies. To fill vacancies on the Board created by the removal of
a Board member.
7.02. Property Taxes and Assessments. Each Owner shall be obligated to pay any taxes
or assessments levied by the County Assessor against his Lot and personal property. To the extent
not assessed to or paid directly by the Owners, the Association shall pay all real and personal
property taxes and assessments levied upon any portion of the Common Area or other property
owned by the Association.
The Association shall prepare and file annual tax returns with the federal
government and the State of California and make such elections as may be necessary to reduce or
eliminate the tax liability of the Association.
7.03. Insurance. The Association shall maintain casualty, liability and other insurance
on behalf of the Association as required by the provisions of this Declaration.
7.2
7.04. Dischare-e of Liens. The Association shall discharge by payment, if necessary, any
lien against the Common Area, and assess the cost thereof to the Owners responsible for the
existence of said lien.
7.05. Payment of E'Q)enses. The Association shall pay all expenses and obligations
incurred by the Association in the conduct of its business including, without limitation, all licenses,
taxes or governmental charges levied or imposed against the Property of the Association.
7.06. Prohibited Acts. The Association, through its Board, shall be prohibited from
taking any of the following actions, except with the vote or written assent of a majority of the voting
power of the Association residing in members other than the Declarant:
a. Entering into a contract with a third person wherein the third person will
furnish goods or services for the Common Area or the Association for a term longer than one year
with the following exceptions:
(i) A management contract, the terms of which have been approved
in writing by the Federal Housing Administration or the Veterans Administration.
(ii) A contract with a public utility company if the rates charged for
the materials or services are regulated by the Public Utilities Commission; provided, however, that
the term of the contract shall not exceed the shortest term for which the supplier will contract at the
regulated rate;
(ill) Prepaid casualty and/or liability insurance policies of not to
exceed three years duration provided that the policy permits short rate cancellation by the insured.
(iv) Lease agreements for laundry room fixtures and equipment of
not to exceed five years duration provided that the lessor under the agreement is not an entity in
which the Declarant has a direct or indirect ownership interest of 10% or more.
(v) Agreements for cable television services and equipment or
satellite dish telephone services and equipment of not to exceed five years duration provided that
the supplier is not an entity in which the subdivider has a direct or indirect ownership interest of
10% or more.
(vi) Agreements for sale or lease of burglar alarm and fire alarm
equipment, installation and services of not to exceed five years duration provided that the supplier
or suppliers are not entities in which the subdivider has a direct or indirect ownership interest of
10% or more.
b. Incurring aggregate expenditures for capital improvements to the Common
Area in any fiscal year in excess of 5% of the budgeted gross expenses of the Association for that
fiscal year;
c. Selling during any fiscal year Property of the Association having an
aggregate fair market value greater than 5% of the budgeted gross expenses of the Association for
that fiscal year;
d. Paying compensation to members of the Board or to officers of the
Association for services performed in the conduct of the Association's business; provided, however,
that the Board may cause a member or officer to be reimbursed for expenses incurred in carrying
on the business of the Association.
73
e. Filling of a vacancy on the Board created by the removal of a Director.
7.07. Action ReQuirin~ Consent. The Board shall take the following actions only upon
obtaining consents of members as follows:
(1) The Consent of three-fourths of the voting power of the Association residing
in members other than the Declarant so long as the Declarant holds or directly controls at least
25% of the voting power of the Association, and after the Declarant no longer controls 25% or
more, the consent of two-thirds of the voting power of all members shall be necessary to do the
following:
(i) Borrow money, and only with the assent (by vote or written
consent) of three-fourths (3/4) of members, mortgage, pledge, deed in trust, or hypothecate any or
all of its real or personal property as security for money borrowed or debts incurred;
(ll) Dedicate, sell or transfer all of or any part of any interest it may
have in 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 no such dedication or
transfer shall be effective unless an instrument has been signed by two-thirds of the members
agreeing to such dedication, sale or transfer, and any sale of all or substantially all of the
corporation's assests must be in compliance with Section 7.07(2)(i) below.
(ill) Participate in mergers and consolidations with other nonprofit
corporations organized for the same purpose or annex additional residential property, provided
that any merger, consolidation or such annexation shall have the assent by vote of three-fourths
(3/4) of members or by the written consent of such members, excluding Declarant.
(2) The consent of 100% of the members shall be required so long as there is
any lot, parcel, area, apartment or unit for which the Association is obligated to provide
management, maintenance, preservation or control for the Association to do the following:
(i) Transfer all or substantially all of its assets; or
(ii) File a certificate of dissolution.
7.4
SECTION 8: ASSESSMENTS
8.01. Agreement to Pay: Personal Obligation. Declarant, and his successor in interest,
if any, for each Lot owned by it, and each Owner, by acceptance of a deed therefore, whether or not
it shall be so expressed in such deed, convenants and agrees to pay to the Association: (1) Regular
Annual Assessments and (2) Special Assessments for capital improvements or unusual expenses to
be established and collected as hereinafter provided (collectively "Assessments"), and (3) Individual
Charges levied against an individual owner, to be established and collected as provided in this
Declaration and in the other Project Documents.
All Assessments and Individual Charges, together with any late charges, interest,
collection costs and reasonable attorney's fees incurred in collecting delinquent Assessments and
Individual Charges, shall be the personal obligation of the Owner of such Lot at the time when the
Assessments or Individual Charges fell due. If more than one person or entity was the Owner of a
Lot at the time the Assessments or Individual Charges fell due, the personal obligation to pay each
Assessment and Individual Chaq~e shall be joint and several The personal obligation for
delinquent Assessments and IndiVIdual Charges shall not pass to any transferee unless expressly
assumed by him. No Owner may exempt himself from liability for his Assessments or Individual
Charges obligation by waiver of the use or enjoyment of any of the Project.
8.02. Puq)ose of Assessments. The assessments levied by the Association shall be used
exclusively for paying the costs of and creating reserves for the costs of all obligations which the
Association is authorized or obligated to perform as described in this Declaration.
8.03. Assessments of Vacant Lots. Notwithstanding the foregoing, Declarant and b:-fi
other Owner of a Lot which does not include a structural improvement for human occupancy s
be exempted from the payment of that portion of any Assessment which is for the purpose of
defraying expenses and reserves directly attnbutable to the existence and the use of the structural
improvement. The exemption shall include, but shall not necessarily be limited to:
(1
~;
(7
Roof replacement;
Exterior maintenance;
Walkway and parking area lighting;
Refuse disposal;
Cable television; and
Domestic water supplied to living units.
Landscape Maintenance by Association.
Any exemption from the payment of assessments shall be in effect only until the
earliest of the following events:
been recorded.
(1)
A Notice of Completion of the structural improvements has
(2) Occupation or use of the dwelling unit.
(3) Completion of all elements of the residential structures which
the Association is obliged to maintain.
8.04. Common Facility Assessment Exemption. The Declarant and any other owner of
a subdivision interest may be exempted from the payment of that portion of any assessment which
is for the purpose of defraying expenses and reserves directly attributable to the existence
8.1
and use of a common facility that is not complete at the time assessments commence. Any
exemption from the payment of assessments shall be in effect only until the earliest of the following
events.
recorded.
(1) A Notice of Completion of the common facility has been
(2) The common facility has been placed into use.
8.05. Regular Annual Assessments. The purpose of Regular Annual Assessments is to
defray expenses attributable to the ownership, operation and furnishing of common interests by the
Association.
Until January 1 of the year immediately following the first conveyance of a Lot to
an Owner, the Regular Annual Assessment for each Lot shall be prescribed by the Board.
Thereafter, the Board may not, without the vote or written assent of members constituting a
quorum, casting a majority of the votes at a meeting or election of the Association, impose a
Regular Annual Assessment per subdivision interest which is more than 20% greater than the
Regular Annual Assessment for the immediately preceding fiscal year; provided, however, that the
power of the Board shall not be limited with respect to Regular Assessment increases for the
following purposes:
a. Addressing emergency situations. For purposes of this section, an
emergency situation is anyone of the following:
(1) An extraordinary expense required by an order of a court.
(2) An extraordinary expense necessary to repair or maintain the
subdivided property or any part of it for which the Association is responsible where a threat to
personal safety on the property is discovered.
(3) An extraordinary expense necessary to repair or maintain the
subdivided property 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. However, prior to the imposition or collection of an assessment pursuant to this
paragraph, the Board shall pass a resolution containing written findings as to the necessity of the
extraordinary expense involved and why the expense was not or could not have been reasonably
foreseen in the budgeting process, and the resolution shall be distributed to the members with the
notice of assessment.
Regular assessments shall be payable in equal monthly installments, due on the
first day of each month, unless the Board adopts some other basis for collection.
8.06. Special Assessments. The Board may levy, in any assessment year, a special
assessment applicable to that year only, for the purpose of defraying, m whole or in part, the cost of
any construction, reconstruction, repair or replacement of a capital improvement upon the
Common Area, including fixtures and personal property related thereto, or for extraordinary
expenses incurred by the Association. H the special assessment exceeds in the aggregate 5% of
the budgeted gross expenses of the Association for that fIscal year, the vote or written consent of
members constituting a quorum, casting a majority of the votes at a meeting or election shall be
required to approve such assessment. In addition, the Board may not impose, without the
vote or written assent of a majority of members constituting a quorum, casting a majority of the
8.2
votes at a duly held meeting or election, a Special Assessment which in the aggregate exceeds 5% of
the budgeted gross expenses of the Association for that fiscal year; provided, however, the power of
the Board shall not be limited with respect to Special Assessments imposed for emergency
situations set forth above.
8.07. Quorum. For the purposes of establishing "Assessments" above, a quorum means
more than 50% of the members of the Association. In addition, any meeting or election of the
Association for purposes of complying with this Section and the Section entitled "Regular Annual
Assessments" shall be conducted in accordance with Chapter 5 (commencing with Section 7510) of
Part 3, Division 2 of Title 1 of the Corporations Code and Section 7613 of the Corporations Code.
8.08.
follows:
Individual Cha~es. Individual Charges may be levied against a Member as
a. As a monetary penalty imposed by the Association as a disciplinary measure
for the failure of a Member to comply with the Project Documents, or;
b. As a means of reimbursing the Association for costs incurred by the
Association for the repair of damage to Common Areas and facilities for which the Member was
responsible, or to otherwise bring the Member and his Lot into compliance with the Project
Documents. Such Individual Charges (other than reasonable late charges, interest, costs of
collection and reasonable attorneys' fees related to the collection of Assessments) are not
enforceable through the lien provisions of the Project Documents. All Individual Charges shall
comply with California Civil Code Section 1366(c) to the extent that it is applicable.
8.09. Equal Division of Regular and Special Assessments. Regular and Special
Assessments shall be levied against each Lot (and its Owner) equally, based on a fraction, the
numerator of which is one and the denominator of which is the total number of Lots in the Project.
8.10. Delinquent Assessments. Regular and Special Assessments levied pursuant to
this Declaration are delinquent 15 days after the date they become due.
8.11. Commencement of Assessments and Individual Charees. The right to levy
Assessments and Individual Charges shall commence as to all Lots on the close of escrow for the
first conveyance of a Lot in the Project. Regular Assessments shall commence as to all Lots on
the first day of the month following the first conveyance of a Lot under authoritY of a Public
Report. Thereafter, Regular Assessments shall be levied on the first day of each month.
8.12. Creation of the Assessment Lien. Each Assessment or installment, together with
any late charge, interest, collection costs and reasonable attorneys' fees, shall be a charge and a
continuing lien upon the Lot against which each Assessment is made, the lien to become effective
upon recordation of a Notice of Delinquent Assessment. All late charges, interest charges and
costs of collection shall comply with California Civil Code Section 1366(c) to the extent that it is
applicable.
8.3
SECflON 9: ENFORCEMENT OF RESTRICflONS
9.01. General. The Association or any Owner shall have the right to enforce
compliance with the Project Documents in any manner provided by law or in bringing an action for
damages, an action to enjoin the violation or to specifically enforce the provisions of the Project
Documents, to enforce the liens provided for herein (except that no Owner shall have the right to
enforce independently of the Association any Assessment, Individual Charge or Assessment lien
created herein) and any statutory lien provided by law, including the foreclosure of any such lien
and the appointment of a receiver for an Owner and the right to take possesssion of the Lot in the
manner provided by law. In the event the Association or any Owner shall employ an attorney to
enforce the provisions of the Project Documents against any Owner, the prevailing party shall be
entitled to reasonable attorneys' fees and costs in addition to any other amounts due as provided
for herein. All sums payable hereunder by an Owner shall bear interest at the maximum rate
permitted by law from the due date, or if advanced or incurred by the Association or any other
Owner pursuant to authorization contained in the Project Documents, commencing 15 days after
repayment is demanded. All enforcement powers of the Association shall be cumulative. Failure
by the Association or any Owner to enforce any covenant or restriction herein contained shall in no
event be deemed a waiver of the right to do so thereafter.
9.02. Specific Enforcement Rights. In amplification of, and not in limitation of, the
general rights specified in Section 9.01 above, the Association, or its authorized representative,
shall have the following rights:
a. Enforcement by Sanctions.
(1) Limitation. The Association shall have no power to cause a
forfeiture or abridgement of an Owner's right to the full use and enjoyment of his Lot on account of
a failure by the Owner to comply with provisions of the Project Documents except where the loss or
forfeiture is the result of the judgement of a court or a decision arising out of arbitration or on
account of a foreclosure or sale under a power of sale for failure of the Owner to pay Assessments
levied by the Association.
(2) Disciplinat:y Action. The Association may impose monetary
penalties, temporary suspensions of a reasonable duration (not to exceed 30 days per violation) of
an Owner's rights as a Member of the Association or other appropriate discipline for failure to
comply with the Project Documents. Notwithstanding the foregoing, the AssoCIation shall have no
right to interfere with an Owner's right of ingress to or egress from his Lot.
Before disciplinary action authorized under this Section may be
imposed by the Association, the Owner against whom such action is proposed to be taken shall be
given notice and the opportunity to be heard in accordance with Section 7341 or the Corporations
Code, as set forth in Section 12 of the Bylaws.
b. Suit to Collect Delinquent Assessments or Individual Char~es. A suit to
recover a money judgement for unpaid Assessments or unpaid Individual Charges, together with
late charges, interest, costs and reasonable attorneys' fees shall be maintainable by the Association.
In the case of upaid Assessments, such suit shall be maintainable without foreclosing or waiving the
lien securing such unpaid Assessments.
9.1
c. Enforcement of Lien. If there is a delinquency in the payment of any
Assessment or Assessment installment on a Lot, any amounts that are delinquent, together with the
late charges, costs of collection, reasonable attorneys' fees, and interest on all of the foregoing sums
(at the maximum rate permitted by law) shall be a lien against that Lot upon the recordation in the
office of the County Recorder of a Notice of Delinquent Assessment as provided in California Civil
Code Section 1367. Each Owner, including Declarant, hereby appoints the person or entity
designated by the Association as the "trustee" in the Notice of Delinquent Assessment, or such
substitute trustee as is designated pursuant to California Civil Code Section 2934( a), as his trustee,
and each Owner empowers such trustee to enforce the lien and to foreclose the lien by the private
power of sale provided in Section 1367( d) of the California Civil Code, as that statute may be
revised, amended or altered from time to time, or by judicial foreclosure. Each Owner further
grants to such trustee the power and authority to sell the Lot of any defaulting Owner to the highest
bidder to satisfy such lien. The Notice of Delinquent Assessment shall be signed by an authorized
representative of the Association and shall state the amount of the delinquent Assessment and
other sums imposed in accordance with California Civil Code Section 1367, a description of the Lot
assessed, the name of the record Owner( s), and the name and address of the trustee authorized by
the Association to enforce the lien.
The Notice of Delinquent Assessment shall not be recorded unless and until
the Board or its authorized representative has delivered to the delinquent Owner, not less than 15
days before the recordation of the Notice of Delinquent Assessment, a written demand for
payment, and unless the delinquency has not been cured within said 15 day period.
Not more than one year (two years if extended) nor less than 15 days after
the recording of the Notice of Delinquent Assessment, the Board or its authorized representative
may record a notice of default and may cause the Lot with respect to which a notice of default has
been recorded to be sold in the same manner as a sale is conducted under California Civil Code
Sections 2924-2924h, or through judicial foreclosure. However, as a condition precedent to the
holding of any such sale under Section 2924-2924h appropriate publication shall be made. In
connection with any sale under Section 2924-2924h, the Board is authorized to appoint its attorney,
any officer or director, or any title insurance company authorized to do business in California as
trustee for purposes of conducting the sale. H a delinquency including Assessments and other
proper charges is cured after recordation of the Notice of Delinquent Assessment but before sale,
or before completing a judicial foreclosure, the Board or its authorized representative shall cause to
be recorded in the office of the County Recorder a certificate setting forth the satisfaction of such
claim and release of such lien. The Association, acting on behalf of the Owner, shall have the
power to bid upon the Lot at foreclosure sale and to acquire, hold, lease, mortgage and convey the
Lot.
d. Transfer by Sale or Foreclosure. In a sale or transfer of a Lot, the personal
obligation for delinquent Assessments or Individual Charges shall not pass to the Transferee unless
expressly assumed by him. The sale or transfer of any Lot shall not affect the Assessment lien, nor
the right of the Association to impose a lien for Assessments which became due prior to such sale
or transfer. However, the sale or transfer of any Lot pursuant to the exercise of a power of sale or
judicial foreclosure involving a default under a First Mortgage shall extinguish the lien and right to
lien for Assessments which became due prior to such sale or transfer. No transfer of the Lot as
the result of a foreclosure or exercise of a power of sale shall relieve the new Owner, whether it be
the former beneficiary of the First Mortgage or another person, from liability for any Assessments
or Individual Charges thereafter becoming due or from the lien thereof.
9.2
e. Waiver of Homestead Benefits. Each Owner to the extent permitted by
law, waives, to the extent of any liens created pursuant to the Project DOcuments, the benefit of any
homestead or exemption laws of California in effect at the time any Assessment becomes due.
9.3
SECTION 10: BUDGETS. FINANCIAL STATEMENTS AND BANK ACCOUNTS
10.01. Proposed Bud~et. Not less than 75 days before the beginning of each fiscal year,
the Board shall prepare or cause to be prepared, a proposed pro forma budget for the forthcoming
fiscal year. Any Owner or Mortgagee may make written comments to the Board with respect to
said pro forma operating statement The pro forma operating statement shall be prepared
consistently with the prior fiscal year's operating statement and shall include adequate reselVes for
contingencies and for maintenance, repair and replacement of the Common Area improvements,
Lots and Association personal property likely to need maintenance, repair or replacement in the
future.
10.02. Adopt Budget. Not more than 75 days nor less than 60 days before the beginning
of each fiscal year, the Board shall meet to review the proposed pro forma budget, any written
comments received and any other information available to it and, after making any adjustments
that the Board deems appropriate, shall adopt the budget and establish the Regular Assessment for
the forthcoming fiscal year.
10.03. Budgets. Financial Statements. The following financial and related information
shall be regularly prepared and distnbuted by the Board to all members of the Association:
a. Budget. A budget for each fiscal year consisting of at least the following
information shall be distributed not less than 45 days and not more than 60 days prior to the
beginning of the fiscal year:
basis;
(1) Estimated revenue and expenses of the Association on an accrual
currently set aside;
(2) The identification of the total cash reserves of the Association
(3) An estimate of the current replacement costs of the estimated
remaining life, and the methods of funding used to defray the costs of future repair, replacement or
additions to those major components for which the Association is obligated to maintain; and
(4) A general statement addressing the procedures used for the
calculation and establishment of those reserves to defray the future repair, replacement, or
additions to those major components that the Association is obligated to maintain.
b. Balance Sheet. A balance sheet as of an accounting date which is the last
day of the month closest in time in six months from the date of closing of the first sale of a Lot in
the Project, and an operating statement for the period from the date of the first closin~ to the said
accounting date, shall be distributed within 60 days after the accounting date. TIus operating
statement shall include a schedule of assessments received and receivable identified by the Lot
number and the name of the entity assessed;
c. R~ort. A report consisting of the following shall be distributed within 120
days after the close of the fiscal year:
(i) A balance sheet as of the last day of the fIscal year.
(ii) An operating (income) statement for the fiscal year.
10.1
(ill) A statment of any changes in fmancial position for the fiscal year.
For any fiscal year in which the gross income to the Association exceeds
$75,000, a review of the annual report prepared in accordance with generally accepted accounting
principles by a licensee of the California State Board of Accountancy.
If the report referred to above is not prepared by an independent
accountant, it shall be accompanied by the certificate of an authorized officer of the Association
that the statement was prepared from the books and records of the Association without
independent audit or review.
In lieu of the report referred to above, the Board of Directors may elect to
deliver a summary of the report to all members with a notice (lO-point bold type) that the report is
available at a location within the subdivision's boundaries. The association must mail a copy of
the report to members requesting same at the expense of the association.
d. Statement of Enforcement Policies. In addition to financial statements, the
Board shall annually distribute within 60 days prior to the beginning of the fiscal year, a statement
of the Association's policies and practices in enforcing its remedies against members for defaults in
the payment of regular and special assessments including the recording and foreclosing of liens
against members' Lots.
10.04. Bank Accounts. The Association shall deposit all funds collected from Owners
pursuant to the Section herein entitled "Assessments" and all other amounts collected by the
Association as follows:
a. General. All funds shall be deposited in a separate bank account ("General
Account") with a bank located in California. The Association shall keep accurate books and
records regarding such account. Funds deposited in such account may be used by the Association
only for the purposes for which such funds have been collected.
b. Reserve. Funds which the Association shall collect for reserves for capital
expenditures relating to the repair and maintenance of the Lots and Common Area, and for such
other contingencies as are required for good business practice shall, within 10 days after deposit in
the General Account, be deposited into an interest bearing account with a bank or savings and loan
association selected by the Association, or invested in Treasury Bills or Certificates of Deposit or
otherwise prudently invested, which shall collectively be referred to as the "Reserve Account".
Funds deposited into the Reserve Account shall be held in trust and may be used by the Association
only for the purposes for which such amounts have been collected.
10.2
SECTION 11: INSPECTION OF BOOKS AND RECORDS
11.01. Inspection by Members. The membership register (including names, addresses
and telephone numbers), books of account and minutes of meetings of the members, of the Board
and of committees of the Board shall be made available for inspection and copying by any member
of the Association, or by his duly appointed representative, at any reasonable time and for a
purpose reasonably related to his mterest as a member, at the office of the Association or at such
other place within the Project as the Board shall prescribe.
11.02. Rules for Inspection by Members. The Board shall establish reasonable rules
with respect to:
a. Notice to be given to the custodian of the records by the member desiring to
make the inspection;
b. Hours and days of the week when such an inspection may be made;
c. Payment of the costs of reproducing copies of documents requested by a
member.
11.03. In~ection by Directors. Every Director shall have the absolute right at any
reasonable time to inspect all books, records, and documents of the Association and the physical
properties owned or controlled by the Association. The right of inspection by a Director mcludes
the right to make extracts and copies of documents.
11.04. Review of Financial Records. The Board shall review on at least a quarterly basis
a current reconciliation of the Association's operating and reserve accounts, the current year's
actual reserve revenues and expenses compared to the current year's budget and an income and
expense statement for the Association's operating and reserve accounts. In addition, the Board
shall review the latest account statements prepared by the financial institutions where the
Association has its operating and reserve accounts. For purposes herein, "reserve accounts" shall
mean monies that the Association's Board has identified from its annual budget for use to defray
the future repair or replacement of, or additions to, those major components which the Association
is obligated to maintain.
11.05. Reserve Account Withdrawal Restrictions. The Board shall require that at least
two (2) signatures be needed for the withdrawal of monies from the Association's reserve accounts,
who either shall be members of the Board or one (1) member ofthe Board and one (1) officer who
is not a member of the Board.
11.1
SECTION 12. INSURANCE DESTRUCTION. CONDEMNATION
12.01. Insurance. In addition to other insurance required to be maintained by the
Project Documents, the Association, through its Board, shall obtain from generally accepted
insurance carriers, and maintain in effect at all times, the following insurance at common expense:
a. Liability Insurance. The Association shall obtain and maintain
comprehensive public liability insurance insuring the Association and each Owner against any
liability incident to the ownership, use or maintenance of the Common Area, maintenance of the
Lots and other maintenance obligations, including, if obtainable, a cross-liability or severability of
interest endorsement insuring each insured against liability to each other insured. The limits of
such insurance shall not be less than $1,000.000 covering all claims for death, personal injury and
property damage arising out of a single occurrence. Such insurance may include protection
against water damage liability, liability for nonowned and hired automobiles, liability for property
of others, and such other risks as are customarily covered with respect to projects similar in
construction, location and use. Such policy may provide for a reasonable deductible.
b. Fire. Casualty and Extended Coverage Insurance. The Association shall
also obtain and maintain a policy of fire, casualty and extended coverage insurance for the full
insurable replacement value (without deduction for depreciation) of all of the improvements within
the Project (including the Common Area and all Lots). Such policy may provide for a reasonable
deductible. The form, content, term of policy, its endorsements and the issuing company shall
meet the reasonable standards of all First Mortgagees and shall be consistent with good sound
insurance coverage for properties similar in construction, location and use. The policy shall name
as insured the AssociatlOn for the benefit of the Owners and Declarant, as long as Declarant is the
Owner of any Lot, and all Mortgagees as their respective interests shall appear, and may contain a
loss payable endorsement in favor of any trustee described below.
c. Individual Fire Insurance Limited. Except as provided in this Section, no
Owner shall separately insure his Lot against loss by fire or other casualty covered by any insurance
carried under Section 12.01(b). If any Owner violates this provision, any diminution in insurance
proceeds otherwise payable under policies described above that results from the existence of such
other insurance shall be chargeable to the Owner who acquired other insurance, and such Owner
shall be liable to the Association to the extent of any such diminution. An Owner may insure his
personal property against loss. In addition, any improvements made by an Owner to his Lot may
be separately insured by the Owner, but the insurance is to be limited to the nature of coverage
commonly known as "tenant's improvements". All such insurance that is individually carried must
contain a waiver of subrogation rIghts by the carrier as to other Owners, the Association, Declarant
and the First Mortgagee of such Lot.
d. Trustee. All fire, casualty and extended coverage insurance proceeds
payable under Section 12.01(b) above for losses to real property and improvements may be paid to
a trustee, to be held and expended for the benefit of the Owners, Mortgagees, and others, as their
respective interests shall appear. Said trustee shall be a commercial bank, savings and loan or
trust company in the county in which the Project is located that agrees in writing to accept such
trust.
e. Other Insurance. The Board shall purchase and maintain worker's
compensation insurance, to the extent that it is required by law, for all employees or uninsured
contractors of the Association. The Board also shall purchase and maintain fidelity bonds or
insurance (which shall be in an amount not less than 150% of each year's estimated annual
12.1
operating expenses and reselVes and shall contain an endorsement of Coverage of any person who
may selVe without compensation) sufficient to meet the requirements of any First Mortgagee.
The Board shall also purchase and maintain insurance on personal property owned by the
Association, and any other insurance that it deems necessary, that is required by any First
Mortgagee or that is customarily obtained for projects similar in construction, location and use.
f. Aq;ustment of Losses. The Board is appointed attorney-in-fact by each
Owner to negotiate and agree on the value and extent of any loss under any policy carried pursuant
to Sections 12.01(a)(b) and (e). The Board is granted full ri~t and authority to compromise and
settle any claim or enforce any claim by legal action or otheIWlSe and to execute releases in favor of
any insurer.
g. Officer and Director Insurance. The Association may purchase and
maintain insurance on behalf of any Director, Officer, or member of a committee of the
Association (collectively the "agents") against any liability asserted against or incurred by the agent
in such capacity or arising out of the agent's status as such, whether or not the Association would
have the power to indemnify the agent against such liability under applicable law.
h. Waiver of Subrogation. All insurance carried by the Association, or the
Owners, shall contain provisions whereby the insurer waives rights of subrogation as to the
Association, Directors, Officers, Declarant, Owners, occupants of Lots, their family, guests, agents
and employees.
i Notice of Cancellation. All insurance carried by the Association shall
require the insurer to notify any First Mortgagee requesting such notice at least 15 days prior to the
effective date of any reduction or cancellation of the policy.
j. Annual Review of Policies. All insurance policies shall be reviewed at least
annually by the Board in order to ascertain whether the coverage contained in the policies is
adequate.
k. Payment of Premiums. Premiums on insurance maintained by the
Association shall be a common expense funded by Assessments levied by the Association.
12.02.
Destruction.
a. Minor Destruction Affectin~ Common Area. Notwithstandin~ Section
12.02(b), the Board shall have the duty to repair and reconstruct the Common Area WIthout the
consent of Members and irrespective of the amount of available insurance proceeds or other funds,
in all instances of partial destruction where the estimated cost of repair and reconstruction does not
exceed 5% of the budgeted gross expenses of the Association for that fiscal year. The Board may
levy a Special Assessment for the cost of such repair and reconstruction to the extent insurance
proceeds or other funds are unavailable.
b. Major Destruction Affectin~ Common Area.
(i) Destruction: Proceeds Exceed 85% of Reconstruction Costs. If
there is a total or partial destruction of the Common Area, and if the available proceeds of the
insurance carried pursuant to Section 12.01 or other available funds are sufficient to cover not less
than 85% of the costs of repair and reconstruction, the Common Area shall be promptly rebuilt
unless, within 90 days from the date of destruction, Members then holding at least 75% of the
voting power of each class determine that repair and reconstruction shall not take place.
12.2
(ii) Destruction: Proceeds Less than 85% of Reconstruction Costs. If
the proceeds of insurance carried pursuant to Section 12.01 or other available funds are less than
85% of the costs of repair and reconstruction, repair and reconstruction shall not take place unless,
within 90 days from the date of destruction, Members then holding at least a majority of the voting
power of Members of each class determine that repair and reconstruction shall take place. If
repair and reconstruction is to take place, the Board shall execute, acknowledge and record in the
office of the County Recorder not later than 120 days from the date of destruction a certificate
declaring the intention of the Members to rebuild.
(ill) Special Assessment to Rebuild. If the determination is made to
rebuild pursuant to the above Sections, the Association may levy a Special Assessment against all
Lot Owners to cover the cost of rebuilding not covered by insurance proceeds or other funds.
(iv) Rebuilding Contract. If the determination is made to rebuild, the
Board shall obtain bids from at least 3 reputable contractors, and shall award the repair and
reconstruction work to the most reasonable bidder. The Board shall have the authority to enter
into a written contract with the contractor for the repair and reconstruction, and the insurance
proceeds shall be disbursed to said contractor according to the terms of the contract. It shall be
the obligation of the Board to take all steps necessary to assure the commencement and completion
of authorized repair and reconstruction at the earliest possible date.
(v) Rebuilding Not Authorized. If the determination is made not to
rebuild, then any insurance proceeds and any other funds held for rebuilding of the Common Area
shall, subject to Corporations Code Section 8724, be distributed among the Lots on the same basis
as their Regular Assessment obligation, and between the Lot Owner and his Mortgagee( s) as their
interests shall appear.
c. Destruction Affecting Lots
(i) Duty to Rebuild. If there is a total or partial destruction of a Lot,
the affected Lot shall be promptly rebuilt by the Association unless the Association is relieved of
the obligation to rebuild by the approval of Members holding at least 75% of the voting power of
the Members of each class, including all Owners of Lots within the attached group of Lots
(connected by Party Walls) and including the affected Lot.
(ii) Rebuilding Procedure. All insurance proceeds will be paid to the
Board as trustee or to any insurance trustee provided for in Section 12.01(d), or be held for the
benefit of the Owner and Mortgagee(s) of the affected Lot as their interests shall appear.
If the Lot is to be rebuilt, the Board may levy a Special Assessment against all Lot
Owners to cover the cost of rebuilding not covered by insurance proceeds or other funds.
The Lot shall be rebuilt or repaired in substanial conformity to the exterior
appearance, design and structural integrity of the Lot prior to the date of destruction.
Notwithstanding the foregoing, any Owner of an affected Lot may apply to the Board for
reconstruction of his Lot in a manner which will provide for an exterior appearance and/or design
which is different from that which existed prior to the date of the destruction. Application for
such approval shall be made in writing, together with full and complete plans, specifications, maps
and working drawings showing the proposed reconstruction and the end result thereof. The Board
shall grant such approval only if it finds that the reconstructed Lot will be compatible in exterior
appearance and/or design with the other Lots in the Project, provides the structural support
required to fulfill the Owners party wall and roof support obligations and will not impose an
unreasonable maintenance burden on the Association. Failure of the Board to approve or reject
any such proposed change within 60 days after the date of submission thereof shall be conclusively
12.3
deemed an approval thereof. If the Board approves such proposed change, the Owner, within 15
days thereafter, shall deposit with the Association, or any insurance trustee, cash or other
acceptable security in an amount sufficient to pay the difference between the cost of rebuilding the
Lot as it was prior to destruction and the cost of rebuilding it as proposed.
When the amount held by the Association or insurance trustee is sufficient to pay
the costs of repair and reconstruction, the Board shall obtain bids from at least three reputable
contractors, and shall award the repair and reconstruction work to the most reasonable bidder.
The Board shall have the authority to enter into a written contract with the contractor for the repair
and reconstruction, and the insurance proceeds held by the trustee shall be disbursed to said
contractor according to the terms of the contract. It shall be the obligation of the Board to take all
steps necessary to assure the commencement and completion of the authorized reconstruction at
the earliest possible date.
(ill) Lot Not to be Rebuilt. If the determination is made not to rebuild
a Lot (subject to any agreement among the Owner and Mortgagee(s) of the affected Lot, the
Association and other Owners of Lots relieving the Association from the obligation to rebuild it),
the insurance proceeds and other funds held for rebuilding the Lot, together with any portion of the
reserve funds of the Association reserved for the Lot, shall be distributed to the Owner of the
affected Lot and his Mortgagee(s) as their interests shall appear.
12.03. Condemnation.
a. Condemnation Affectin~ Common Area
(i) Sale in Lieu. If an action for condemnation of all or a portion of
the Common Area is proposed or threatened by an entity havin~ the right to eminent domain, then
on the unanimous written consent of all of the Owners and subject to the rights of all Mortgagees,
the Common Area, or a portion of it, may be sold by the Board. Subject to Corporations Code
Section 8724, the proceeds of the sale shall be distributed among the Lots on the same basis as their
Regular Assessment obligations and between the Lot Owners and their Mortgagees as their
respective interests shall appear.
(ii) Award. If the Common Area, or a portion of it, is not sold, but is
instead taken, the judgment of condemnation shall by its terms apportion the award among the
Owners and their respective Mortgagees. If the judgment of condemnation does not apportion
the award, then the award shall be distributed as provided above.
b. Condemnation Affectin~ Lots. If an action for condemnation of all or a
portion of, or othelWise affecting a Lot is proposed or threatened, the Owner and the Mortgagees
of the affected Lot, as their respective interests shall appear, shall be entitled to the proceeds of any
sale or award relating to the affected Lot.
If any Lot is rendered irreparably uninhabitable as a result of such a taking,
the Lot shall be deemed deleted from the Project and the Owners and Mortgagees of the affected
Lot, upon receiving the award and any portion of the reserve funds of the Association reserved for
the Lot, shall be released from the applicability of the Project Documents and deemed divested of
any interest in the Common Area.
12.4
SECTION 13: MORTGAGEE PROTECTIONS
13.01.
Mortir<\ges Permitted. Any Owner may encumber his Lot with Mortgages.
13.02. Priority of Mortir<\ge. Notwithstanding any other provision of this Declaration, it
is hereby provided that a breach of any of the conditions contained in the Project Documents by
any Owner or of any re-entry by reason of such breach, shall not defeat or render invalid the lien of
any mortgage or deed of trust made in good faith and for value as to said Lot or any part thereof.
Any lien which the Association may have on any Lot in the Project for the payment of common
expense assessments attributable to such Lot will be subordinate to the lien or equivalent security
interest of any first mortgage on the Lot recorded prior to the date any such common expense
assessments became due.
13.03. Payment of Taxes or Premiums by Mortgagees. Mortgagees may, jointly or
singly, pay taxes or other charges which are in default and which mayor have become a charge
against the Common Area, unless such taxes or charges are separately assessed against the Owners,
in which case the rights of Mortgagees shall be governed by the provisions of their Mortgages.
Mortgagees may, jointly or singly, also pay overdue premiums on hazard insurance policies, or
secure new hazard insurance coverage on the lapse of a policy for the Common Area and
Mortgagees making such payments shall be owed lIlUIlediate reimbursement therefore from the
Association. Entitlement to such reimbursement shall be reflected in an agreement in favor of
any Mortgagee which requests the same to be executed by the Association.
13.04. Effect of Breach. No breach of any provision of this Declaration shall invalidate
the lien of any Mortgage made in good faith and for value, but all of the covenants, conditions and
restrictions shall be binding on any Owner whose title is derived through foreclosure sale, trustee's
sale, or otherwise.
13.05. Mortga~ees's Rights. A First Mortgagee's rights shall include, but not be limited
to, the following:
a. Attend Meetinf:S. An,,! First Mortgagee, upon written request, shall receive
written notice of all meetings of the Association and be permitted to designate a representative to
attend all such meetings.
b. Furnish Information. Any Mortgagee may furnish information to the
Board concerning the status of any Mortgage.
c. Inspect Books and Records. The Association shall make available to
Owners, prospective purchasers and First Mortgagees current copies of the Project Documents and
the books, records and financial statements of the Association. "Available" means available for
inspection, upon request, during normal business hours.
In addition, if the project contains 50 or more lots, the Association must
provide an audited financial statement for the immediately preceding fiscal year if the First
Mortgagee submits a written re9uest for it. Said financial statement shall be furnished by the
Association within a reasonable time following such request. If the project contains fewer than 50
lots and there is no audited financial statement available, any First Mortgagee should be allowed to
have an audited financial statement prepared at its own expense.
13.1
13.06. No Restrictions on Owner's Right to Ingress and Egress. There shall be no
restriction upon any Owner's right to ingress and egress to his Lot, which right shall be perpetual
and appurtenant to his Lot ownership.
13.07. Notices of Mort~agees. Upon written request to the Association, any First
Mortgagee shall be entitled to timely written notice of the following:
a. Any proposed amendment to the Project Documents effecting a change in:
(i) The boundaries of any Lot or the exclusive use rights appurtenant
thereto, if any;
(ii) The interests in the general or exclusive use Common Areas, if any,
appurtenant to any Lot or the liability for common expenses appurtenant thereto;
(ill) The number of votes in the Association appurtenant to any Lot; or
(iv) The purposes to which any Lot or the Common Area are restricted.
b. Any proposed termination of the legal status of the Project as a planned
development.
c. Any condemnation or casualty loss which affects either a material portion of
the Project or any Lot on which there is a First Mortgage held, insured or guaranteed by such
requesting party.
d. Any 60-day delinquency in the payment of Assessments or Individual
Charges owed by an Owner subject to a First Mortgage held, insured or guaranteed by such
requesting party.
e. Any default in the performance by the affected Owner of any obligation
under the Project Documents which is not cured within 60 days.
f. Any lapse, cancellation or material modification of any insurance policy or
fidelity bond maintained by the Association.
g. Any proposed action which requires the consent of a specified percentage of
First Mortgagees as specified in Section 13.08.
13.08. FNMA. FHLMC. FHA. VA Mortgages.
a. Conditions When This Section Applicable. The provisions of this Section
13.08 shall apply if any of the following conditions exist pertaining to First Mortgages on any of the
Lots:
("VA") mortgage.
(1) Any First Mortgage is sold or transferred to FNMA;
(2) Any First Mortgage is sold or transferred to Flll..MC; or
(3) Any First Mortgage is FHA insured or a Veterans Administration
13.2
b. Approval of Material Amendments. The approval of 67% of the total
voting power of the Association and 51 % or more of the Eligible First Mortgagees (based upon one
vote for each first mortgage owned) must be obtained for amendments of a material nature to the
Project Documents. A change to any of the following would be considered as material:
(1) Voting rights;
(2) Assessments, assessment liens, or subordination of assessment liens;
(3) Reserves for maintenance, repair and replacement of common areas
or any other portions of the Project which the Association has a duty to maintain, repair and
replace.
(4) Responsibility for maintenance and repairs;
(5) Reallocation of interests in the general or exclusiye use common
areas, if any, or rights to their use;
~6) Boundaries of any Lot;
7 Convertibility of Lots into common areas or vice-versa;
8~ Expansion or contraction of the Project or the addition, annexation or
withdrawal of property to or from the Project;
(9] Insurance or fidelity bonds;
(10 Leasing of Lots;
(11 Imposition of any right of first refusal or similar restriction on a Lot
Owner's right to sell, transfer or convey his Lot;
(12) A decision by the Owner's Association to establish self management
when professional management has been required previously by a First Mortgagee;
(13) Restoration or repair of the Project (after a hazard damage or partial
condemnation) in a manner other than that specified in the Project Documents;
(14) Any action to terminate the legal status of the Project after substantial
destruction or condemnation occurs; or
(15) Any provisions that expressly benefit First Mortgagees, insurers or
guarantors.
An addition or amendment to the Project Documents shall not be considered material if it is
for the purpose of correcting technical errors, or for clarification only.
If an addition or amendment is not considered as a material change, approval will be implied
when a First Mortgagee fails to submit a response to any written proposal for an amendment within
30 days after the proposal is submitted.
c. Termination of Le~l Status. Except as provided above, any election to
terminate the legal status of the Project as a planned development must be approved by at least
67% of the voting power of the Association and 67% of the Eligible First Mortgagees based upon
one vote for each First Mortgage owned.
d. Reallocation of Interests in the Common Area. No reallocation of
interests in the Common Area resulting from a partial condemnation or partial destruction of the
Project shall be effected without the approval of 51 % of the Eligible First Mortgagees based upon
one vote for each First Mortgage owned.
e. Restriction on Certain Chan&es. Unless at least 66-2/3% of the First
Mortgagees (based on one vote for each First Mortgage owned) or 66-2/3% of the Owners other
than Declarant have given their prior written approval, the Association shall not:
13.3
(1) By act or omission seek to abandon, partition, subdivide, encumber,
sell or transfer the Common Area (the granting of easements for public utilities or for other public
purposes consistent with the intended use of such Common Area by the Association shall not be
deemed a transfer within the meaning of this clause); or
(2) Change the method of determining the Assessments, or other charges
which may be levied against a Lot Owner; or
(3) By act or omission change, waiver 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 any Common Area party
walls or common fences and driveways, or the upkeep of lawns and plantings in the Project; or
(4) Fail to maintain fire and extended coverage on insurable Common
Area and other portions of the Project which the Association has a duty to insure on a current
replacement cost basis in an amount not less than 100% of the insurable value (based on current
replacement cost); or
(5) Use hazard insurance proceeds for losses to any Common Area or
other Project improvements for other than the repair, replacement or reconstruction of such
Common Area or improvements.
f. No Right of First Refusal. The right of an Owner to sell, transfer or
otherwise convey his Lot shall not be subject to any "right of first refusal" or similar restriction.
g. Foreclosure Eliminates Unpaid Assessments. Each holder of a first
mortgage lien on a Lot who comes into possession of the Lot by virtue of foreclosure of the
mortgage or any purchaser at a foreclosure sale, will take the Lot free of any claims for unpaid
Assessments and charges against the Lot which accrue prior to the time such holder comes into
possession of the Lot, except for claims for a pro rata share of such Assessments or char~es
resulting from a pro rata reallocation of such Assessments or charges of all Project Lots, including
the mortgaged Lot.
h. Mort~a~e Priority in Case of Distribution. No provision in any Project
Document will entitle a Lot Owner or other party to priority over any rights of the First Mortgagee
on the Lot pursuant to its Mortgage in the case of a distribution to such Lot Owner of insurance
proceeds or condemnation awards for losses to or a taking of the Lot and/or Common Area.
L Leasin~ Restrictions. No Owner shall be permitted to lease his Lot for
transient or hotel purposes. No Owner may lease less than the entire Lot. Any lease or rental
agreement must be in writing and be subject to the provisions of the Project Documents. No Lot
may be leased or rented for less than 30 days.
j. Taxes Relate Only to Individual Lots. All taxes, assessments and charges
which may become liens prior to the first mortgage under local law shall relate only to the
individual Lots and not to the Project as a whole.
13.09. FHA IV A Approval. During any period of time that a mortgage on any portion of
the Project is held, insured or guaranteed by FHA or VA. and as long as there is a Class B
Membership, the following actions shall require the prior approval of FHA or VA: amendment of
the Project Documents, annexation of additional property, dedication or mortgaging of the
Common Area, merger or consolidation of the Association with another corporation.
13.4
13.10. Additional FHA Provisions. Should the Declarant desire that loans secured by
mortgages encumbering Lots within the development qualify for mortgage insurance by FHA, the
following shall apply:
All Owners, tenants and occupants of Lots in the development covenant and
agree that the administration of the development shall be in accordance with the terms and
provisions of the Regulatory Agreement (FHA Form No. 3278) executed by FHA and the
Association and that such terms and provisions of said Regulatory Agreement shall be fully
complied with.
To the extent any matters in this Delcaration or in the Articles or the Bylaws are
in any way inconsistent with any matters in said Regulatory Agreement, then any such inconsistent
matters in said Regulatory Agreement shall prevail. The right to lease Lots in the development
shall be subject to all terms and provisions of said Regulatory Agreement.
In the event of any conflict between any of the provisions of this Section and any
other provisions of this Declaration, the provisions of this Section shall control
Any provision of this Delcaration which confers a power or right upon the FHA
or the Federal Housing Commissioner and all of the provisions of the Regulatory Agreement shall
be inapplicable whenever there are lli2 lots where FHA insures the mortgage held by any First
Mortgagee.
Whenever a notice is required to be sent to a Mortgagee holding an FHA insured
mortgage or the approval of FHA is r~uired, the notice or the request for approval shall be sent to
the supervisor of the FHA office in which the project is located. H FHA does not respond within
20 days after the notice is mailed or delivered, then FHA shall be deemed to have approved the
request.
13.11. Compliance with FHANA. FHLMC or FNMA Requirements. Declarant
intends that the Project shall comply with all of the requirements of the Federal Housing
Administration ("FHA"), the Veterans Administration ("VA"), the Federal Home Loan Mortgage
Corporation ("FHLMC') and the Federal National Mortgage Association ("FNMA "). All casualty
and liability insurance covering any portion of the Project encumbered by a Mortgage insured by
FHA, guaranteed by V ^ or held by FHLMC or FNMA, shall therefore conform to the applicable
FHA/V ^ FHLMC or FNMA requirements. Declarant and all Lot Owners also agree that in the
event the Project or the Project Documents do not comply with the applicable FHA/V ^ Flll..MC
or FNMA requirements, the Board and each Owner shall take any action or adopt any resolutions
required by Delcarant or any First Mortgagee to conform such Project Documents, or the Project,
to the FHA/V ^ FHLMC or FNMA requirements, subject to the review and approval of the
California Department of Real Estate, in accordance with applicable law, so long as the
Department of Real Estate retains jurisdiction.
13.12. Waivers. A Mortgagee may waive any requirement contained in this Declaration
as they pertain to such Mortgagee, provided such waiver shall be in writing.
13.13. Conflicts. In the event of a conflict between any of the provisions of this Section
13 and any other provisions of this Declaration, the provisions of this Section 13 shall control
13.5
SECTION 14: ENFORCEMENT OF BONDED OBLIGATIONS
If any Common Area improvements in the Project have not been completed prior to the
issuance of the Final Public Report and the Association is obligee under a bond or other
arrangement ("Bond") to secure performance of the commitment of Declarant to complete such
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 60 days after the completion date specified for that
improvement in the Planned Construction Statement appended to the Bond. If the Association
has given an extension in writing for the completion of any Common Area improvement, the Board
shall consider and vote on the aforesaid question if a Notice of Completion has not been filed
within 30 days after the expiration of the extension.
A special meeting of Members for the purpose of voting to override a decision by the Board
not to inItiate action to enforce the obligations under the Bond or on the failure of the Board to
consider and vote on the question, shall be held not less than 35 days nor more than 45 days after
receipt by the Board of a petition for such meeting signed by Members representing 5% or more of
the total voting power of the Association. At such special meeting, a vote of a majority of the
voting power of the Association residing in Members other than Declarant to take action to enforce
the obligations under the Bond shall be deemed to be the decision of the Association and the Board
shall thereafter implement this decision by initiating and pursuing appropriate action in the name
of the Association.
14.1
SECTION 15: AMENDMENTS
15.01. Prior to First Conveyance. Prior to close of escrow on the sale of the first Lot,
Declarant may amend or revoke this Declaration subject to the requirements of Business and
Professions Code Section 11012 and 11018.7.
15.02. After First Conv~ance. After sale of the first Lot, this Declaration may be
amended or revoked only by the affirmative vote (in person or by proxy) or written consent of
Members representing a majority of the voting power of each class of Members of the Association.
If only one class of membership exists at the time an amendment is proposed, then it must be
approved by at least a bare majority of the total voting power of the Assosciation, which shall
include at least a bare majority of the votes of Members other than Declarant. The percentage of
the voting power necessary to amend a specific clause or provision of this Declaration shall not be
less than the prescribed percentage of affirmative votes required for action to be taken under that
clause or provision.
15.03. Recordation. Any amendment must be recorded and shall become effective only
upon being recorded in the County Recorder's Office.
15.04. Unanimous Consent for Specific Amendments. The consent of all Owners shall
be required for any amendment of Project Documents effecting a change in
(1) the boundaries of any Lot;
(2) the undivided interest in the common elements pertaining to the Lot or the
liability for Common Expenses appertaining thereto;
(3) the number of votes in the Owners Association appertaining to the Lot; or
(4) the fundamental purposes to which any Lot or the common elements are
restricted.
15.05. FHA ReqJlirements. Notwithstanding any provision of this Section to the
contrary, all requirements of Section 13.09 entitled "FHA/VA Approval" must be met in order to
effectuate any amendment or revocation pursuant to this Section.
15.1
SECTION 16: GENERAL PROVISIONS
16.01. Thrm. The covenants and restrictions of this Declaration shall run with and bind
the Property, and shall inure to the benefit of and be binding on the Association and the Owners of
any Lots, their legal representatives, heirs, grantees, tenants, successors and assigns, subject to this
Declaration, for a term of 30 years from the date this Declaration is recorded. Thereafter, they
shall be automatically extended for successive periods of 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 10 years, agreeing to change said covenants and
restrictions in whole or in part, or to terminate the same.
16.02. Owner's 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 Project Documents 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 to recover sums due, for damages, for injunctive relief, or
to enforce such provisions, decisions or resolutions.
All agreements and determinations lawfully made by the Association in
accordance with the voting percentages established in the Project Documents shall be deemed to be
binding on all Owners of Lots, their successors and assigns.
16.03. Notices. Any notice permitted or required by the Project Documents may be
delivered either personally or by mail. H delivery is by mail, it shall be deemed to have been
delivered 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 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.
16.04. Notice of Transfer. No later than 15 days after the sale or transfer of any Lot
under circumstances whereby the transferee becomes the Owner thereof, the transferee shall notify
the Association in writing of such sale or transfer. Such notice shall set forth:
(i) the Lot involved;
(ii) the name and address of the transferee and transferor; and
(ill) the date of sale.
uitless and until such notice is given, the Association shall not be required to
recognize the transferee for any purpose, and any action taken by the transferor as an Owner may
be recognized by the Association. Prior to receipt of any such notification by the Association, any
and all communications required or permitted to be given by the Association shall be deemed duly
given and made to the transferee if duly and timely made and given to said transferor.
16.05. Delivety of Project Documents to Transferee. Prior to the transfer of title to a
Lot, the transferor shall provide to the prospective transferee a copy of the Project Documents and
such other documents and information as are required by California Civil Code Section 1368.
16.1
16.06. Easements ReselVed and Granted. Any easements appurtenant to a Lot referred
to in this Declaration shall be deemed reselVed and/or granted by reference to this Declaration in
a deed to said Lot.
16.07. Termination of any Responsibility of Declarant. If Declarant shall convey all of
its right, title and interest in and to the Project to any partnership, individual or corporation, then
and in such event, Declarant shall be relieved of the performance of any further duty or obligation
hereunder, and such partnership, individual or corporation shall be obligated to perform all such
duties and obligations of the Declarant.
16.08. Mer~ers and Consolidations. To the extent permitted by law, the Association
may participate in mergers and consolidations with other non-profit organizations organized for
the same purposes as this Association, provided that any such merger or consolidation shall have
the written consent of all of the members or the assent by vote of two-thirds of the members voting
in person or by proxy at a meeting duly called for this purpose, written notice of which shall be
given to all members at least thirty days in advance, and must comply with the annexation
provisions contained in Section 3, incorporated herein by reference.
16.09. Limitation of Restrictions on Declarant. 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 any part or parts of the Project, such structures as may be reasonable and necessary
for the conduct of its business of completing said work and establishing said Project as a residential
community and disposing of the same in parcels by sale, lease, or otherwise; or
c. Prevent Declarant from conducting on any part of the Project its business of
completing said work and of establishing a plan of ownership and of disposing of said Project in
Lots by sale, lease or otherwise; or
d. Prevent Declarant from maintaining such sign or signs on any of the Project
as may be necessary for the sale, lease or disposition thereof, provided, however, that the
maintenance of any such sign shall not unreasonably interfere with the use by any Owner of his Lot
or the Common Area.
The foregoing limitations of the application of the restrictions to Declarant
shall terminate upon the sale of Declarant's entire interest in the Project, or three years after the
close of the first escrow, whichever occurs earlier.
Any action taken by Declarant pursuant to any provision of this Section will
not unreasonably interfere with the Owners' rights and use of the project.
16.10. Successor. The rights of Declarant in this Declaration may be assigned by
Declarant to any successor to all or any part of any Declarant's interest in the Project, as developer,
by an express assignment incorporated in a recorded deed that transfers any such interest to a
successor or to a Mortgagee acquiring Declarant's interest in the Project by foreclosure or by deed
in lieu of foreclosure.
16.2
16.11. Fair Housin~. 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, marital status, color, religion, ancestry, physical handicap or national origin.
16.12. Severability. Should any provision or portion hereof be declared invalid or in
conflict with any law of the jurisdiction where this Project is located, the validity of all other
provisions and portions hereof shall remain unaffected and in full force and effect.
16.13. 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 the Owner's Lot
is in violation of any of the provisions of this Declaration, the Articles, Bylaws, or Association
Rules;
(ii) the amount of regular and special assessments, including installment
payments, paid by the Owner during the fiscal year the request is received; and
(ill) 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 cost of collection 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 Articles, Bylaws, or Association Rules.
16.14. Conflict with Project Documents. If there is a conflict among or between the
Project Documents, the provisions of this Declaration shall prevail; thereafter, priority shall be
given to Project Documents in the following order: Articles, Bylaws, and Rules and Regulations of
the Association.
16.15. Headin~. The headings used in this Declaration are for convenience only and
are not to be used to interpret the meaning of any of the provisions of this Declaration.
IN WITNESS WHEREOF, Declarant has executed this Declaration.
DATED:
,1990
LATIMER VILLA, INC.
CALIFORNIA CORPORATION
By
Title
16.3
EXHIBIT "A"
DESCRIPTION OF PROPERTY SUBJEa TO DEC1..A.R.A.. nON
.All that certain real property situated in the City of Campbell, County of Santa Clara. State of
California, descnbed as follows:
Lots 1 through 4 inclusive, as shown on the Map entitled "Tract No.
", filed for record ,199Q in Book of Maps, at
Page , Santa Clara County Records. -
- .
EXHIBIT ".-\"